Terms of Use

All users of VmWare-Hosting's services, and all customers upon signing up for VmWare-Hosting's services, agree to comply with VmWare-Hosting's Terms of Use ("TOU"). The spirit of the TOU is to ensure customers are using VmWare-Hosting's services with due regard to the rights of other Internet users and in conformity with the requirements of VmWare-Hosting's network environment. The TOU are not exhaustive and VmWare-Hosting reserves the right to add, delete, or modify any provision of its TOU at any time without notice, effective upon either the posting of the modified TOU to www.vmware-Hosting.com or notification of the modified TOU. Any complaints about a customer's violation of the TOU should be sent to abuse@vmware-hosting.com. Except when expressly agreed to the contrary in writing by an authorized representative of VmWare-Hosting, this TOU supersedes any other agreement with VmWare-Hosting, whether written, oral, by conduct, or otherwise.
The following Terms of Use apply to VmWare-Hosting's customers:

Spamming

Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming") is prohibited, regardless of whether or not it overloads a server or disrupts service to VmWare-Hosting's customers. The term "spamming" also includes, but is not limited to, maintaining an open SMTP policy, engaging in spamming using the service of another ISP or IPP and referencing in the spam a Web site hosted on a VmWare-Hosting server, and selling or distributing software (on a Web site residing on a VmWare-Hosting server) that facilitates spamming. Violators will be assessed a minimum fine of $200 and will face immediate suspension. VmWare-Hosting reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.

Server Resources

Any Web site that uses a high amount of server resources (such as, but not limited to, CPU time, memory usage, and network resources) will be given the option to either pay additional fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade its service to a Dedicated Server plan. VmWare-Hosting will be the sole arbiter of what is considered to be a high server usage level. Any Web Hosting and Ecommerce account deemed to be adversely affecting server performance or network integrity will be shut down without prior notice.

Customer Security Responsibilities

The customer is solely responsible for any breaches of security affecting servers under customer control. If a customer's server is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the customer is responsible for the cost to rectify any damage done to the customer's server and any other requirement affected by the security breach.

Billing for Network Resources

The customer understands that the customer is responsible for paying for any network resources that are used to connect the customer's server to the Internet. The customer may request that the customer's server be disconnected from the Internet, but the customer will still be responsible for paying for any network resources used up to the point of suspension or cancellation.

VmWare-Hosting Services

VmWare-Hosting's services include, but are not limited to:
any act of preparing, setting up, connecting, maintaining, terminating, or reconnecting customers' account (including all billing data and the space on the particular Web server that VmWare-Hosting provides to customers);
any use by customers, or any access provided to customers by VmWare-Hosting, of computing, telecommunications, software, information, hardware, and equipment;
any act, or provision of any service, by VmWare-Hosting to customers, related to hosting (including server usage and technical support), regardless of duration and whether paid for or not;
any provision by VmWare-Hosting to customers, of any space, Internet connectivity, or electrical power;
any access or use related to the VmWare-Hosting's Web site, including the Web site itself;
any other service mentioned in the TOU;
any other service provided by VmWare-Hosting to customers, whether used or not;
any other VmWare-Hosting services that are used by customers, whether offered or provided by VmWare-Hosting to customers.

Ownership of Web Site

The legal owner of customers' Web sites and accounts with VmWare-Hosting will be the individual or organization whose name is listed in VmWare-Hosting's database as the owner. Customers will fully cooperate with and abide by any and all of VmWare-Hosting's security measures and procedures in the event of any dispute over ownership of customers' Web sites and accounts with VmWare-Hosting.

Illegal Use

VmWare-Hosting servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Additionally, in purchasing VmWare-Hosting services, all VmWare-Hosting customers certify that they and/or the organization they represent in procuring services from VmWare-Hosting are not, nor have been designated, a suspected terrorist as defined in Executive Order 13224; are not owned or controlled by a 'suspected terrorist' as defined in Executive Order 13224; and are not on, are not a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all updates thereto.

System and Network Abuse

Violations of system or network security are prohibited and may result in criminal and civil liability. Examples of system or network security violations include, without limitation the following: unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.

Viruses and Other Destructive Activities

Use of VmWare-Hosting's services or equipment for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any customer to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use VmWare-Hosting's services and equipment (or any connected network, system, service or equipment) or conduct their business over the Internet.

Copyright Violations

The Digital Millennium Copyright Act ("DMCA") sets forth the law regarding the use of copyrighted materials on the Internet. All VmWare-Hosting customers are subject to the requirements of the DMCA. Individuals or entities submitting notifications of copyright infringement by a VmWare-Hosting customer (per the DMCA) to VmWare-Hosting must follow the below procedures. Customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at VmWare-Hosting's sole discretion.
DMCA Copyright Infringement Notification Requirements:
Physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf (the "Claimant").
Identification of the copyrighted work(s) claimed to have been infringed.
Identification of the material claimed to infringe the copyright(s), and enough information for VmWare-Hosting to locate it including URLs and specific descriptions of the infringing material at each URL.
The Claimant's name, address, and telephone number(s).
A statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or his agent.
A statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner.
Send the notification via mail, email, or fax to:
The DMCA contains very specific guidelines as to what proper notification of claimed infringement must contain. Copyright owners may obtain a copy of the DMCA, including these guidelines, by visiting the web site of the U.S. Copyright Office at http://www.copyright.gov/title17/92chap5.html#512
VmWare-Hosting is not required to respond to notices that do not meet the requirements of the DMCA. Copyright owners should be aware that there are substantial penalties for false claims and that VmWare-Hosting will actively refer complainants who use the DMCA for improper purposes to relevant law enforcement agencies.
n the event that VmWare-Hosting must remove, or disable access to, material on your web site that is alleged to infringe another's copyright under the DMCA, you acknowledge and agree that VmWare-Hosting may do so by disabling access to your entire web site.
DMCA Counter Notification Requirements:
Physical or electronic signature of the Customer (ie., allegedly infringing web site's owner) or a person authorized to act on the Customer's behalf.
Identification of the copyrighted work(s) claimed to have been infringed.
Identification of the material claimed to infringe the including URLs and specific descriptions of the infringing material at each URL.
The Customer's name, address, and telephone number(s).
A statement under penalty of perjury that the Customer has a good faith belief that the material was removed or disabled or is a result of a mistake or misidentification.
A statement that the Customer consents to the jurisdiction of Federal District Court for the judicial district in which the Customer's address is located, or if the Customer's address is outside the U.S., for any judicial district in which the service provider may be found, and that the Customer will accept service of process from the complainant (or agent thereof).
Email the counter notification to legal@vmware-hosting.com.

Child Pornography

The use of VmWare-Hosting's services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. VmWare-Hosting is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, its services.

Privacy

VmWare-Hosting is concerned with the privacy of on-line communications and Web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, VmWare-Hosting urges its customers to assume that all of their on-line communications are insecure. VmWare-Hosting cannot take any responsibility for the security of information transmitted over VmWare-Hosting's facilities.

Customer Responsibility

Customers are required to use the VmWare-Hosting network responsibly. This includes respecting the other customers of VmWare-Hosting. VmWare-Hosting reserves the right to suspend and/or cancel service with any customer who uses the VmWare-Hosting network in such a way that adversely affects other VmWare-Hosting customers. While VmWare-Hosting may monitor its service electronically to determine that its facilities are operating satisfactorily, as a general practice, VmWare-Hosting does not monitor its customers' communications or activities to determine whether they are in compliance with the TOU. However, when VmWare-Hosting becomes aware of any violation of the TOU or other user agreements, VmWare-Hosting may take any action to stop or correct such violation, including, but not limited to, denying access to VmWare-Hosting's services and equipment or to the Internet. In addition, VmWare-Hosting may take action against a customer or a customer of such customer because of the activities of such customer. VmWare-Hosting anticipates that customers who offer Internet services will cooperate with VmWare-Hosting in any corrective or preventive action that VmWare-Hosting deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of VmWare-Hosting policy and VmWare-Hosting reserves the right to take any such action even though such action may affect other customers of the VmWare-Hosting customer.

Actions Taken by VmWare-Hosting

The failure by a customer to meet or follow any of the TOU is grounds for account deactivation. VmWare-Hosting will be the sole arbiter as to what constitutes a violation of the TOU. VmWare-Hosting reserves the right to remove any account without prior notice and to refuse service to anyone at any time. When VmWare-Hosting becomes aware of an alleged violation of its TOU, VmWare-Hosting will initiate an investigation. During the investigation, VmWare-Hosting may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, VmWare-Hosting may, at its sole discretion, restrict, suspend, or terminate a customer's hosting account and/or pursue other civil remedies. If such violation is a criminal offense, VmWare-Hosting will notify the appropriate law enforcement authorities of such violation. An unlisted activity may also be a violation of the TOU if it is illegal, irresponsible, or constitutes disruptive use of the Internet. VmWare-Hosting does not issue credits for outages incurred through service disablement resulting from TOU violations. Violators of the policy are responsible, without limitations, for the cost of labor to rectify any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by VmWare-Hosting.

Indemnification

VmWare-Hosting customers agree to protect, defend, hold harmless, and indemnify VmWare-Hosting, any third party entity related to VmWare-Hosting (including, without limitation, third party vendors), and VmWare-Hosting's executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and affiliates, from and against any and all liabilities, losses, costs, judgments, damages, claims, or causes of actions, including, without limitation, any and all legal fees and expenses, arising out of or resulting in any from the customer's use of VmWare-Hosting's services.

Disclaimer

The VmWare-Hosting service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. VmWare-Hosting expressly disclaims any representation or warranty that the VmWare-Hosting service will be error-free, secure or uninterrupted. No oral advice or written information given by VmWare-Hosting, its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. VmWare-Hosting and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service.

Termination for Bankruptcy or Insolvency

If a customer becomes insolvent or any bankruptcy petition is filed by the customer, or any third party against the customer, VmWare-Hosting may immediately terminate provision of VmWare-Hosting's services to the customer without prior notice or penalty. Such customer consents to the grant of relief from any automatic stay of proceedings against VmWare-Hosting in such event.

LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO THEORY OF LAW OR EQUITY, WILL VMWARE-HOSTING (INCLUDING, WITHOUT LIMITATION, VMWARE-HOSTING'S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING VMWARE-HOSTING'S SERVICES, BE LIABLE FOR THE LOSS OF A DOMAIN NAME, OR ANY BUSINESS OR PERSONAL LOSS, REVENUES DECREASE, EXPENSES INCREASE, COSTS OF SUBSTITUTE PRODUCTS AND/OR VMWARE-HOSTING SERVICES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF ANY USE OF, OR ANY INABILITY TO USE, ANY VMWARE-HOSTING SERVICES EVEN IF VMWARE-HOSTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VMWARE-HOSTING'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOU OR VMWARE-HOSTING'S SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY VMWARE-HOSTING OR VMWARE-HOSTING'S REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, WILL BE LIMITED TO, AND WILL NOT EXCEED, THE ACTUAL DOLLAR AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS DURING THE 3-MONTH PERIOD PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE.

Modifications

VmWare-Hosting may discontinue, upgrade, replace, modify, or change in any way, without limitation, any software, application, program, data, hardware, equipment, or portions or components thereof, used to provide customers with VmWare-Hosting's services. Certain changes to VmWare-Hosting's services may affect the operation of customers' personalized applications and content. Each customer is solely responsible, and VmWare-Hosting is not liable, for any and all such personalized applications and content, except as expressly agreed to by VmWare-Hosting.

Backup of Data

Except where VmWare-Hosting has expressly agreed in writing to the contrary, customers are solely and entirely responsible, and VmWare-Hosting is in NO way responsible, for the management and backup of all customer data, and all updates, upgrades, and patches to any software that customers use in connection with VmWare-Hosting services.

Third Party Licenses

VmWare-Hosting makes a reasonable effort to provide customers with technologies, developments, and innovations (collectively "Technologies"), part of which may be licensed, or co-branded, from or by, third party entities. However, VmWare-Hosting makes NO warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of such Technologies. Moreover, VmWare-Hosting specifically disclaims all warranties of merchantability and fitness for a particular purpose for such Technologies. Furthermore, no customer will hold VmWare-Hosting liable in any way for the revocation of any license, which has been licensed to VmWare-Hosting. The use of the Technologies obtained from or through VmWare-Hosting, or any other referred third party, whether directly or indirectly, is at the sole risk of customers.

Non-VmWare-Hosting Products

Any mention of non-VmWare-Hosting products by VmWare-Hosting, its employees, or any third party entity related to VmWare-Hosting is for information purposes only and does not constitute an endorsement or recommendation by VmWare-Hosting. VmWare-Hosting disclaims any and all liabilities for any representation or warranty made by the vendors of such non-VmWare-Hosting products or services.

VmWare-Hosting's Intellectual Property

Customers will not, without VmWare-Hosting's express written consent, copy, reproduce, republish, or otherwise use any material, in whole or in part, that is located on VmWare-Hosting's Web site, and customers will not use any of VmWare-Hosting's trademarks, service marks, copyrighted materials, or other intellectual property without VmWare-Hosting's express written consent. Customers will not, in any way, misrepresent their relationship with VmWare-Hosting, attempt to pass themselves off as VmWare-Hosting, or claim that customers are VmWare-Hosting.

Assignment

Customers may not assign or delegate their rights or obligations under the TOU or other agreement for VmWare-Hosting's services, either in whole or in part, without the prior written consent of VmWare-Hosting.

Minimum Age Requirement

VmWare-Hosting customers must be at least 18 years of age. Any individual under the age of 18 years ("Minor") must have a parent or guardian accept the TOU in order for the Minor to become a VmWare-Hosting customer. A parent or guardian who accepts the TOU on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the TOU, including the timely and full payment of the charges for VmWare-Hosting services, and such primary liability will continue even when the Minor has attained the age of 18, unless the parent or guardian obtains VmWare-Hosting's express written consent to the contrary. Any acceptance of the TOU or any other agreement for VmWare-Hosting's services will be deemed null and void to the extent that VmWare-Hosting will not be liable in any way as a result of the Minor's age or legal incapacity or the Minor's use of VmWare-Hosting's services.

Governing Law and Severability

The TOU, and any other agreement for VmWare-Hosting services, will be governed by and construed in accordance with the laws of the State of Illinois, USA without reference to its conflicts of laws principles. Any litigation or arbitration between a customer and VmWare-Hosting will take place in Illinois, and the customer will consent to personal jurisdiction and venue in that jurisdiction. If any provision or portion of the TOU or other VmWare-Hosting agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the TOU or the agreement will continue in full force and effect.

Force Majeure

VmWare-Hosting will not be liable for delays in its performance of the TOU or VmWare-Hosting services caused by circumstances beyond VmWare-Hosting's reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively "Force Majeure"). VmWare-Hosting will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of customers for the payment of money due.Waiver and AmendmentAny waiver, modification, or amendment of any provision of the TOU or other agreement for VmWare-Hosting services, initiated by a customer, will be effective only if accepted in writing and signed by an authorized representative of VmWare-Hosting.

Independent Contractors

Nothing in this Agreement will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between VmWare-Hosting and its customers. Each of VmWare-Hosting and its customers will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.

Construction and Interpretation

Wherever in this TOU the masculine, feminine, or neuter gender is used, it will be construed as including all genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires. The division of the TOU into sections/paragraphs, and the insertion of headings/captions, are for convenience of reference only and will not affect the construction or interpretation of the TOU. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the construction or interpretation of the TOU.

Complete Agreement and Exclusivity

The TOU, and/or any other specific agreement for VmWare-Hosting services, constitutes the complete understanding and agreement between VmWare-Hosting and its customers. Except when expressly agreed to the contrary in signed writing by an authorized representative of VmWare-Hosting, the TOU supersedes any other written (including digitized/computerized) agreement, oral agreement, and/or agreement by conduct. This TOU, and/or any other specific agreement for VmWare-Hosting services is between VmWare-Hosting and its customers only and will not confer any rights in any third party except as otherwise expressly provided by VmWare-Hosting.

Third Party Providers

You agree that certain services may be provided by third party providers of VmWare-Hosting and that your use of such services may be subject to further agreements, policies, terms, and conditions in addition to those contained or referenced in this Agreement.

Proxy Services

For domain name registration services where a third party provider is named in your place ("Proxy Services"), you agree that if VmWare-Hosting or the third party provider does not receive a response to a communication sent to you within 48 hours of such communication being sent, then the sender of such communication may, at its sole discretion, suspend or terminate the Proxy Services. If VmWare-Hosting provides the particular Proxy Services, then VmWare-Hosting reserves the right to suspend or terminate any or all of the services provided to you entirely in such event.

Revocation

VmWare-Hosting reserves the right to immediately suspend, terminate, transfer, or modify your domain name registration for reasons including (i) your breach of this Agreement, (ii) your use of the domain name registration services in a manner that is in contradiction of applicable laws or customarily acceptable usage policies of the Internet industry, including sending mass unsolicited commercial advertisements or otherwise spamming, making or sending threats, harassments or obscenities, (iii) your use of the domain name registration services in connection with unethical activity, (iv) VmWare-Hosting's receipt of an order from a court of competent jurisdiction or an arbitration award, or (iv) any other grounds that impose a legal risk to VmWare-Hosting as determined at its sole reasonable discretion. You agree that you shall not receive any refund whatsoever for any such suspension, termination, transfer, or modification to your domain name registration.