1. OVERVIEW This Universal Terms of Service Agreement (this “Agreement”) is entered into by and between Hostibay.com, Hostibay Payments, (for any payment services) and Poynt, (for any hardware services) ("Hostibay") and you, and is made effective as of the date of your use of this website ("Site") or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”). Services Agreements and additional policies apply to certain Services and are in addition to (not in lieu of) this Agreement. In the event of a conflict between the provisions of a Services Agreement and the provisions of this Agreement, the provisions of the applicable Services Agreement shall control. The terms “we”, “us” or “our” shall refer to Hostibay. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
2. MODIFICATION OF AGREEMENT, SITE OR SERVICES Hostibay may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, Hostibay may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account (“Account”) information current. Hostibay assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, Hostibay may terminate Your use of Services for any violation or breach of any of the terms of this Agreement by You. HOSTIBAY RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THIS SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME.
3. ELIGIBILITY; AUTHORITY This Site and the Services are available only to individuals or entities (“Users”) who can form legally binding contracts under applicable law. By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, or (iii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction. If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", "User" or "customer" shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, Hostibay finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Hostibay shall not be liable for any loss or damage resulting from Hostibay’s reliance on any instruction, notice, document or communication reasonably believed by Hostibay to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Hostibay reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
4. YOUR ACCOUNT In order to access some of the features of this Site or use some of the Services, you will have to create an Account. You represent and warrant to Hostibay that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If Hostibay has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, Hostibay reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including without limitation your customer number/login, password, Payment Method(s) (as defined below), and shopper PIN. For security purposes, Hostibay recommends that you change your password and shopper PIN at least once every six (6) months for each Account. You must notify Hostibay immediately of any breach of security or unauthorized use of your Account. Hostibay will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss Hostibay or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
5. GENERAL RULES OF CONDUCT
You acknowledge and agree that:
i Your use of this Site and the Services, including any content you submit, will comply with this Agreement, any applicable Services Agreement or policy that may apply to your Services and all applicable local, state, national and international laws, rules and regulations.
ii You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
iii You will not use this Site or the Services in a manner (as determined by Hostibay in its sole and absolute discretion) that: Is illegal, or promotes or encourages illegal activity; Promotes, encourages or engages in the exploitation of children, or any activity related to the proliferation of child sexual abuse material (CSAM); Promotes, encourages or engages in terrorism, violence against people, animals, or property; Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking; Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription; Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking; Infringes on the intellectual property rights of another User or any other person or entity; Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity; Interferes with the operation of this Site or the Services found at this Site; Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Hostibay or Hostibay’s Services. You will not perform any false, abusive or fraudulent activity. You will not perform any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
iv You will not copy or distribute in any medium any part of this Site or the Services , except where expressly authorized by Hostibay.
v You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
vi You will not access Hostibay Content (as defined below) or User Content through any technology or means other than through this Site itself, or as Hostibay may designate.
vii You agree to back-up all of your User Content so that you can access and use it when needed. Hostibay does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
viii You will not re-sell or provide the Services for a commercial purpose, including any of Hostibay's related technologies, without Hostibay 's express prior written consent.
ix You will not circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any Hostibay Content or User Content) or enforce limitations on the use of this Site or the Services found at this Site, the Hostibay Content or the User Content therein.
x You will not host, display, upload, modify, publish, transmit, store, update or share any information that violates Rule 3(1)(b) of the Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 (the “Code”). In case of non-compliance with the Code, or Hostibay's rules and regulations, privacy policies, and user agreements for access or usage of any computer resource, as that term is used in the Code, Hostibay has the right to terminate the access or usage rights of the computer resource immediately or remove non-compliant information or both, as the case may be.
xi You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
xii You are aware that Hostibay may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether Hostibay asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which Hostibay is a party. Further, by providing your telephone or mobile number, you consent to receive marketing telephone calls from or on behalf of Hostibay that may be initiated by an automatic telephone dialing system and/or use an artificial or prerecorded voice. You understand that providing consent is not a condition of purchasing any good or service from Hostibay . Similarly, by providing your mobile number, you consent to receive marketing text messages from or on behalf of Hostibay that may be sent by an automatic telephone dialing system. You understand that providing consent is not a condition of purchasing any good or service from Hostibay . Message and data rates may apply.
xiii Without limiting any of the rights set forth elsewhere in this Agreement, Hostibay expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to this Site or any Services (including but not limited to the right to cancel or transfer any domain name registration) to any User (i) whose Account or Services were previously terminated or suspended, whether due to breach of this or any other Agreement or any Hostibay policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Site or Services (as determined by Hostibay in its sole and absolute discretion).
xiv If your purchase or account activity shows signs of fraud, abuse or suspicious activity, Hostibay may cancel any service associated with your name, email address or account and close any associated Hostibay accounts. If Hostibay , in it's sole discretion, determines that any conducted activity is fraudulent, Hostibay reserves the right to take any necessary legal action and you may be liable for monetary losses to Hostibay including litigation costs and damages. To contest cancellation of Services or freezing or closure of an account, please contact Hostibay Care.
6. AVAILABILITY OF WEBSITE/SERVICES Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
7. PRODUCT CREDITS In the event you are provided with a product credit (“Credit”), whether for redemption of the purchase of a specific product or for free with the purchase of another product (“Purchased Product”), you acknowledge and agree that such Credit is only valid for one (1) year and is only available with a valid purchase and may be terminated in the event the product purchased is deleted, cancelled, transferred or not renewed. The Credit will expire one (1) year from date of purchase of the Purchased Product if the Credit has not been redeemed. In the event that the Credit is redeemed, after the initial subscription period, the product will automatically renew at the then-current renewal price until cancelled. If you wish to cancel the automatic renewal of the product, you may do so by visiting your Account or by contacting customer service. In the event your Purchased Product includes a free domain name, if you cancel the Purchased Product, the list price for the domain name will be deducted from the refund amount. The list price is the price of the domain name listed on Hostibay's website and is not subject to any promotion, discount, or other reduction in price. For Credits issued for free with another Purchased Product, you acknowledge and agree that we may swap your Credit for a similar product, in our sole discretion.
8. MONITORING OF CONTENT; ACCOUNT TERMINATION POLICY Hostibay generally does not pre-screen User Content (whether posted to a website hosted by Hostibay or posted to this Site). However, Hostibay reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. Hostibay may remove any item of User Content (whether posted to a website hosted by Hostibay or posted to this Site) and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by Hostibay in its sole and absolute discretion), at any time and without prior notice. Hostibay may also terminate a User’s access to this Site or the Services found at this Site if Hostibay has reason to believe the User is a repeat offender. If Hostibay terminates your access to this Site or the Services found at this Site, Hostibay may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
9. ADDITIONAL RESERVATION OF RIGHTS Hostibay expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by Hostibay in its sole and absolute discretion), including but not limited to the following:
(i) to correct mistakes made by Hostibay in offering or delivering any Services (including any domain name registration),
(ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry or registrar,
(iii) to assist with our fraud and abuse detection and prevention efforts,
(iv) to comply with court orders against you and/or your domain name or website and applicable local, state, national and international laws, rules and regulations,
(v) to comply with requests of law enforcement, including subpoena requests,
(vi) to comply with any dispute resolution process,
(vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit,
(viii) to avoid any civil or criminal liability on the part of Hostibay , its officers, directors, employees and agents, as well as Hostibay's affiliates, including, but not limited to, instances where you have sued or threatened to sue Hostibay , or
(ix) to respond to an excessive amount of complaints related in any way to your Account, domain name(s), or content on your website that could result in damage to Hostibay’s business, operations, reputation or shareholders.
10. NO SPAM; LIQUIDATED DAMAGES No Spam. We do not tolerate the transmission of spam. We monitor all traffic to and from our web servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse. Customers suspected to be using our products and services for the purpose of sending spam are fully investigated. If we determine there is a problem with spam, we will take the appropriate action to resolve the situation.
11. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
12. NO THIRD-PARTY BENEFICIARIES Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.