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Fortune Works Web Hosting
Terms of ServiceThis Web Hosting Agreement ("WHA") is made between Fortune Works Hosting ("Fortune Works") and the customers of its services ("you"). The parties agree as follows: 1. DEFINITIONS Where the context admits:
"Fortune Works" means Fortune Works Hosting. 2. AGREEMENT TO TERMS The WHA is available for viewing on our Website. Fortune Works reserves the right to amend this WHA from time to time and you agree to be bound by any such amendments. Notice of changes to the WHA or other matters may be made by displaying such notices on our Website or by providing such notices to you generally. You agree to periodically visit our Website to review the WHA and to make certain you comply with its terms. In addition to the terms of this WHA, when using particular Fortune Works services, you agree to abide by the Fortune Works Acceptable Use Statement, the Fortune Works Server Co-location Agreement and any other guides or rules which may be posted by Fortune Works from time to time. All such guides and rules are hereby incorporated by reference into the WHA Where any inconsistency exists between the WHA and any guide or rule, the WHA will prevail. 3. PROVISION OF SERVICES Fortune Works agrees to provide to you with Web Hosting and/or related services described in the Services Plan selected by you in the Order and thereafter as established in correspondence between you and Fortune Works ("the Service"). You agree that use of the Service requires a certain level of knowledge in the use of Internet languages, protocols, and software, that this level of knowledge varies depending on your proposed use and/or the content of your Website. Fortune Works will provide you with the level of service and customer support defined in the Services Plan. You will receive an account designation upon acceptance of the Order. 4. COMMENCEMENT The initial term ("Initial Term") of this WHA shall be the term as stated in the Order. The Initial Term shall begin upon the commencement date ("Commencement Date") stated in the Order. However, the Service shall not commence nor shall any obligation to provide the Service commence unless and until Fortune Works receives a completed Order from you, plus full payment for the Service to be provided during the Initial Term and any applicable setup charges and Fortune Works accepts the Order. Fortune Works reserves the right to reject any submitted Order for any or no reason prior to written acceptance by it. After the Initial Term, unless otherwise agreed to by the parties, this Agreement shall automatically renew for successive terms of equal length as the Initial Term ("the Renewal Periods") unless terminated or cancelled by either party only as provided by this agreement. 5. FEES AND PAYMENT All charges payable by you for the Service shall be in accordance with the scale of charges and rates set out in the Services Plan published from time to time by us on our Website. Fortune Works reserves the right to change the Services Plan at any time by giving you with 30 days notice although all pricing is guaranteed for the period of pre-payment. Fees for the Renewal Periods shall be due and owing immediately upon the first day of such renewal period. Fortune Works will provide you with an invoice for the fees due on renewal. As a subscriber to Fortune Works, you agree that we are permitted to charge your credit card (or other approved facility) to pay for the initial Service subscription, any automatic renewals and any other charges you may incur in connection with your use of Fortune Works. The subscription fee will be billed at the beginning of your subscription and on each annual or monthly renewal thereafter, dependant on the original subscription term selected at registration. You give permission for us to automatically renew your subscription and charge your account on your renewal date. If Fortune Works does not receive payment in full of the date of such invoice, you acknowledge and accept that Fortune Works may, in its sole discretion, immediately terminate this Agreement, and/or withhold or suspend the Service. A $5 USD fee will be charged to reinstate terminated or suspended services. Non-delivery or non-performance of services by any third party shall not give you any right to delay any payment to Fortune Works or to make any claim whatsoever against it. For the purposes of this WHA, time of payment is of the essence. Fortune Works does not provide refunds for cancellations of any type (whether the cancellation was done by Fortune Works or the client). Violation of this TOS is grounds for termination of your service with no refund. 6. YOUR REGISTRATION OBLIGATIONS You agree to provide true, accurate, current and complete information about yourself as prompted by the Service\'s registration form (such information being the "Registration Data"). If you provide any information that is untrue, inaccurate, not current or incomplete or Fortune Works has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Fortune Works has the right to suspend, terminate or refuse any and all current or future use of the Service (or any portion thereof) by you. 7. PRIVACY POLICY Registration Data and certain other information about you is will be held and processed by us in accordance with our Privacy Policy. Full details of our Privacy Policy are available on our Website at http://www.fortuneworks.net 8. CONTENT AND YOUR RESPONSIBILITIES You are responsible and liable for your activities while using the Service. You agree to notify Fortune Works immediately of any unauthorised use of the Service. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages and other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person or entity from which such Content originated. This means that you, and not Fortune Works are entirely responsible for all Content that you upload, post, e-mail or otherwise transmit via the Service. Fortune Works will exercise no control over the content of the information passing through its network. Fortune Works shall make no effort to validate any information passing through its network for content, correctness, usability or for any other reason. You acknowledge that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Fortune Works be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, e-mail or otherwise transmitted via the Service. You understand that it is your sole responsibility to maintain backups of your stored content and that Fortune Works will not be held responsible for lost content in the case of hardware failure or any other unforeseen circumstance. You agree to not use the Service to:
- upload, post, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; 9. SYSTEM AND NETWORK USAGE SECURITY You agree to:
If you violate or attempt to violate systems or network security you may incur criminal or civil liability. Fortune Works will cooperate fully with investigations of violations of systems or network security, including cooperation with law enforcement authorities in the investigation of suspected criminal violations. 10. USE OF USENET NEWSGROUPS ("USENET") Fortune Works is not responsible for the content of any USENET posting, whether or not the posting was made by another Fortune Works customer. You agree to:
11. USE OF INTERNET RELAY CHAT ("IRC") Fortune Works is not responsible for the content of any communications made on IRC, whether or not the communication was made by another Fortune Works customer. You agree not use the Service to, or to attempt to:
12. MANAGEMENT OF CONTENT You must ensure that all Content placed on your Website is in a form requiring no additional manipulation on Fortune Works's part ("Server-ready"). You acknowledge that Fortune Works does not pre-screen Content, but that Fortune Works and its servants or agents shall have the right (but not the obligation) in their sole discretion to move or delete any Content that is available via the Service. Without limiting the foregoing, Fortune Works and its servants or agents shall have the right to remove any Content that is not Server-ready, that violates the WHA or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Fortune Works or available via the Service. You acknowledge and agree that Fortune Works may preserve Content and may also disclose Content: (a) for the purpose of providing the Service and so as to ensure compliance with the standard operating procedures of Fortune Works or its affiliated companies, and/or (b) if required to do so by law or in the good faith belief that any such preservation or disclosure is reasonably necessary to: (c) comply with legal process; (d) enforce the WHA; (e) respond to claims that any Content violates the rights of third-parties; or (f) protect the rights, property, or personal safety of Fortune Works its users and the public. You grant Fortune Works permission to run manual and/or automatic systems, at its absolute discretion, to determine compliance with and to enforce the WHA and accept that this limited access to and monitoring of your Website is warranted and lawful. You acknowledge that the technical processing and transmission of the Service, including your Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. Fortune Works reserves the right to terminate your access to some or all parts of its Service if you withdraw your consent in this paragraph at any time. 13. INTELLECTUAL PROPERTY RIGHTS OF OTHERS If you are aware that the intellectual property rights of others or your own intellectual property rights are being or have been infringed on the Service, you agree to immediately provide Fortune Works with:
14. HYPERLINKS The Service may provide, or third parties may provide, links to Internet sites or resources. Because Fortune Works has no control over such sites and resources, you acknowledge and agree that Fortune Works is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Fortune Works shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource. 15. DOMAIN NAMES You agree that you will not register or attempt to register any domain name that is unlawful and/or which infringes the intellectual property, trademark or other rights of any third party. Before you sign up for any domain name with us, you must explicitly assert that your application is lawful and to your knowledge you are not infringing any intellectual property, trademark or other rights of any third party. If you do not know whether or not you are legally entitled to register any domain name, you agree to obtain independent legal advice prior to regitering it. Fortune Works will not act as arbitrator or otherwise involve itself in any dispute between you and a third party who alleges that its rights have been infringed. 16. INDEMNITY You agree to indemnify and hold Fortune Works and its subsidiaries, affiliates, officers, agents, co-branders and other partners, and employees harmless from any claim or demand, without limitation including reasonable legal fees, made by any third party due to or arising out of Content you submit, post to or transmit through the Service, your use of the Service, your connection to the Service, your violation of the WHA, or your violation of any rights of another. 17. NO RESALE OF SERVICE You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, lease, rent or assign any portion of the Service, use of the Service, or access to the Service, unless expressly permitted by the Services Plan. 18. GENERAL PRACTICES REGARDING USE You acknowledge that Fortune Works may establish general practices and limits concerning use of the Service, including without limitation the maximum number of times and the maximum duration for which you may access the Service in a given period of time. You further acknowledge that Fortune Works reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. 19. MODIFICATIONS TO SERVICE Fortune Works reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Fortune Works shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. 20. TERMINATION This Agreement may be terminated:
If this Agreement is terminated, you agree that Fortune Works may terminate your access to the Service (or any part thereof) or use of the Service and deactivate or delete your account, Game Server, WebSite and all related information and/or bar any further access to such files or the Service immediately. Further, you agree that Fortune Works shall not be liable to you or any third-party for any termination of your access to the Service. 21. DISCLAIMERS You expressly acknowledge and agree that: 22. LIMITATION OF LIABILITY You expressly acknowledge and agree that to the maximum extent permitted by applicable law Fortune Works shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Fortune Works has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorised access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Service; or (v) any other matter relating to the Service. Notwithstanding the foregoing, your exclusive remedies for all damages, losses, costs or causes of actions from any and all claims, whether in contract, quasi-contract, statutory, tort including negligence, or otherwise, shall not exceed the aggregate amount which you paid during the 12 months immediately preceding the claim or the Full Term of this Agreement, whichever is less. Nothing in this WHA shall affect the statutory rights of any consumer, exclude or restrict Fortune Works's liability arising from fraud or other criminal action or exclude or restrict any liability for death or personal injury arising from the negligence of Fortune Works. 23. GENERAL INFORMATION The WHA (including the guides and rules referred to herein) constitute the entire agreement between you and Fortune Works and govern your use of the Service, superseding any prior agreements between you and Fortune Works. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The WHA and the relationship between you and Fortune Works shall be governed by the laws of the United States. You and Fortune Works agree to submit to the exclusive jurisdiction of the United States courts. Any failure by Fortune Works to exercise or enforce any right or provision of the WHA shall not constitute a waiver of such right or provision. If any provision of the WHA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties\' intentions as reflected in the provision, and the other provisions of the WHA remain in full force and effect. The section titles in the WHA are for convenience only and have no legal or contractual effect. |