TERMS AND CONDITIONS FOR ROOT SERVER AND WINDOWS SERVER HOSTING SERVICES
By ordering root server services from 1&1 Internet, Inc. ("1&1"), you ("you" or "Customer") agree to the terms and conditions set forth herein. The provisions contained in these Terms and Conditions for Root Server Hosting Services (the "Agreement") incorporate and are supplemental to 1&1's 1&1 General Terms and Conditions (the "1&1 GT&C"), by which you are also bound, to the extent they are not modified by this Agreement.
1. SUBJECT OF THE AGREEMENT
The Agreement governs the provision of root server services, including 1&1's Root Server and Windows Server products, (the "Services") to the Customer by 1&1 and certain administration and servicing thereof. The Services comprise making available for use by the Customer a dedicated Windows or Linux server with root or administration rights (hereafter, a "Root Server"), for the exclusive use of the Customer.
2. SERVICES PROVIDED
1&1 agrees to provide the use of a Root Server to Customer, for the exclusive use of Customer, excepting maintenance of the Root Server hardware, at the price agreed upon before the initiation of service, for the term as defined below. Customer represents and warrants that Customer has or has access to the knowledge and expertise necessary to configure, maintain, monitor, and secure the Root Server. Except with respect to the use or configuration of Plesk or the Root Server hardware, 1&1 does not provide phone or e-mail support or other technical assistance for the administration of the Root Server or otherwise related to the Services.
Fees for the Services shall be charged in accordance with the schedule of fees set and adjusted by 1&1 from time to time and posted at the 1&1 web site at http://www.1and1.com. Published fees include initial setup and installation services as set by 1&1, and are non-refundable. 1&1's Money Back Guarantee is not applicable to the Services.
Subject to termination in conformity with Section 10 of this Agreement, the initial term of this Agreement shall be one (1) month with automatic renewal for one subsequent additional month after the expiration of the initial term and each such renewal term (each such month a "Contract Term"). 1&1 reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The Contract Term, however, shall remain one (1) month. Notwithstanding the provisions of this Section to the contrary, 1&1 offers certain Server Hosting Packages for which the initial term of this Agreement shall be twenty-four (24) months (the "24-Month Server Packages"), at the end of which this Agreement shall renew automatically on a month-to-month basis pursuant to the terms of this Section. Any and all service fees for the 24-Month Server Packages are due and payable for the entire initial term thereof, and should you terminate, attempt to terminate, or otherwise default on this Agreement prior to the end of the initial term you authorize 1&1 to charge your credit card for all such fees and charges for the remainder of such initial term. For the purposes of this Section, any modification of the server package shall be deemed a termination and shall entitle 1&1 to the fees owing on the 24-Month Server Package. Fees paid for the 24-Month Server Packages are not refundable unless this Agreement is terminated by 1&1 without cause pursuant to Section 10. or as otherwise agreed to in writing by 1&1 in its sole discretion.
5. ADMINISTRATIVE ACCESS
Administrative access or "root" access to the server is limited to you and your authorized agents. As a general rule, 1&1 has no access to the contents of your server. Nevertheless, 1&1 reserves the right to require, at its discretion, software and/or hardware upgrades for the purposes of maintaining security and stability of the services provided and may require the installation of such upgrades. Standard fees for such upgrades shall be set by 1&1 from time to time.
6. NETWORK DATA TRANSFER CHARGES
There shall be no charge for monthly aggregate or daily average network transfer within the allowance of the server package purchased, depending on the terms agreed upon at purchase, as measured during any 30-day period. Monthly aggregate or daily average network traffic in excess of the pre-arranged allowance shall incur an additional fee as set by 1&1. Payment of this fee will be required in order to maintain service. Network traffic shall be measured by 1&1 and may include all forms of traffic to and from the server. All fees shall be set and adjusted by 1&1 from time to time and posted at the 1&1 web site at http://www.1and1.com/.
7. HARDWARE AND SOFTWARE CONFIGURATION
All Root Servers must use software configurations that conform with 1&1 requirements. Use of any particular software configuration may be declined at the sole discretion of 1&1. Customers have no right or expectation to receive a hardware or software configuration on their server that is more capable than that which was initially ordered from 1&1, nor can a Customer expect to receive support from 1&1 with respect to the correction of errors caused by mistakes, faulty settings, and installation errors caused by the Customer.
8. CUSTOMER CONDUCT
1&1 services and servers may only be used for lawful purposes. Any use which violates any local, state, federal, or international laws which may apply to 1&1, Customer's local jurisdiction, or any jurisdiction that Customer or Customer's site may be subject to is strictly prohibited.
While using a 1&1 supplied Root Server, Customer will not:
Restrict or inhibit any other user from using and enjoying the Internet;
Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;
Operate an open mail relay;
Transmit any unsolicited commercial or bulk e-mail or engage in any activity known or considered to be "spamming" or "Mail Bombing";
Use any 1&1 server or service to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.
You agree to fully defend and indemnify and hold harmless 1&1 of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of 1&1 in any way related to your use of the 1&1 Services or any portion thereof.
You agree to fully defend and indemnify and hold harmless 1&1 of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the 1&1 Services or any portion thereof. Choice of counsel remains exclusively that of 1&1.
For purposes of this Section 9, 1&1 includes 1&1 Internet, Inc., as well as its parent company or companies, its subsidiaries and affiliated companies.
Either party can terminate this Agreement upon 30 days' written notice prior to the end of the then-current Contract Term. 1&1 can terminate this contract for any reason upon thirty (30) days' prior notice. Any such termination shall take effect at the end of the month after the end of the thirty-day notice period. 1&1 reserves the right to terminate this contract without notice at the sole discretion of 1&1 for the violation of any terms and conditions of this contract or of the 1&1 GT&C. 1&1 may deny Customer access to a server without notice if Customer engages in any conduct or activities that 1&1 in its sole discretion believes to be in violation of any of the terms and conditions of this Agreement. 1&1 shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Customer agrees that 1&1 has the right to monitor the servers electronically from time to time and to disclose any information as necessary under the law, or to protect itself from claims by a third party or parties. 1&1 reserves the right to remove or remove access to any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, offensive, or in violation of this Agreement.
11. RETURN OF SERVER
Upon termination of this contract, all servers shall remain the property of 1&1 and are not subject to customer demands.
12. LIMITED WARRANTIES
1&1 makes every reasonable effort to maintain the uninterrupted operation of the 1&1 Services, subject to regularly scheduled server and network maintenance cycles. However because many events and circumstances are beyond the control of 1&1, 1&1 does not in any way warrant or otherwise guarantee the availability of the 1&1 system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of 1&1. 1&1 may, at its sole discretion, limit or deny access to its servers, if, in the judgment of 1&1, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the 1&1 servers.
ALL 1&1 SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO 1&1 IN THE SIX (6) MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY, BUT IN NO EVENT TO EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000). IN NO EVENT SHALL 1&1 BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
Customer understands that by placing information on a Root Server, depending on the configuration of the server, such information may be accessible to all Internet users. 1&1 does not limit or restrict access to such information, nor protect any such information from copyright infringement or other wrongful activity. Customer assumes full responsibility and risk for their use of the Root Server. It is the Customer's sole responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, and other information, and the quality and merchantability of all merchandise, provided through 1&1 or on the Internet generally.
13. IDENTIFICATION INFORMATION
Customers must be at least 18 years of age or require the approval of the minor's legal guardian. Customer agrees to supply 1&1 with a current and truthful full name, e-mail address, postal address, and telephone number and, in case the Customer is a minor, with the current and truthful full name, e-mail address, postal address, and telephone number of at least one legal guardian. Customer agrees to keep this information current and to inform 1&1 whenever any of this information changes.
14. NO INTERFERENCE WITH OPERATION OF SYSTEM
Customer agrees not to maliciously or intentionally interfere with the proper operation of the server and network, including but not limited to defeating identification procedures, obtaining access beyond that which Customer is authorized for, and impairing the availability, reliability, or quality of service for other customers. Customer further agrees not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. Customer agrees to follow the Acceptable Use Policy of any network or service to which Customer connects.
Customer agrees to adhere to all system policies of 1&1, as such may be published by 1&1 online from time to time, including restrictions on services available, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of the services of 1&1. Customer agrees to abide by any and all future policy decisions by 1&1.
Except with respect to issues concerning the physical security of 1&1's data center facilities, Customer agrees that the security of the server and all Services is solely Customer's responsibility. It is the sole responsibility of the Customer to maintain and update security software on the Root Server. Under no circumstance will 1&1 be held liable for security breaches and damage caused by the Customer's failure to maintain or update the security software or to maintain adequate security protocols in the administration of the Root Server.
To secure Root Servers from external misuse, Customers are encouraged to utilize packet filtering technology.
Customer agrees that if the security of Customer's server has been compromised in any way, Customer will notify 1&1 immediately in writing as set forth in Section 22 herein. Customer shall be held fully responsible for any misuse or compromise of Customer's server for which 1&1 is not properly notified. Customer agrees that if any security violations are believed to have occurred in association with Customer's server, 1&1 has the right to suspend access to the server pending an investigation and resolution. Customer also agrees that 1&1 has the right to cooperate in any government or legal investigation regarding any aspect of its services, including any servers used by Customer. Any use of 1&1's system to engage in software piracy or other violations of law will result in service suspension and be immediately reported to the appropriate authorities.
16. TRANSMITTAL OF MATERIALS
Customer agrees not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. The use of 1&1 or any other service with reference to services obtained through 1&1, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as "spamming", is strictly prohibited and may cause Customer's services to be terminated immediately and without warning, and Customer will be held fully responsible for any damages to Customer, 1&1, or any other party or parties resulting from any such conduct.
Payment of fees must be made by Credit Card (American Express, Visa, MasterCard, and Discover). Payment for the Services is due in advance, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the Services. All payments shall be made in United States Dollars.
Payment by Credit Card: prior to activation of your user account and at any applicable time thereafter you authorize 1&1 to charge the credit card provided by you for the amount of the fees due for Services, together with any applicable set-up charges or any other charges outlined herein as may be applicable. You further authorize 1&1 to charge your credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. Should you fail to provide credit card authorization to pay for the Services, 1&1, at its sole discretion will have the right to suspend or terminate the Services. Refusal or rejection of any charge or any portion thereof is grounds for termination or suspension of the Services, at the sole option of 1&1.
Refunds of Service fees will be made only for pre-payment of Service fees beyond the renewal date following the effective notice and termination of this Agreement as provided for herein. All refunds shall be pro-rated based upon the number of days for which Services remain unused as of that renewal date. 1&1 may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder.
18. PRIOR AGREEMENTS
Except for the 1&1 GT&C, which apply to all transactions between 1&1 and any of its customers, this Agreement supersedes any written, electronic, or oral communication Customer may have had with 1&1 or any agent or representative thereof, and constitutes the complete and total agreement between the parties. If any of the provisions contained herein are in conflict with the 1&1 GT&C, the provisions in this Agreement shall prevail.
If any provision of this Agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable.
This Agreement shall be interpreted under the laws of the Commonwealth of Pennsylvania, without regard to any conflict of laws provisions.
21. DISPUTE RESOLUTION
Any claim, dispute or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the City of Philadelphia, County of Philadelphia, Commonwealth of Pennsylvania, by a panel of three arbitrators. Each Party shall designate one disinterested arbitrator and the two arbitrators so designated shall select a third arbitrator. The persons selected as arbitrators need not be professional arbitrators. Persons such as lawyers, accountants, brokers and bankers shall be acceptable, but each shall have substantial experience with respect to information technology and development. The arbitration proceeding shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association then and there pertaining. Any party may initiate arbitration proceedings hereunder by providing written notice ("Demand for Arbitration") to the other party to such claim, dispute or controversy. A Demand for Arbitration shall be made within a reasonable time after the claim, dispute or controversy has arisen; provided, however, that no Demand for Arbitration may be made after the date when institution of such claim, dispute or controversy would be barred by the applicable statutes of limitations. Arbitration proceedings shall be commenced within thirty (30) days of such notice or as soon thereafter as practicable, and the arbitrators shall be required to render a written determination within thirty (30) days after the commencement of such arbitration proceedings. The written award of a majority of the arbitrators shall be final and binding upon the parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof, including the federal district courts located in the City of Philadelphia, County of Philadelphia, Commonwealth of Pennsylvania. All costs of any such arbitration shall be borne equally by the parties.
Any notice under this Agreement shall be given by 1&1 to you via e-mail at the address provided by you to 1&1 at the commencement of this Agreement or as 1&1 is subsequently advised pursuant to the requirements of Section 14 hereof. Notice to you at this address is deemed sufficient regardless of your receipt of such e-mail.
23. NO AGENCY
Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between 1&1 and the Customer.
1&1 may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the 1&1 website in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts. It is your responsibility to periodically check the 1&1 website for updates of this Agreement.
Copyright © 2012 1&1 Internet, Inc. All Rights Reserved.