Services Terms & Policies Agreement

Because we value our Customers and are constantly striving to provide the best possible service and a positive internet/website experience, and because we are not perfect nor is the environment around us perfect, all customers must abide by the Rules and Guidelines set forth in this Services Terms & Policies Agreement. This agreement represents the understanding and agreement between SurfSmart, Inc. ("SurfSmart") and the customer ("Client") for all services including, hosting, domain name registration. For website design, maintenance and/or marketing services, please also refer to our Website Development Services Agreement. 

Upon notice published on-line via SurfSmart.net website, SurfSmart may modify these terms and conditions, amplify them, and/or modify the prices, as well as discontinue or change the services offered with no prior notice. Receipt of your initial payment shall constitute your acceptance of these Terms and Policies and this Agreement. 

Provision of services
a. Service means - ANY act of serving the CUSTOMER, being provided by SURFSMART, regardless of its duration and whether it's a paid service or a service for free. 
b. Without limiting the scope of item 1.a. above, SURFSMART will provide services on its host computing systems to individual CUSTOMERS in exchange for payment of fees and compliance with the terms and conditions of this document. 
c. SURFSMART Services are defined as the use by the CUSTOMER of computing, telecommunications, software, and information services provided by SURFSMART. These services also include the provision of access to computing, telecommunications, software, and information services provided by others via the Global Internet. 
d. SURFSMART's role in the registration of a domain name is limited to the submission of the registration request to the appropriate registrar (the "Registrar"). SURFSMART DOES NOT AND CAN NOT GUARANTEE THAT A PARTICULAR APPLICATION FOR A DOMAIN NAME WILL BE ACCEPTED OR APPROVED. Please note each individual domain name constitutes a single submission. 
SURFSMART will submit application to the Registrar as provided. It is the registrants responsibility to provide accurate information. Any change to the original information has to made directly to the Registrar and not to SURFSMART. 
e. SURFSMART's Domain Name Registrar is through a partnership with Wild West Domains. You will be subject to the Products and Services Agreements for all domain name registrations.
f. For existing customers only, SURFSMART may, with 30 days notice, amend the fees and/or charges for any future server usage and services. 

Use of Services
a. The CUSTOMER agrees to maintain a secure password to the account. Secure passwords are those that are between 6 and 8 characters long, contain upper and lower case letters, and numbers or other characters, and can not be found in direct or reverse order in a dictionary, without regard to the language of the dictionary. The CUSTOMER is solely responsible for changing its password as required to assure secure access to its account. 
b. The CUSTOMER agrees to use the Services provided by SURFSMART as permitted by applicable local, provincial, state, and federal laws. The CUSTOMER agrees, therefore, not to use the Services to conduct any business or activity or solicit the performance of any activity that is prohibited by law, libelous, or against any SURFSMART policy. 
c. SURFSMART reserves the right to refuse Service to any new or existing customers and refund the remaining balance on the account, if any. 
d. The CUSTOMER is solely responsible for any legal liability arising out of, or relating to, his/her web site at SURFSMART. The CUSTOMER represents and warrants to SURFSMART that it holds the necessary rights to permit the use of any of the items on his/her web site, and, that the use, reproduction, distribution, transmission or display of any data to the public, and any material to which the public can link through, or any products of services made available to the public through his/her web site, will not - 

1. violate or potentially violate any criminal laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, business or personal dispute or argument, invasion of privacy or rights of celebrity, violation of any anti
discrimination law or regulation, or any other right of any person or entity, or any personal or business argument or dispute; or 
2. contain any material that is: unlawful, harmful, fraudulent, libelous, slanderous, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically, disputatiously, argumentatively or otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, provincial, state, national or international law. CUSTOMER agrees to indemnify and to hold SURFSMART, and any third party entities related to SURFSMART, harmless from and against any and all liability, loss, damages, claims, or causes of action, including reasonable legal fees and expenses arising out of or related to: 
The CUSTOMER's breach of any of the forgoing representations and
warranties, or any other third party claim with respect thereto. 

e. The CUSTOMER understands and agrees that hosting of the CUSTOMER's web site is at the sole discretion of SURFSMART. SURFSMART may at its sole discretion discontinue Service to any CUSTOMER operating a web site that SURFSMART deems to be in violation of Section (3d.) of these Terms and Conditions. 
f. SURFSMART accounts cannot be transferred or used by anyone other than the subscriber. CUSTOMERS may not sell, lease, rent or assign the connection or parts of the connection to any party not named in this agreement, unless the CUSTOMER has entered into a Reseller Agreement with SURFSMART . 

User-Supplied Content
All services may be used for lawful purposes only. Through SurfSmart's Service, you may have access to Chat Areas, Bulletin Boards, Web Pages, eMail, or other Services that enable you to send or post materials ("content") and make that content available to others. You must not submit, publish, or display on the Network any defamatory, inaccurate, abusive, obscene, infringing, or threatening content. In addition, you may not submit, publish, or display any content that violates any US Federal, State, or Local Law. You are solely responsible for the content you make accessible through the SurfSmart Network. You may not use the Service to assist any other person or entity to violate any Federal, State, or Local Laws, Ordinances or Regulations.

SurfSmart is not obligated to monitor the Network to examine available content. You hereby acknowledge that if we are made aware of content that is determined to be, in its sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, SurfSmart has the right, but not the obligation, to edit, remove or deny access to such content. SurfSmart may disclose any content or records concerning Customer's account as required to satisfy any Law, Regulation, Governmental Request or Court Order.

Pornography and sex-related merchandising are prohibited on all SurfSmart Servers. This includes Sites that may infer sexual content, display nudity, or link to adult content elsewhere. This is also true for Sites that promote any illegal activity or content that may be damaging to SurfSmart's Servers or any other Server on the Internet. Links to such materials are also prohibited. In addition, any Site Selling or promoting Bulk eMail Service is not allowed. Below are some examples of non-acceptable content or links:

• Adult Sites - Any erotic or pornographic material, links to adult sites, or advertisements for adult sites.
• Pirated Software (Warez) - Any software that is copyrighted and not freely available for distribution without cost; i.e. ROMs, ROM Emulators and MPEG Layer 3 files (MP3).
• Copyright Violations - Violation of copyrights held by individuals and corporations or other entities can result in civil and criminal liability for the infringer.
• Hacking/Phreaking - Includes sites with material, links, or resources for hacking, phreaking, viruses, anarchy, or any type of site that promotes or participates in willful harm to Internet Sites or Providers.

CGI Scripts
Each SurfSmart Account comes fully equipped with its own pre-configured CGI-Bin. Customers are free to use any CGI-Scripts provided with their account or add any additional ones they require. Any CGI-Scripts deemed to be adversely affecting the Server performance or the Network integrity may be shut down without prior notice. CGI-Script sharing with Domains not hosted by SurfSmart is not allowed.

Chat Rooms
SurfSmart prohibits its Customers from installing outside chat rooms on their Domain, as these tend to be a resource problem. SurfSmart does provide its Customers a choice of Java Chat rooms to choose from for a nominal monthly charge. These chat rooms were designed to meet the growing needs of Customers and function without hindering the performance of the Servers for others.

IP Addresses
SURFSMART maintains control and ownership of any and all IP numbers and IP addresses that may be assigned to the CUSTOMER and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses. 

Server Resources
Any Web Site that uses a high amount of Server resources (such as, but not limited to CPU Time, Memory Usage, and Network Resources) will be given an option of either upgrading their service level or reducing the resource used to an acceptable level.

Abuse of Services
a. Any use of SURFSMART system resources that disrupts the normal use of the system for other SURFSMART customers is considered to be an abuse of system resources and is grounds for administrative intervention. 

Some examples of system abuse include, but are not limited to, 

• spawning dozens of processes, 
• consuming excessive amounts of memory or CPU for long periods of time, 
• spamming or mass emailing using internal or external mail and/or news servers.
• Background Daemons in general are prohibited. SurfSmart will consider requests on a Per Application Basis. If allowed, extra charges will be assessed based on resource requirements for system maintenance.

Without limiting the scope of the above, SURFSMART forbids: 

• the storage of illegal/pirated software (warez), 
• the use of any type of IRC bot and/or proxy (including, but not limited to, bnc and eggdrop), 
• the storage and use of any type of software intended for hacking/cracking purposes
• the storage or sale of bulk e-mail lists intended for spamming or resale purposes. 

Distribution and/or Transmission of Obscene, Indecent Speech or Materials considered a violation of Indecency and Obscenity Laws can result in Criminal Penalties.

Defamatory speech distributed over the Internet can result in Civil Liability for the defamer.

b. Depending on the nature and the severity of the abuse, the user may receive an E-mail warning or have his/her account suspended by SURFSMART Technical Support. If the misuse is unintentional, the suspension may be rescinded following discussion with SURFSMART Technical Support. If the misuse is intentional, the suspension may be
rescinded at the discretion of the Operations Manager, and may require the payment of a service re- connection charge. Occasionally, unintentional misuse is misclassified as intentional misuse. Customers who believe their activity has been misclassified may appeal to the Operations Manager. However, spamming activities will result in immediate termination of services to CUSTOMER. 
c. Unethical and criminal offenses are violations of SURFSMART conditions of use. You are expected to report to SURFSMART any information you may have concerning instances in which the conditions of use have been or are being violated. When SURFSMART becomes aware of possible violations, we will initiate an investigation. At the same time, in order to prevent further possible unauthorized activity, SURFSMART may suspend access to services to the individual account in question. Confirmation of violations may result in cancellation of the individual account and/or criminal prosecution. The account suspension may be rescinded at the discretion of the Operations Manager, following payment of a re-connection charge $50US. 

Commercial Advertising/ Mass Mailings
You must not use the SurfSmart Network, SurfSmart Equipment or any SurfSmart eMail Address in connection with the transmission of spam, flames, mail bombs, or substantially similar, unsolicited email messages. Your Domain may not be referenced as originator, intermediary, or reply-to address in any of the above. This prohibition extends to the sending of unsolicited mass mailings from another service that in any way implicates the use of the SurfSmart Network, SurfSmart Equipment or any SurfSmart eMail Address. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's email address accessible to the public will not constitute a request or invitation to receive messages.

If you are found to have spammed, without warning, SurfSmart reserves the right to disable your Domain. In addition, SurfSmart may impose a $100 penalty for each spam policy violation. SurfSmart solely reserves the right to refuse or cancel service to known spammers. Lastly, SurfSmart reserves the right to determine what violates this policy. As such, any violation may result in cancellation of services without refund.

Refusal of Service
SurfSmart, Inc. reserves the right at its sole discretion to refuse or cancel service. Violation of any of SurfSmart's Rules and Regulations could result in a Warning, Suspension, or possible Account Termination. Accounts terminated due to policy violations will not be refunded.

Service Cancellation
To authenticate a cancellation request, you must send an email from the email we have on your account. If this is not possible, you may mail the cancellation notice to SurfSmart, Inc. 11410 Ridge Road #163, New Port Richey, Florida 34654. You must include your Account eMail Address, Account Name, Account Password and the Domain on which you want to cancel the hosting.

We cannot accept cancellation requests over the phone for security reasons.

Payment of fees and penalties
a. The SURFSMART Billing Cycle begins on the 1st day of each month and ends on the last day of that month. 
b. Service payments will be submitted in advance of receiving Services. Billing for all hosting is charged to your account 1 week prior to the start of each billing cycle. The first 2 months of hosting are free, all you will be charged initially is the set up fee.  At the end of the first 2 months, your billing cycle will begin with monthly or annually payments based on the terms you select and will be prorated for the billing cycle start date. 
c. The CUSTOMER acknowledges that the account will continue to be billed for hosting services until the CUSTOMER terminates the account. Charges for terminating accounts are not prorated.  
e. Delinquent accounts are those that remain unpaid 30 days after the beginning of the Billing Cycle. 
f. Accounts that are delinquent are put on hold and may be suspended and taken off of "live" internet status at the sole discretion of SURFSMART. SURFSMART accounts continue to accrue charges while they are on hold or suspended. 
g. There is a service reconnection charge equal to the currently charged set-up fee posted on SURFSMART.net to remove accounts from accounting hold status. 
h. The CUSTOMER acknowledges responsibility for the account until payment in full is made. 
i. There is a US $40.00 service charge for each check which is not honored. 
k. The CUSTOMER will be charged for excessive bandwidth usage (above the relevant allowance of the chosen service package). It is the CUSTOMER's responsibility to monitor the amount of bandwidth of his/her account, on a daily basis. SURFSMART has no obligation to warn the CUSTOMER regarding the excessive bandwidth usage. 
l. CUSTOMER is responsible to ensure that payment to SURFSMART made by check or money order is sent to the address as it appears on the SURFSMART website. 

Indemnification
Customer agrees that it will protect, hold harmless and to indemnify SurfSmart, its Executives, Directors, Officers, Managers, Employees, Consultants, and Agents, from any and all stipulations, liabilities, losses, expenses and claims, as well as reasonable attorney's fees that may arise or result from any service provided or performed or agreed to be performed or any product sold by it's customers, agents, employees or assigns. Customer agrees to defend, indemnify and hold SurfSmart harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or distributed in association with SurfSmart's Services; (2) any material furnished by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright violation and any defective products sold to a Customer from SurfSmart's Services.

Disclaimer
SurfSmart will not be responsible for any damages your business may suffer. SurfSmart makes no warranties of any kind, expressed or implied for services we provide. SurfSmart disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by SurfSmart and its employees. SurfSmart reserves the right to amend or update these policies without notice. Failure to follow any terms and conditions may result in account deactivation.

SurfSmart furthermore expects that its Customers who provide Internet services to others will fully comply with all applicable laws concerning the Privacy of On-line Communications. A Customer's failure to comply with those laws will violate this policy. Finally, SurfSmart wishes to emphasize that in accepting services, Customers indemnify SurfSmart for the violation of any law or SurfSmart policy, that results in loss to SurfSmart or the bringing of any claim against SurfSmart. This means that if SurfSmart is sued because of activities of the Customer that violate any law, or this policy, the Customer will pay any damages awarded against SurfSmart, plus costs and reasonable attorneys' fees.

Network Availability
SurfSmart guarantees that the network will be available 99.9% of the time in a given month, excluding scheduled maintenance. SurfSmart will refund the customer 5% of the monthly fee per additional 1 hour of downtime (up to 100% of customer's monthly fee). Network uptime includes functioning of all network infrastructure including routers, switches and cabling. Network downtime exists when a particular customer is unable to transmit and receive data and SurfSmart records such failure. SurfSmart cannot be responsible for its upline providers or any adverse conditions that may occur outside of the SurfSmart network. Network downtime is measured from the time the trouble ticket is opened by a customer to the time the server is once again able to transmit and receive data.

Hardware Availability
SurfSmart Networks guarantees the functioning of all leased hardware components and will replace any failed component at no cost to the customer. Hardware replacement will begin immediately upon identification of the hardware failure and is guaranteed to be complete within 2 hours of problem identification. In the event that it takes us more than 2 hours to replace faulty hardware, SurfSmart will refund the customer 5% of the monthly fee per additional hour of down time (up to 100% of customer's monthly fee). Please note, the setup fee on dedicated servers is non refundable. Hardware is defined as the Processor(s), RAM, hard disk(s), motherboard, NIC card and other related hardware included under the server lease.

Age of Majority
SURFSMART cannot accept agreements and payments from persons under the age of 18 years. Therefore, SURFSMART requires that its agreements be made with a person who is qualified to contract. As such, the CUSTOMER must be over the age of 18 years. Otherwise, a parent or guardian must accept this Agreement and ensure proper authorization and payment. 

Intellectual Property
CUSTOMER warrants that it will not copy, reproduce or republish any material, in whole or in part, located on the SURFSMART website. CUSTOMER will not use the trademarks or copyrights of SURFSMART. CUSTOMER must not use the SurfSmart Service in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you access or receive through the SurfSmart Network. If you use a domain name in connection with the SurfSmart Service or similar service, you must not use that Domain Name in violation of any Trademark, Service Mark, or similar rights of any third party.

LIMITED LIABILITY
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER UNDERSTANDS, AGREES AND ACKNOWLEDGES THAT IN NO EVENT AND UNDER NO LEGAL THEORY, SHALL SURFSMART BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR, INCLUDING BUT NOT LIMITED TO, THE LOSS OF CUSTOMER'S DOMAIN NAME; ANY BUSINESS LOSS, REVENUE DECREASE, EXPENSE INCREASE; COSTS OF SUBSTITUTE PRODUCTS/SERVICES; OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING FROM, INCLUDING BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, ANY OF SURFSMART's SERVICES; ANY MALFUNCTION OR INCOMPATIBILITY OF TECHNOLOGIES INCLUDED WITH SURFSMART's SERVICES; ANY TECHNOLOGIES ADDED, REMOVED OR ALTERED BY CUSTOMER OR THIRD PARTY, INCLUDING BUT NOT LIMITED TO, SCRIPTS AND/OR SOFTWARE USED FOR OR ON THE CREATION OR OPERATION OF CUSTOMER'S WEBSITE. ALL OF THE FOREGOING IS APPLICABLE REGARDLESS OF WHETHER SURFSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SURFSMART's LIABILITY EXCEED THE INITIAL FEE OR ONE (1) MONTH'S FEE PAID BY CUSTOMER TO SURFSMART. THIS LIMITATION OF LIABIILITY AND RISKS IS REFLECTED IN THE
PRICE OF SURFSMART's SERVICES. 
b. The CUSTOMER acknowledges that SURFSMART makes an honest effort to keep the information available on SURFSMART's systems accurate. However, SURFSMART can make no warranty of any kind, either expressed or implied, regarding the quality, accuracy, or validity for the data and/or information available. Use of information obtained from or through SURFSMART is at the risk of the CUSTOMER. 
c. The CUSTOMER acknowledges that the information available through the interconnecting networks may not be accurate. SURFSMART has no ability or authority over the material. SURFSMART can make no warranty of any kind, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or information residing on or passing through these networks. Use of information obtained from or through SURFSMART Services is at the risk of the CUSTOMER. 
d. The CUSTOMER understands, agrees and acknowledges that SURFSMART makes an honest effort to provide the CUSTOMER with Technologies, Developments and Innovations that part of them are being licensed, or co-branded, from or by, third-party entities. However, SURFSMART can make no warranty of any kind, either expressed or implied, regarding the quality, accuracy, reliability or validity for the application(s), data and/or information involved in such items. SURFSMART specifically disclaims all warranties of merchantability and fitness for a particular purpose. The use of these application(s), data and/or information obtained from or through SURFSMART, or any other referred third-party, directly or indirectly, is at the risk of the CUSTOMER. 

Assignment and Agents
a. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors, executors and administrators, as the case may be, provided that the CUSTOMER may not assign or delegate its rights and obligations under his business relationships with SURFSMART, either in whole or in part, without the prior written consent of SURFSMART. SURFSMART may assign its rights and obligations under this Agreement to a third party in connection with a merger, consolidation, sale of all or substantially all of SURFSMART's assets or other corporate reorganization. 
b. CUSTOMER agrees that if an application for domain name registration or web hosting service completed by an agent for the CUSTOMER (sometimes called Administrative Contact), the CUSTOMER is nonetheless bound as a principal by all terms and conditions herein. 

Governing Law/Severability
Any agreement, arising from the business relationships between SURFSMART and the CUSTOMER, will be governed by and construed in accordance with the laws of the Florida, without reference to its conflicts of laws principles. CUSTOMER agrees that any litigation or arbitration between the parties will take place in Florida, USA, and consent to personal jurisdiction and venue in that Province. If any provision of that agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of that agreement will continue in full force and effect. 

Complete Understanding/Modification
These Terms & Conditions constitute the full and complete understanding and Agreement of the CUSTOMER and SURFSMART, relating to the subject matter hereof, and supersedes all prior understandings, agreements, representations and warranties relating to such subject matter. Any waiver, modification, or amendment of any provision of these Terms & Conditions, initiated by the CUSTOMER, will be effective only if accepted in writing and signed by SURFSMART. 

Privacy Policy
SurfSmart insures that all personal information being voluntarily submitted to us in the processing of your order (to be used for record and billing purposes, etc.), inclusive, but not limited to, credit card and other personal information, will be kept strictly confidential and used "solely" by SurfSmart, its authorized representatives and employees; for the strict purpose for which it was intended, and for the benefit of the Customer. We agree not to share, rent, sell or release this information to any individual, entity or third party, for any reason, without the specific written consent of the Customer; with exception as required by Law, Regulation or Governmental Authority.

SurfSmart is committed to protecting and securing all Customer provided information, through the use of firewalls and additional security measures in place at its physical facilities to protect against the loss, misuse or alteration of such information.

Last Revision July 2004.

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