WEB HOSTING SERVICE AGREEMENT & ACCEPTABLE USE POLICY

This Web Hosting Service Agreement and Acceptable Use Policy (“Agreement”) sets forth the terms and conditions of your use of Fidelihost LLC an Alabama limited liability company (“Fidelihost” or “we”) for web hosting services, for registration of a domain name on the Internet and/or for rental of space on our dedicated servers. By ordering (whether online, by mail, by phone or otherwise) or using our services in any way you are agreeing to be bound by the terms and conditions of service below. To become a Fidelihost account holder,(“Customer” or “you”), you agree to be bound by all terms and conditions of this Agreement, the fee schedules on the Online Order forms and any policies that are or may be published by Fidelihost.  You further certify that you are at least 18 years of age and have the legal capacity to enter into this Agreement. Notwithstanding the foregoing, all orders are subject to acceptance by Fidelihost.   

1.       Scope of Services and Your Obligations

1.1     The Services. This Agreement defines the terms and conditions of Fidelihost’s services as offered by Fidelihost and used by the Customer, including the provision of web hosting services on Fidelihost’s servers, connectivity to the Internet  and if applicable, domain name reservation (the “Services”). Fidelihost will provide the Services for the amount of server storage space selected in exchange for payment of fees and full compliance with the terms and conditions of this Agreement. In performing the Services, Fidelihost maintains control and ownership of any and all Internet protocol (“IP”) numbers and addresses that may be assigned to you and reserves the right to change or remove any and all IP numbers and addresses at its sole discretion.

1.2          Control Panel. As part of the Services, upon payment of the hosting fees and any non-refundable set-up or domain name registration fee, Fidelihost will also provide you access to your web-based control panel (the “Control Panel”) containing links to your payment history, summaries of the Services you have chosen, newsletters and other current information relating to the Services. 

1.3          Upload Materials. You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the “Upload Materials”) to your website, and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials will function properly and as intended. You are responsible for all activities originating from your website.  You assume responsibility for all material on your website that may be put on by a third party (such as the usage of Free For All links pages). Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols, and software, which can vary depending on your anticipated use and desired content of your website, and includes, but is not limited to, the following: web publishing requires knowledge of HTML, properly locating and linking documents, FTPing web contents, graphics, text, sound, image mapping, etc.; FrontPage web publishing requires knowledge of the FrontPage tools as well as Telnet and FTP understanding and capability; CGI-scripts requires knowledge of the UNIX environment, tar & gunzip commands, Perl, CShell scripts, PHP, Python, permissions, etc.; and mail requires knowledge of use of mail clients to receive and send mail, etc. You acknowledge that you have the necessary knowledge to create, modify and maintain your website. Fidelihost assumes no responsibility to provide you with such knowledge.  Customer assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party websites, (b) the accuracy of the Upload Materials on the website, including, without limitation, Customer content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Upload Materials do not infringe or violate any right of any third party.

1.4     Tools. In connection with the Services, Fidelihost may provide for your use certain tools and software, including, but not limited to, certain specialty scripting software and/or certain programming language software for designing websites (collectively, the “Tools”). Access to these Tools may be accessed via your Control Panel. These Tools are copyrighted and proprietary property owned by Fidelihost.

1.5          Proprietary Rights.  Without limiting the generality of the foregoing, all materials, including but not limited to any computer software (in object code and source code form), the Tools, the Control Panel, data or information developed or provided by Fidelihost or its suppliers under this Agreement, and any know-how, methodologies, equipment or processes used by Fidelihost to provide the Services to Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein or appurtenant thereto (collectively, “Fidelihost Materials”) shall remain the sole and exclusive property of Fidelihost or its suppliers.  To the extent, if any, that ownership of the Fidelihost Materials does not automatically vest in Fidelihost by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to Fidelihost all rights, title and interest which Customer may have in and to the Fidelihost Materials.  Customer acknowledges and agrees that Fidelihost is in the business of hosting websites, and that Fidelihost shall have the right to provide third parties services which are the same or similar to the Services and to use or otherwise exploit any Fidelihost Materials in providing such services.  To the extent that such Fidelihost Materials are provided to you, you are granted a nonexclusive, non-transferable license to use the Fidelihost Materials in object-code form only for your internal use, solely in connection with the Services provided under this Agreement.  You shall have no right and agree not to modify, reverse engineer or duplicate the Fidelihost materials or any portions thereof.

1.6     Data Back-Ups.  For server restoration purposes only, Fidelihost makes back-ups of websites and databases weekly, and back-ups of new/changed data nightly; however, Fidelihost makes no guarantees of any kind, either expressed or implied, as to the integrity or accuracy of these back-ups. You are solely responsible to maintain local copies of your website. If loss of data occurs solely and directly due to an error of Fidelihost and you notify us immediately of such loss of data, Fidelihost will undertake commercially reasonable efforts to attempt to recover the data for no charge. Otherwise, upon your written request and subject to archive availability and Fidelihost’s ability to do so (in its sole discretion), Fidelihost will attempt to recover the data from the most recent archive for a $25 fee.

1.7          Monitoring the Services.  Fidelihost reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its accountholders or for any other reason it in good faith deems necessary. Fidelihost will fully cooperate with law enforcement authorities in investigating suspected lawbreakers and reserves the right to report to law enforcement any suspected illegal activity of which it becomes aware.

1.8     CDA and DMCA.  It is not Fidelihost’s intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (the “CDA”) or any other applicable law.  You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the “DMCA”) and acknowledge that Fidelihost is a “service provider” under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. § 512. Consistent with the DMCA, Fidelihost will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, Fidelihost has a policy of terminating accountholders who infringe copyright.

1.9     No Endorsement or Approval of Websites.  Websites are unmodified forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics. Neither the content of websites located on Fidelihost’s servers nor the links to other websites are screened, approved, reviewed or endorsed by Fidelihost. Fidelihost is not a publisher of any of the content of websites, or of any content that may be available through the links to and from them, and is acting solely as an Internet web-hosting service provider. The text and other material on such websites are the opinion of the specific author and are not Fidelihost’s statements of advice, opinion or information.

1.10    Users.  Customer understands, acknowledges and agrees that by using the domain on or any service of Fidelihost , Customer and its users ratify and are bound by this Agreement and you are responsible for ensuring your users comply with the terms and conditions contained herein, including without limitation, any use restrictions.   Any agent (including without limitation, a webmaster, internet service provider or employee) acting on Customer’s or user’s behalf, represents and warrants to Fidelihost that the agent is authorized to bind Customer hereto and that it has fully and thoroughly advised Customer of the terms and conditions of this Agreement.  You agree that if you license the use of your domain name to a third party, you remain the domain name owner, and remain responsible for all obligations under this Agreement.

1.11          Availability.  Fidelihost will exercise commercially reasonable efforts to make website accessible to third parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Services due to causes beyond the control of Fidelihost or which are not reasonably foreseeable by Fidelihost, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures.  In the event of any loss or interruption of Services, Customer’s sole and exclusive remedy and Fidelihost’s sole and exclusive liability for any loss or interruption of Services shall be as follows:  for loss or interruption of Services which is due to (i) causes other than scheduled maintenance and required repairs, or (ii) causes beyond the control of Fidelihost, or (iii) causes which are not reasonably foreseeable by Fidelihost, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future Services equal to a pro-rata portion of Services fees for the period of downtime (which shall be a pro-rata portion of the Services fees for the Payment Interval selected by Customer for the Services).

1.12          Refusal of Service.  Fidelihost shall be the sole arbiter of what is and is not a violation of these terms and conditions, including, without limitation, the acceptable use policies. Fidelihost reserves the right to terminate any account at any time and for any reason. Fidelihost reserves the right to delete all content and files upon termination.  Fidelihost reserves the right to withhold any pre-paid funds for any site removed for violations of these policies.  Fidelihost reserves the right to refuse, cancel, or suspend service at our sole discretion.

2.           Limited Warranty; Limitation of Liability; Indemnification

2.1          Limited Warranty.  You acknowledge that the Services are provided “as is.” Neither Fidelihost, nor any of its managers, members, employees or agents, warrant that the Services will be uninterrupted, error free or free from viruses or other harmful components. Fidelihost is not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, validity and/or completeness of the data or the services, including without limitation any implied warranties of noninfringement, merchantability or fitness for a particular purpose of THE SERVICES OR information available on its servers or residing on or passing through its interconnecting networks.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FIDELIHOST, OUR AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.  Use of information obtained from or through the Services is at your risk. Under no circumstances will Fidelihost be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the Services.

2.2           Limitation of Liability.  FIDELIHOST SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (“SPECIAL DAMAGES”) EVEN IF FIDELIHOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,Fidelihost shall not be responsible for any claimed damages, including SPECIAL damages, which may arise from Fidelihost’s servers going off-line or being unavailable for any reason whatsoever. Further, Fidelihost shall not be responsible for any claimed damages, including SPECIAL damages, resulting from the corruption or deletion of any website from one of Fidelihost’s servers. All damages shall be limited to the immediate termination of your service and a pro-rated refund of any pre-paid fees, exclusive of set-up fees and if applicable, the domain name registration fee, which fees are non-refundable. In no event shall Fidelihost’s maximum liability UNDER THIS AGREEMENT exceed the total amount actually paid by you to Fidelihost for the Services during the prior twelve (12) months. To the extent applicable state law does not allow the limitation of liability for consequential or incidental damages, Fidelihost’s  liability is limited to the maximum extent permitted by law.

Fidelihost will not be held responsible for any problems that a customer’s user(s) may have. We will exercise commercially reasonable efforts to make your website available on the internet. However, we disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of God; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; (7) loss or liability resulting from the development or interruption of your Website; (8) loss or liability from your inability to use our mail service; or (9) loss or liability from the use of our mail service; or (10) loss or liability that you may incur in connection with our processing of your application for our Services, our processing of any authorized modification to your domain name registration record or your failure to pay any fees, including, if applicable, the initial DOMAIN NAME registration fee or DOMAIN NAME renewal fee.

2.3          Indemnification. You agree to indemnify, defend and hold Fidelihost and its affiliates, managers, members, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys’ fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto Fidelihost’s servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business: (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to Fidelihost’s equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s), your user(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by Fidelihost’s gross negligence or wilful misconduct;  (d) any other damage arising from your equipment or your business; or (e) any breach of any representation or warranty made by you under this Agreement.

3.          Payment of Fees – Billing

3.1     Fees for Services Packages.  A listing of the current fees for the Services packages are set forth on http://www.fidelihost.com/web-hosting-usa/reliable-hosting.html.  Customers can elect to pay for such Services packages on a monthly or annual basis (each, a “Payment Interval”).  Monthly Services packages are subject to a $20 non-refundable set-up fee.  Payments must be submitted in advance of receiving the Services.

3.2     Billing Information. You agree to provide Fidelihost with accurate and complete billing information, including your legal name, address, telephone number, e-mail address and applicable payment date and to update this information immediately if any change occurs. You must secure your account with a valid credit card.  Upon your authorization on the Online Order form, the initial fee (including any set-up fees and if applicable, a domain name registration fee) and any additional fees or renewal for a subsequent Payment Interval shall be debited automatically from the credit card used to secure the account; otherwise, Fidelihost will charge the credit card only as instructed by you or if your account is delinquent.

3.3          Accepted Payment Methods.  All fees shall be paid in US dollars.  Visa, MasterCard, American Express, Wire Transfer and Checks drawn on US banks are acceptable payment methods. (Please note: a  US $15.00 charge applies to returned checks due to insufficient funds)

3.4          Invoice.  If you do not elect to automatic debit of your credit card for fees due hereunder, Fidelihost will invoice you by e-mail for fees incurred under your contract.  You agree to pay the invoice within 2 weeks of the invoice date. We send invoices to the email address we have on file so please keep your contact information current.  If you elect automatic debit of your credit card, you agree that you will be responsible for keeping up with when your next billing date is and will be responsible for having the funds available when your card is billed for your next term.

3.5     Taxes.  Client shall pay or reimburse Fidelihost for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Fidelihost under this Agreement; excluding, however, income taxes on profits which may be levied against Fidelihost.

3.6          Modification of Fees or Packages by Fidelihost.  Fidelihost will publish a notice of fee increases on its website 30 days before such increases take effect. Fidelihost also reserves the right to change the packages that we offer in any way. We will exercise reasonable efforts to publish a notice on our website 30 days before any package change, but we shall have no obligation to do so.

3.7          Modification of Packages by Customer.   In the event you decide to modify the annual package you selected, you shall notify us in writing and your account will be credited on a pro-rated basis for any unused portion of pre-paid fees and the new annual package will be billed for twelve months.  By way of illustration, if you select the 1-year plan for fideliBronze Services package and after two months determine that you need additional bandwidth and notify us in writing that you wish to upgrade to the fideliGold package, then Fidelihost will credit to your account the cost of ten months of fideliBronze Services (based on the annual fee for fildeliBronze) and charge to your account the cost of twelve months of fideliGold Services (based on the annual fee for fideliGold).  Upon payment of the difference, Fidelihost will make the upgraded package available to you.  If you decide to downgrade your Services package, a similar calculation will be made; provided, however, any overpayment will not be refunded, but instead be used to offset future Services fees under the account.  By way of illustration if you select the 1-year plan for fideliGold Services package and after two months determine that you do not need the bandwidth provided and notify us in writing that you wish to downgrade to the fideliBronze Services package, then Fidelihost will credit to your account the cost of ten months of fideliGold Services (based on the annual fee for fideliGold) and charge to your account the cost of twelve months of fideliBronze Services (based on the annual fee for fideliBronze).  As mentioned above, any positive credit balance on your account will be used to offset other Services fees associated with your account.  The same principle will be applied if you are a monthly accountholder.  If you decide to upgrade or downgrade your monthly package, your account will be credited for the remaining days of the monthly service for the package you previously selected and your account will be charged for one month of the newly selected package.  For the purposes of this Section 3.7, all pro-rated amounts will be calculated on a per-day basis.

3.8          Delinquent Accounts.  Delinquent accounts are those that remain unpaid at the beginning of the next Payment Interval. The Services will be suspended if your account is delinquent, and Fidelihost will insert a message at your website notifying users that the account has been suspended. In addition, failure of Customer to fully pay any fees within ten (10) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Fidelihost, and will be sufficient cause for immediate termination of this Agreement by Fidelihost.  Any such suspension does not relieve Customer from paying past due fees plus interest at a rate of 1.5% per month or if less, the maximum allowable by law and in the event of collection enforcement, Customer shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs and collection agency fees.  New accounts for which payment has not been received are subject to suspension after 10 days. Accounts for which payment is not remitted 10 days past suspension will be deleted from our servers. In the event a Customer requires files from a deleted account, a $50 backup fee will apply if a suitable backup can be found. There is no guarantee that a suitable backup will be found after an account has been deleted.  You acknowledge responsibility for your account until payment in full is made.

3.9          Renewal.  By not canceling before the beginning of the next Payment Interval, you are agreeing to renew the Services and authorize Fidelihost to invoice you or if you have elected automatic debit of your credit card, to charge your card at that time, and we are not responsible for any non-sufficient charges or service charges that your account may incur if funds are not available when we charge your account.

3.10          Chargebacks/Credit Card Disputes.  If you dispute the credit card charge that we charge for our Services, we reserve the right to suspend your website as soon as we are informed of it. Please contact us at 1-888-932-3433 to talk over a credit card charge if you feel that there is a mistake before you contact the credit card company.

3.11          Refund Policy for Cancelled Accounts.

a.       On new accounts that are cancelled within 30 days of the original order date, we will give a full refund of the hosting fees.  Set-up fees and if applicable, domain name registration fees are non-refundable. Please note: This offer applies only to new accounts opened, and not on subsequent re-openings of the same account.

b.       For the cancellation of annual prepaid accounts we will refund the unused portion of hosting fees if at the time of cancellation the remaining term of Services is equal to one month hosting or more; if the account is cancelled after 5 days into the final month of the annual term, no refund will be issued.

c.       For monthly pre-paid accounts we only refund unused hosting fees if the account is cancelled before or on the first day of the billing cycle. If the account is cancelled within 5 days of the first day of the billing cycle AND the cancellation form includes a request to refund remaining fees if any are available, a credit may be issued upon our approval, in our discretion. If the account is more than 5 days into the billing cycle, no refund is issued.

d.           Refunds for reseller accounts are handled as regular monthly accounts, as outlined in item Section 3.11(c) above; provided, however, any refund amounts that are the result of a reseller account being cancelled will be applied as a credit to the reseller’s primary hosting account. If a refund for an annually prepaid resold account needs to be issued to the credit card on which it was charged, this must be requested on the form at the time of cancellation.

e.       All requests for refunds of hosting fees in the last month of your contract are subject to approval by our billing manager, in our sole discretion.

f.        Due to the costs of setting up and canceling accounts, if you have cancelled any account with Fidelihost more than 2 times, we may request that you either sign and fax in a yearly contract or pay a $20.00 non-refundable set-up fee for each additional account that you set up.

4.          Acceptable Uses

You are responsible for all use of your website, with or without your knowledge or consent.  Violations of Fidelihost’s acceptable uses may result in criminal and civil liability. Fidelihost will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. We reserve the right to investigate files in a Customer’s account at any time if we have any reason to suspect there may be activities or network security violations Fidelihost reserves the right to report illegal activities to any and all regulatory, administrative, and/or governmental authorities for prosecution.

4.1          Compliance with Laws.  All services provided by Fidelihost 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, City or Local law is prohibited. Such violations include, but are not limited to, drug dealing; attempting without authorization to access a computer system; pirating (distributing copyrighted material in violation of copyright law, specifically MP3s, MPEGs, ROMs, and ROM emulators); gambling; schemes to defraud; trafficking in obscene material; sending a message or having content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; threatening bodily harm or damage to individuals or groups; violating U.S. export restrictions; stalking; or violating other state or federal law, such as the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, or the Economic Espionage Act.  Sites that promote any illegal activity or present content that may be damaging to Fidelihost servers or any other server on the Internet are prohibited. Links to such materials are also prohibited.

Examples of unacceptable content or links:

• Pirated software
• Hacker / Cracker programs or archives
• Warez sites

The above listing is not complete by any means. Fidelihost will be the sole arbiter as to what constitutes a violation of this provision.

If links to any offending sites are found, we will ask you to remove them and if you do not comply, we will remove your account from our server. Fidelihost has the complete right to ask anyone to leave for any offending reason at our discretion. At Fidelihost’s discretion, access to Fidelihost’s system (and your account) may be revoked at any time for abusive conduct on the system and/or the Internet and its resources as a whole.

4.2     Use and Misuse of Materials.  Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Services. You may also re-distribute materials in the public domain. You assume all risks regarding the determination of whether the material is in the public domain.

You are prohibited from storing, distributing or transmitting any unlawful material through the Services. Examples of unlawful material include, but are not limited to, threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization.  You may not post, upload or otherwise distribute copyrighted material on Fidelihost’s servers without the consent of the copyright holder.

Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data: server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network; attempts to circumvent any user authentication or security of host, network, or account; accessing data not intended for user; probing the security of any network; spawning dozens of processes; port scans, ping floods, packet spoofing, and forging router information; denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of viruses; and IRC bots, such as eggdrop or BitchX.

4.3     Email Use.  The following terms and conditions shall apply to all e-mail use under your account, whether sent by you or users of your website.

Unacceptable affronts to netiquette and unacceptable activities with regards to e-mail use may result in immediate cancellation of the Services and deletion of your website; such activities include, but are not limited to, the following:

• Spamming (sending unsolicited advertising to those with which you have no existing business relationship and posting off-topic advertising in newsgroups), or the sending of unsolicited e-mail or message board posts including, without limitation, commercial advertising and informational announcements, from our server(s) or using an e-mail address or domain that is maintained on Fidelihost machine as reference in that spam is STRICTLY prohibited.  Domains and sites which spam are subject to being cancelled immediately off of our server. A user shall not use another site’s mail server to relay mail without the express permission of the site. Fidelihost will be the sole arbiter as to what constitutes a violation of these provisions.
• Spoofing (using a return email address that is not the valid reply address of the sender or sending an email message that does not contain enough information to enable the recipient to identify you);
• Passive spamming (promoting a website hosted by Fidelihost by spamming from some other source);
• Trolling (posting controversial messages in newsgroups to generate responses);
• Mailbombing (inundating a user with email without any serious intent to correspond or sending large or multiple files to a user); generating a higher volume of outgoing mail than a normal user (over 10% of available system resources);
• Propagating chain letters; and subscribing someone else to an electronic mailing list without that person’s permission. A message is considered unsolicited if it is posted in violation of a newsgroup charter or sent to a recipient who has not requested the message. Making an email address available to the public does not constitute a request to receive messages.
• Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed.
• Mailing lists may not be used to distribute unsolicited email. If you are repeatedly mail bombed or attract such behaviour, the Services will be terminated.

You should not send email to any user who does not wish to receive it, either at Fidelihost or elsewhere. Fidelihost recognizes that email is an informal medium; however, you must refrain from sending further email to a user after receiving a request to stop.

Fidelihost reserves the right to zip (compress) any customer email box that exceeds 50 megabytes in size. Customers with zipped boxes will be notified and instructed on how to access or download their zipped email files. If zipped boxes remain un-accessed for 30 days Fidelihost reserves the right to delete the email box.

You may not alter the headers of email messages to disguise their identity or to prevent users from responding to the messages.  In addition to any other rights or remedies hereunder, you acknowledge and agree that Fidelihost may disclose the usernames of accounts responsible for forged email messages to system administrators or users requesting the information.

Violations of the Fidelihost policies outlined herein can sometimes result in massive numbers of email responses. If you receive so much email that Fidelihost resources are affected, Fidelihost staff may shut down your mailbox.

4.4          System Security.  You are prohibited from utilizing the Services to compromise the security of system resources or accounts on servers at Fidelihost or at any other site.  This includes but is not limited to:

• 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.
• Unauthorized monitoring of data or traffic on any system or network without express authorization of the owner of the system or network.
• Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting .
• Use or distribution of tools designed for compromising security or containing viruses or trojan horses. Examples of these tools include, but are not limited to, password-guessing programs, cracking tools or network-probing tools.

If you are involved in violations of system security, in addition to any other rights or remedies hereunder, you acknowledge and agree that Fidelihost reserves the right to release all usernames of users involved in such violations to system administrators at other sites in order to assist them in resolving security incidents. Fidelihost will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.

4.5          System Resources CPU/Memory/Disk/Bandwidth.  System abuse includes any use of Fidelihost resources that disrupts the normal use of its servers or services for others. Examples of system abuse include running excessive numbers of processes or consuming excessive amounts of CPU time, memory or disk space.

Any usage of 10% or more of Fidelihost’s system resources is an undue burden on Fidelihost’s system.  Should your site use more than 10% of the resources, we will ask you to remedy this problem and if it is not possible for you to do that, you will be expected to upgrade or move to a dedicated server; otherwise your account will be terminated. 

Further, running programs in the background on a Fidelihost’s server without Fidelihost’s prior written authorization, or running chat rooms, Internet Relay Chat, IRC bots, more than 1,000 emails a day and the like are not acceptable uses of Fidelihost’s servers. 

Due to their use of flat files instead of databases, Fidelihost does not allow the use of UBB or YABB bulletin boards. Use of these boards for large or very active forums may result in system performance degradation, and cannot be allowed in our shared server environment. Fidelihost suggests using VBulletin or phpBB as more efficient, database-driven alternatives to these bulletin boards. 

4.6          Bandwidth Policy.  Fidelihost accounts come with the following:

•  FideliBronze:   5,000 Megabytes/month

•  FideliSilver:     7,500 Megabytes/month

•  FideliGold:      10,000 Megabytes/month

•  FideliPlatinum: 15,000 Megabytes/month

•  FideliDiamond: 20,000 Megabytes/month

Bandwidth usage is a simple equation - number of visits times information sent in each visit. By way of illustration only,  the average web page is about 50K in size; accordingly, 5,000 Megabytes equals roughly 100,000 page downloads a month. Larger files will increase traffic usage, but 5,000 Megabytes bandwidth generally can provide enough capacity for 99% of all websites on the Internet.  Notwithstanding the foregoing, you are responsible for determining how much bandwidth you may require; however, if your site requires more bandwidth, simply go to your control panel and click the Upgrade button and either buy more bandwidth at $2.99 a gigabyte/month or upgrade to a larger account that provides more megabytes per month.

To maintain the integrity of our service, the following restrictions also apply: site offering WebCams services, sites offering download files and sites using more than 10% of system resources: please contact us to discuss it first. We will evaluate together the hosting package that suits you the best; we might also recommend for you to rent a dedicated server.

We reserve the right to ask you to move your domain or upgrade to another server option that suits your needs if your site takes up more than a fair share of the server resources (over 10%). This can include excessive use of CGI resources, system resources, or excessive use of bandwidth. One way to minimize bandwidth usage on your site is not to  allow third parties or users to link to your graphics or sound files. That can add up fast and take up your bandwidth before you know it.

4.7          Investigation of Use and Mis-Use of Services.  All complaints of abuse, violation and misuse of the Services, whether described in this Section 4 or otherwise, shall be investigated promptly.  When Fidelihost becomes aware of possible violations of this Agreement, Fidelihost may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on Fidelihost’s servers. Fidelihost, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis.  As mentioned above, violations of this Agreement could subject you to criminal or civil liability.

4.8          Indemnification and Waiver of Liability.  By accepting this Agreement, you agree to waive and hold Fidelihost harmless from any claims relating to any action taken by Fidelihost as part of its investigation of a suspected violation of this Agreement or as a result of its conclusion that a violation of this Agreement has occurred. This mean that you cannot use or recover any damages whatsoever from Fidelihost as a result of Fidelihost’s decision to remove material from its servers, warn you, suspend or terminate your account, or take any other action during the investigation of a suspected violation or as a result of Fidelihost’s conclusion that a violation has occurred. This waiver applies to all violations described in this Agreement.  Customer further agrees to fully indemnify and hold harmless Fidelihost from any claims resulting from the use, mis-use, or abuse of the Services which damages Fidelihost or any other party.

4.9          Freedom of Expression.  Subject to the foregoing restrictions, Fidelihost supports free speech on the Internet and will not suspend or cancel your account simply because it disagrees with your views expressed at your website. However, examples of unacceptable activities include posting private information about a person without his or her consent, defaming a person or business, and knowingly making available code that will have a deleterious effect on third-party computers. Where there are allegations that your on-line activity has violated the legal rights of a third party, Fidelihost will not substitute itself for a court of law in deciding tort claims raised by the third party.

5.          Termination and Cancellation

5.1          Fidelihost’s Right to Terminate Agreement.  Fidelihost reserves the right to suspend or terminate the Services to you and remove or prevent access to any material from your website at any time, without prior notice or liability, for any reason including, without limitation, for any conduct that Fidelihost, in its sole discretion, believes violates this Agreement or is otherwise harmful to Fidelihost’s interests or the interests of other accountholders.

5.2     Other Relief.  Fidelihost also reserves the right to comply with the take-down provisions of the DMCA and to seek injunctive, declaratory, interpleader or other judicial or equitable relief (and, pending such action, to suspend all access to your website) if any third-party claim is made that your website content or use violates any of the acceptable uses or your obligations or representations described in this Agreement.

5.3          Customer Cancellation of Accounts.  You must cancel your Fidelihost account by using the support’s ticket system or sending us an email to

5.4          Website.  If your account is suspended or terminated for any reason permitted by this Agreement, Fidelihost may, at its sole discretion, permanently delete your website contents from Fidelihost’s servers, and Fidelihost may not be able to reopen or restore such content.

5.5          Termination and Payment.  Upon any termination or cancellation of this Agreement, Customer shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.

6.          Arbitration; Governing Law

6.1     Except for Fidelihost’s compliance with take-down provisions of the DMCA or injunctive or other equitable actions initiated by Fidelihost pursuant to Section 5.2, if any controversy or dispute arises in connection with this Agreement, the Services or your use of Fidelihost’s servers, such controversy or dispute shall first be presented for resolution by Fidelihost and you. If no resolution is reached within 7 days thereafter, then the parties agree that such controversy or dispute shall be resolved by binding arbitration in Birmingham, Alabama, under the then-current rules of commercial arbitration of the American Arbitration Association. Each party shall select an arbitrator with expertise in computer law and the Internet, and these two arbitrators shall select the third arbitrator with such expertise. The validity, terms, performance and enforcement of this Agreement shall be governed and construed by its provisions and in accordance with the laws of the United States of America and the State of Alabama (without regard to conflicts of laws principles), and the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.  If this Agreement is translated into other languages, the English language version shall control.

6.2     You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in Birmingham, Alabama, for any action, suit or proceeding arising out of or relating to this Agreement, including, without limitation, Section 5.2 and the arbitration contemplated by this Section 7.

7.       Force Majeure.  Except for the payment of fees by Customer, if the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

8.          Modifications.  Fidelihost may modify these terms and conditions at any time by posting the modified terms and conditions on its site.  Your continued use of the Services after such modifications become effective constitutes your acceptance of such terms and conditions, as modified.

9.           Miscellaneous.  You may not assign your rights and obligations under this Agreement without the prior written consent of Fidelihost, which may be withheld at Fidelihost’s discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of Fidelihost to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by Fidelihost of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, this Agreement must be commenced by you within one year after the alleged cause of action has accrued or within one year after the date of termination of this Agreement, whichever is earlier. In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed or expressly assented to by Fidelihost. All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive. This Agreement and the Online Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and Fidelihost and supersede and govern all prior proposals, agreements, or other communications from Fidelihost or any of its personnel, employees, agents or contractors.

10.          Domain Name Registration Services

10.1          Domain Name Registration Services (if elected).  In addition to the foregoing terms and conditions, the following additional terms and conditions shall apply if you request domain registration services (“Domain Name Registration Services Terms”).  To complete the registration process, you must read and agree to be bound by all terms and conditions of this Agreement, including these Domain Registration Services Terms, the accompanying fee schedule and dispute policy, and any rules or policies that are or may be published by Fidelihost and/or its registrar (currently, PUBLICDOMAINREGISTRY). You acknowledge that your have read the the domain registration agreement hereunder and  that Fidelihost may modify these Domain Name Registration Services Terms if necessary to comply with its agreement with the registrar and ICANN, or for any other business purpose:

10.2    Fees.  As consideration for the domain name registration services provided by Fidelihost through its current registrar (PUBLICDOMAINREGISTRY).  You shall pay all applicable initial registration fees and renewal fees. We will attempt to register your new domain name through an ICANN-approved registrar (currently PUBLICDOMAINREGISTRY) and upon registration, you agree to pay us the applicable domain name registration fee (currently $18.99 US per year for .COM, .NET, .ORG. INFO, and .US domains; other domains may be available for additional fees.  See http://www.fidelihost.com/web-hosting-usa/domain-registration.html for the current domains and associated fees) for the total number of years that you are registering the domain name. Thereafter, you agree to pay to Fidelihost the then-current domain name registration annual fee in advance for each year that you continue to receive the Services.  You will be notified (by email only) when domain name renewal fees are due.  It shall be your responsibility to ensure that such fees are paid. If you do not respond or pay within the specified time period for registrations or renewals or if you have the charges reversed on your credit card after ordering or renewing the domain name, the ownership of the domain name will transfer to Fidelihost.  You agree that Fidelihost shall have no liability whatsoever with respect to any such cancellation, and that Fidelihost may cancel or reassign the domain name in the event of any delinquency of payment or abuse of these Domain Name Registration Services Terms. We reserve the right to refuse any domain name registration request at our discretion. All domain name registration fees are non-refundable.  All domain name registration fees are non-refundable; once a domain name registration is submitted there is no option to cancel it.  For this reason it is extremely important to carefully check the spelling and accuracy of all new domain name registrations, and be sure you definitely want the domain name before submitting the order.

10.3          Dispute Policy.  In applying for a domain name, you warrant that the registration is not made in bad faith and that the name does not conflict with another domain name. You agree to be bound by the current PUBLICDOMAINREGISTRY  Name Dispute Policy (“Dispute Policy”), which is incorporated into this Agreement by reference. The Dispute Policy can be found at http://register-domain.fidelihost.com under the sub-menu 'legal agreements' which you will find under the help menu. Any disputes regarding the right to use your domain name will be subject to the Dispute Policy. PUBLICDOMAINREGISTRY may modify the Dispute Policy in its sole discretion at any time. Your continued registration of your domain name after modification to the Dispute Policy becomes effective constitutes your acceptance of those modifications. If you do not agree to such a modification, you may request that your domain name be deleted. You agree that you will be subject to the provisions specified in the Dispute Policy in effect at the time your domain name is challenged by a third party. You also agree that in the event a domain name dispute arises with any third party, you will indemnify, defend and hold Fidelihost and PUBLICDOMAINREGISTRY harmless from any claims by any third party arising out or relating to such dispute.

10.4    Use of Your Information.  As part of the domain name registration process, you are required to provide certain information and to update this information to keep it current, complete and accurate. This information currently includes (i) your full name, postal address, e-mail address, voice telephone number, and fax number if available; (ii) the name of an authorized person for contact purposes in the case of a registrant that is an organization, association, or corporation; (iii) the IP addresses of the primary name server and any secondary name servers for the domain name; (iv) the corresponding names of those name servers; (v) the full name, postal address, e-mail address, voice telephone number, and fax number if available of the technical contact for the domain name; (vi) the full name, postal address, e-mail address, voice telephone number, and fax number if available of the administrative contact for the domain name; (vii) the name, postal address, e-mail address, voice telephone number, and fax number if available of the zone contact for the domain name; and (viii) any remark concerning the registered domain name that should appear in the WhoIs data.  You acknowledge that providing inaccurate information or failing to update information promptly will constitute a material breach of this Agreement and will be a basis for cancellation of your domain name and hosting. If you license use of a domain name to a third party, you remain responsible for providing your own full contact information and for providing and updating accurate technical, administrative, and zone contact information.  Upon Fidelihost’s request, you agree to provide proof of proper identification and information in connection with the registration or transfer of a domain name.  Notwithstanding anything to the contrary herein, you may not transfer your domain name to another registrar within sixty (60) days of obtaining the domain name through us.  You acknowledge that Fidelihost will make some of the information that you provide during the registration process publicly available as required by ICANN, and you agree that Fidelihost may make such information available. Additionally, you acknowledge that ICANN may impose guidelines, limits and/or requirements that relate to the amount and type of information that Fidelihost may or must make available to the public or to private entities, and you agree that Fidelihost may make available any information that Fidelihost believes is required to be disclosed by ICANN.

10.5    Use Policies.  Fidelihost reserves the right to suspend or cancel your domain name in the event that you use the domain name to send unsolicited commercial advertisements in contradiction to either applicable laws or customary acceptable usage policies of the Internet, or if you use your domain name in connection with unlawful activity, as further described in the Agreement.

10.6    Representations and Warranties.  You represent and warrant that all information provided by you in connection with your domain name registration is complete and accurate. Fidelihost makes no representation or warranties of any kind in connection with the Domain Name Registration Services.  Without limiting the generality of the foregoing, Fidelihost does not represent or warrant that registration of your domain name will immunize you from challenges to your domain name.

10.7   Breach and Revocation.  Any breach by you of the Domain Name Registration Services or the Dispute Policy must be remedied by you within 30 days of notice by Fidelihost. If you fail to cure the breach, Fidelihost may revoke your registration of the domain name.  You also agree Fidelihost shall have the right in its sole discretion to revoke, suspend, transfer or otherwise modify a domain name registration upon seven (7) calendar days prior written notice, or at such time as Fidelihost receives a properly authenticated order from a court of competent jurisdiction, or arbitration award,  requiring the revocation, suspension, transfer or modification of the domain name registration.

10.8   Limitation of Liability.  In addition to any other limitations in the Agreement, you agree that Fidelihost and/or PUBLICDOMAINREGISTRY  will not be liable to you or any other person for or any loss that may occur due to (a) any loss or registration of a domain name, (b) the use of your domain name, (c) access delays or access interruptions to Fidelihost or PUBLICDOMAINREGISTRY’s registration system; (d) the non-delivery or misdelivery of data between you and  Fidelihost; (e) events beyond Fidelihost’s control; (f) the processing of the application for domain name registration; (g) the processing of any modification to the record associated with you domain name; (h) the failure of you or your agent to pay any fees hereunder; or (i) the application of the dispute policy. Further, neither Fidelihost nor PUBLICDOMAINREGISTRY shall be liable for any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if Fidelihost or PUBLICDOMAINREGISTRY has been advised of the possibility of such damages.  To the extent applicable state does not allow the limitation of liability for consequential or incidental damages, our liability is limited to the maximum extent permitted by law. Notwithstanding anything to the contrary in the Agreement, in no event shall Fidelihost’s maximum liability for Domain Name Registration Services exceed the total amount actually paid by you to Fidelihost for registration of your domain name during the prior three (3) years.

11.     Dedicated Servers and Root Access (if elected).  In addition to the foregoing terms and conditions, the following additional terms and conditions shall apply if you request Dedicated Server Services (“Dedicated Server Services Terms”).

Client may install or permit others to install, any operating, or Internet connectivity software, or interfaces, enhancements or upgrades thereto or to the software, on the Server. Failure to permit upgrades to the installed customized versions of certain third party software or Client alterations made to certain third party software including Apache, PHP (including building support into Apache Linux Kernel upgrades), system libraries, or MySQL upgrades may adversely affect server performance. Any and all costs for work required to remedy corruption to data, damage to hardware or software, or other harm resulting from installation, modification or deletion of any software or other files by Client shall be Client’s sole responsibility, and Client shall indemnify Fidelihost in full for same. Without limiting the generality of the foregoing, Client agrees that installation, modification or deletion of files that results in or contributes in any way to any outage or damage to any hardware, software or Services shall result in liability to Client for technical support costs at a rate of $150 per hour until the issue caused by the activity is resolved to Fidelihost’s sole satisfaction. Under no circumstances shall Fidelihost be required to provide any support with respect to any software or other files installed, modified or deleted by Client with or without Fidelihost’s consent.

Customer shall comply, and shall cause all Customer’s users or other third parties gaining access to the hardware or software through Customer to comply, with Fidelihost’s then-current acceptable use and privacy policies (collectively, “User Policy”), as they may reasonably be amended by Fidelihost from time to time and which are available through Fidelihost’s.

Website at http://www.fidelihost.com/terms.html. In the event of any conflict between such Acceptable Use Policies and any terms and conditions of this Agreement, this Agreement shall govern. Fidelihost reserves the right to lock out, suspend or shut down any domains or websites that violate any Acceptable Use Policy. 

While we exercise reasonable efforts to back up files continuously, we are in no way responsible for the archiving of a site. It is the sole responsibility of the Customer to copy, back up or archive all files that constitute a website. 

Domain Pointing: Domain pointers are to be used for the purpose of having more than one way to find the same site, not for the purposes of sharing an account among multiple sites. A domain pointer may not be set up to reference a subdirectory within an existing Web hosting account served by Fidelihost or any other provider.

By clicking the “Submit Order” button, you agree to be bound by and to comply with this Agreement just as if you had signed it, and clicking the “Submit Order” button is the legal equivalent of your signature on a written contract.