This Acceptable Use Policy (the “Agreement”) sets forth the terms and conditions of Your Use of hosting and related services (“Services”). In this Agreement “You” and “Your” refer to You, as the user of Our Services, or any agent, employee, servant or person authorized to act on Your behalf. “We”, “us” and “our” refer to Tuned Enterprises LLC, as well as its subsidiaries and sister companies (“Tuned Hosting”). This Agreement explains Our obligations to You, and explains Your obligations to Us for various services offered by Tuned Hosting. When You Use Your account or permit someone else to Use it to purchase or otherwise acquire access to additional Tuned Hosting service(s) or products or to cancel Your Tuned Hosting service(s) (even if We were not notified of such authorization), this Agreement covers such service or actions. Tuned Hosting’s Terms of Service agreement (“TOS”) is incorporated herein by reference and is applicable to all Services under this Accepted Use Policy.
You represent and warrant to Tuned Hosting that: Your content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person and that You own Your account content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your server account. You also represent and warrant that the server content being hosted by Tuned Hosting shall not be used in connection with any illegal activity.
You expressly (i) grant to Tuned Hosting a license to cache the entirety of the content that is submitted, stored, distributed or disseminated by you via the Services and your website, including content supplied by third parties, hosted by Tuned Hosting under this agreement; and (ii) agree that such caching is not an infringement on any of your intellectual property rights or any third party’s intellectual property rights.
Tuned Hosting will use its best efforts to maintain a full time Internet presence for Your account. You hereby acknowledge that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall Tuned Hosting be liable to You for any damages resulting from or related to any failure or delay of Tuned Hosting in providing access to the Internet under this Agreement. In no event shall Tuned Hosting be liable to You for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof. The aggregate, total liability of Tuned Hosting under this Agreement, if any, shall in no event or circumstance exceed the total amount actually paid by the Account Holder hereunder. The terms of this Section will survive the termination of this Agreement.
This Agreement applies to all accounts, sub-accounts, and alternative account names associated with Your principal account. You are responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account. A Tuned Hosting account may not be transferred without prior written approval from Tuned Hosting.
Tuned Hosting assigns to You an Internet Protocol (“IP”) address in connection with Your use of the Tuned Hosting services. The right to use that IP address will remain with and belong only to Tuned Hosting, and You will have no right to use that IP address except as allowed by Tuned Hosting in its sole and absolute discretion.
To request SSH access You need to contact technical support. Upon completion of said terms You will be granted Jail access to the system on a provisional basis any misuse of the system will result in access being revoked. The use of PHP or any other means to circumvent this policy will result in immediate account termination.
By using any Services, provided by Tuned Hosting You agree:
At its discretion, Tuned Hosting can remove any content we determine to be prohibited by this agreement or our Terms and Conditions. No backups will be kept of removed content.
You must comply with the CAN-SPAM Act of 2003 and all relevant regulations and legislation on bulk and commercial email. You are prohibited from sending mass unsolicited email messages. All emails sent to recipients who have not Confirmed Opt-In or Closed-Loop Opt-In in to mailings from You will be considered as unsolicited email messages. You using and sending mass mailings must at all times maintain complete and accurate records of all consents and opt-ins and upon request provide said records to Tuned Hosting. In the event that You cannot provide actual and verifiable proof of such consents and opt-ins, We will consider the mass mailing to be unsolicited. Tuned Hosting prohibits the following activities listed without limitation hereunder:
We take all SPAM issues extremely seriously and will take redress such activity whenever we deem necessary.
Your use of the server resources shall not endanger the capacity and operation of the shared server. Any shared or reseller account may use no more than:
The burst allowance is considered an exception to the acceptable use allowance and shall be permitted solely to stabilize the operation of the account during peak intervals. Any user whose account/server employs the higher burstable resources on a consistent basis shall agree to upgrade it to a package with higher resource availability, i.e. a VPS or Dedicated account.
The decision to require account upgrade shall rest solely with Tuned Hosting and shall be made in its reasonable discretion.
Tuned Hosting staff may use the following tools at our discretion to identify use of system resources:
The content on your website must be linked from an HTML or similarly coded web page with all content being freely available to the public. Your website must consist of web pages of a standard design, essentially HTML based text and graphics. Your hosting account should consist mostly of html and PHP files.
The number of inodes/files employed by one shared hosting account should not exceed a maximum of 600,000 total.
Any user whose account/server uses the higher resources on a consistent basis shall agree to upgrade it to a package with higher resource availability.
Under its sole discretion, Tuned Hosting reserves the right to determine any kind of unfair or inappropriate usage of database management systems (e.g. MySQL) which may result in immediate account suspension or upgrade to a package with higher resource availability. The decision to upgrade shall rest solely with Tuned Hosting and shall be made in its reasonable discretion.
Any shared hosting account that contains more than 600,000 inodes/files or 20GB in storage, will be removed from our daily system backup to conserve backup space and at that point backups become the responsibility of the account holder and NOT Tuned Hosting. All Tuned Hosting shared accounts are backed up at no additional charge within backup guidelines and if your account does go over we can provide backups for a low monthly fee.
You should use the email and other related services in full compliance with the terms below:
Using Tuned Hosting Shared, VPS or Dedicated hosting services for the origination, relay, or support of bulk email is prohibited. Customers are permitted to send transaction emails, such as account detail and password reset emails, or use the service for individual email accounts, however the service may not be used for sending commercial email in bulk in any form, even if the customer has opted in to such emails. Sending bulk marketing email in any type of automated fashion is specifically prohibited.
Each Virtual hosting account can be upgraded to a VPS (Virtual Private Server). The upgrade is performed by Tuned Hosting after You have paid the first month fee. The fee depends on the VPS type chosen by You and is non-refundable. Prorate amount for unused time of the shared hosting account will not be refunded, it will be added to Your hosting account balance in the event of upgrade to VPS. Once the account is transferred to the VPS the Virtual hosting account is terminated and the new VPS account use is governed by the paragraph 11 of this Agreement accordingly.
Due to the exhaustion of the IPv4 address space we actively conserve IP address space by limiting the IP addresses each web hosting account can use.
Shared hosting accounts may each use only purchase 1 IP address.
The IP address limit is a per account, not a per customer basis. Customers may hold multiple accounts to purchase additional IP addresses. We strongly urge customers to only IP addresses for essential use, justification required.
At all times, You shall bear full risk of loss and damage to Your server and all of Your server content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of Your server content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your server content; (ii) maintain independent archival and backup copies of Your server content; (iii) ensure the security, confidentiality and integrity of Your server content transmitted through or stored on Tuned Hosting servers; and (iv) ensure the confidentiality of Your password. Tuned Hosting’s servers are not an archive and Tuned Hosting shall have no liability to You or any other person for loss, damage or destruction of any of Your content. The services offered by Tuned Hosting are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. Tuned Hosting shall have no liability to You or any other person for Your use of Tuned Hosting products and/or services in violation of these terms.
In the event You terminate this Agreement or Your use of Tuned Hosting products and/or services, then moving Your server content off of the Tuned Hosting servers is Your responsibility. Tuned Hosting will not transfer or FTP Your server content to another provider. In the event Your use of Tuned Hosting products and/or services is terminated, Tuned Hosting will not transfer or manage Your services or Your content.
Tuned Hosting provides some third-party software to You for easier account management including, but is not limited to cPanel, Fantastico, Softaculous, etc. Such software is provided on an as is as available basis. We do not guarantee that any specific results can be obtained by using such software. Tuned Hosting does not take responsibility for any faults in such software functioning.
You can add and use third-party software on Your account only if it is compatible with Our servers and is approved by Tuned Hosting. Your use of any third party software is at Your own risk. Tuned Hosting cannot be responsible for any third party software performance and provides no guarantees that its use will result in any particular outcome or result. Tuned Hosting will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Your use of third party software or products.
You are solely responsible for any license and other fees required by the software providers, for using any third-party software installed on Your account apart from the initial account setup.
Tuned Hosting explicitly reserves the right and sole discretion to: (i) modify its pricing, if desired by Tuned Hosting; (ii) establish limits and guidelines concerning the use of Tuned Hosting services and/or products; (iii) terminate Your use of Tuned Hosting services and/or products for use of Tuned Hosting services and/or products to unnecessarily or illegally harass Tuned Hosting or third parties, non-payment of fees for Tuned Hosting services and/or products, activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties, activities prohibited by the laws of the United States and/or foreign territories in which You conduct business, activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography, activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable in the sole opinion of Tuned Hosting, activities designed to impersonate the identity of a third party, activities designed to harm minors in any way, and other activities whether lawful or unlawful that Tuned Hosting determines, in its sole discretion, to be harmful to its other customers, operations, or reputation; (iv) terminate Your use of Tuned Hosting services and/or products if Your use of Tuned Hosting services and/or products may results in, results in, or is the subject of, legal action or threatened or proposed legal action, against Tuned Hosting or any of its affiliates or partners, without consideration for whether such legal action or threatened or proposed legal action is eventually determined to be with or without merit; and (v) terminate Your use of Tuned Hosting services and/or products at any time and for any reason if deemed reasonably necessary by Tuned Hosting. Tuned Hosting has no obligation to monitor Your use of Tuned Hosting services and/or products, but reserves the right in its sole discretion to do so.
Right of Refusal. Tuned Hosting has the right to refuse services to anyone at Our discretion.
The services offered by Tuned Hosting are being provided on an “AS IS” and Tuned Hosting expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, and non-infringement, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, Tuned Hosting expressly does not warrant that Tuned Hosting services and/or products will meet Your requirements, function as intended, or that the use of the provided Services will meet Your requirements, function as intended, or that the use of the provided Services will be uninterrupted or error free. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Services 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 such material and/or data. No advice or information, whether oral or written, obtained by you from Tuned Hosting shall create any warranty not expressly made herein. You agree that Tuned Hosting will not be liable for any (i) suspension or loss of the Services, except to the limited extent that a remedy is provided under this Agreement; (ii) interruption of business; (iii) access delays or access interruptions to the website(s) provided through or by the Services; (iv) loss or liability resulting from acts of god; (v) data non-delivery, mis-delivery, corruption, destruction or other modification; (vi) events beyond the control of Tuned Hosting; (vii) the processing of Your application for Services; or (viii) loss or liability resulting from the unauthorized use or misuse of Your account identifier or password.
Information obtained by you from the internet may be inaccurate, offensive or in some cases illegal. Tuned Hosting has no control over information contained on the Internet and accepts no responsibility for any information that you may receive or transmit via the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Services of obtain from the Internet. You agree that Tuned Hosting has no obligation to back-up any data related to your website unless Tuned Hosting expressly agrees otherwise in writing or has expressly stated so on the website.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge Tuned Hosting and all affiliates of Tuned Hosting, and all officers, agents, employees, and representatives of Tuned Hosting, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Services and Your acquisition and use thereof, including, but not limited to, the provision of the Tuned Hosting products and/or services by Tuned Hosting and its agents and employees. Further, You agree to defend, indemnify and hold harmless Tuned Hosting and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by Tuned Hosting’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Services or your use of the Services, including without limitation infringement or dilution by You or by another using the Services from Your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data You supplied to Tuned Hosting, including, without limitation, any misrepresentation in Your application, if applicable; (v) the inclusion of metatags or other elements in any website created for you or by you via the Services; (vi) any information, material, or services available on your licensed Tuned Hosting website; or (vii), any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of You elsewhere. Should Tuned Hosting be notified of a pending law suit, or receive notice of the filing of a law suit, Tuned Hosting may seek a written confirmation from You concerning Your obligation to defend, indemnify Tuned Hosting. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Tuned Hosting shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Tuned Hosting of any such claim promptly in writing and to allow Tuned Hosting to control the proceedings. You agree to cooperate fully with Tuned Hosting during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
Tuned Hosting is a service provider and respects the copyrights and other intellectual property rights of others [and herein incorporates its Copyright Infringement Policy]. To the extent Tuned Hosting receives a proper notice of infringement of copyright, trademark or other intellectual property, Tuned Hosting reserves the right to access, preserve and disclose to third parties any of Your information or data (including personally identifiable information and private communications) related to a written complaint of infringement if Tuned Hosting believes in its sole discretion that such access, preservation, or disclosure is necessary or useful to respond to or otherwise address such complaint.
Tuned Hosting expressly reserves the right to terminate in appropriate circumstances an account or the access rights of a subscriber for repeated copyright infringement. Tuned Hosting also reserve the right to terminate an account or subscriber for even one instance of infringement.
Proper notice of infringement shall include the following information in writing to Tuned Hosting’s designated agent:
Tuned Hosting expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any account or any Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by Tuned Hosting in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by Tuned Hosting 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; (iii) to assist with our fraud and abuse detection and prevention efforts; (iv) to comply with 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, or (viii) to avoid any civil or criminal liability on the part of Tuned Hosting, its officers, directors, employees and agents, as well as Tuned Hosting’s affiliates.
In the event that Tuned Hosting need exercise any of its rights expressed herein to investigate any potential breach or violation of the terms and conditions of this Agreement, service fees may continue to accrue on your accounts, and you will continue to remain responsible for the payment of any service fees that accrue during the relevant period.
Except as otherwise set forth in the UDRP or any similar policy with respect to any dispute regarding the Services provided under this Agreement, Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of Oregon, as if the Agreement was a contract wholly entered into and wholly performed within the State of Oregon. You agree that any action to enforce this agreement or any matter relating to Your use of the Services must be brought exclusively in the United States District Court for the Central District of Oregon, or if there is no jurisdiction in such court, then in a state court in Washington County, State of Oregon.
You agree that any notices required to be given under this Agreement by Us to You will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information You have provided. You acknowledge that it is Your responsibility to maintain current contact information in the account and/or domain name WHOIS information You have provided.
You attest that you are of legal age (18 or over) to enter into this Agreement.
This Agreement, together with all modifications, constitute the complete and exclusive agreement between You and Us, and supersede and govern all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by You except by means of a written document signed by both You and an authorized representative of Us. By applying for Tuned Hosting’s services through the online application process or otherwise, or by using the Services under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Tuned Hosting’s prior express written consent.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Tuned Hosting, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Tuned Hosting may immediately terminate this Agreement.
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.