Overview
All services provided by Online Access, Inc. (OA) may only be used for lawful purposes and as such the presentation, transmission or storage of data or material that is in violation of any United States Federal, State or City law is strictly prohibited. This includes, but is not limited to: pornography, email spamming, hacker programs, copyrighted materials, pirated software and web sites that promote or engage in illegal activities.
Web Hosting Terms & Conditions
This Web Hosting Agreement (this "Agreement") sets forth the terms and conditions of your subscription and use of the PagePilot website generation system, as well as your use of OA’s web hosting services. You certify that you are at least 18 years of age. To become a subscriber, you must read and agree to be bound by all terms and conditions of this Agreement and any policies that are or may be published by OA. This Agreement will become effective when accepted by the subscriber upon entering into the Administration section of their web site. By posting notice 30 days in advance at the logon page for the PagePilot system located at http://admin.online-access.com, OA may modify the terms and conditions of this Agreement, as well as discontinue or change the services offered. After 30 days of posting, you will be bound by the modified Agreement or policies if you continue to use the services.
1. Scope of Services and Your Obligations
1.1. This Agreement defines the terms and conditions of OA’s services as offered by OA and used by you, including the provision of web hosting services on OA’s dedicated servers and connectivity to the Internet (the "Services"). OA will provide the Services in exchange for payment of the monthly subscription fees and full compliance with the terms and conditions of this Agreement. In performing the Services, OA maintains control and ownership of any and all Internet protocol ("IP") numbers that may be assigned to you and reserves the right to change or remove any and all IP numbers at its sole discretion.
1.2. You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the "Upload Materials") to your website, and you hereby warrant that all content you display on your PagePilot website shall be owned, displayed with permission or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for all activity originating from your website, unless proven to be a victim of outside hacking or address forgery. You assume responsibility for all material you create or place on your website.
1.3. In connection with the Services, OA may provide for your use certain Tools and software, including, but not limited to, certain specialty scripting software and/or certain online programs for designing websites (collectively, the "PagePilot Tools"). Unless otherwise identified, these PagePilot Tools are copyrighted and proprietary property owned by OA. To the extent that such PagePilot Tools are provided to you, you are granted a nonexclusive, nontransferable license to use the PagePilot Tools for your internal use, solely in connection with the Services provided under this Agreement.
1.4. During the period that OA provides the Services to you, you hereby grant to OA a nonexclusive, royalty-free, worldwide right and license to digitally display and host your website and its content, and to display its trademarks, service marks, trade names, logos and other commercial or product/service designations in connection with the website and such Services.
1.5. For server restoration purposes only, OA makes full back-ups of websites weekly; however, OA makes no guarantees of any kind, either expressed or implied, as to the integrity of these back-ups. If loss of data occurs due to an error of a subscriber, OA will attempt to recover the data for the subscriber at no charge.
1.6. OA reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its PagePilot Subscribers or for any other reason it in good faith deems necessary. OA will fully cooperate with law enforcement authorities in investigating suspected lawbreakers and reserves the right to report to law enforcement any suspected illegal activity it becomes aware of. It is not OA’s intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (the "CDA") or any other applicable law.
1.7. You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the "DMCA") and acknowledge that OA is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. § 512.
1.8. Websites are unmodified forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics. Additional website content not provided by OA nor the links to other websites placed by the subscriber are neither screened, approved, reviewed or endorsed by OA. Content provided to the subscriber by OA is subject to the terms posted through the terms stated in the "All Rights Reserved” link displayed at the bottom of each page generated through the PagePilot website generation system. Subscriber understands that copyright enforcement of any original material created by the subscriber displayed on the subscriber’s web site is the responsibility of the subscriber.
2. Limited Warranty; Limitation of Liability; Indemnification
2.1. Limited Warranty. You acknowledge that the Services are provided "as is." Neither OA nor any of its employees or agents warrants that the Services will be uninterrupted or error free. OA, and its RESELLERS are not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or completeness, non-infringement, merchantability or fitness for a particular purpose of information available on its Servers or residing on or passing through its interconnecting networks. Use of information obtained from or through the Services is at your risk. Under no circumstances will be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the Services.
2.2. Limitation of Liability. IN NO EVENT SHALL OA AND ANY OF ITS RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE OA’s SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF OA's SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF OA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OA’s MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO OA FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. OA’s LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
2.3. Indemnification. You agree to indemnify, defend and hold OA and its RESELLERS, affiliates, directors, officers, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto OA’s servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to OA’s equipment or to any other PagePilot Subscription holder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by OA’s gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.
3. Payment of Fees
3.1. OA will notify subscribers via the email registered in the system of any fee increases 30 days before such increases take effect.
3.2. You agree to provide OA with accurate and complete billing information, including your legal name, address, telephone number, e-mail address and agree to update this information immediately if any change occurs. Payment for Services is billed at the time of signup and on that date each month thereafter.
3.3. You acknowledge that OA will bill your credit card, or debit your checking each month for your PagePilot subscription. You authorize automatic billing on an on-going basis during the term of this Agreement.
3.4. Delinquent PagePilot Subscriptions are those that remain unpaid at the beginning of the next Payment Interval. The Services may be suspended if your PagePilot Subscription is delinquent. Notwithstanding any other rights you may have in this Agreement, all of your website contents may be destroyed if your PagePilot Subscription is delinquent for 60 days. Subscriber PagePilot Subscriptions continue to accrue charges while they are delinquent until the Services are suspended.
3.5. OA acknowledges that any domain names purchased for the subscriber and maintained by OA are the property of the subscriber. Upon termination of a subscription OA will facilitate the transfer of the domain name to the Subscriber unless the subscriber is delinquent on his subscription fees or is cancelling with copyright issues (see Sec. 6). Should this occur subscriber acknowledges that OA has the right to take possession of the domain name and withhold transfer until the PagePilot Subscription has been paid in full or copyright issues are resolved.
3.6. You acknowledge responsibility for your PagePilot Subscription until payment in full is made.
4. Acceptable Uses
4.1. Use and Misuse of the Services. All complaints of abuse, violation and misuse of the Services, whether described in this Section 4 or otherwise, shall be investigated promptly. If you are not sure if your actions will be an abuse, violation or misuse, please ask first by directing inquiries to techsupport@0nline-Access.com.
You are responsible for all use of your website, with or without your knowledge or consent.
You agree to use the Services only for lawful purposes, in compliance with all applicable laws. Illegality includes, but is not limited to, drug dealing; attempting without authorization to access a computer system; pirating (distributing copyrighted material in violation of copyright law, specifically MP3s, MPEGs, ROMs, and ROM emulators); gambling; schemes to defraud; trafficking in obscene material; sending a message or having content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person; threatening bodily harm or damage to individuals or groups; violating U.S. export restrictions; stalking; or violating other state or federal law, such as the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, or the Economic Espionage Act. Linking to illegal material is also prohibited.
When becomes aware of possible violations of this Agreement, may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on OA’s servers.
OA, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Agreement could subject you to criminal or civil liability.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO WAIVE AND HOLD OAHARMLESS FROM ANY CLAIMS RELATING TO ANY ACTION TAKEN BY OA AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES WHATSOEVER FROM OAAS A RESULT OF OA'S DECISION TO REMOVE MATERIAL FROM ITS SERVERS, WARN YOU, SUSPEND OR TERMINATE YOUR PAGEPILOT SUBSCRIPTION, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF OA'S CONCLUSION THAT A VIOLATION HAS OCCURRED. THIS WAIVER APPLIES TO ALL VIOLATIONS DESCRIBED IN THIS AGREEMENT.
4.2. Use and Misuse of Materials. Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Services. You may also re-distribute materials in the public domain. You assume all risks regarding the determination of whether the material is in the public domain.
You are prohibited from storing, distributing or transmitting any unlawful material through the Services. Examples of unlawful material include, but are not limited to, threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. Pornography and sex-related merchandising, or links to such material, even if legal, are not acceptable uses of OA’s servers. You may not post, upload or otherwise distribute copyrighted material on OA’s servers without the consent of the copyright holder or their agents.
Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data: server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network; attempts to circumvent any user authentication or security of host, network, or PagePilot Subscription; accessing data not intended for user; probing the security of any network; spawning dozens of processes; port scans, ping floods, packet spoofing, and forging router information; denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of viruses; and IRC bots.
OA supports free speech on the Internet and will not suspend or cancel your PagePilot Subscription simply because it disagrees with your views expressed at your website. However, examples of unacceptable activities include posting private information about a person without his or her consent, defaming a person or business, and knowingly making available code that will have a deleterious effect on third-party computers. Where there are allegations that your on-line activity has violated the legal rights of a third party, will not substitute itself for a court of law in deciding tort claims raised by the third party.
4.3. Email Use. Unacceptable affronts to netiquette and unacceptable activities include, but are not limited to, the following: spamming (sending unsolicited advertising to those with which you have no existing business relationship and posting off-topic advertising in newsgroups); spoofing (using a return email address that is not the valid reply address of the sender or sending an email message that does not contain enough information to enable the recipient to identify you); passive spamming (promoting a website hosted by spamming from some other source); trolling (posting controversial messages in newsgroups to generate responses); mail bombing (inundating a user with email without any serious intent to correspond or sending large or multiple files to a user); generating a higher volume of outgoing mail than a normal user (over 10% of available system resources); propagating chain letters; and subscribing someone else to an electronic mailing list without that person's permission. A message is considered unsolicited if it is posted in violation of a newsgroup charter or sent to a recipient who has not requested the message. Making an email address available to the public does not constitute a request to receive messages. Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email. If you are repeatedly mail bombed or attract such behavior, the Services will be terminated.
You should not send email to any user who does not wish to receive it, either at or elsewhere. OA recognizes that email is an informal medium; however, you must refrain from sending further email to a user after receiving a request to stop.
You may not alter the headers of email messages to disguise their identity or to prevent users from responding to the messages. OA may disclose the usernames of PagePilot Subscriptions responsible for forged email messages to system administrators or users requesting the information.
Violations of the policies outlined herein can sometimes result in massive numbers of email responses. If you receive or send so much email that resources are affected, staff may shut down your mailbox.
Online-Access' email servers are not designed for sending bulk email. If Online-Access hosts your email, abiding by the following rules will prevent your account from being locked down and/or your outgoing emails from being deleted:
The purpose of these rules is to protect our mailserving for all our users since very large volumes of even legitimate mail being sent in a short window can trigger blacklist monitors to block users on our server from being able to send mail. If you have to send to more recipients than outlined, we suggest that you use a platform designed for mass mailing such as MailChimp.
4.4. System Security. You are prohibited from utilizing the Services to compromise the security of system resources or PagePilot Subscriptions on servers at or at any other site. Use or distribution of PagePilot Tools designed for compromising security or containing viruses or Trojans are prohibited. Examples of these PagePilot Tools include, but are not limited to, password guessing programs, cracking PagePilot Tools or network probing PagePilot Tools.
If you are involved in violations of system security, OA reserves the right to release all usernames of users involved in such violations to system administrators at other sites in order to assist them in resolving security incidents. OA will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
4.5. E-Commerce. (Note: E-Commerce is a legacy system no longer available to new subscribers). As a PagePilot E-Commerce Subscriber you hereby acknowledge and agree to the following use, conditions and Restrictions of the PagePilot E-Commerce Store:
a) You acknowledge that, as the store owner, you are ultimately responsible for the pricing and the fulfillment of products sold within the PagePilot E-Commerce Store.
b) You Acknowledge that any products fulfilled through the use of the PagePilot Wholesaler Catalog System are shipped “Free-On-Board Shipping Point”. You accept responsibility as the seller of the product for any product damage during shipment, and hold Online-Access as well as the wholesaler acting as the fulfillment agent harmless for any and all product damages caused by the shipper. Any recourse for any damage during shipment will be between you and the shipping agent.
c) You acknowledge and agree that your use of the PagePilot E-Commerce store will not be used for the sale of any appliances or equipment that does not come electrically self-contained with no electrical requirements with the exception of a prewired 110 volt power cord required to be plugged in, or that requires a connection to a fossil fuel source. This prohibition also includes the sale of any electrical repair parts found within such appliances or equipment. OA has the right to unilaterally identify and remove any products that it determines fall under this prohibition.
d) You acknowledge and agree that you have the right to use the product names, descriptions, product images and all other intellectual property from the manufacturer of products contained within any product description that you choose to import into your store from PagePilot's global product library or any wholesaler's online catalog. You also agree to indemnify and hold OA and its participating wholesalers harmless, including actual attorneys’ fees and costs, for any claims made by the manufacturer or others regarding the use of the images, product descriptions, product names or any other intellectual property used within your online e-commerce store.
e)You acknowledge and agree that you will indemnify and hold OA harmless from any consumer claims, demands or causes of action of whatsoever nature regarding the purchase, sale and use of any of the products you choose to offer through the PagePilot E-Commerce system.
f) You agree that the limitation of any damages for any claim against OA due to a system malfunction or miscalculation shall not exceed $50.
g) You acknowledge and agree to treat any technical knowledge, or trade secrets learned in regards to OA’s PagePilot website and E-Commerce system as confidential, and agree not to disclose this confidential knowledge to any third party without express written permission of OA during the entire time the PagePilot E-Commerce Subscriber uses the system and for two years after should the PagePilot E-Commerce Subscriber end their relationship with OA.
h) You acknowledge and agree that OA may, if requested by any manufacturer or your designated fulfilling wholesaler, remove any product in a PagePilot E-Commerce Subscriber’s online store with notice to PagePilot E-Commerce Subscriber.
6.1. You may cancel your PagePilot Subscription by giving Online-Access 30-days written notice using this CANCELLATION FORM. This form must be signed and faxed to OA in order to effect cancellation. Charges for canceling PagePilot Subscriptions are prorated on a monthly basis for the thirty days after the cancellation notification was received and acknowledged by OA. No refunds are given on any PagePilot Subscriptions or start-up fees that are pre-paid in advance unless they are canceled within the first 90 days of when the PagePilot Subscription was established.
6.2. All PagePilot Subscriptions must be paid in full before the cancellation will be considered complete.
6.3. When canceling a PagePilot Subscription, cancellations take effect 30 days after OA's cancellation form is received and acknowledged. OA does not give refunds on the remaining term left on a PagePilot Subscription that was canceled after the charges have been billed.
6.4. If your PagePilot Subscription is suspended or terminated for any reason permitted by this Agreement, OA may, at its sole discretion, permanently delete your website contents from servers, and will not be able to reopen or restore such content. If your PagePilot Subscription has been canceled or suspended due to a violation of our Terms of Use policy, no refunds will be given on any pre-paid term and, if within 90 days, the 90-day money-back guarantee will be void.
7. Governing Law
7.1. Except for OA’s compliance with take-down provisions of the DMCA or injunctive or other equitable actions initiated by pursuant to Section 5(b) of this agreement, if any controversy or dispute arises in connection with this Agreement, the Services or your use of OA’s servers, such controversy or dispute shall first be presented for resolution by OA and you. The validity, terms, performance and enforcement of this Agreement shall be governed and construed by its provisions and in accordance with the laws of the State of Michigan (without regard to conflicts of laws principles).
7.2. You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the State of Michigan, for any action, suit or proceeding arising out of or relating to Section 5(b) of this Agreement and the arbitration contemplated by this Section 7.
8. Miscellaneous
8.1. You may not assign your rights and obligations under this Agreement without the prior written consent of OA, which may be withheld at OA’s discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of OA to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by OA of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, this Agreement must be commenced by you within one year after the alleged cause of action has accrued or after the date of termination of this Agreement, whichever is earlier. In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed or expressly assented to by OA. All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive. This Agreement, the terms listed in the “All Rights Reserved”[1], and the Online Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and supersede and govern all prior proposals, agreements, or other communications.
9. 90-Day Money-Back Guarantee Policy
9.1. OA extends a 90-day money-back guarantee based on user's complete satisfaction to all PagePilot Subscribers for the first 90 days of their subscription. This satisfaction guarantee shall begin upon the date of signup of customer's PagePilot Subscription and shall expire ninety days later. Customer has the right to cancel their subscription with OA by submitting the required CANCELLATION FORM within the 90 days of initiating service. Upon cancellation, customer's PagePilot Subscription shall be terminated and all fees shall be credited to the client's credit card or returned in the form of a check to client's who paid by Automated Fund Transfer within 15 days of the cancellation request. If your PagePilot Subscription has been canceled or suspended due to a violation of our Terms of Use policy, no refunds will be given on any pre-paid term and the 90-day money-back guarantee will be void. 90-Day Money-Back Guarantee does not apply to Web Advertising program/products.