hosting terms of service
Last Updated: December 11, 2014
This service agreement (“Agreement”) is between KABAM, Inc. dba AbleSpark (“AbleSpark”, “us”, “we”, or “our”) and the Client (“you” or “your”). This Agreement sets forth the terms and conditions under which AbleSpark agrees to provide, and you agree to use, AbleSpark’s Internet Services (“service” or “services”).
You agree that by completing AbleSpark’s on-line registration process, or by providing verbal assent to an agent or employee of AbleSpark, or by signing a written agreement form, or by beginning or continuing to use AbleSpark’s services, you consent to be bound by and do become a party to this Agreement.
In addition, you agree to comply with any amendments to this Agreement for which you receive notification by continuing the use of services after receiving such notification (see Amendments). The current and binding terms of this Agreement are set forth on AbleSpark’s web page at http://www.ablespark.com.
If at any time you do not agree or no longer agree to comply with the terms of this Agreement, you are not authorized to use AbleSpark’s services. If at any time you do not agree or no longer agree to comply with any amendment which was not part of this Agreement at the time you purchase services, you have the right and duty to terminate this Agreement pursuant to the client termination procedure provided herein (see Termination by Client).
You agree to provide AbleSpark with accurate and complete contact information. Contact information means any data relating to your identity, electronic mail, and street address, or telephone and fax number, or any other information that you provide to AbleSpark in order to receive or to continue receiving services. Further, you agree to provide AbleSpark with updated contact information within thirty (30) days following the change in circumstance that creates the need for updated information.
BILLING AND INVOICING
You agree to accept electronic delivery of all invoices including (but not limited to) e-mail notification and the posting of your invoices in AbleSpark’s online billing system. Failure to pay any invoice prior to its due date may result in late fees, account suspension, account termination, or other actions as deemed appropriate by AbleSpark. AbleSpark reserves the right to charge a convenience fee to provide non-electronic invoices ($15 per invoice as of January 1, 2010).
PERIOD OF SERVICE
You agree to pay for the period of service you select at the time you purchase services. You agree that it is your responsibility to review your service invoice within a reasonable period after receiving a copy, to ensure that the invoice actually indicates the period of service you requested. If not, it is your responsibility to immediately notify AbleSpark to amend the invoice to indicate the period of service you requested. Your period of service commences on the date on which your account is activated.
TERM OF AGREEMENT
The term of this Agreement will continue until a notice of cancellation by AbleSpark or the Client is given, or until terminated under other provisions of this Agreement. AbleSpark reserves the right to terminate this Agreement without cause upon notification to the Client. AbleSpark may further terminate this Agreement immediately without notice at any time the Client breaches any part of this Agreement, or if any program or facility used by AbleSpark to implement this Agreement is disrupted or terminated for any reason.
RENEWAL OF SERVICE
Unless specified otherwise, all accounts will renew automatically at the end of the period corresponding to the plan that you select when you purchased services. If you do not wish to renew your account, you must follow the steps outlined in the “Termination by Client” section of this agreement.
TERMINATION BY CLIENT
To terminate your services, please submit via postal mail or via fax a letter in which you set forth your username, real name, contact information, signature, and reason for termination. All cancellation requests must be received by AbleSpark at least 10 days prior to your account renewal. You must have all account information to cancel. Upon receipt of your notice of termination, your account will be terminated and you will not be liable for any future service fees. By terminating your service, you agree that you have received all services, rights, and other obligations owed to you by AbleSpark under this Agreement.
TERMINATION BY ABLESPARK
AbleSpark reserves the right to terminate your services at any time without notice, refund, or compensation to you in the event that in AbleSpark’s sole discretion you:
- Do anything that would tend to damage the good name or standing in the community of AbleSpark or its affiliates, subsidiaries, or partners.
- Treat our employees, subsidiaries, or partners in an abusive or threatening manner.
- Violate any of the other terms or conditions of this Agreement.
- Interfere unreasonably with other Client’s use and enjoyment of services provided by AbleSpark.
- Fail to tender payment for any services provided by AbleSpark or its affiliates, subsidiaries, or partners.
- Allow your domain to be used for pornography, sex-related merchandising, links to pornography or sex-related merchandising, promoting illegal activity or content, sites containing nudity, or sites that may be considered detrimental to the public health, safety, or welfare.
AbleSpark will be the sole arbiter as to what constitutes a violation of this provision, and reserves the right to deactivate any domains at any time for any reason without refund! Violators of this policy may be subject to a $250 per hour charge for administration and investigation costs.
ACCEPTABLE USE OF SERVICES
You are solely responsible for the use of your purchased services (whether by you or by anyone that you authorize to use your service). AbleSpark is not obligated to monitor or examine the use of your service. You hereby acknowledge that if AbleSpark is made aware of any content or action that is determined to be, in AbleSpark’s sole discretion, a violation of our Acceptable Use of Services policy, AbleSpark has the right, but not the obligation, to edit, remove, or deny access to such content or services without notice. AbleSpark may disclose any content or records concerning your account as required to satisfy any law, regulation, governmental request, or court order.
You agree to conform your use of our services to reasonable standards of conduct generally accepted and applied to users in our community including but not limited to the following:
- Client Content
All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data, or material in violation of any United States Federal, State, or City law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, or material protected by trade secret or other statue.Pornography, sex-related merchandising, or links to pornography or sex-related merchandising is also prohibited on any AbleSpark server. Sites and links to sites that promote any illegal activity or content that may be damaging to AbleSpark’s servers or any other server on the Internet is also prohibited. This includes, but is not limited to: pirated software, bulk e-mail related products, pornography, nudity, adult content, hacking/cracking related websites, Warez and/or copyrighted MP3s, illegal material, material that is against public policy, and sites containing or linking to material that may be considered detrimental to the public health, safety, or welfare (such as, but not limited to, Anarchist Cookbook, bomb making, weapon information, or anything else that may be considered detrimental or illegal).AbleSpark will be the sole arbiter as to what constitutes a violation of this provision, and reserves the right to deactivate and remove any site at any time for any reason without refund! Violators of this policy may be subject to a $250 per hour charge for administration and investigation costs.
- Unsolicited E-mail (SPAM)
SPAMing, or the sending of unsolicited e-mail, from any AbleSpark server or using a return e-mail address that is maintained on a AbleSpark server is STRICTLY prohibited. Using spam to advertise a site hosted on AbleSpark network also constitutes as a violation of this provision. AbleSpark will be the sole arbiter as to what constitutes a violation of this provision. Sites found to be in violation of our SPAM policies will be immediately deactivated and no refund will be issued.Violators of AbleSpark’s Unsolicited E-mail policy may be subject to a $100 per message charge for administration and investigation costs.
- Server Abuse
Any attempts to undermine or cause harm to a AbleSpark server or customer of AbleSpark is strictly prohibited.AbleSpark will be the sole arbiter as to what constitutes a violation of this provision. Customers found in violation of this provision will be subject to account deactivation without refund. AbleSpark will turn all available information about abuse incidents, including customer contact data, over to the proper authorities and press charges.
- System Resource Usage
If AbleSpark determines that a customer’s account is utilizing an unacceptable amount of system resources, AbleSpark may temporarily deactivate the account in question. If AbleSpark deems necessary, an eviction notice may be sent to the customer of an offending account providing them with ten (10) days in which to either upgrade to a dedicated server or locate a new provider.AbleSpark will be the sole arbiter as to what constitutes a violation of this provision. Because of the nature of this provision, each account will be considered and analyzed individually.
- Background Running Programs (bots/daemons/monitors)
Background daemons and/or programs are prohibited on AbleSpark’s service.
- IRC (Internet Relay Chat)
AbleSpark does not allow IRC or IRC bots to be operated on our servers. Any account found to be in violation of this provision will be immediately suspended and/or deactivated and no refund will be issued.
- Cron Jobs
We do allow Cron Jobs to be conducted on our servers.
- Shell Access
Shell access is provided on an as-needed basis. It does not come enabled on accounts by default. A request for this feature must be made before it can be used. The request must include a domain name, username, and an explanation of why shell access is required. We reserve the right to refuse this service to any client for any reason.
- Web Applications and Web Accessible Scripts
To help prevent resource and security issues, Clients are expected to keep any and all software, applications, and scripts used on or in conjunction with AbleSpark’s service updated and secure. If you need help determining what version of a particular software, application, or script you should be running, please contact us so that we can assist you in determining your needs. AbleSpark reserves the right set minimum requirements for any and all software, applications, and scripts used on or in conjunction with our service.If AbleSpark determines that a Client’s account is utilizing software, applications, or scripts that may by harmful to its clients or operations for any reason, AbleSpark may temporarily deactivate the account in question without notice. If AbleSpark deems necessary, an eviction notice may be sent to the customer of an offending account providing them with ten (10) days in which to either correct the issue, upgrade to a dedicated server, or locate a new provider.AbleSpark will be the sole arbiter as to what constitutes a violation of this provision. Because of the nature of this provision, each account will be considered and analyzed individually.
Clients are responsible for maintaining their own backups on their own computers. While AbleSpark’s service includes periodic backups, these backups are for AbleSpark’s administrative purposes only and are in NO WAY GAURANTEED! AbleSpark does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly (even if the malfunction was due to negligence on AbleSpark’s part). AbleSpark will do its best to ensure complete and accurate backups, but we assume no responsibility for this duty. Always back up your site onto another computer. AbleSpark makes no guarantees about the availability of our periodic backups.AbleSpark does provide an optional backup service that may be used for maintaining individual client backups. Please contact us for more information on our individual client backup options.
- Other Activities
You agree not to use our service to engaging in activities, whether lawful or unlawful, that AbleSpark determines to be harmful to its clients, operations, reputation, goodwill, or customer relations.
In the event that you default in any provision or fail to perform pursuant to this Agreement, AbleSpark will be entitled to damages, costs, and attorney’s fees from you.
ABLESPARK DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ABLESPARK BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, EVEN IF ABLESPARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY
YOU AGREE THAT ABLESPARK WILL NOT BE HELD LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT THAT YOU PAID TOO ABLESPARK FOR SERVICES UNDER THIS AGREEMENT.
NO LIABILITY FOR CLIENT ACTIONS
You agree that AbleSpark is not responsible for any action taken by you while using your services. You agree to take full responsibility for any action performed using your services (whether the action is performed by you or by any authorized or unauthorized third-party user of your services). You agree to defend, release, indemnify, and hold harmless AbleSpark, its affiliated companies, service providers, and licensors from all liabilities, claims, and expenses, including attorney’s fees, arising from any use, authorized or unauthorized, of your services.
You agree and understand that temporary interruptions may occur as normal events in the provision of service. Under no circumstances shall AbleSpark be held liable for any financial or other damages due to such service interruptions.
CONTENT PROVIDED BY ABLESPARK
You agree that all information provided through your use of services is provided “AS IS”; that AbleSpark’s link to a web site does not, in any way, represent or imply an approval of, or a determination of the quality of that product or service; that any links provided by AbleSpark are maintained by their respective organizations, which are solely responsible for their content. You agree to hold AbleSpark harmless for any and all damages arising out of use of such products, services, or links.
You agree that AbleSpark is not responsible for delays, damages or failures in performance due to causes beyond AbleSpark’s reasonable control, including but not limited to acts of a governmental body; acts of God; acts of third parties; fires; floods; strikes or other labor-related disputes; or an inability to obtain necessary equipment or services.
You agree that AbleSpark’s failure at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder, or at law or equity, or to exercise any option herein provided, shall in no way be construed to be a waiver of such provisions, rights, remedies, or options or in any way to affect the validity of this Agreement. The exercise by AbleSpark of any rights, remedies, or options provided hereunder, or at law or equity, shall not preclude or prejudice AbleSpark from exercising thereafter the same or other rights, remedies, or options.
You agree that this Agreement is the entire agreement between you and AbleSpark regarding the subject matter of this Agreement; and supersedes all prior representations, understandings, or agreements regarding the subject matter of this Agreement.
You agree that if any of the terms or conditions in this Agreement are properly found to be invalid or unenforceable by a government body, the remaining terms or conditions of this Agreement shall not be affected by the finding and shall continue to apply.
AMENDMENTS TO AGREEMENT
AbleSpark reserves the right to amend this Agreement at any time. You agree to comply with any amendments to this Agreement for which you receive notification by continuing to use the services after receiving such notification. Notification means that the amendment is made accessible to you by its incorporation into AbleSpark’s website located at http://www.kabam.net.
You agree that it is your responsibility to periodically review the AbleSpark website to ensure that your use of the services complies with any amendments.
CHOICE OF LAW
This Agreement shall be treated as though it were executed and performed in Davidsonville, in Anne Arundel County, Maryland, and shall be governed by and construed in accordance with the laws of the United States of America and of the State of Maryland, without regard to conflict of law principles. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. All legal proceedings arising out of or in connection with this Agreement shall be brought solely in a court of competent jurisdiction in Anne Arundel County, Maryland. The Client expressly submits to the jurisdiction of said courts; and the Client consents to extra-territorial service of process.
AbleSpark insures that all personal information submitted to us in processing your order and for billing purposes, etc., will be kept strictly confidential and used solely by AbleSpark, its representatives and employees, for the purposes for which it was intended. AbleSpark agrees not to share or release such information to any individual, entity, or third party, without the consent of the subscriber, except as required by law, regulation, or governmental authority.