TERMS AND CONDITIONS

1. SERVICES

This Service Agreement ("Agreement") applies to the purchase of all services, packages, options, technical support services (collectively, the "Services") ordered by you on the desertWEB Hosting Sign Up Page OR which you may order at any time and from time to time. Mulkern Communications, dba desertWEB Hosting, (herein referred to as "desertWEB") reserves the right to amend its web hosting and related Service offerings and to add, delete, suspend or modify the terms and conditions of the Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.

SERVICE EXCLUSIONS

The scope of services and technical support under this Agreement with you expressly excludes any services not expressly listed on the desertWEB Hosting web site, including but not limited to web design, programming, and debugging services, and technical support not reasonably related to the virtual hosting of Internet Web sites or domains. If you want our staff or related companies to provide web design, programming or debugging services or special technical support not reasonably related to the virtual hosting of Internet Web sites or domains, including, but not limited to, distributing source code to clients or debugging scripts for clients, you must enter into a separate and distinct written services agreement with desertWEB Hosting describing the scope of the services, the deliverables, the pricing, and the method and timing of payment. If you would like to have a proposal from desertWEB Hosting for web design, programming or debugging services, you may contact us by e-mail at sales@desertweb, to obtain the proper forms and information you will need to prepare a request for a proposal.


2. BILLING AND PAYMENT

You shall pay the fees and other charges for each Service as provided in the desertWEB Hosting Sign Up Page and in our pricing and plans statement or our standard schedule of prices, as the same may be amended from time to time. desertWEB reserves the right to change rates by notifying you sixty (60) days in advance of the effective date of the change; provided that desertWEB shall not change any rates during the term of any contract. Service fees and charges shall be invoiced in accordance with the terms and conditions set forth both herein and in the Sign Up Page and desertWEB's pricing and plans statement. All payments shall be made in U.S. currency. You will pay a late payment charge equal to 1.5% (or the highest amount permitted by law, whichever is lower) per month or portion thereof on the outstanding balance of any invoice remaining unpaid thirty (30) days after the date upon which payment is due ("Due Date").

Accounts unpaid after the Due Date may have service suspended or terminated. Such suspension or termination shall not relieve you of your obligation to pay the fees and charges due. You agree to pay desertWEB its reasonable expenses, including attorney's fees and collection agency fees, incurred in enforcing its rights under this Agreement. 

3. ADDITIONAL TERMS FOR DOMAIN NAME REGISTRATION

A. Registrar Services. desertWEB has entered into an agreement with an accredited domain name registrar, BulkRegister, Inc. ("BulkRegister") to provide you with domain name registration services, for any requests by you to desertWEB to register an Internet domain name. As consideration for the domain name registration services provided by BulkRegister to you, on behalf of desertWEB, you agree to pay desertWEB, prior to the effectiveness of the desired domain name registration, the then-current amounts set forth in the desertWEB price schedule for the initial registration of the domain name and, should you choose to renew the registration, subsequent renewals of the registration. 

All domain name registration fees are non-refundable, in whole or in part, even if your domain name registration is suspended, cancelled or transferred prior to the end of your then current registration term. desertWEB reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. Your requested domain name will not be registered unless and until we receive actual payment of the registration fee, and have confirmed your registration in an email from desertWEB to the email address indicated in your registration application.

B. Cancellation; Reinstatement. You acknowledge and agree that any domain name that we may register for you is a product of this Service Agreement and of the agreement between desertWEB and BulkRegister for your use only during the term of this Service Agreement with respect to each domain respectively. In the event that (1) you cancel your account or request the deletion of a domain name and receive a refund or a chargeback by a credit card company (or similar action by another payment provider allowed by us) in connection with the payments of the registration fee for your domain name registration you agree and acknowledge that the domain name registration shall be transferred to desertWEB as the paying entity for that registration to the registry and that we reserve all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. We will reinstate your domain name registration solely at our discretion, and subject to our receipt of the initial registration or renewal fee and our then-current reinstatement fee.

C. Renewal. You will be notified when renewal fees are due. Should these fees go unpaid within the time specified in a second notice or reminder regarding renewal, your registration will be cancelled. Payment must be made by credit card or such other method as we may indicate in the registration application or renewal form. We will renew your name for you provided your credit card or other billing information is available and up to date, unless you instruct us otherwise within the time specified. You agree that you are solely responsible for maintaining current, accurate credit card and billing information for your account. If your billing information is not accurate and you wish to renew your domain name registration, you agree that you will contact desertWEB to update the information and that desertWEB may charge you accordingly.

D. Transfer. You will be responsible for all costs and fees associated with the registration of your domain name including, but not limited to, all costs and fees for moving or transferring such domain name. Under no circumstances shall desertWEB be responsible for this cost. desertWEB makes no representations concerning and does not guarantee that your domain name does not infringe upon any trademarks, trade names, service marks or other proprietary rights owned by a third party. You agree to be bound by the terms of the Domain Name Registration Agreement, Domain Name Dispute Policy, and related agreements that you will be asked to review and you will be asked to indicate your acceptance of during the domain name registration process.

E. Use of Personal Information; Updated Information. BulkRegister and/or desertWEB will collect certain personal information (including, without limitation, contact information such as name, address, email address and telephone number) ("Personal Information") from you during the domain name registration process. You agree and acknowledge that BulkRegister and desertWEB will share Personal Information that you provide (or that is gathered about you during the registration process, including, for example, your primary domain name server and the like), or that BulkRegister or desertWEB otherwise maintains, with one another, with ICANN, with registry administrator(s), and with other third parties as ICANN and applicable laws and/or policy may require or permit. You further agree and acknowledge that BulkRegister and/or desertWEB shall be permitted (and in some cases may be required) to make publicly available, or directly available to third party vendors, some, or all, of the Personal Information or domain name registration information you provide, for purposes of inspection (such as through BulkRegister's WHOIS service) or for targeted marketing and other purposes as required or permitted by ICANN and applicable laws. You may access your Personal Information and/or domain name registration information in BulkRegister's or desertWEB's possession by a request in writing or by e-mail to desertWEB (support@desertweb.com) to review, modify or update such information. You agree not to contact BulkRegister directly. We will not process data about any identified or identifiable natural person that we obtain from you in a way incompatible with the purposes and other limitations that we describe in this Agreement. desertWEB, and BulkRegister, pursuant to its agreement with desertWEB, will take reasonable precautions to protect the information it obtains from you from loss, misuse, unauthorized access or disclosure, alteration or destruction. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of your Personal Information and/or domain name registration information by BulkRegister or desertWEB.

F. ICANN Guidelines. Additionally, you acknowledge that ICANN may establish guidelines, limits and/or requirements that relate to the amount and type of information that BulkRegister or desertWEB may or must make available to the public or to private entities, and the manner in which such information is made available. You hereby consent to any and all such disclosures and use of, and guidelines, limits and restrictions on disclosure or use of, information provided by you in connection with the registration of a domain name (including any updates to such information), whether during or after the term of your registration of the domain name.

G. Third Party Data. In the event that, in registering the domain name, you are providing information about a third party, you hereby represent that you have (1) provided notice to that third party of the disclosure and use of the party's information as set forth in this Agreement, and (2) that you have obtained that third party's express consent to the disclosure and use of that party's information as set forth in this Agreement.

H. Accuracy of Data. You acknowledge that willfully providing inaccurate information or willfully failing to update information promptly will constitute a material breach of this Agreement and will be sufficient basis for cancellation of your domain name registration. (In addition, under certain federal laws, such provision of inaccurate or false information is one factor in determining whether you may have violated the trademark rights of another party in registering a domain name confusingly similar to such party's trademark.) You further agree that your failure to respond for over fifteen (15) calendar days to inquiries by desertWEB concerning the accuracy of contact details associated with your registration shall constitute a material breach of this Agreement and will be sufficient basis for cancellation of your domain name registration.

I. If You Have Registered a Domain Name Through desertWEB Hosting Before December 13, 1999. 

If you have registered a .com, .net, or .org domain name through desertWEB Hosting prior to December 13, 1999, and you asked us to register the domain name for you, such domain names are subject to the agreement you entered into with Network Solutions, Inc. ("NSI"), who was then desertWEB Hosting's exclusive provider of domain name registration services. By applying for the domain name and through the use or continued use of the domain name, the applicant agrees to be bound by the terms of NSI's domain name registration service agreement and related policy (the "NSI Policy") which is available at: http://www.networksolutions.com/legal/agreement.html.


4. TERM

Domain name registration services shall be for the term indicated on the registration application. Domain name registration agreements will be renewed and terminated on the terms indicated above ("Additional Terms for Domain Name Registrations"), and in the Domain Name Registration Agreement, Domain Name Dispute Policy and related agreements that you will be asked to review and must agree to during the registration process.

For all Services other than domain name registration services, this Agreement shall be for the term specified by you on the desertWEB Hosting Sign Up Page or otherwise with respect to each domain you establish. With regard to such other Services, this Agreement will be automatically renewed at the end of the initial term or renewal term for the same term specified by you on the desertWEB Web Hosting Sign Up Page or otherwise unless you provide not less than thirty (30) days written notice to desertWEB of termination of this Agreement.

5. POLICIES/ACCEPTABLE USES

You shall at all times adhere to and comply with the desertWEB Policies, including but not limited to the desertWEB Acceptable Use Policies, located at http://desertweb.com/aup.html/, all of which are incorporated in this Service Agreement by reference to the desertWEB Policies as fully as if set out in full in this Service Agreement, all as amended from time to time by desertWEB, which amendments shall be effective upon the posting of the revised policy at the URL. You acknowledge that the desertWEB Acceptable Use Policies, among other things and without any limitation of the applicability or construction of other provisions of the desertWEB Policies, prohibit any site or domain hosted by desertWEB from displaying or containing any adult content or pornography, and from containing any links to sites which display or contain any adult content or pornography, whether that adult content or pornography is in written, graphic or other form. Notwithstanding anything to the contrary contained herein, desertWEB may immediately take corrective action, including disconnection or discontinuance of any and all Services, or terminate this Agreement in the event of notice to desertWEB of possible violation by you of the desertWEB Acceptable Use Policies. In the event desertWEB takes corrective action due to a violation of the desertWEB Acceptable Use Policy, desertWEB shall not refund to you any fees paid in advance of such corrective action.

6. SOFTWARE

desertWEB is acting only as a reseller, relicensor or licensor of any software (collectively, the "Software") offered under or in connection with the performance of this Agreement that was created by a third party, including, but not limited to, Alabanza, Inc., BulkRegister, Inc., and Miva Corporation. desertWEB shall not be responsible for any changes in Service(s) that cause Software to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or defects of Software either sold, licensed or provided by desertWEB to you or purchased directly by you used in connection with the Service(s) will not be deemed a breach of desertWEB's obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of Software are limited to those rights extended to you by the manufacturer or creator of such Software. You are entitled to use any Software supplied by desertWEB only in connection with your permitted use of the Services. You shall use your best efforts to protect and keep confidential all intellectual property provided by desertWEB to you through any Software 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. You shall not resell, transfer, export or re-export any Software, or any technical data derived therefrom, in violation of any applicable United States or foreign law.


7. IP ADDRESS OWNERSHIP

desertWEB shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by desertWEB and desertWEB reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.

8. CACHING AND BACKUP

You expressly (i) grant to desertWEB and to desertWEB’s contractors and designees, a license to cache and to backup the entirety of your Web Site, including content supplied by third parties, hosted by desertWEB under this Agreement and (ii) agree that such caching or backup is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

9. CPU USAGE

You agree that you shall not use excessive amounts of CPU processing, as determined by desertWEB in its sole discretion, on any of desertWEB's servers. Any violation of this policy may result in corrective action by desertWEB, in its sole discretion, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. In the event that desertWEB elects to take any corrective action, you shall not be entitled to a refund of any fees paid in advance prior to such corrective action.

10. TRANSFER RATE AND DISK SPACE USAGE

You agree that Transfer Rate, sometimes also referred to as "bandwidth," and Disk Space Usage shall not exceed the number of megabytes per month for the Services ordered by you on the desertWEB Hosting Sign Up Page or as subsequently otherwise ordered by you. The Transfer Rate and disk space usage shall be monitored and measured by desertWEB. Any Transfer Rate or Disk usage in excess of the agreed upon number of megabytes per month may result in corrective action by desertWEB, in its sole discretion, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. In the event that desertWEB elects to take any corrective action, you shall not be entitled to a refund of any fees paid in advance prior to such corrective action.

11. E-COMMERCE

You will be solely responsible for the development, operation and maintenance of your online store and products and all contents and materials appearing online or on your products, including without limitation (a) the accuracy and appropriateness of content and materials appearing within the store or related to your products, (b) ensuring that the content and materials appearing within the store or related to your products do not violate or infringe upon the rights of any third party, and (c) ensuring that the content and materials appearing within the store or related to your products are not libelous or otherwise illegal. You will be solely responsible for the final calculation and application of shipping and sales tax. You will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising therefrom.

You are also responsible for the security of any customer credit card numbers and related customer information you may access as a result of conducting electronic commerce transactions through your Web Site. You will keep all such information confidential and will use the same degree of care and security as you use with your confidential information.

12. DISCLAIMER OF WARRANTY

You acknowledge and agree that desertWEB exercises no control over, and accepts no responsibility for, the content of the information passing through desertWEB's host computers, network hubs and points of presence (the "desertWEB Network") or the Internet. NEITHER desertWEB, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT FOR THE SERVICES OR ANY SOFTWARE desertWEB PROVIDES. NEITHER desertWEB, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICED OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. desertWEB IS NOT LIABLE FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICE(S) PROVIDED BY desertWEB.

13. INDEMNIFICATION

You will indemnify, defend and hold harmless desertWEB and its employees, officers, directors and agents (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to the use of the Services by you or your agents, including but not limited to any violation of the desertWEB Policies, including the desertWEB Acceptable Use Policies.

14. LIMITATION OF LIABILITY

IN NO EVENT SHALL desertWEB OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF desertWEB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will desertWEB's liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by you for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.

15. FORCE MAJEURE

desertWEB shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware, or inability to obtain raw materials, supplies, or power used in or Software needed for provision of the Services.

16. GOVERNING LAW/JURISDICTION

The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts without regard to its conflict of laws principles. You agree that any and all claims, damages, losses, liabilities, suits, actions, demands, or proceedings (whether legal or administrative) touching, concerning, or arising under, with respect to, or out of this Service Agreement in any manner, or concerning any transaction or dispute arising under or out of the performance of this Service Agreement to which desertWEB will be a party, must and shall be filed or brought and determined in a forum in the State of Massachusetts having jurisdiction of the subject matter.

17. AMENDMENT; WAIVER

Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of you and desertWEB, provided, however, without limitation of any other rights of desertWEB otherwise provided herein, that desertWEB shall have the right to amend the desertWEB Policies from time to time, and such amendments shall be immediately effective and applicable to this Agreement. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself.

18. ASSIGNMENT; SEVERABILITY

This Agreement shall be binding upon and inure to the benefit of you, desertWEB and our respective successors, and assigns. You may not assign this Agreement without the prior written consent of desertWEB. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.

19. ENTIRE AGREEMENT

This Agreement, together with any other document or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supercedes all previous representations, understandings or agreements.

20. ACCEPTANCE OF SERVICES

ACCEPTANCE OF THIS AGREEMENT BY ONET MAY BE SUBJECT, IN desertWEBt'S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK. ACTIVATION OF SERVICE SHALL INDICATE desertWEB'S ACCEPTANCE OF THIS AGREEMENT. USE OF THE desertWEB NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY AND RIGHT TO ENTER INTO THIS AGREEMENT AND THAT THERE ARE NO CONFLICTING CLAIMS RELATING TO THE RIGHTS GRANTED BY THIS AGREEMENT. YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE.

21. CANCELLATION

If you cancel your Service Agreement prior to the end of the term specified in your Sign Up Page entry, desertWEB shall not refund to you any fees paid in advance of such cancellation. You will be required to pay 100% of desertWEB's standard monthly charge for each month remaining in the term. Your Service Agreement shall automatically renew for a new Term unless you give notice to cancel not less than thirty (30) days prior the expiration of the current term. If notice is untimely and you elect nonetheless to cancel the new term, you will pay 100% of desertWEB’s standard monthly charge for each month remaining in the new term. For security, all cancellation requests must be made by the primary contact person on the account who must provide sufficient customer identification information as may be specified from time to time by desertWEB. Any cancellation request shall be effective upon receipt, unless another date is specified in the cancellation request. Any cancellation by desertWEB or you shall not relieve you of any obligations to pay fees accrued prior to such cancellation.