By signing up for and/or otherwise accessing any of the products or services in the swinghosting.net domain you acknowledge that you have read, understand, and agree to be bound by the terms of this General Terms and Conditions of Service ("Agreement").
1.1 "Swing Hosting," "we," "us" (and the formative "our") mean Gregory L. S. Perham Jr. d.b.a. Swing Graphics or any party acting as an agent of Gregory L. S. Perham Jr. d.b.a. Swing Graphics.
1.2 "Swing Hosting" is a service mark of Gregory L. S. Perham Jr. d.b.a. Swing Graphics and is not meant to imply the existence of a subsidiary, third party, or distinct entity whatsoever.
1.3 "You" and "Member" (and their formatives) mean you, the person or other legal entity signing up for the Services, or any party acting as your agent. You agree to be bound by this Agreement for any actions taken by anyone accessing your account whether or not the person was acting on your behalf and/or authorized by you.
1.4 "The Parties" means you and Swing Hosting.
1.5 "Services" includes the products and services provided by Swing Hosting and/or our affiliates, agents, or assigns at any given time, including but not limited to Web Site hosting, e-mail, domain name registration, and associated services.
1.6 "Server(s)" means the computer equipment in connection with the provision of the Services.
1.7 "Web Site" means the area on the Server allocated by us to you for use by you as a site on the Internet.
1.8 "Agreement" and "TOS" mean this document and include the terms and conditions set forth herein.
2.1 We make no representation that the domain name you wish to register is capable of being registered by or for you or that it will be registered in your name. You should therefore not assume registration of your requested domain name(s) until you have been notified that it has or they have been registered. Any action taken by you before such notification is at your risk.
2.2 The registration and use of your domain name is subject to the terms and conditions of use applied by the relevant naming authority or registration service ("Registrar"); you shall ensure that you are aware of those terms and conditions and that you comply with them. You shall have no right to bring any claim against us in respect of refusal to register a domain name. Any administration charge paid by you to us shall be non-refundable notwithstanding refusal by the naming authority to register your desired name.
2.3 We shall have no liability in respect of the use by you of any domain name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the Registrar but will not be obliged to take part in any such dispute.
2.4 You guarantee that all information you provide is truthful, complete, current and accurate. You also guarantee that you are using our domain name registration service in good faith and that you have no knowledge of your domain name violating or conflicting with the legal rights of a third party or a third party's trademark, trade name, or copyright.
2.5 We shall not release any domain to another provider unless full payment for that domain has been received by us.
2.6 Domain name registration, transfer, and renewal fees are non-refundable.
2.7 Domain Name Registration Disclosures
3.1 Subject to the terms and limitations in section 2 above and elsewhere in this section (3), Swing Hosting will acquire a second-level domain name on your behalf ("Private Domain Name"). We will not own the Private Domain Name under this section; you own the Private Domain Name and all associated rights, responsibilities, and liabilities.
3.2 Domain names within the .us top level domain are not eligible for Private Registration. Private Registration may not be available for other top level domains, per the Registrar's policy or at our discretion. Private Registration is available only for domain names registered using our Domain Name Registration service.
3.3 You authorize and direct Swing Hosting to display alternate contact information in the public WHOIS database.
3.4 You will keep the contact information in your Swing Hosting account current and accurate. Except as described in section 15 below, we will keep your name and contact information confidential as long as your account is in good standing.
3.5 You authorize and direct Swing Hosting to process communications directed to you at the contact information displayed in the public WHOIS database as follows:
3.5.1 A unique e-mail address determined by and controlled by us will be displayed in the public WHOIS database. Messages sent to this address may be filtered for "junk" or "spam" and then will be forwarded to the e-mail address on file in your account. We may change this e-mail address from time to time. When an e-mail address is removed from the WHOIS database (under this section 3.5.1 or section 3.9), it will no longer valid for the receipt of messages. You acknowledge that you will not be able to retrieve messages sent to an e-mail address once removed from the WHOIS database.
3.5.2 A P.O. Box address under our care will be displayed in the public WHOIS database. You authorize us to receive, sort, open, forward, and destroy any and all mail sent to us at our sole discretion. We will endeavor to effect the following as a courtesy:
(a) Except as described in section 3.5.4 below, a reasonable amount of first class U.S. postal mail will be forwarded unopened upon receipt to the address on file in your account.
(b) We will attempt to contact you at the phone number/and or e-mail address on file in your account within one(1) business day after receiving mail sent Certified, Priority Mail, Express Mail, or via courier (such as FedEx, UPS, or DHL). Such mail may be scanned and sent to you as a PDF via e-mail for a fee of $15 plus $2 per page. In addition, such mail may be sent, at your expense, to the address on file in your account via U.S. Postal Service Priority Mail or similar service. There will be a $10 fee in addition to postage costs for each piece of mail handled in this manner. You will have five(5) calendar days to notify us in writing of your request for handling such mail, after which the mail will not be scanned, but will be physically shipped to you in the manner described above.
3.5.3 A telephone number answered by Swing Hosting or an agent of Swing Hosting will be displayed in the public WHOIS database. Callers will be informed on how to contact you using the e-mail address listed in the public WHOIS database.
3.5.4 Third class mail, "junk" mail, and other forms of bulk communications and solicitations, whether received via U.S. postal mail, e-mail, fax, or phone, will be discarded, deleted, destroyed, or returned to the sender unopened.
3.6 You acknowledge and agree that by using the Private Registration service that you will not receive all communications sent to you at the contact information displayed in the public WHOIS database. You acknowledge and agree that Swing Hosting disclaims any and all loss or liability that may result from your use of the Private Domain Name or Private Registration service and/or your failure to receive important correspondence sent to you at the contact information displayed in the public WHOIS database but not forwarded to you by Swing Hosting, including but not limited to legal notices or UDRP complaints.
3.7 You acknowledge and agree that Private Registration will automatically renew at the same time and for the same period of time and the domain name that it is associated with.
3.8 You may cancel or choose not to renew Private Registration at any time from within your account. Once the service is disabled, your information will display in the public WHOIS database.
3.9 We reserve the right to refuse, suspend, or revoke Private Registration for any customer for any reason.
3.10 Domain Name Private Registration fees, including renewal, are non-refundable.
4.1 We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server.
4.2 You shall effect and maintain adequate insurance coverage in respect of any loss or damage to data stored on the Server.
4.3 If you surpass your allotted disk/bandwidth usage as set forth in your purchased plan, you agree to purchase the excess in blocks in accordance with the scale of charges and rates published from time to time by us on our web site. Such payment to be immediate and non-disputable.
4.4 We monitor disk and bandwidth usage to ensure compliance with this Agreement and adequate Server performance for all customers. If your use of the Services results in a sustained or significant degradation of Server performance, we reserve the right to suspend your Web Site, reallocate resources provisioned for your use, transfer your Web Site to another Server, and/or prescribe a new set of Services for your use.
4.5 You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorized use of your account or breach of security, including loss, theft, or unauthorized disclosure of your password or other security information.
4.6 You shall observe the procedures which we may from time to time prescribe and shall make no use of the Server which is detrimental to our other customers or to the performance of the Server.
4.7 Members utilizing free hosting shall exclude themselves from promotions offered and afforded to paying Members.
4.7.1 Members utilizing free hosting or other specified services shall display a banner, link, or other identifying mark as supplied by Swing Hosting.
4.8 You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
4.9 While we will use every reasonable endeavor to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorized users or hackers and we shall be under no liability for non-receipt or misrouting of e-mail or for any other failure of e-mail.
4.10 You are responsible for monitoring the usage of the resources provisioned for your Web Site. This is easily done from your Control Panel. If you go over the amount indicated in your current plan; you will be assessed a surcharge as set forth in our pricing structure.
4.11 You may cancel the Services at any time by logging into the Ticket Desk Support System (for verification) and requesting cancellation of services.
5.1 On our site you will find links to all the information to get your Web Site up and running. All information pertaining to your account should have been included in the Welcome E-mail you received when we created your account. If you did not receive a Welcome E-mail, please contact our support team. There are several reasons an e-mail may not reach you; first and foremost is if the domain you have contracted services for is the same domain your Welcome E-mail was sent to.
5.2 The support feature of our service at present time consists of our Support System solving Server related problems only.
5.2.1 If you require support for your scripting, there are several online tutorials available we can help you find. You may purchase our technicians' services at the rate of $60 per hour, with one half hour minimum billed. We reserve the right to wave this fee at any time.
5.3 Support can only be addressed in English through our Support System.
5.4 All Support requests should be processed through our Support System. Any other request for support, except as noted in section 5.5, may be considered a breach of our TOS. At our sole discretion, we may provide support by other means, including but not limited to e-mail, telephone, or Internet telephony.
5.5 In the event of a Server outage or other such emergency, you are free to contact us in any manner.
6.1 You represent, undertake and warrant to us that you will use the Services only for lawful purposes. In particular, you represent, warrant and undertake to us that:
6.1.1 You will not use the Services in any manner which infringes any law or regulation or which infringes the rights of any third part; nor will you authorize or permit any other person to do so.
6.1.2 You will not post, link to or transmit: (a) Any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable as determined by Swing Hosting in any way.
(b) Any material containing a virus or other hostile computer program.
(c) Any material which constitutes, or encourages the commission of a criminal offence, or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
6.1.3 You will not send bulk e-mail, whether opt-in or otherwise, from our network. Nor will you promote a site hosted on our network using bulk e-mail.
6.1.4 You will not employ programs which consume excessive system resources including, but not limited to, processor cycles and memory. We do not host IRC, IRC bots, or other server resource intensive programs.
6.1.5 You will not host Warez, Underage Adult, or Pornographic content.
6.1.6 You will not host content for which you do not own the copyright or a license to copy or distribute, including but not limited to executable software or its code, audio, video, text, and image files.
6.2 Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is expressly prohibited. A Member shall not use another site's mail server to relay mail without the express permission of the site and Swing Hosting.
6.3 It is contrary to Swing Hosting policy for Members to use our Services to effect or participate in any of the following activities:
(a) To post to any Usenet or other newsgroup, forum, e-mail mailing list or other similar group or list articles which are off-topic according to the charter or other owner-published FAQ or description of the group or list.
(b) To send mass e-mailings; whether unsolicited, opt-in, or otherwise.
(c) To engage in any of the foregoing activities using the service of another provider, but channeling such activities through a Swing Hosting provided server, or using a Swing Hosting provided server as a mail drop for responses.
(d) To falsify user information provided to Swing Hosting or to other users of the service in connection with use of a Swing Hosting service.
6.4 Any access to other networks connected to Swing Hosting must comply with the rules appropriate for those other networks.
6.5 The Services may be used only for a purpose, activity, or business that you have significant material participation or a vested interest in. You agree to provide justification for your use of the Services and/or proof of your participation or interests as described in this section.
6.6 Consequences of Violation:
6.6.1 When Swing Hosting becomes aware of an alleged violation of its Acceptable Use Policy, Swing Hosting will initiate an investigation. During the investigation Swing Hosting may restrict Member's access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, Swing Hosting may, at its sole discretion, restrict, suspend, or terminate Member's account and/or pursue other civil remedies. If such violation is a criminal offense, Swing Hosting will notify the appropriate law enforcement department of such violation.
6.6.2 You shall be held liable for any and all costs incurred by Swing Hosting as a result of your violation of these terms and conditions. This is including, but is not limited to, attorney fees and costs resulting from Postmaster responses to complaints from and the cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations. Swing Hosting's current hourly rate for Postmaster responses to complaints and cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations is US $100 per hour, with a minimum one(1) hour charge, plus US $1 for each bulk-e-mail or Usenet message sent, plus US $1 per complaint received. Server maintenance fees of $85 per hour.
6.6.3 Swing Hosting does not issue service credits for any outages incurred through service disablement resulting from Policy violations.
6.7 We reserve the right to remove any material which we deem inappropriate from your Web Site without notice, and to do so in a manner of our choosing.
7.1 We shall use our reasonable endeavors to make available to you at all times the Server and the Services but we shall not, in any event, be liable for interruptions of Service or down-time of the Server.
7.2 We shall have the right to suspend the Services at any time and for any reason, generally without notice, but if your account is in good standing and such suspension lasts or is expected to last for more than seven(7) days you will be notified of the reason. As a reseller or sub-client, it is your responsibility to take care of backup for sites that may be yours or ones under you.
7.3 We reserve the right to disallow services/hosting to any client as we feel necessary and hold no liability. Also please note that we do not offer any sort of compensation on our network uptime guarantee.
7.4 The Services provided to you hereunder and your account with us cannot be transferred or used by anyone other than you. No more than one log-in session under any one account may be used at any time by you. If you have multiple accounts, you are limited to one login session per system account at any time; user programs may be run only during log-in sessions. If your account is found to have been transferred to another party, or shows other activity in breach of this sub clause, we shall have the right to cancel the account and terminate the Services and/or this Agreement immediately.
8.1 All charges payable by you for the Services shall be in accordance with the scale of charges and rates published from time to time by us on our web site and shall be due and payable in advance of our service provision. We reserve the right to change pricing at any time although all pricing is guaranteed for the period of pre payment.
8.2 Payment is due each anniversary month, quarter or year following the date the Services were established until closure notice is given. If you choose to pay by credit or debit card you authorize Swing Hosting to debit your account renewal fees from your card.
8.3 All payments must be in US Dollars.
8.4 If your check is returned by the bank as unpaid for any reason, you will be liable for a "returned check" charge of $45.
8.5 An Overdue Charge equal to ten percent(10%) of the invoiced amount, with a minimum charge of $4, will be applied to any account balance not paid on or before the due date.
8.6 Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we shall be entitled forthwith to suspend the provision of Services to you.
9.1 If you fail to pay any sums due to us as they fall due, we may suspend the Services and/or terminate this Agreement forthwith without notice to you.
9.2 If you break any of these terms and conditions we may suspend the Services and/or terminate this Agreement forthwith without notice to you.
9.3 If you are a company and you go into insolvent liquidation or suffer the appointment of an administrator or administrative receiver or enter into a voluntary arrangement with your creditors, we shall be entitled to suspend the Services and/or terminate this Agreement forthwith without notice to you.
9.4 No refunds will be made for Services suspended in accordance with 9.1, 9.2 and 9.3.
9.5 We reserve the right to suspend the Services and/or terminate this Agreement at any time. In the event of this you will a be entitled pro rata refund based upon the remaining period of membership.
9.6 You may cancel the Services at any time by logging into the Ticket Desk Support System and requesting cancellation of services.
9.7 In the event you that decide to cancel the Services for just cause during the first thirty(30) days of Services, you are entitled to a refund of fees paid, with the exclusion of domain name registration, domain name private registration, dedicated server, data transfer fees, and excessive support requests. Swing Hosting shall be the sole arbitrator as to the validity of your claim of just cause and will subtract the aforementioned fees from any monies due you.
9.7.1 During the first fourteen(14) days of service you are entitled to a full, no questions asked refund excluding as set forth in sections 9.7, 9.7.2, 9.7.3, and 10.5; as well as exclusions listed in sections 2, 3, and 4 above. For the remaining time your refund will be prorated and factored at the full discretion of Swing Hosting.
9.7.2 Partner Plans (Resellers) are eligible for above refund minus usage fees; if such use has been deemed excessive at the discretion of Swing Hosting. Such accounts are often more resource intensive than standard shared hosting accounts and, therefore, do not qualify for the standard refund described in section 9.7 and 9.7.1.
9.7.3 You will not be entitled to a refund on these basis if you have previously had an account with Swing Hosting under any plan or service.
9.7.4 Allow thirty(30) days for refund payments to process. If you have not received refund within this time allotment, please contact us.
9.8 Where payment has been made by credit or debit card, any refund will only be issued to the same credit or debit card.
9.9 Upon termination of this Agreement or suspension of the Services we shall be entitled immediately to block your Web Site and to remove all data located on it.
10.1 No one shall post defamatory, scandalous, or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyrights, or other intellectual property rights.
10.2 Any abuse towards any Swing Hosting employee will not be tolerated. You are expected to request and respond to support and other issues in a professional manner. When e-mailing Swing Hosting or utilizing the Ticket Desk Support System, refrain from using caps, exclamation points, and other forms of written yelling. Any cursing, yelling, or further intentional disruptive behavior aimed at Swing Hosting or it's employees shall be considered a violation of this TOS.
10.3 Any threat whether verbally, orally, written, or delivered by second parties directed towards Swing Hosting or any of it's employees, partners, equipment, and concerns shall be construed as a violation of this TOS.
10.4 Any conduct viewed as violating this section shall be considered a violation of this TOS. Swing Hosting will be the sole arbitrator in regards to what is deemed a violation.
10.5 No refunds shall be given when the contents of this section necessitates removal of the account.
11.1 Any notice to be given by either party to the other may be sent by either e-mail, fax or recorded delivery to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by e-mail shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two(2) days following the date of posting.
12.2 You acknowledge and agree that Swing Hosting has the absolute right and power, as we deem necessary and at our sole discretion, without providing notice and without any liability to you whatsoever, to any and all of the following: (a) remove any domain name Private Registration information; (b) disclose your name and personal information and/or account data (including payment history and electronic files hosted on our Servers) when i) required by law, when it is believed by us that such action is necessary in order to conform to the edicts of the law, ii) to adhere with the legal process served upon us; (c) resolve any and all third party claims, whether or not such claim is valid; or (d) take any other action as we deem necessary:
(a) If you breach any part of this Agreement.
(b) To comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement.
(c) To comply with ICANN's Dispute Resolution Policy.
(d) To avoid any financial loss or legal liability (civil or criminal) on the part of Swing Hosting, its directors, officers, employees and agents.
(e) If any party claims that a domain name registered through our Services violates or infringes a third party's trademark, trade name, or other legal rights.
(f) If any third party threatens legal action against us that is related in any way, directly or indirectly, to your use of the Services, or claims that you are using the Services in a manner that violates any law, rule or regulation, or is otherwise illegal, unlawful, or violative of a third party's legal rights.
(g) If Swing Hosting, its directors, officers, employees or agents are named as a defendant(s) in, or investigated in, any legal or administrative proceeding related in any way, directly or indirectly, to your use of the Services.
13.1 Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
14.1 Swing Hosting reserves the right to change, amend, discontinue, and/or otherwise alter the Services at any time at our sole discretion.
14.2 Swing Hosting reserves the right to modify the Agreement at any time, effective immediately upon posting of the modification to this Web address: http://www.swinghosting.net/policy/tos.html.
14.3 It is your responsibility to check these Terms of Service on occasion for any such amendments.
15.1 This Agreement shall be governed by and construed in accordance with United States law and the laws governing the state of Massachusetts. You hereby submit to the non-exclusive jurisdiction of the U.S. courts.
16.1 You shall indemnify us and keep us indemnified and hold us harmless from and against any breach by you of these terms of business and any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Services and the Server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by us in consequences of your breach or non-observance of this Agreement.
17.1 All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to sub clause.
17.2 Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
17.3 Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim.
17.4 In any event no claim shall be brought unless you have notified us of the claim within one year of it arising.
17.5 You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
17.6 In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
18.1 ALL SWING HOSTING 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. SWING HOSTING MAKES NO WARRANTY THAT THE SERVICES WILL MEET THE MEMBER'S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
19.1 You acknowledge and agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, it shall not affect the remaining terms or provisions which shall continue to be binding and remain in full force and effect.
20.1 These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.
21.1 You (anyone viewing this page) are free to use these terms as a template for writing your own. Please have it reviewed by a local attorney to make certain it conforms with your applicable laws. You will also wish to confirm that the terms you create using this form as a template conform to your upstream provider.
21.2 Swing Hosting releases rights to this document text to the reader, free of encumbrance. Except as noted in this section (19.4).
21.3 In no form can you hold Swing Hosting responsible for any and all actions arising out of your use of these terms as your own.
21.4 If you choose to use these terms as your own, this section (21) must remain intact of content; save for our name. You agree to let others use these terms as a guide.
21.5 Our release of this text material in no way assigns rights of any images viewed herein.