Terms
and Conditions
The
use of services from eMallsAmerica, Inc. [hereafter referred
to as "EMA"] constitutes agreement to these
terms.
1.)
Account Setup / Email on file
We will setup your account after we have received payment
and we and/or our payment partner(s) have screened the
order(s) in case of fraud. It is your responsibility to
provide us with an email address which is not @ the domain(s)
you are signing up under. If there is ever an abuse issue
or we need to contact you, the primary email address on
file will be used for this purpose. It is your responsibility
to ensure the email address on file is current or up to
date at all times. If you have a domain name registered
with EMA, it is your responsibility to ensure that the
contact information for your domain account and your actual
domain name(s) is correct and up-to-date. EMA is not responsible
for a lapsed registration due to outdated contact information
being associated with the domain. If you need to verify
or change this information, you should contact our sales
team via email. Providing false contact information of
any kind may result in the termination of your account.
In dedicated server purchases or high risk transactions,
it will be necessary to provide government issued identification
and possibly a scan of the credit card used for the purchase.
If you fail to meet these requirements, the order may
be considered fraudulent in nature and be denied.
Transfers
Our transfers team will make every effort to help you
move your site to us. However, transfers are provided
as a courtesy service, and we can not make guarantees
regarding the availability, possibility, or time required
to complete an account transfer. Each hosting company
is configured differently, and some hosting platforms
save data in an incompatible or proprietary format, which
may make it extremely difficult if not impossible to migrate
some or all account data. We will try our best, but in
some cases we may be unable to assist you in a transfer
of data from an old host.
The
free transfer services are available for 30 days from
your sign up date. Transfers outside of the 30 day free
period will incur a charge; please contact a member of
the transfers department with specific details to receive
a price quote.
2.)
Content
All services provided by EMA may only be used for lawful
purposes. The laws of the State of Texas, and the United
States of America apply.
The
customer agrees to indemnify and hold harmless EMA from
any claims resulting from the use of our services.
Use
of our services to infringe upon any copyright or trademark
is prohibited. This includes but is not limited to unauthorized
copying of music, books, photographs, or any other copyrighted
work. The offer of sale of any counterfeit merchandise
of a trademark holder will result in the immediate termination
of your account. Any account found to be in violation
of anothers copyright will be expeditiously removed, or
access to the material disabled. Any account found to
be in repeated violation of copyright laws will be suspended
and/or terminated from our hosting. If you believe that
your copyright or trademark is being infringed upon, please
email abuse@kwikit.com with the information required.
A list of required information may be found here. If the
request is of a licensing issue, we may require further
documentation.
Using
a shared account as a backup/storage device is not permitted,
with the exception of one cPanel backup of the same account.
Please do not take backups of your backups.
Examples of unacceptable material on all Shared and Reseller
servers include:
* Topsites
* IRC Scripts/Bots
* Proxy Scripts/Anonymizers
* Pirated Software/Warez
* Image Hosting Scripts (similar to Photobucket or Tinypic)
* AutoSurf/PTC/PTS/PPC sites
* IP Scanners
* Bruteforce Programs/Scripts/Applications
* Mail Bombers/Spam Scripts
* Banner-Ad services (commercial banner ad rotation)
* File Dump/Mirror Scripts (similar to rapidshare)
* Commercial Audio Streaming (more than one or two streams)
* Escrow/Bank Debentures
* High-Yield Interest Programs (HYIP) or Related Sites
* Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden
Exchange, Ponzi, MLM/Pyramid Scheme)
* Sale of any controlled substance without prior proof
of appropriate permit(s)
* Prime Banks Programs
* Lottery/Gambling Sites
* MUDs/RPGs/PBBGs
* Hateful/Racist/Harassment oriented sites
* Hacker focused sites/archives/programs
* Sites promoting illegal activities
* Forums and/or websites that distribute or link to warez/pirated/illegal
content
* Bank Debentures/Bank Debenture Trading Programs
* Fraudulent Sites (Including, but not limited to sites
listed at aa419.org & escrow-fraud.com)
* Mailer Pro
* Broadcast or Streaming of Live Sporting Events (UFC,
NASCAR, FIFA, NFL, MLB, NBA, WWE, WWF, etc)
Examples
of unacceptable material on all Dedicated servers include:
* IRCD (irc servers)
* IRC Scripts/Bots
* Pirated Software/Warez
* IP Scanners
* Bruteforce Programs/Scripts/Applications
* Mail Bombers/spam Scripts
* Escrow
* High-Yield Interest Programs (HYIP) or Related Sites
* Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden
Exchange, Ponzi, MLM/Pyramid Scheme)
* Sale of any controlled substance without prior proof
of appropriate permit(s)
* Prime Banks Programs
* Lottery/Gambling Sites
* Hateful/Racist/Harassment oriented sites
* Hacker focused sites/archives/programs
* Sites promoting illegal activities
* Forums and/or websites that distribute or link to warez/pirated/illegal
content
* Bank Debentures/Bank Debenture Trading Programs
* Fraudulent Sites (Including, but not limited to sites
listed at aa419.org & escrow-fraud.com)
* Mailer Pro
* Broadcast or Streaming of Live Sporting Events (UFC,
NASCAR, FIFA, NFL, MLB, NBA, WWE, WWF, etc)
EMA
services, including all related equipment, networks and
network devices are provided only for authorized customer
use. EMA systems may be monitored for all lawful purposes,
including to ensure that use is authorized, for management
of the system, to facilitate protection against unauthorized
access, and to verify security procedures, survivability,
and operational security. During monitoring, information
may be examined, recorded, copied and used for authorized
purposes. Use of EMA system(s) constitutes consent to
monitoring for these purposes.
Any
account found connecting to a third party network or system
without authorization from the third party is subject
to suspension. Access to networks or systems outside of
your direct control must be with expressed written consent
from the third party. EMA may, at its discretion, request
and require documentation to prove access to a third party
network or system is authorized.
We
reserve the right to refuse service to anyone. Any material
that, in our judgment, is obscene, threatening, illegal,
or violates our terms of service in any manner may be
removed from our servers (or otherwise disabled), with
or without notice.
Failure
to respond to email from our abuse department within 48
hours may result in the suspension or termination of your
services. All abuse issues must be dealt with via troubleticket/email
and will have a response within 48 hours.
Sites
hosted on EMA's service(s) are regulated only by U.S.
law. Given this fact, and pursuant to Section 230(c) of
the Communications Decency Act, we do not remove allegedly
defamatory material from domains hosted on our service(s).
The only exception to this rule is if the material has
been found to be defamatory by a court, as evidenced by
a court order. EMA is not in a position to investigate
and validate or invalidate the veracity of individual
defamation claims, which is why we rely on the legal system
and courts to determine whether or not material is indeed
considered defamatory. In any case in which a court order
indicates material is defamatory, libelous, or slanderous
in nature; we will disable access to the material. Similarly,
in any case in which a US Court has placed an injunction
against specified content or material; we will comply
and remove or disable access to the material in question.
The
language of Section 230(c) of the Communications Decency
Act fundamentally states that Internet services providers
like EMA and many of EMA's other webhosting services and
brands are republishers and not the publisher of content.
Our service merely provides a hosting platform and space
on which to host content, and any creation or publication
of content on our services is the sole responsibility
of the third-party user which creates or publishes the
content. Therefore, EMA should not be held liable for
any allegedly defamatory, offensive or harassing content
published on sites hosted under EMA's webhosting service(s).
If
in doubt regarding the acceptability of your site or service,
please contact us at abuse@kwikit.com and we will be happy
to assist you.
Potential
harm to minors is strictly forbidden, including but not
limited to child pornography or content perceived to be
child pornography (Lolita):
Any
site found to host child pornography or linking to child
pornography will be suspended immediately without notice.
Resellers:
we will suspend the site in question and will notify you
so you may terminate the account. We will further monitor
your activity; more than one infraction of this type may
result in the immediate termination of your account.
Direct
customers: Your services will be terminated with or without
notice.
Violations
will be reported to the appropriate law enforcement agency.
It
is your responsibility to ensure that scripts/programs
installed under your account are secure and permissions
of directories are set properly, regardless of installation
method. When at all possible, set permissions on most
directories to 755 or as restrictive as possible. Users
are ultimately responsible for all actions taken under
their account. This includes the compromise of credentials
such as user name and password. It is required that you
use a secure password. If a weak password is used, your
account may be suspended until you agree to use a more
secure password. Audits may be done to prevent weak passwords
from being used. If an audit is performed, and your password
is found to be weak, we will notify you and allow time
for you to change/update your password.
3.)
Zero Tolerance Spam Policy
We take a zero tolerance stance against sending of unsolicited
e-mail, bulk emailing, and spam. "Safe lists"
and purchased lists will be treated as spam. Any user
who sends out spam will have their account terminated
with or without notice.
Sites
advertised via SPAM (Spamvertised) may not be hosted on
our servers. This provision includes, but is not limited
to SPAM sent via fax, phone, email, instant messaging,
or usenet/newsgroups. No organization or entity listed
in the ROKSO may be hosted on our servers. Any account
which results in our IP space being blacklisted will be
immediately suspended and/or terminated.
EMA
reserves the right to require changes or disable as necessary
any web site, account, database, or other component that
does not comply with its established policies, or to make
any such modifications in an emergency at its sole discretion.
EMA
reserves the right to charge the holder of the account
used to send any unsolicited e-mail a clean up fee or
any charges incurred for blacklist removal. This cost
of the clean up fee is entirely at the discretion of EMA.
4.)
Payment Information
You agree to supply appropriate payment for the services
received from EMA, in advance of the time period during
which such services are provided. You agree that until
and unless you notify EMA of your desire to cancel any
or all services received, those services will be billed
on a recurring basis. This includes when accounts are
suspended. When an account's invoices are paid outside
of the 10 day grace period, invoices will not be automatically
generated. However, after the customer notifies EMA of
his or intent to resume service, invoices will be manually
generated and payment expected for the time the account
was suspended.
Cancellations
must be done in writing via the cancellation form provided.
Once we receive your cancellation and have confirmed all
necessary information with you via e-mail, we will inform
you in writing (typically email) that your account has
been canceled. Your cancellation confirmation will contain
a ticket/tracking number in the subject for your reference,
and for verification purposes. You should immediately
receive an automatic "Your request has been received..."
email with a tracking number. An employee will confirm
your request (and process your cancellation) shortly thereafter.
If you do not hear back from us, or do not receive the
automatic confirmation email within a few minutes after
submitting your cancellation, please contact us immediately
via phone. We require that cancellations of service are
done through the online form to (a) confirm your identity,
(b) confirm in writing you are prepared for all files/emails
to be removed, and (c) document the request. This process
reduces the likelihood of mistakes, fraudulent/malicious
requests, and ensures you are aware that the files, emails,
and account may be removed immediately after a cancellation
request is processed.
As
a client of EMA, it is your responsibility to ensure that
your payment information is up to date, and that all invoices
are paid on time. You agree that until and unless you
notify EMA of your desire to cancel any or all services
received (by the proper means listed in the appropriate
section of the Terms of Service), those services will
be billed on a recurring basis, unless otherwise stated
in writing by EMA. EMA reserves the right to bill your
credit card or billing information on file with us. EMA
provides a 10 day grace period from the time the invoice
is generated and when it must be paid. Any invoice that
is outstanding for 10 days and not paid will result in
a $10 late fee and/or an account suspension until account
balance has been paid in full. The $10 late fee is applied
in addition to whatever else is owed to EMA for services
rendered. Access to the account will not be restored until
payment has been received.
It
is the customer's responsibility to notify our sales team
via email at sales@kwikit.com after paying for a domain
renewal and to ensure the email is received and acted
upon. Domain renewal notices and invoices are provided
as a courtesy reminder and EMA cannot be held responsible
for failure to renew a domain or failure to notify a customer
about a domain's renewal.
Subsequently,
domain renewals are billed and renewed 30 days before
the renew date. It is the customer's responsibility to
notify our sales team via email at sales@kwikit.com for
any domain registration cancellation. No refunds can be
given, once a domain is renewed. All domain registrations,
and renewals are final.
Invoices
that have been paid more than once with multiple Paypal
Subscriptions can only be added as credit towards the
account and cannot be refunded via Paypal. If you require
assistance with this provision, please contact sales@kwikit.com
EMA
reserves the right to change the monthly payment amount
and any other charges at anytime.
5.)
Backups and Data Loss
Your use of this service is at your sole risk. Our backup
service is ran on Sunday of each week, overwrites any
of our previous backups made, and only one week of backups
are kept. This service is provided to you as a courtesy.
EMA is not responsible for files and/or data residing
on your account. You agree to take full responsibility
for files and data transferred and to maintain all appropriate
backup of files and data stored on EMA servers.
6.)
Cancellations and Refunds
EMA reserves the right to cancel, suspend, or otherwise
restrict access to the account at any time with or without
notice.
Any
abuse of our staff in any medium or format will result
in the suspension or termination of your services.
Customers
may cancel at any time via a cancellation form. EMA gives
you an unconditional 45 day money back guarantee on managed
shared hosting, and reseller solutions for any customer
who paid the first invoice with a credit card or with
Paypal.
The
following methods of payments are non-refundable, and
refunds will be posted as credit to the hosting account:
* Bank Wire Transfers
* Western Union Payments
* Checks
* Money orders
There
are no refunds on dedicated servers, administrative fees,
install fees for custom software, or domain name purchases.
Refund requests for shared and reseller accounts after
the initial 45 days will be refunded on a prorated basis
of any unused time.
Only
first-time accounts are eligible for a refund. For example,
if you've had an account with us before, canceled and
signed up again, you will not be eligible for a refund
or if you have opened a second account with us.
Violations
of the Terms of Service will waive the refund policy.
7a.)
Resource Usage
User
may not:
1) Use 25% or more of system resources for longer then
90 seconds. There are numerous activities that could cause
such problems; these include: CGI scripts, FTP, PHP, HTTP,
etc.
2) Run stand-alone, unattended server-side processes at
any point in time on the server. This includes any and
all daemons, such as IRCD.
3) Run any type of web spider or indexer (including Google
Cash / AdSpy) on shared servers.
4) Run any software that interfaces with an IRC (Internet
Relay Chat) network.
5) Run any bit torrent application, tracker, or client.
You may link to legal torrents off-site, but may not host
or store them on our shared servers.
6) Participate in any file-sharing/peer-to-peer activities
7) Run any gaming servers such as counter-strike, half-life,
battlefield1942, etc
8) Run cron entries with intervals of less than 15 minutes.
9) Run any MySQL queries longer than 15 seconds. MySQL
tables should be indexed appropriately.
10) When using PHP include functions for including a local
file, include the local file rather than the URL. Instead
of include("http://yourdomain.com/include.php")
use include("include.php")
11) To help reduce usage, do not force html to handle
server-side code (like php and shtml).
12) Only use https protocol when necessary; encrypting
and decrypting communications is noticeably more CPU-intensive
than unencrypted communications.
7b.)
INODES
The use of more than 250,000 inodes on any shared account
may potentially result in a warning first, and if no action
is taken future suspension. Accounts found to be exceeding
the 100,000 inode limit will automatically be removed
from our backup system to avoid over-usage, however databases
will still be backed up. Every file (a webpage, image
file, email, etc) on your account uses up 1 inode.
Sites
that slightly exceed our inode limits are unlikely to
be suspended; however, accounts that constantly create
and delete large numbers of files on a regular basis,
have hundreds of thousands of files, or cause file system
damage may be flagged for review and/or suspension. The
primary cause of excessive inodes seems to be due to users
leaving their catchall address enabled, but never checking
their primary account mailbox. Over time, tens of thousands
of messages (or more) build up, eventually pushing the
account past our inode limit. To disable your default
mailbox, login to cPanel and choose "Mail",
then "Default Address", "Set Default Address",
and then type in: :fail: No such user here.
7c.)
Backup Limit
Any shared account using more than 20 gigs of disk space
will be removed from our off site weekly backup with the
exception of Databases continuing to be backed up. All
data will continue to be mirrored to a secondary drive
which helps protect against data loss in the event of
a drive failure.
8.)
Bandwidth Usage
You are allocated a monthly bandwidth allowance. This
allowance varies depending on the hosting package you
purchase. Should your account pass the allocated amount
we reserve the right to suspend the account until the
start of the next allocation, suspend the account until
more bandwidth is purchased at an additional fee, suspend
the account until you upgrade to a higher level of package,
terminate the account and/or charge you an additional
fee for the overages. Unused transfer in one month cannot
be carried over to the next month.
9a.)
Money back Guarantee
On dedicated servers and collocation no full refund will
be honored -- the 45 day money back guarantee does not
apply. We reserve the right to refund a prorated amount
or no refund at all.
Each
of EMA's managed shared, VPS, and reseller servers carry
a 45 day unconditional money back guarantee on them. If
you are not completely satisfied with our services within
the first 45 days of your service, you will be given a
full refund of the contract amount. Remember, this is
only for monthly shared or reseller packages and does
not apply to dedicated servers, administrative fees, install
fees for custom software, or domain name purchases.
EMA
will not activate new orders or activate new packages
for customers who have an outstanding balance with EMA.
For a new order to be setup or a new package to be activated,
you must have a balance of $0.00, unless otherwise stated
by EMA in writing.
9b.)
Uptime Guarantee
If your shared / reseller server has a physical downtime
that is not within the 99.9% uptime you may receive one
month of credit on your account. Approval of the credit
is at the discretion of EMA dependent upon justification
provided. Third party monitoring service reports may not
be used for justification due to a variety of factors
including the monitor's network capacity/transit availability.
The uptime of the server is defined as the reported uptime
from the operating system and the Apache Web Server which
may differ from the uptime reported by other individual
services. To request a credit, please contact sales@kwikit.com
with justification. All requests must be made in writing
via email. Uptime guarantees only apply to shared / reseller
solutions. Dedicated servers are covered by a network
guarantee in which the credit is prorated for the amount
of time the server is down which is not related to our
uptime guarantee.
10.)
Reseller: Client Responsibility
Resellers are responsible for supporting their clients.
EMA does not provide support to our Reseller's Clients.
If a reseller's client contacts us, we reserve the right
to place the client account on hold until the reseller
can assume their responsibility for their client. All
support requests must be made by the reseller on their
clients' behalf for security purposes. Resellers are also
responsible for all content stored or transmitted under
their reseller account and the actions of their clients'.
EMA will hold any reseller responsible for any of their
clients actions that violate the law or the terms of service.
11.)
Shared (non-reseller accounts) / Semidedicated Servers
Shared accounts may not resell web hosting to other people,
if you wish to resell hosting you must use a reseller
account. Semi-dedicated servers are not backed up. You
must maintain your own backups.
The
Business plan provides a free toll-free number for your
web site and business. Minutes Included Per Month: 100
-- Additional Minutes: 4.9 Cents. Included minutes are
based on a calendar month. By default, you'll be able
to receive calls from US callers only. You can enable
calls from Canada in your control panel, but will be billed
6.9 cents per minute for all calls from Canada due to
the increased costs of providing service there. This service
is provided and supported by Voipo for new EMA clients.
*Please
note: Toll-Free numbers issued must be called at least
once every 30 days. Toll-free numbers with 0 calls in
a 30 day period will be considered inactive and disconnected.
If you cancel your hosting package with EMA or switch
to a plan other than the business plan, your toll-free
number will be disconnected unless you contact VOIPo to
change to a paid service plan prior to the EMA cancellation.
12.)
Dedicated Servers
EMA reserves the right to reset the password on a dedicated
server if the password on file is not current so that
we may do security audits as required by our datacenter.
It is the responsibility of the client to ensure that
there is a valid email address and current root password
on file for their dedicated server on file to prevent
downtime from forced password resets. EMA reserves the
right to audit servers as needed and to perform administrative
actions at the request of our datacenter. Dedicated servers
are NOT backed up by us and it is the responsibility of
the client to maintain backups or have a solution for
this. You may purchase an additional hard drive and maintain
backups to it as the simplest solution. Please contact
sales@kwikit.com if you wish to obtain a secondary hard
drive. It is your responsibility to maintain backups.
13.)
Price Change
The amount you pay for hosting will never increase from
the date of purchase. We reserve the right to change prices
listed on EMA, and the right to increase the amount
of resources given to plans at any time.
14.)
Coupons
Discounts and coupon codes are reserved for first-time
accounts *or first-time customers* only and may not be
used towards the purchase of a domain registration unless
otherwise specified. If you have signed up using a particular
domain, you may not resign up for that domain using another
coupon at a later date. Any account found in violation
of these policies will be reviewed by our sales department
and the appropriate invoices will be added to the account.
Coupon abuse will not be tolerated and may result in the
suspension or termination of the account. Coupons or discounts
are only valid towards the initial purchase, and do not
affect the renewal or recurring price.
15a.)
Indemnification
Customer agrees that it shall defend, indemnify, save
and hold EMA harmless from any and all demands, liabilities,
losses, costs and claims, including reasonable attorney's
fees asserted against EMA, its agents, its customers,
officers and employees, that may arise or result from
any service provided or performed or agreed to be performed
or any product sold by customer, its agents, employees
or assigns. Customer agrees to defend, indemnify and hold
harmless EMA against liabilities arising out of; (1) any
injury to person or property caused by any products sold
or otherwise distributed in connection with EMA; (2) any
material supplied by customer infringing or allegedly
infringing on the proprietary rights of a third party;
(3) copyright infringement and (4) any defective products
sold to customers from EMA's server.
15b.)
Arbitration By using any EMA services, you agree to submit
to binding arbitration. If any disputes or claims arise
against EMA or its subsidiaries, such disputes will be
handled by an arbitrator of EMA's choice. An arbitrator
from the American Arbitration Association or the National
Arbitration Forum will be selected in the state of Texas.
Arbitrators shall be attorneys or retired judges and shall
be selected pursuant to the applicable rules. All decisions
rendered by the arbitrator will be binding and final.
The arbitrator's award is final and binding on all parties.
The Federal Arbitration Act, and not any state arbitration
law, governs all arbitration under this Arbitration Clause.
You are also responsible for any and all costs related
to such arbitration.
16.)
Disclaimer
EMA shall not be responsible for any damages your business
may suffer. EMA makes no warranties of any kind, expressed
or implied for services we provide. EMA disclaims any
warranty or merchantability or fitness for a particular
purpose. This includes loss of data resulting from delays,
no deliveries, wrong delivery, and any and all service
interruptions caused by EMA and its employees.
17.)
Disclosure to law enforcement
EMA may disclose any subscriber information to law enforcement
agencies without further consent or notification to the
subscriber upon lawful request from such agencies. We
will cooperate fully with law enforcement agencies.
18.)
Changes to the TOS
EMA reserves the right to revise its policies at any time
without notice.
