This Web Hosting Agreement ("WHA") is made between Shrapnel Network LLC ("Shrapnet") and the customers of its services ("you").
The parties agree as follows:
Where the context admits:
"Shrapnet" means Shrapnel Network LLC.
"You" means the person or entity purchasing the Services or any party acting on your instructions.
"our Website" the web site located at www.shrapnet-network.com or such other Internet address as may be adopted by Shrapnet from time to time.
"the Order" means the request made and completed by you to indicate which services you require from Shrapnet and your agreement to these terms and conditions.
"Services Plan" means the list and description of services provided by Shrapnet and the current standard price for each of those services as set out on our Website.
"our Server" means the computer equipment operated by us in connection with the provision of the Services.
"your Website" means the area on our Server allocated by us to you for use by you as a site on the Internet and the data therein.
2. AGREEMENT TO TERMS
The WHA is available for viewing on our Website. Shrapnet 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 Shrapnet services, you agree to abide by the Shrapnet Acceptable Use Statement, the Shrapnet Server Co-location Agreement and any other guides or rules which may be posted by Shrapnet 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
Shrapnet agrees to provide to you with the Game server, 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 Shrapnet ("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.
Shrapnet 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.
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 Shrapnet 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 Shrapnet accepts the Order.
Shrapnet 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. Shrapnet 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. Shrapnet will provide you with an invoice for the fees due on renewal
As a subscriber to Shrapnet, 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 Shrapnet. 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 Shrapnet does not receive payment in full of the date of such invoice, you acknowledge and accept that Shrapnet 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 Shrapnet or to make any claim whatsoever against it.
For the purposes of this WHA, time of payment is of the essence.
Shrapnet does not provide refunds for cancellations of any type (whether the cancellation was done by Shrapnet 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 Shrapnet has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Shrapnet has the right to suspend, terminate or refuse any and all current or future use of the Service (or any portion thereof) by you.
8. CONTENT AND YOUR RESPONSIBILITIES
You are responsible and liable for your activities while using the Service.
You agree to notify Shrapnet 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 Shrapnet are entirely responsible for all Content that you upload, post, e-mail or otherwise transmit via the Service.
Shrapnet will exercise no control over the content of the information passing through its network. Shrapnet 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 Shrapnet 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 Shrapnet 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 Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
harm children in any way;
impersonate any person or entity, including, but not limited to, a Shrapnet official, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- upload, post, e-mail or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non disclosure agreements);
- upload, post, e-mail or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
- upload, post, e-mail or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation;
- 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;
- interfere with or disrupt the Service, the Servers or any other hardware connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- "stalk" or otherwise harass another; or
- collect or store personal data about other users.
- carry out any unlawful act, not otherwise specifically referred to.
9. SYSTEM AND NETWORK USAGE SECURITY
You agree to:
- Safeguard your account passwords to and to take all reasonable steps to prevent unauthorized access by 3rd parties to your account.
You agree not use the Service to, or to attempt to:
- circumvent user authentication or security of any host, network, or account ("cracking"). This includes, but is not limited to, accessing data not intended for you, logging into a server or account you are not expressly authorized to access, or probing the security of other networks.
- interfere with service to any user, host, or network ("denial of service attacks"). This includes, but is not limited to, "flooding" of networks, deliberate attempts to overload a service, and attempts to "crash" a host.
- interfere with a user's terminal session, via any means.
If you violate or attempt to violate systems or network security you may incur criminal or civil liability. Shrapnet 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")
Shrapnet is not responsible for the content of any USENET posting, whether or not the posting was made by another Shrapnet customer.
You agree to:
- Ensure your postings to newsgroups comply with the written charters or FAQs for those newsgroups.
- Only post advertisements or solicitations to newsgroups whose written charters or FAQs explicitly permit them.
You agree not use the Service to, or to attempt to:
- post the same or similar message to large numbers of newsgroups (excessive cross-posting or multiple-posting, also known as "USENET spam").
- post binary files to newsgroups unless they are specifically named for that purpose.
- cancel or supersede posts other than their own, unless you are designated as the official newsgroup moderators and your are performing that role.
- forge the header information of any posting or otherwise attempt to circumvent the approval process for posting to a moderated newsgroup.
11. USE OF INTERNET RELAY CHAT ("IRC")
Shrapnet is not responsible for the content of any communications made on IRC, whether or not the communication was made by another Shrapnet customer.
You agree not use the Service to, or to attempt to:
- run IRC robots, bots, clones or IRC sessions.
- to impersonate others
- use IRC anonymously by disguising your hostname or username.
- use IRC scripts or programs to interfere with or deny service to other users on any server or host.
12. MANAGEMENT OF CONTENT
You must ensure that all Content placed on your Website is in a form requiring no additional manipulation on Shrapnet's part ("Server-ready").
You acknowledge that Shrapnet does not pre-screen Content, but that Shrapnet 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, Shrapnet 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 Shrapnet or available via the Service.
You acknowledge and agree that Shrapnet 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 Shrapnet 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 Shrapnet its users and the public.
You grant Shrapnet 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. Shrapnet 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 Shrapnet with:
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located;
- your address, telephone number, and e-mail address;
The Service may provide, or third parties may provide, links to Internet sites or resources. Because Shrapnet has no control over such sites and resources, you acknowledge and agree that Shrapnet 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 Shrapnet 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.
Shrapnet 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.
You agree to indemnify and hold Shrapnet 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 Shrapnet 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 Shrapnet 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
Shrapnet 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 Shrapnet shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
This Agreement may be terminated:
- by either party, without cause, by giving the other party 30 days prior written notice
- by Shrapnet, without notice, in the event of non-payment by you ; and
- by Shrapnet, without notice, if at any time, in Shrapnet's sole judgment,you have violated or acted inconsistently with the letter or spirit of this WHA.
If this Agreement is terminated, you agree that Shrapnet 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 Shrapnet shall not be liable to you or any third-party for any termination of your access to the Service.
You expressly acknowledge and agree that:
- Your use of the Service is at your sole risk.
- The service is provided on an "as is" and "as available" basis. To the maximum extent permitted by law Shrapnet disclaims all warranties, conditions and other terms of any kind, whether express or implied, including, but not limited to any implied term of merchantability, satisfactory quality, fitness for a particular purpose, and any term as to the provision of services to a standard of reasonable care and skill or as to non-infringement of any intellectual property right.
- Subject only to the express terms of the Service Plan, Shrapnet makes no warranty or representation that (i) the service will meet your requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the software will be corrected.
- Any material downloaded or otherwise obtained through the use of the service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
- No advice or information, whether oral or written, obtained by you from Shrapnet through or from the service shall create any warranty or other obligation not expressly stated in the WHA.
22. LIMITATION OF LIABILITY
You expressly acknowledge and agree that to the maximum extent permitted by applicable law Shrapnet 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 Shrapnet 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 Shrapnet'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 Shrapnet.
23. GENERAL INFORMATION
The WHA (including the guides and rules referred to herein) constitute the entire agreement between you and Shrapnet and govern your use of the Service, superseding any prior agreements between you and Shrapnet. 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 Shrapnet shall be governed by the laws of the United States. You and Shrapnet agree to submit to the exclusive jurisdiction of the United States courts. Any failure by Shrapnet 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.