Experience, People, Technology

In General
SmartyHost, wishes to provide our customers with a positive web hosting experience. To accomplish this, all customers need to follow the same rules and guidelines. These policies are intended to maintain SmartyHost's high quality level of services and make them available to all our customers on a fair, consistent and efficient basis.

By accepting web hosting services from SmartyHost, you acknowledge your acceptance to be bound by these terms and conditions. If you do not agree to these terms and conditions, please follow the steps described in Cancellation of Service below.

Web Site Content
SmartyHost is not obligated to monitor the network for the purpose of examining customer's content. You hereby acknowledge that if we are made aware of content that is determined to be, in SmartyHost's sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, SmartyHost has the right, but not the obligation, to edit, remove or deny access to such content. SmartyHost may disclose any content or records concerning customer's account as required to satisfy any legal requirement, regulation, government request or court order.

Pornography and sex-related merchandising are expressly prohibited on SmartyHost servers. This includes implying sexual content, display of nudity, or any link to adult content anywhere else. This is also true for sites that promote illegal activity of any type or content that may be damaging to SmartyHost's servers or any other servers on the Internet. Links to such materials are also prohibited. In addition, the sale of or promoting bulk email services are not allowed. Non-acceptable content or links include but are not necessarily be limited to:

• Adult Content Sites - Any erotic or pornographic material, links to adult sites, or advertisements for adult sites.

• Pirated Software Sites (Warez) - Any software that is copyrighted and not freely available for distribution without cost; i.e. ROMs, ROM Emulators and MPEG Layer 3 files (MP3).

• Copyright Violations - Violation of copyrights held by individuals and corporations or other entities can result in civil and criminal liability for the infringer.

• Hacking/Phreaking - Includes sites with material, links, or resources for hacking, phreaking, viruses, anarchy, or any type of site that promotes or participates in willful harm to Internet sites or providers.

System Security
Customers may not use the SmartyHost Networks to attempt in any way to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing any data not intended for the customer, logging into any server or account the customer is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy. Customers may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. SmartyHost will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.

Use of CGI Scripts
SmartyHost accounts come equipped with a pre-configured CGI-Bin. Customers are free to use any CGI-scripts provided with their account or add any additional ones they require. If any CGI-scripts are deemed to be adversely affecting the server performance or the network integrity, they may be shut down without prior notice. CGI-script sharing with domains not hosted by SmartyHost is not allowed.

Excessive Resource Usage
Any web site that uses an excessively high amount of server resources including but not limited to CPU time, memory, and network bandwidth will be given an option of either upgrading their service level or reducing the resource used to an acceptable level.

Spamming Not Permitted
You must not use any SmartyHost Network, SmartyHost's equipment or any SmartyHost email address in connection with the transmission of spam, flames, mail bombs, or substantially similar, unsolicited email messages. Your domain may not be referenced as originator, intermediary, or reply-to address in any of the above. This shall include the sending of unsolicited mass mailings from any other service that in any way implicates the use of the SmartyHost Network, SmartyHost equipment or any SmartyHost email address. A message is considered to be unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. Simply making one's email address accessible to the public will not constitute a request or invitation to receive messages, for purposes of enforcing this provision.

When any customer is found to have been engaged in spamming in violation of this agreement, SmartyHost reserves the right to disable that customer's web site without warning. In addition, SmartyHost may impose a $1000 penalty for each spam policy violation. SmartyHost solely reserves the right to refuse or cancel service to spammers. SmartyHost reserves the right to determine what violates this policy. As such, any violation may result in cancellation of services without refund.

Copyrights and Infringement
Material available to you when using SmartyHost's services may be subject to protection under copyright laws, or laws protecting trademarks, trade secrets and/or proprietary information. Except when expressly permitted by the owner of such copyrights, you must not use the SmartyHost Service in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, that you access or receive through the SmartyHost Network. If you use a domain name in connection with the SmartyHost Service or similar service, you must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.

Defamation Prohibited
Defamatory speech distributed over the Internet can result in civil liability for the defamer.

Refusal of Service
SmartyHost reserves the right at its sole discretion to refuse or cancel service. Violation of any of SmartyHost's Rules and Regulations could result in a warning, suspension, or possible account termination. Accounts terminated due to policy violations will not be refunded including during the 30 Day money back guarantee period.

Vigabyte Servers is defined as servers that are rented to Clients.

Management of Vigabyte Servers is client's responsibility. Any software and applications installed on the server is the sole responsibility of the client. SmartyHost will not take any responsibility or management of such software.

Server Administration is provided to clients on a fee basis. The service will be limited to security updates, patches, kernel upgrades, and general operating system updates. SmartyHost does not take responsibility of the overall security of servers if client has installed their own free open source or commercial software on the servers.

Network Uptime is the total time in a calendar month that SmartyHost network is available through the Internet, provided that Client has established connectivity. SmartyHost takes responsibility Network availability within their network, however, we cannot be held liable for upstream problems, outside of our network. Our guarantee is that our Network will be available to clients free of Network Outages 99.9% of each calendar month.

Network Outages or Unscheduled downtime is any unplanned or unscheduled interruption in Service availability during which Client is unable to access the services as described in the section titled "Network Uptime" above. A Network Outage is defined as a period in which packet loss to our network is experienced, which is determined to have been caused by a problem in SmartyHost Network as confirmed by SmartyHost . Downtime or outages are measured as the total length of time of the unplanned interruption in service availability in a calendar month.

Scheduled Downtime is any SmartyHost scheduled interruption of Services, for the purpose of network upgrades, or replacement of any equipment in order to provide for you better service. Scheduled downtime occurs during notified downtime periods, with as much advance warning as possible via e-mail with a minimum of 24 hours notice.

Client Initiated Downtime is any interruption or downtime caused by client's applications or modifications to the server. SmartyHost will not take any responsibility for such applications or medications.

SLA Network Violation Credit occurs when our network uptime guarantee is not met. SmartyHost will refund the client 5% of the monthly fee for each 4 hour block of downtime (up to 25% of your monthly fee) for network downtime. Network downtime is measured from the time the network is 100% unreachable, until service is once again restored. In order to request a performance credit, you must send in a request via our Level 3 support Help Desk, within 10 days of reported violation. SLA violations will be reviewed by our personnel Monday - Friday 9AM to 5PM EST. *Network violation SLA credit does not cover server hardware failure.*

• Performance Credit exclusions: The following are excluded from the monthly calculation of Service Availability:

• Scheduled downtime

• Problems outside of SmartyHost's network (upstream providers, or client's inbound connection) not effecting 100% loss to our network

• Interruptions or failure of individual service caused by client, their employees, client's customers, etc. to their service. These include inaccurate configuration, 3rd party software, client abuse or over utilization of resources, hacked servers, attacks, exploits, or server hardware failures.
  

Server Hardware for Vigabyte Servers
Hardware is defined as the Processor(s), RAM, hard disk(s), motherboard, NIC card and other related hardware included for Vigabyte Servers.

Hardware replacement will occur within 4 hours of the reported problem. SmartyHost uses Dell Gold Support for all its servers ensuring rapid hardware replacement within 2 hours in most instances.

SmartyHost is not responsible for the restoration of data to server unless you have purchased a separate Backup solution from SmartyHost. If you do not purchase a Backup Solution we strongly recommend you keep copies of your data off-site with you for emergency purposes. If hardware failure and data loss occurs, you the client, are responsible for data restoration. SmartyHost shall not be liable for loss of data under any circumstance.

Contract Period
All services are paid one month inadvance. No contract period.

Payment Method
All setup and installation charges must be paid upfront.

Monthly fees must be paid from contract start date with first month paid on completion of installation.

Payments can be made by Cheque, Money order, Visa, MasterCard or BankCard.

SmartyHost will issue an invoice for all services requested.

SmartyHost to be Held Harmless
Customer agrees that it will protect, indemnify, save and hold SmartyHost, harmless from any and all stipulations, liabilities, losses, expenses and claims, as well as reasonable legal fees assessed against SmartyHost, its agents, customers, officers, employees and administration that may arise or result from any service provided or performed or agreed to be performed or any product sold by it's customers, agents, employees or assigns. Customer agrees to defend, indemnify and hold SmartyHost, harmless against liabilities arising out of;

1. any injury to person or property caused by any products sold or distributed in association with SmartyHost Services;

2. any material furnished by customer infringing or allegedly infringing on the proprietary rights of a third party;

3. copyright violation and any defective products sold to a customer from SmartyHost Services.

Disclaimer
SmartyHost will not be responsible for any damages your business may suffer. SmartyHost makes no warranties of any kind, expressed or implied for services we provide. SmartyHost disclaims any warranty or merchantability or fitness for a particular purpose. This includes data loss resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions of any kind caused by SmartyHost and its employees. SmartyHost reserves the right to amend or update these policies without notice. Failure to follow any terms and conditions may result in account deactivation.

SmartyHost furthermore expects that its customers who resell our Internet services to others will fully comply with all applicable laws concerning the privacy of on-line communications. A customer's failure to comply with those laws will violate this policy. Finally, SmartyHost wishes to emphasis that in accepting services, customers indemnify SmartyHost for the violation of any law or SmartyHost policy, that results in loss to SmartyHost or the bringing of any claim against SmartyHost. This means that if SmartyHost is sued because of activities of the customer that violate any law, or this policy, the customer will pay any damages awarded against SmartyHost, plus costs and reasonable legal fees.

Should any portion of this Terms of Use Agreement be found to be in violation of any law in any locality, then this agreement shall be deemed to be modified only to the extent necessary to be considered legal and enforceable in such locality only.