This is an agreement between Webxen and the user of Webxen's products and services on the other hand. In this Agreement "You" and "Your" refer to you or any agent, employee, servant or person authorized to act on your behalf. "We", "Us" and "Our" refer to Webxen. This Agreement explains our obligations to you, and explains your obligations to us for various services offered by Webxen. When you use your account or permit someone else to use it to purchase or otherwise acquire access to additional Webxen service(s) or products or to cancel your Webxen services (even if we were not notified of such authorization), this Agreement covers such service or actions.
1. Term of Agreement; Modification. You agree that Webxen may modify this Agreement and the services it offers to You from time to time. You agree to be bound by any changes Webxen may reasonably make to this Agreement when such changes are made. If You have purchased services or products from Webxen, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the products or services.
2. Accurate Information. You agree to maintain accurate information by providing updates to Webxen, as needed, while You are using Webxen's products and services. You agree You will notify Webxen within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Webxen to determine the validity of information provided by You will constitute a material breach of this Agreement. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Webxen has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, Webxen has the absolute right, in its sole discretion, to terminate its Services and close Your account.
4. Prohibited Activities:
You agree not to engage in unacceptable use of any of Webxen products and/or services, which includes, without limitation, use of Webxen products and/or services to: (i) disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email or unreasonably large volumes of email on a daily basis, provided, Webxen, in its sole discretion, may permit You, if You have a legitimate purpose and after written request, to send more email than Webxen's standard SMTP relay limit; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; (viii) engage in any other activity deemed by Webxen to be in conflict with the spirit or intent of this Agreement or any Webxen policy; or (ix) use Your server as an "open relay" or similar purposes. This includes but is not limited to pirated software, hacking programs or archives, warez and mp3 sites and IRC bots. Webxen is the sole arbiter as to what constitutes a violation of this provision.
Violations of system or network security are prohibited, and may result in criminal and civil liability. Examples include, but are not limited to the following: unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
It is a violation for anyone to employ posts or programs which consume excessive CPU time or storage space; permits the use of mail services, mail forwarding capabilities, POP accounts, or auto responders other than for the user's own account; or resell access to CGI scripts installed on our servers. Webxen prohibits the running of a public recursive DNS service on any Webxen server. All recursive DNS servers must be secured to allow only internet network access or a limited set of IP addresses. Webxen actively scans for the presence of public DNS services and reserves the right to remove any servers from the network that violate this restriction.
You are responsible for ensuring that there is no excessive overloading of Webxen's DNS system or servers. In the event that You exceed Your allotted bandwidth and thereby overload Webxen's DNS or servers, You shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use Webxen's servers and Your Server Account as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and Webxen reserves the right to immediately remove sites that contain information about hacking or links to such information. Use of your server account as an anonymous gateway is prohibited, as is Your use of Webxen products and/or services to restrict or inhibit any other user from using and enjoying the Internet. You acknowledge and agree that Webxen has the right to remove Your server content temporarily or permanently from its dedicated servers if Webxen is the recipient of activities that threaten the stability of its network.
You agree not to provide free services such as free hosting, free subdomains or free email accounts. Account holders found violating this section will be terminated immediately and all payments forfeited.
5. Storage and Security. At all times, You shall bear full risk of loss and damage to Your server and all of Your server content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of Your server content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your server content; (ii) maintain independent archival and backup copies of Your server content; (iii) ensure the security, confidentiality and integrity of Your server content transmitted through or stored on Webxen servers; and (iv) ensure the confidentiality of Your password. Webxen's servers are not an archive and Webxen shall have no liability to You or any other person for loss, damage or destruction of any of Your content. The services offered by Webxen are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. Webxen shall have no liability to You or any other person for Your use of Webxen products and/or services in violation of these terms.
6. Non-exclusive License. If You have licensed software from Webxen, Webxen grants You a limited, non-exclusive, nontransferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time. You agree to not alter or modify the software. You agree You are not authorized to combine the software with any other software program, create derivative works based upon the software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
Webxen reserves all rights to the software. The software and any copies You are authorized to make are the intellectual property of Webxen. The source code and its organization are the exclusive property of Webxen and the software is protected by copyright law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the software and all rights are reserved by Webxen.
Any such software and services are provided to You "as is" without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
7. Webxen Account. Webxen will host an account for You corresponding with the purchaed, leased or provided domain name(s) and for the period of time corresponding with the payment plan chosen by You. The contract will automatically renew at the end of The Term unless otherwise specified by You. Once the account cancellation request is received and we process the request as per the account holders consent, the agreement between You and Webxen is officially terminated. We reserve the right to remove the account from the web server at any time thereafter. Webxen will NOT host the site for any time period left once the cancellation request has been received and processed. It is Your responsibility to make sure that You and Your respective clients have access to all their files and relevant data before initiating the cancellation request. Webxen shall not be responsible for any loss of data once the account recurring billing has been cancelled.
8. Legal Purposes. The web hosting and reseller hosting account and/or related electronic services can only be used for legal purposes under all applicable international, federal, provincial, and municipal laws. The intent of Webxen is to provide space to serve web documents, not as an off- site storage area for electronic files and is governed by our Disk Usage Provision, set out in the Acceptable Use Policy. Violations of these or any other provisions of this Agreement may result in termination of the services provided by Webxen, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of Webxen based upon the severity of the violation. Webxen reserves the right to refuse service if any of the content within, or any links from, the Account Holder's website is deemed illegal, misleading, or obscene, or is otherwise in breach of Webxen's then current Acceptable Use Policy, in the sole and absolute opinion of Webxen.
9. Rates and Prices. You acknowledge that the nature of the service furnished and the rates and charges have been communicated to You. You are aware that Webxen reserves the right to change the specified rates and charges from time to time.
10. Account Use. You agree to follow generally accepted rules of "Netiquette" when sending e-mail messages or posting to newsgroups. You are responsible for security of your password. Webxen will not change passwords to any account without proof of identification, which is satisfactory to Webxen, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes You, You understand that Webxen will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will Webxen be liable for any losses incurred by You during this time of determination of ownership, or otherwise. The You agree to indemnify and hold harmless Webxen from any and all claims arising from such ownership disputes.
11. Safe Use. You agree not to harm Webxen, its reputation, computer systems, programming and/or other persons using Webxen.com's services. Webxen.com reserves the right to select the server for Account Holder's website for best performance. You understand that the services provided by Webxen are provided on a shared server. In order to keep our servers running at optimal levels, any sites running a process that uses more than 25% of all available system resources for 60 seconds or longer will be required to move up to VPS Hosting or Dedicated Server solution, or to be hosted elsewhere. This upgrade may result in an automatic upgrade to a higher-level pricing plan corresponding with the elevated use requirements. Alternatively, Webxen reserves the right to suspend services on that specific account until the higher usage may be accommodated. A failure by You to agree to and comply with the terms of this provision may result in the termination of the services provided to You without any refunds of the unused prepaid portion of the fees.
12. Third Party Content. If You elect to sell or resell advertising or web space to a third party then You will be responsible for the contents of that advertising and the actions of that third party. Webxen has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current Webxen policy or agreement. Such content may result in the suspension or in the immediate termination of Your account. You are responsible for monitoring all domain transfers, renewal and orders. In the event that an error occurs the account holder must notify Webxen immediately of the error. In no event shall Webxen.com be liable to the Account Holder for any damages resulting from or related to any failure or delay of domain registration, transfer or renewal.
13. Domain Lease. Webxen's "Free Domain for Life" service offers You a free domain name for the active life of the web hosting or reseller account that should be hosted on Webxen servers. The domain name is registered under Webxen's name, owned by Webxen, is the property of Webxen, and is managed by Webxen on Your behalf. Webxen employs privacy protection services provided by WhoisGuard on all domain names. Webxen may substitute the client's information into the whois database upon client request.
Free domain names must be hosted on the servers of Webxen only. At any time you will have the option of taking full control over the domain names for a onetime fee of $25 each.
15. Billing. If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchase the products or services. If that date falls after the 28th of the month, then Your billing date will be the 28th of each month. If You signed up for an annual (or longer) payment plan, and You elected the automatic renewal option, Webxen will automatically renew Your services when they come up for renewal and will take payment in accordance with the designated payment method at Webxen's then current rates.
If for any reason Webxen is unable to charge Your account for the full amount owed Webxen for the products and/or services provided, or if Webxen is charged a penalty for any fee it previously charged to You, You agree that Webxen may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason Webxen is unable to charge Your credit card with the full amount of the services provided, or if Webxen is charged back for any fee it previously charged to the credit card You provided, You agree that Webxen may pursue all available remedies in order to obtain payment. You agree that among the remedies Webxen may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any domain names or products and/or services registered or renewed on Your behalf. Webxen reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular services, including additional costs that it may incur in providing the services and pass these costs along to You.
16. Affiliate Program Terms:
17. While all purchases are processed in US dollars, Webxen may provide an estimated conversion price to currencies other than US dollars. You acknowledge and agree that the pricing displayed during the checkout process is an estimate. Due to potential slight time delays between actual purchase and the payment settlement, the actual price charged may fluctuate. Accordingly, Webxen makes no representations or warranties that the actual price will be the same or substantially similar to the actual price You will pay and You waive any and all claims based upon any discrepancy between the estimate and the actual price. In addition, you may be charged VAT, based on the country indicated in Your billing address section. Any amounts to be charged will appear during the checkout process.
18. Limitation of Liability; Waiver and Release. The services offered by Webxen are being provided on an "AS IS" and Webxen expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, Webxen expressly does not warrant that the Webxen products and/or services will meet Your requirements, function as intended, or that the use of the provided services will be uninterrupted or error free. In no event shall Webxen be liable for any or all direct, indirect, incidental, special, exemplary or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including, but not limited to, negligence or otherwise) arising in any way out of the use of the services, even if Webxen is aware of or has been advised of the possibility of such damages.
19. Indemnification. Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge Webxen and all affiliates of Webxen, and all officers, agents, employees, and representatives of Webxen, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the products and services and Your acquisition and use thereof, including, but not limited to, the provision of the Webxen products and/or services by Webxen and its agents and employees. Further, You agree to defend, indemnify and hold Webxen harmless from any loss, liability, damages or expense, including reasonable attorneys' fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should Webxen be notified of a pending law suit, or receive notice of the filing of a law suit, Webxen may seek a written confirmation from You concerning Your obligation to defend, indemnify Webxen. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Webxen shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Webxen of any such claim promptly in writing and to allow Webxen to control the proceedings. You agree to cooperate fully with Webxen during such proceedings.
20. Termination. You agree that You will be responsible for notifying Webxen should You desire to terminate Your use of Webxen's Services. Notification of Your intent to terminate must be provided to Webxen no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date.
21. Notices. You agree that any notices required to be given under this Agreement by us to you will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information you have provided.
22. Legal Age. You attest that you are of legal age to enter into this Agreement.
23. Final Agreement. This Agreement, together with all modifications, constitute the complete and exclusive agreement between you and us, and supersede and govern all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of us.
24. No Agency Relationship. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
25. Waiver. The failure of us to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
26. Enforceability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
27. Assignment and Resale. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Webxen's prior express written consent.
28. Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Webxen, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Webxen may immediately terminate this Agreement.
29. Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
This document was last revised on September 28, 2016