SmartWebNI – Terms and Conditions
1. ACCEPTANCE OF TERMS OF SERVICE
a. As a precondition and requirement to use the services available via SmartWebNI.com, you, for yourself and for the company or other person(s), if any, you represent (“Subscriber” or “Subscribers”, as applicable), hereby accept and agree to be legally bound by these Terms of Service (“Terms”). These Terms are effective immediately between the Subscriber and SmartWebNI dba SmartWebNI.com, its subsidiaries and affiliates (“SmartWebNI”). Each Subscriber is subject to these Terms, and by using SmartWebNI’s services, network and/or systems (collectively the “Services”), Subscriber agrees to be legally bound by and subject to all terms and conditions contained in these Terms, including as well all usage policies and other policies herein. To the extent not inconsistent therewith, these Terms are also incorporated into the individual service agreement, if any, of each Subscriber.
b. Subscriber represents and warrants that, if an individual, Subscriber is at least 18 years old and otherwise legally competent in all respects to, or, if an entity, Subscriber is a corporation, limited liability company, partnership, or other legal entity duly formed and in good standing, as applicable, and possesses all legal authority and power to accept and be bound by these Terms. Additionally, Subscriber represents and warrants that neither it, she, or he (as applicable), nor any entity it, she or he represents, is prohibited under any part of section 17 of these Terms from registering or signing up with or otherwise subscribing to or receiving any of the Services from SmartWebNI. Further, Subscriber represents and warrants all information provided by Subscriber to SmartWebNI has been and is complete, accurate, and current, and that Subscriber shall continue to provide complete, accurate and current information to SmartWebNI in connection with all registration or renewal processes and further agrees to update all such information as necessary to maintain complete, accurate and current information. Although Subscribers of paid services offered through SmartWebNI must be at least eighteen (18) years of age and otherwise legally competent to accept and be legally bound by these Terms, a parent or legal guardian of a minor may obtain an account on the minor’s behalf, and by doing so, consents to such minor’s use of the Services. Subscribing parents and legal guardians each for herself or himself, as applicable, accept and agree to be legally bound by these Terms, and assume full responsibility and liability associated with any failure of compliance with the Terms in connection with said minor’s use of any of the Services.
c. SmartWebNI intends to provide the best possible web hosting and web service to each of its Subscribers. SmartWebNI is also dedicated to staying abreast of new and available technologies that will better serve our Subscribers. However, due to changing technologies, changing laws and the individual and collective needs of our Subscribers, SmartWebNI reserves the right, in its sole discretion, to change, modify, add or remove all or any part of these Terms at any time with or without notice.
d. Subscribers may view the most current version of these Terms at SmartWebNI.com/terms. Any use of the Services by Subscriber, after changes, modifications, additions or deletions to these Terms are posted on the SmartWebNI.com website, shall constitute Subscriber’s acceptance of all such changes, additions, modifications or deletions. If a Subscriber does not agree to any such alterations to these Terms, the Subscriber’s sole and exclusive remedy is to cancel the Subscriber’s account as set forth in Section 4 below.
e. If SmartWebNI makes a significant change to these Terms, as determined in its sole discretion, SmartWebNI will post a notice that we have made significant changes to the Terms on the SmartWebNI.com website for at least thirty (30) days after the changes are posted and will indicate at the bottom of these Terms the date these Terms were last revised.
f. If Subscriber is registering a new domain name with SmartWebNI, or using or transferring a previously registered domain name in conjunction with Subscriber’s use of the Services, Subscriber hereby acknowledges and agrees that Subscriber’s use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”) and the Domain Registration Agreement located at SmartWebNI.com/domain_registration and has read the Registrant Rights and Responsibilities located at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm or appropriate body.
2. ACCEPTABLE USE POLICY
Under this Agreement, Subscriber shall comply with SmartWebNI’s then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by SmartWebNI, and other agreements which currently can be viewed under the Terms of Service section of this Web site (collectively, the “Terms of Service”), and which is incorporated in this Agreement by reference. Subscriber hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. SmartWebNI does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Subscriber via the Service (the “User Content”). User Content includes content of Subscriber’s and/or users of Subscriber’s Web site. Accordingly, under this Agreement, Subscriber will be responsible for Subscriber’s users content and activities on Subscriber’s Web site. Notwithstanding anything to the contrary contained in this Agreement, SmartWebNI may immediately take corrective action, including removal of all or a portion of the User Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Subscriber of the AUP. In the event SmartWebNI takes corrective action due to a violation of the AUP, SmartWebNI shall not refund to Subscriber any fees paid in advance of such corrective action. Subscriber hereby agrees that SmartWebNI shall have no liability to Subscriber or any of Subscriber’s users due to any corrective action that SmartWebNI may take (including, without limitation, suspension, termination or disconnection of Services).
3. TERM – PAYMENT – RENEWAL OF ACCOUNT AND DOMAIN
. Term of Service
The term of Subscriber’s subscription to the Services commences upon Subscriber’s acceptance of these Terms and terminates as set forth in Paragraph 3.7 and Section 4.
Subscriber agrees to pay all applicable fees for Services in effect at the time of sign-up registration and/or renewal, subject to these Terms. Subscriber agrees to update and keep current all of Subscriber’s billing information, email and all other contact information. It is the Subscriber’s responsibility to verify that the information submitted is accurate to insure proper billing and continuity of services. SmartWebNI may use Merchant Updater Services to receive updated billing information from participating providers.
b. Promotional Pricing
SmartWebNI may periodically offer “free” or discounted services or credits in connection with a promotional offer, including, without limitation, free domain name registration. Such promotional offers are honored only in connection with the specific promotional package to which they apply. In the event a Subscriber downgrades or otherwise changes his/her/its subscription to a subscription to which a promotional offer does not apply, Subscriber will forfeit any unused free credits offered under the promotional packaged and SmartWebNI will charge Subscriber the prevailing fees for any free credits redeemed by Subscriber under the promotional package.
c. Automatic Renewal of Hosting Account
As a courtesy and not as an obligation (contractual or otherwise), fifteen (15) days prior to the expiration of Subscriber’s Hosting Account or Domain(s) SmartWebNI will automatically renew Subscriber’s Hosting Account by charging the applicable fee for the non-promotional rate to Subscriber’s current method of payment on file. The initial term of this Agreement shall be as set forth in the Registration Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Subscriber, and after the Initial Term, this Agreement shall continue for successive periods (or renewal period) of equal length as the Initial Term or such other Term and price that shall be set forth in a notice to the customer at least thirty (30) days prior to the commencement of such successive period or renewal period. In the case of insufficient funds we will attempt to collect at a partial term quantity ( not changing your current term) to continue service as per contract. Additionally after the Initial Term, you acknowledge, agree and authorize us to automatically bill and/or charge on your credit card for successive or renewal periods, unless terminated or cancelled by either party as provided in this section. SmartWebNI shall provide notice of the upcoming charge to Subscriber no later than thirty (30) days prior to the payment date. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”. Subscriber acknowledges and confirms that if the Subscriber pays for a hosting plan or service which qualifies for a Free Domain that the Subscriber will be provided with a digital domain registration voucher to be used for selecting their Free Domain. Some domains types are exempt from this offer. The domain registration voucher is only applicable as long as the Subscriber maintains a qualifying hosting plan or service. All free domains remain the property of SmartWebNI during the agreement and following its termination. Free domains are not available for transfer by a subscriber to any third party and the subscriber acknowledges and confirms that they will not attempt to transfer free domains under any circumstance.
d. Automatic Renewal of Domain(s)
As a courtesy and not as an obligation (contractual or otherwise), fifteen (15) days prior to the expiration of Subscriber’s domain, if registered with SmartWebNI (or one of its Affiliates), or if transferred to and registered with SmartWebNI (or one of its Affiliates), SmartWebNI will automatically renew Subscriber’s domain, by charging the applicable fee to Subscriber’s current method of payment on file. Subscriber acknowledges and confirms that the obligation to renew his/her/its Domain(s) is solely and exclusively the responsibility of the Subscriber, and is not the obligation (contractual or otherwise) of SmartWebNI. Subscriber hereby releases SmartWebNI from any and all liability for failure for any reason to renew said Hosting Account or said Domain(s). Subscriber acknowledges that there may be many reasons why SmartWebNI is unable to renew said Hosting Account or Domain, including but not limited to inability of SmartWebNI, for any reason, to bill said renewal to Subscriber’s method of payment on file, to contact or otherwise get response from Subscriber at the email address on file, or otherwise. Subscriber acknowledges that said Hosting Account and/or Domain, if not renewed, for whatever reason, will expire on the Hosting Account or Domain Expiration Date, as applicable. In the event that a Domain expires, and depending on the domain type, SmartWebNI may hold the expired Domain for up to thirty (30) days as a courtesy and not as an obligation (contractual or otherwise). Thirty (30) days after expiration, the Domain will be placed in Redemption. During the Redemption period the Domain will be inaccessible and unable to be registered elsewhere. In order to bring a Domain out of Redemption, Subscriber must pay a Redemption Fee, as well as a Renewal Fee for the current year. Domain registration vouchers cannot be applied toward the cost of Redemption. If the Domain is not redeemed within seventy-four (74) days of expiration, it will be set to Pending Delete status by the domain registry. After the Pending Delete status expires, the Domain will be released for registration. During the Pending Delete period, the Domain will be inaccessible and unrecoverable. Domains under the ownership of SmartWebNI may be retained for longer, at the discretion of SmartWebNI before disposal by a method of the SmartWebNI choosing.
e. Notification of Automatic Renewals
Subscriber will be notified of pricing for EACH successive period (or renewal period) no later than thirty (30) days prior to the payment date of SUCH successive period (or renewal period) for all products and services with a successive or renewal period of twelve (12) months or greater. This notification will be sent to the contact email address on file for the Account.
f. VPS and Dedicated Hosting Account Renewal
As a courtesy and not as an obligation (contractual or otherwise), SmartWebNI will automatically renew Subscriber’s VPS or Dedicated Hosting Account by charging the applicable fee for the non-promotional rate to Subscriber’s current method of payment on file. For VPS or Dedicated Hosting Accounts with a Term of three (3) months or greater, this renewal will occur fifteen (15) days prior to the expiration of Subscriber’s Hosting Account. For Hosting Accounts with a Term of one (1) month, this renewal will occur twenty-four (24) hours prior to the expiration of Subscriber’s Hosting Account. SmartWebNI shall provide notice of the upcoming charge to Subscriber no later than thirty (30) days prior to the payment date. In the event that a VPS or Dedicated Hosting Account that has been set to manual renewal by Subscriber expires, the Account will be suspended seven (7) days after expiration if no payment is received. If the Account has not been renewed after fourteen (14) days have elapsed following expiration, the Account will be terminated.
g. Cancellation of Automatic Renewal of Account or Domain
Subscriber agrees to notify SmartWebNI of Subscriber’s intent to cancel automatic renewal at least sixteen (30) business days prior to the account or domain expiration date, by directing Automatic Account Renewal Cancellation Notification and/or Automatic Domain Renewal Cancellation Notification to SmartWebNI, as applicable, by opening a ticket. This request must include verification of ownership of the hosting account and/or domain(s), as determined by SmartWebNI.
h. Chargebacks and Reversals
In the event Subscriber issues a chargeback or reversal of charges without first following the below cancellation procedures, the Subscriber will be responsible for a USD$25.00 billing service fee. Hosting accounts that have an open dispute may be disabled for security purposes.
In the event Subscriber is a corporation, limited liability company, partnership, joint venture, other business entity or group of individuals, the person registering for or renewing SmartWebNI Services on behalf of Subscriber hereby certifies that he/she has the authority to and does hereby bind the corporation, limited liability company, partnership, joint venture or other individuals in this manner and in connection with Subscriber’s acceptance of all other Terms set forth herein.
j. Website Design and Services
Subscribers do not have permission or license to replicate, misuse or resell designs or services produced by SmartWebNI. All services and designs are to be used for the specific role they are created and only for the duration of the agreement. Services and designs are not transferrable to any third party during or after the agreement. See section 12 for more information on property rights.
4. CANCELLATION OF SERVICES – REFUND POLICY
SmartWebNI does not provide a refund in any circumstance for custom work which has commenced or for 3rd party services, where payment has already been transferred, such as but not limited to, domain registrations, domain renewals, hosting account registrations or website design work.
5. LICENSE TO SMARTWEBNI
SmartWebNI claims no ownership interest in the content of Subscriber’s web site(s). By submitting content and data to SmartWebNI, Subscriber grants to SmartWebNI, its successors and assigns, the worldwide, royalty-free, and nonexclusive license under Subscriber’s copyrights and other rights, if any, in all material and content displayed in Subscriber’s web site to use, distribute, display, reproduce, and create derivative works from such material in any and all media, in order to maintain such content on SmartWebNI’s servers during the Term. Subscriber also authorizes the downloading and printing of such material, or any portion thereof, by end-users for their personal use. This license shall terminate upon Subscriber’s cancellation of the Services as set forth in Sections 3 and 4 of the User Agreement.
6. SMARTWEBNI AS RESELLER OR LICENSOR
SmartWebNI is acting only as a reseller or licensor of certain services, hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-SmartWebNI Product”). SmartWebNI shall not be responsible for any changes in the Services that cause the Non-SmartWebNI Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. If you provide FTP access to a third party to utilize any Non-SmartWebNI Product, SmartWebNI is not liable for any malfunctions or defects or any losses of any kind resulting from such access. Any malfunction or manufacturer’s defects of Non-SmartWebNI Product either sold, licensed or provided by SmartWebNI to User or purchased directly by User used in connection with the Services will not be deemed a breach of SmartWebNI’s obligations under this Agreement. Any rights or remedies User may have regarding the ownership, licensing, performance or compliance of Non-SmartWebNI Product are limited to those rights extended to User by the manufacturer of such Non-SmartWebNI Product. User is entitled to use any Non-SmartWebNI Product supplied by SmartWebNI only in connection with User’s permitted use of the Services. User shall use its best efforts to protect and keep confidential all intellectual property provided by SmartWebNI to User through any Non-SmartWebNI Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. User shall not resell, transfer, export or re-export any Non-SmartWebNI Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
7. USAGE POLICIES AND DEFINITIONS
. “UNLIMITED” USAGE POLICIES AND DEFINITIONS
. “Unlimited” usage policies and definitions apply only to shared and reseller hosting accounts.
i. What “Unlimited” means
SmartWebNI does not set an arbitrary limit or cap on the amount of resources a single Subscriber can use. In good faith and subject to these Terms, SmartWebNI makes every commercially reasonable effort to provide its Subscribers with all the storage and bandwidth resources needed to power their web sites successfully, as long as the Subscriber’s use of the service complies with these Terms. By not setting limits on key resources, we are able to provide simple, consistent pricing to our Subscribers as they grow their websites. As a result, a typical website may experience periods of great popularity and resulting increased storage without experiencing any associated increase in hosting charges.
ii. What “Unlimited” DOES NOT mean
SmartWebNI employs complex mechanisms to protect its Subscribers and systems from abuse. SmartWebNI’s offering of “unlimited” services is not intended to allow the actions of a single or few Subscribers to unfairly or adversely impact the experience of other Subscribers. SmartWebNI’s service is a shared hosting service, which means that multiple Subscriber web sites are hosted from the same server and share server resources. SmartWebNI’s service is designed to meet the typical needs of small business and home business website Subscribers in the United States. It is NOT intended to support the sustained demand of large enterprises, internationally based businesses, or non-typical applications better suited to a dedicated server. SmartWebNI will make every commercially reasonable effort to provide additional resources to Subscribers who are using their website(s) consistent with these Terms, including moving Subscribers to newer and bigger shared servers as necessary. However, in order to ensure a consistent and quality experience for all Subscribers, SmartWebNI does place automated safeguards to protect against any one site growing too quickly and adversely impacting the system until SmartWebNI can evaluate said sites resource needs.
iii. Unlimited Hosting Space; excessive MySQL files
SmartWebNI does not set arbitrary limits on the amount of disk space a Subscriber can use for the Subscriber’s website, nor does SmartWebNI charge additional fees based on an increased amount of storage used, provided the Subscriber’s use of storage complies with these Terms. Please note, however, that the SmartWebNI service is designed to host websites. SmartWebNI does NOT provide unlimited space for online storage, backups, or archiving of electronic files, documents, log files, etc., and any such prohibited use of the Services will result in the termination of Subscriber’s account, with or without notice. Accounts with a large number of files (inode count in excess of 200,000) can have an adverse affect on server performance. Similarly, accounts with an excessive number of MySQL/PostgreSQL tables (i.e., in excess of 1000 database tables) or of database size (i.e., in excess of 3GB total MySQL/PostgreSQL usage or 2GB MySQL/PostgreSQL usage in a single database) negatively affect the performance of the server. SmartWebNI may request that the number of files/inodes, database tables, or total database usage be reduced to ensure proper performance or may terminate the Subscriber’s account, with or without notice.
iv. Unlimited File Transfer
SmartWebNI does not set arbitrary limits on the amount of visitor traffic a web site can receive or on the amount of content a Subscriber can upload to his/her/its website in a given month, nor does SmartWebNI charge additional fees based on increased use of bandwidth, as long as the Subscriber’s use of the Services complies with these Terms. In most cases, a Subscriber’s web site will be able to support as much traffic as the Subscriber can legitimately acquire. However, SmartWebNI reserves the right to limit processor time, bandwidth, processes, or memory in cases where it is necessary to prevent negatively impacting other Subscribers.
v. Unlimited Domain Hosting
SmartWebNI does not set arbitrary limits on the number of domain names a Subscriber can associate with the Subscriber’s web hosting account.
a. VPS AND DEDICATED HOSTING USAGE POLICIES
. Bandwidth Usage
Reseller and Dedicated Hosting accounts are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account exceed the allocated monthly amount, we reserve the right to (i) suspend the account until the start of the next month’s allocation; (ii) suspend the account until more bandwidth is purchased at an additional fee; (iii) suspend the account until you upgrade to a higher level of package; (iv) terminate the account; and/or (v) charge you an additional fee for the overages. Unused bandwidth in one month cannot be carried over to the next month and bandwidth may not be pooled among multiple servers or accounts.
i. Availability of Support
SmartWebNI will provide a default Operating System installation on the Dedicated Server hardware that permits super-user server access to our support staff. Subscriber agrees and acknowledges that if Subscriber alters or removes this server access, SmartWebNI’s ability to provide technical support to the Subscriber may be severely limited.
ii. Subscriber Super-user Access
Subscriber acknowledges that Subscriber is solely responsible for any changes made with super-user access and that SmartWebNI may not be able to reverse any changes and/or recover data lost or damaged through the use of super-user privileges. SmartWebNI’s level of support to those users accessing super-user privileges will be limited as follows:
♣ Reinstallation of corrupted modules, such as control panel files, web server files, etc.
♣ Reinstallation of the baseline OS and core file image at Subscriber’s request. Subscriber must acknowledge that they understand that a new image install will cause the complete loss of all data stored on the server.
♣ Restoration of files from available backups at Subscriber’s request. This restoration will be a full restore of the backup files; SmartWebNI does not offer file-by-file restoration services.
♣ SmartWebNI will not attempt any configuration or setup of DNS, firewalls, web server, etc.
♣ SmartWebNI will attempt basic diagnostics upon Subscriber’s request. SmartWebNI does not offer in-depth manual diagnostics as part of the Service. Subscriber may contact SmartWebNI Professional Services to inquire about additional support offerings.
8. PARKED PAGE SERVICES
SmartWebNI provides Parked Page Services on domains registered through or hosted with SmartWebNI. User can opt out of the Parked Page Services at any time by simply replacing the default web page on the parked domain or pointing the DNS away from SmartWebNI. By using any of the Parked Pages Services, User agrees that SmartWebNI may point the domain name or DNS to one of SmartWebNI’s or SmartWebNI’s affiliates web pages, and that they may place advertising on User’s web page and that SmartWebNI specifically reserves this right. User shall have no right to any compensation and shall not be entitled and shall have no right to receive any funds related to the monetization of User’s Parked Pages. User agrees to indemnify and hold harmless SmartWebNI for any complications arising out of use of the Parked Page Services, including, but not limited to, actions SmartWebNI chooses to take to remedy User’s improper or illegal use of a Web site hosted by SmartWebNI. User agrees it is not entitled to a refund of any fees paid to SmartWebNI. If a dispute arises as a result of one or more of User’s Parked Pages, User will indemnify, defend and hold SmartWebNI harmless for damages arising out of such dispute. User also agrees that if SmartWebNI is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Web site hosted by SmartWebNI that SmartWebNI, in its sole discretion, may take whatever action SmartWebNI deems necessary regarding further modification, assignment of and/or control of the Web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
9. RESELLER AGREEMENT
In addition to all terms and conditions described in this Agreement, the following shall also be applicable to Resellers, including VPS and Dedicated Hosting Customers utilizing their Account to provide Reseller services.
. The Reseller agrees, on behalf of both the Reseller and each user signed up by the Reseller, to comply with these Terms of Service.
a. In the event that a Reseller or a Reseller’s user is determined to be in violation of the Terms of Service, the Reseller shall, upon receipt of notice of the violation, take prompt action to ensure that the account in question is updated to be in full compliance with the Terms of Service.
b. SmartWebNI is not responsible for the actions or misrepresentations of Resellers. The Reseller hereby agrees to indemnify SmartWebNI from and against any and all claims made by any user that result from the Reseller’s misrepresentation, breach of the Terms of Service or other improper actions by the Reseller.
c. SmartWebNI reserves the right to revise its Reseller Programs, Terms of Service at any time. Changes shall take effect when posted online or on any subsequent date as may be set forth in any required notice provided by us in connection therewith.
d. Users who have been signed up by Resellers agree to operate their Web sites in accordance with the Terms of Service.
e. Resellers cannot make any modifications to the Terms of Service. Any such alterations shall be deemed a violation of the Terms of Service and could result in a cancellation of a Reseller’s account(s). SmartWebNI is not responsible for any modifications made to the Terms of Service by Resellers.
f. Resellers in the Reseller Program assume all responsibility for billing and technical support for each of their Users. SmartWebNI reserves the right to refuse inquiries made to customer support from the customers of Resellers.
10. Optimized Hosting for WordPress
Optimized Hosting for WordPress (“OHWP”) uses a specialized server configuration to deliver an optimized WordPress hosting experience. Due to this custom configuration, the following additional terms apply to OHWP hosting accounts:
. OHWP is intended only for use with the WordPress software platform. The use of OHWP with any non-WordPress related software is unsupported and such use may not operate in accordance with the description of the service.
a. Some WordPress add-on software is designed to function only on specific server configurations. Before installing any such software, customers are advised to contact Technical Support to ensure the desired add-on software will function in the OHWP environment. SmartWebNI will not be responsible for losses of any kind or downtime resulting from the installation of incompatible add-on software.
b. Domain names hosted on OHWP servers must use SmartWebNI name servers for DNS resolution. Please see our Helpdesk Articlefor assistance in setting name servers or contact Technical Support.
c. We reserve the right to deny customer requests for changes to the standard Optimized Hosting for WordPress configuration when we believe, in our sole discretion, that such changes to the configuration will severely inhibit the performance of the server.
11. VIRTUAL PRIVATE SERVERS (VPS) OR VIRTUAL DEDICATED SERVERS
When creating a VPS account, we split dedicated servers into independent areas, referred to as “Containers.” Each Container is allotted its own disk space, CPU power, bandwidth, and memory. This isolation of server space allows for independent server customization for which each User is responsible. In addition to all terms and conditions described in this Agreement, the following shall also be applicable to VPS Users:
. Each User is solely responsible for providing the firewalls, software, web files, content and operating systems for the User’s Container.
a. Each User is solely responsible for all installation, maintenance, security and backup of the operating system, software, files and data used in the User’s Container, as well as any reinstalls and changes.
b. Each User is solely responsible for all activities conducted in connection with the User’s Container.
12. PROPERTY RIGHTS
These Terms do not give Subscriber any rights in SmartWebNI intellectual property or technology. SmartWebNI and related trademarks and logos are the exclusive property of SmartWebNI. SmartWebNI and Subscriber agree that neither will, directly or indirectly, reverse engineer or decompile object code or execution code, nor otherwise seek to obtain source code or trade secrets of the other party. Notwithstanding the foregoing, nothing herein shall bar SmartWebNI from using any knowledge, information or skills that are generally known or that can be learned or otherwise acquired in the normal course of business.
13. UNIVERSITY PROGRAM
. SmartWebNI provides discounted student rates to participating Universities for their students. During the course of registering for your account, the student provides subscriber information and clicks and agrees to the SmartWebNI Terms of Service, located at:http://www.SmartWebNI.com/terms (the “TOS”). It is the student, not the University, which is the customer and registered holder of the account. As such the student, not the University, is responsible for conducting the activities regarding the account in accordance with SmartWebNI Terms of Service. SmartWebNI will support such accounts in accordance with its usual practices, which may include suspension or termination of such accounts and websites under certain circumstances in accordance with the SmartWebNI Terms of Service and applicable law. However it is important to note that SmartWebNI is not legally required to and does not pre-screen content or monitor content placed on customer websites or activities conducted on or through such websites. In each case it is the customer (the student), not SmartWebNI and not the university, who is responsible for handling their website in accordance with SmartWebNI Terms of Service.
a. Billing information is provided by the student at sign-up or, if the University has prepaid the initial term, when the student signs up for additional products or services or renews the account after the initial term.
b. Please note that any and all amounts prepaid for accounts purchased by the University are non-refundable once the account has been created by the student.
14. DISCLAIMER OF WARRANTY
YOU, THE SUBSCRIBER, ACKNOWLEDGE THAT THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS, AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. SMARTWEBNI HEREBY DISCLAIMS ANY WARRANTY OR CONDITION WITH RESPECT TO THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES AND SOFTWARE, OR WITH RESPECT TO THE QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF THE SERVICES AND SOFTWARE, OR THAT THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND SOFTWARE MAY CONTAIN ERRORS. NO ADVICE OR INFORMATION GIVEN BY SMARTWEBNI OR SMARTWEBNI’S REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, SUBSCRIBER SUPPORT REPRESENTATIVES, SHALL CREATE A WARRANTY. SMARTWEBNI DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OF COMPUTER PROGRAMS AND CONTENT. SMARTWEBNI DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. SMARTWEBNI DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICE OR SMARTWEBNI IN PARTICULAR.
15. LIMITATION OF LIABILITY
SMARTWEBNI SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT SHALL SMARTWEBNI BE LIABLE UNDER CONTRACT, NEGLIGENCE, TORT, CONVERSION, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, IP RIGHTS HOLDER INFRINGEMENT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT SMARTWEBNI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SMARTWEBNI SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. SMARTWEBNI’S ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY USE OF THE SERVICES IS THE CANCELLATION OF SUBSCRIBER’S ACCOUNT AS SET FORTH HEREIN. IN NO EVENT SHALL SMARTWEBNI’S LIABILITY TO YOU, THE SUBSCRIBER, EXCEED THE GREATER OF ONE DOLLAR (£1.00) OR ANY AMOUNTS ACTUALLY PAID IN CASH BY YOU, THE SUBSCRIBER, TO SMARTWEBNI FOR THE PRIOR ONE MONTH PERIOD. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU, THE SUBSCRIBER, MORE THAN ONE YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, SMARTWEBNI’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You, the Subscriber, agree to defend, indemnify and hold SmartWebNI, its affiliates and its sponsors, partners, other co-branders and the respective directors, officers and employees of each harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable solicator’s fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party of the Services, except to the extent the foregoing directly result from SmartWebNI’s own gross negligence or willful misconduct. SmartWebNI reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, the Subscriber.
For its own operational efficiencies and purposes, SmartWebNI from time to time backs up data on its servers, but is under no obligation or duty to Subscriber to do so under these Terms. IT IS SOLELY SUBSCRIBER’S DUTY AND RESPONSIBILITY TO BACKUP SUBSCRIBER’S FILES AND DATA ON SMARTWEBNI SERVERS, AND under no circumstance will SmartWebNI be liable to anyone FOR DAMAGES OF ANY KIND under any legal theory for loss of Subscriber FILES AND/or data on any SmartWebNI server. SmartWebNI will not attempt to back up accounts that exceed 50,000 files or 30 Gigs of space for any reason.
a. Monitoring and Disclosures
All activities occurring on, in, and/or via the Services or any website hosted by SmartWebNI may be monitored, recorded, and examined by any authorized person, including law enforcement. In general, SmartWebNI does not monitor its Subscribers’ websites or activities to determine whether they are in compliance with these Terms. However, when and if SmartWebNI becomes aware of any violation of these Terms, SmartWebNI may take any lawful action, and in the event of illegal activity, will take action, to stop or correct such violation, including, but not limited to, shutting down a website, denying access to the Services or to the Internet via SmartWebNI, and/or removing non-complying information. In addition, SmartWebNI may take any lawful action against a Subscriber or a subscriber, patron, customer, invitee, visitor, or guest of such Subscriber because of the activities of such subscriber, patron, customer, invitee, visitor, or guest. SmartWebNI reserves the right to take any such action even though such action may affect other subscribers, patrons, customers, invitees, visitors, or guests of the Subscriber. SmartWebNI may disclose any information in its possession, including, without limitation, information about Subscribers, internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, governmental request, or other legal process to protect SmartWebNI or others from harm, and/or to ensure the proper operation of the Services. SmartWebNI.com has no obligation to notify any person, including the Subscriber about whom information is sought, that SmartWebNI has provided the information.
b. Accurate Account Information
Subscriber must continually update and keep accurate and current Subscriber’s contact information stored and saved on SmartWebNI in order to avoid termination of Subscriber’s SmartWebNI account(s).
c. Duty to Notify SmartWebNI of Breach
If Subscriber discovers anyone on the SmartWebNI system violating any of these Terms or notices anything suspicious from the SmartWebNI network, Subscriber agrees to report the violation or suspicious activity by opening a ticket with the Terms of Service Department for investigation. SmartWebNI reserves the right to and will immediately terminate any account which SmartWebNI concludes to be in violation of any of these Terms.
d. Reservation of Rights
SmartWebNI reserves the right to refuse or to cancel service to any prospective Subscriber or existing Subscriber for any lawful reason at any time during Subscriber’s hosting term with SmartWebNI.
These Terms are binding upon SmartWebNI, all existing and prospective Subscribers, and upon the assigns, heirs, and successors of each. If any provision of these Terms is held by any court of competent jurisdiction to be invalid or otherwise unenforceable, the rest of these Terms shall, nevertheless, continue to be valid and in full force and effect, to the extent said remaining Terms are then otherwise consistent with the original intent of the Terms of Service.
f. Governing Law
These Terms shall be governed by the laws of Northern Ireland without reference to conflict of law principles. The United Nations Convention on the International Sale of Goods shall not apply and is hereby expressly excluded. By subscribing to or using any of the Services of SmartWebNI, Subscriber agrees that all disputes, if any, involving SmartWebNI shall be subject exclusively to the jurisdiction of the Courts within Northern Ireland; provided, further, that all action brought against SmartWebNI in Court must be brought in Northern Ireland. Subscriber hereby agrees that it is subject to the in personam jurisdiction of said courts for all purposes in connection with these Terms and/or in connection with any claim or dispute involving SmartWebNI. Subscriber hereby waives any and all objections that it has or might have, known or unknown, whether under Northern Ireland’s long arm statute or otherwise, to the existence of said in personam jurisdiction. Subscriber agrees that it has no right to and shall not file or otherwise bring a lawsuit against SmartWebNI outside of Norhern Ireland; and, that Subscriber, if involved before a court in a lawsuit outside of Northern Ireland, shall be deemed to support and to stipulate to a motion made by SmartWebNI to dismiss said lawsuit with respect to SmartWebNI.
18. PROHIBITED PERSONS (COUNTRIES, ENTITIES, AND INDIVIDUALS)
. Sanctioned Countries
The government of the United Kingdom, has determined that, with respect to all or certain commercial activities that would otherwise occur between i) the United Kingdom, its citizens or residents on the one hand and ii) the governments, citizens, or residents of certain other countries (“Sanctioned Countries”) on the other hand, said commercial activities are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded. “Sanctioned Countries” shall be deemed automatically to be added to or otherwise modified from time to time consistent with the determination(s) of the government of the United Kingdom, and shall include all other countries with respect to which commercial activities are prohibited, embargoed, sanctioned, banned and/or otherwise excluded by determination(s) of the government of the United Kingdom from time to time.
. Each Sanctioned Country, all governmental, commercial, or other entities located therein, and all individuals located in any Sanctioned Country are hereby prohibited from registering or signing up with, subscribing to, or using any service of SmartWebNI.
i. Each individual which is a National or Citizen of a Sanctioned Country is hereby prohibited from registering or signing up with, subscribing to, or using any service of SmartWebNI, regardless of where said individual is located.
ii. Country-Code Top Level Domain Names for any Sanctioned Countries are hereby prohibited from use in connection with any service of SmartWebNI
a. Prohibited Organizations/Entities
The government of the United Kingdom, has determined that certain organizations and/or entities (collectively “Prohibited Organizations/Entities” and individually “Prohibited Organization/Entity”) are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded from all or certain commercial transactions with the United Kingdom, its citizens and residents. The Prohibited Organizations/Entities are those as set forth in the applicable records of the government of the United Kingdom, as said determinations and resulting records may be amended, updated, or otherwise modified from time to time.
. Each Prohibited Organization/Entity is hereby prohibited from registering or signing up with, subscribing to, or using any service of SmartWebNI.
b. Prohibited Individuals
The government of the United Kingdom, has determined that certain individuals (collectively “Prohibited Individuals” and individually “Prohibited Individual”), including without limit, certain Specially Designated Nationals are to be prohibited, embargoed, sanctioned, banned, and/or otherwise excluded from all or certain commercial transactions with the United Kingdom, its citizens and residents. The Prohibited Individuals are those as set forth in the applicable records of the government of the United Kingdom, as said determinations and resulting records may be amended, updated, or otherwise modified from time to time.
. Each Prohibited Individual is hereby prohibited from registering or signing up with, subscribing to, or using any service of SmartWebNI.
IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS YOU ARE REPRESENTING WITH RESPECT TO SMARTWEBNI SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A MEMBER, CANCEL YOUR SMARTWEBNI ACCOUNT. BEGINNING NOW, ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.