The Provider (Whitestone Services) agrees to supply the Customer (the individual who has obtained service provided by Provider as well as any corporate entity whom the individual may represent) with Web Site Hosting as prescribed on Provider’s web site located at http://www.whitestoneservices.com and in the applicable Client Order signed by Client and Provider. The Customer agrees to all technical and billing requirements as set forth on said web site, in the Customer Order and to the Acceptable Use Policy prescribed in this Agreement (“Agreement”).
The Customer covenants and agrees to abide by the Agreement, as specified here, in addition to all future revisions that are publicly posted on the Provider’s web site. Due to the ever-changing nature of the Internet, the Customer fully understands and accepts the responsibility of keeping abreast of changes in the Agreement.
RESPONSIBILITY FOR CONTENT
The Customer understands that Provider is not responsible for any conduct, content, goods and services that are or may be available through the Internet or the Provider’s services. Furthermore, the Customer understands that Provider is not responsible for the accuracy or quality of any information obtained through the Internet.
The Customer agrees to comply with all applicable laws, rules and regulations in connection with Customer’s use of the Service. The Customer agrees not to upload, transmit, or post copyrighted material, including trademarks or protected material to the Internet without express authorization or purchased license of the owner(s) or person(s) owning the copyrighted material. Customer understands that the Provider is a “service provider” as defined in the Digital Millennium Copyright Act, and therefore has no responsibility for the content of Customer’s web sites. The Customer understands that if a copyright complaint is received by the Provider, Customer will receive notice of the complaint and will be given reasonable time to respond to the complaint. At any time, the Provider may, at its sole discretion, require a copy of any and all legal documentation showing rightful ownership, or licensed distribution for any item displayed on the Customers web site so as to resolve any copyright or other legal claims that may arise. If Customer is unable to provide ownership or licensing information to the complaining party and/or Provider, then Customer must remove the objectionable material, or face having the applicable pages taken down by Provider.
The Customer agrees to keep its site free of any illegal content including, but not limited to threats of physical harm to persons or property, programs containing viruses, pirated software, child pornography and violations of international export control laws.
The Customer shall be solely responsible for the development, operation and maintenance of its online businesses and/or sites and all contents and materials appearing online or related to Customer’s products and services, including without limitation (a) the accuracy and appropriateness of content and materials appearing on customer’s web pages, or within customer’s business, and on customer’s products; (b) ensuring that the content and materials appearing within the online business or related to the product or service do not infringe upon the rights of any third party; and (c) ensuring that the content and materials appearing within the website or related to Customer’s products and services are not libelous or otherwise illegal. Customer is solely responsible for the final calculation of and application of shipping, sales tax and any other taxes related to Customer’s business or website. Customer will also be solely responsible for accepting, processing, and filling customer orders, and for handling any customer inquiries or complaints arising therefrom. Customer shall also be solely responsible for the security of any of its’ customer information, including credit card numbers.
Customer shall also be responsible for any and all licenses for any software scripts or other electronic media installed on Customer’s server, and shall provide Provider with a copy of same upon demand.
The customer agrees to fully comply with the United States FTC Act (if Customer does business in the United States), and any related rules, regulations and advisory opinions issued by the FTC. Customer’s failure to comply with the foregoing may result in immediate termination of this agreement by Provider. The Customer understands that Provider is not giving legal advice and the Customer is advised to seek independent legal opinions about compliance with the FTC Act. The Customer is to avoid unfair or deceptive advertising. Pursuant to Section 5 of the FTC Act, a representation, omission, or practice is deceptive if it is likely to mislead consumers and improperly affect consumer’s behavior or decisions about the product or service. To be in compliance, Customer agrees that it will fully and fairly describe the products and services being sold as well as the costs thereof and the associated terms and conditions, procedures for making purchases, procedures for registering complaints or obtaining refunds and/or credits, the procedure for canceling service or returning products and any use which Customer may make of personal information gathered by Customer.
Disclosures must be clear and conspicuous and the FTC has identified the following characteristics to be utilized in evaluating the effectiveness in disclosures and Customer agrees to comply with these characteristics in all disclosures that it makes:
Unavoidable. Where a disclosure is made in respect of a particular representation, the disclosure will meet the: “unavoidable” standard where it appears as close as possible to the triggering representation. The customer should not be required to click on a hyperlink or scroll down a page to get the disclosure, but rather, should see the disclosure on the same screen as the representation. In situations where a disclosure is not in response to a particular representation, the disclosure should be as close as possible to relevant information.
Accessible. “Accessibility” can be achieved where a customer is not prevented from returning to a page from which the customer has hyper-linked to another page and on which disclosures appear. These should be no more than three “mousetraps” or “exit consoles” on any page, and a direct method of exiting same.
Prominence. “Prominence” can be achieved where the disclosure are large in size and/or emphasized through a sharply contrasting color, and remain visible or audible for a sufficiently long duration, and lack “distracting” characteristics.
Repetition. “Repetition” of a disclosure in conjunction with a triggering claim increases the chances of consumers noticing and understanding them. This is particularly true on Web sites, which contain many and/or long Web pages.
Medium of Presentation. Disclosures should be made in the same medium (audio and /or visual) in which the claim was made (and in multimedia fashion, where the claim was made in more than one medium).
Customer agrees that any and all use of the word “free” must comply with the FTC rules and regulations, as embodied in the FTC GUIDE CONCERNING USE OF THE WORD “FREE” AND SIMILAR REPRESENTATIONS,” a copy of which can be found at http://www.ftc.gov/bcp/guides/free.htm. It is Customer’s sole responsibility to comply with these regulations. To summarize some important rules from that Guide, “free” must mean truly free, so that, for example, the cost of the free item cannot be subsidized by a higher than normal price on another item. If the “free” offer is subject to certain terms and conditions, those terms must be disclosed in a clear and conspicuous manner, as described above. To be entitled to advertise an item as “free” it must normally be sold at some price, and if it is a new item, the Web site operator must intend, in good faith, to offer the item for sale in the future. According to FTC rules, a particular service should not be advertised as a “free” offer for more than 6 months in any 12-months period, and at least 30 days should elapse before another such offer is promoted. In any such period, the sales of the product sold with a “free” offer should not exceed 50 percent of the total volume of the merchant’s sales of the product.
Regarding trial periods, the FTC believes that it is a deceptive trade practice for a Web site operator to fail to state in a clear and conspicuous manner the mechanism by which a subscriber may cancel either his trial period or regular membership. With respect to the trial period, the required disclosure must clearly state how long the trial lasts, the date by which the consumer must notify the webmaster to avoid the trial period becoming a regular membership, the consequences of failing to cancel by the designated termination date, and the price and terms of the regular membership.
Regarding cancellation of a recurring product or service, and consistent with FTC policy, the entry page of Customer’s web site shall have a clearly identified and easily accessible cancel link.
If Customer offers a trial period with a negative option (i.e., automatic conversion to a regular membership if the customer fails to cancel during the trial period), Customer must not state that Customer is taking credit card information from the subscriber solely to verify his age. While Customer may state that as one reason, if it is true, Customer must also state that Customer is taking the credit card to charge for the trial period and the regular membership after the trial period has expired.
It is Customer’s responsibility to comply with all laws, rules and regulations that apply to Customer’s Web site, not just the FTC rules we have discussed above. Customer is urged to review the FTC site, and to consult an attorney, with any questions Customer may have.
UNSOLICITED COMMERCIAL BULK EMAIL
The Customer agrees not to use the facilities and capabilities of the Provider to solicit the performance of any activity that is prohibited by law or for the illegal distribution of Unsolicited Commercial Bulk Email (“UCBE”), commonly known as “spam,” nor shall Customer forge or use without authorization, any mail header information.
This practice, commonly known as “spamming,” is generally defined as the electronic transmission of unsolicited advertising materials to a party with whom the sender has no business or personal relationship, where the materials are not sent at the request of, or with the expressed consent of, the recipient. Failure to comply with the law and the following guidelines may result in immediate termination of Customer’s site.
For Customer’s information and to assist in understanding Customer’s obligations, but not for the purpose of providing legal information (Customer should seek its own legal counsel), Customer needs to be aware that several states (including California, Colorado, Washington, Virginia and Nevada, among others) have passed aggressive new laws to control UCBE. The federal government also has proposed legislation before it for examination and vote.
In an effort to help the Customer comply with this new and relatively uncharted area of the law, Provider is including some minimum guidelines. These guidelines and are not intended to provide Customer with legal advice or replace Customer’s own analysis of Customer’s duties under the law(s) applicable to UCBE.
UCBE Guidelines, whereby Customer agrees not to:
Use a domain name which belongs to a third party, without that party’s permission, or which is unregistered or fictitious, or
Take any other action which otherwise misrepresents or disguises the point of origin of the message or the path of the UCBE, or
Direct a UCBE to a subscriber of any Internet Service Provider (“ISP”), which prohibits such transmissions.
The subject line of the message must not contain false or misleading information. If Customer does business in California and the message is directed to a California resident and is sent through a California ISP, California law requires that the first four characters of the subject line must be “ADV”. If the message relates to adult content, the first eight characters of the subject line must be “ADV: ADLT.” Note that failure to comply with the foregoing law is a crime in California.
The text of the message shall contain the URL of the site, and a toll-free telephone number or valid email address, which the recipient may use to reach the Sender. The message must contain a statement informing the recipient that he or she may use the toll-free number or email address contained in the message to instruct the Sender to send no further messages to email addresses specified by the recipient. Customer shall notify the Provider of its receipt of such notice within 24 hours of its receipt, and thereafter, may not send messages to any of the designated email addresses.
Provider reserves the right to reject postings from newsgroups where we have actual knowledge that the content of the newsgroup violates this AUP. Customer also agrees to abide by established Usenet conventions (more commonly known as “netiquette”) and Customer is advised to check the rules and prohibitions for each Usenet site. Customer is prohibited from forging Usenet header information, posting chain letters, inappropriate messages or posting encoded binary files to Usenet newsgroups not specifically named for that purpose.
Any violation of system or network security is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers is strictly prohibited. The Customer agrees not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware and software, compromising the Servers, or for any other unauthorized use commonly known as “hacking.” In addition, Customer is prohibited from the following:
Any unauthorized access to or use of data, systems or networks;
Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network;
Without authorization, interference with service to any user, host or network;
Introducing a malicious program into the network or server (e.g. viruses and worms);
Unauthorized us of, or forging any header or any part of the header information in an email or newsgroup posting;
Circumventing user authentication or security of any host, network or account;
Attempting to cancel, supersede or otherwise interfere with Usenet or email posts other than one’s own; and
Using an account at another provider to promote your site with Provider in an abusive manner.
Customer is prohibited from utilizing Provider’s service for the purpose of compromising the security or tampering with system resources or accounts on computers at Provider or any other site. In the event Customer is involved in violations of system security, Provider reserves the right to release information about Customer to system administrators at other sites in order to assist in resolving security incidents and Provider shall cooperate with any law enforcement agency investigating a criminal violation of system or network security.
HOSTING OF MEDIA FILES – AUDIO, VIDEO and DATA
The Customer agrees and understands that the Provider does not offer mass storage services of media such as audio, video and data files for the purpose of downloading by Customer’s clients or viewers. Such files will be allowed within reason for viewers of the Customer’s website by use of links within the Customer’s website to such materials. Links to these materials from outside websites who are not customers of the Provider are strictly prohibited and will be blocked by Provider.
If Provider agrees to offer a limited amount of such media for download purposes these materials will be only accessible through a password-protected area. Access information will be provided to the Customer, which assumes all liability of who has final access to this password protected area for downloading purposes. Links from websites not hosted by the Provider to these password protected areas is strictly prohibited. If the Customer abuses access to such areas, such as publicly posting access passwords, the Provider will change passwords with new access information given to Customer without prior notice or Provider will stop service to prevent future access to the downloadable materials.
If mass storage services are needed for such media, the Provider will supply to Customer upon request information on third party companies who provide these services. If Customer chooses to use such services and instructs Provider to incorporate it within their website, charges that arise from any third party companies are the responsibility of the Customer not the Provider.
The Customer agrees and understands that any network address assignments (“IP addresses”) issued by Provider to Customer shall remain the property of Provider, and are considered to be loaned to the Customer. The Customer also understands that Provider is not a secure communications medium for the purposes of the Electronic Communications Privacy Act, and that it may be necessary for Provider to examine systems accounting logs and other records to determine if privacy violations or other network activities have occurred.
In the event that the Customer has not complied with any part of this agreement or breaches the agreement, the Provider reserves the right to alter access to the service, or to terminate the service, without notice to, or authority from the Customer, and the Customer forfeits any prepaid amounts to Provider.
Except with respect to accrued payment obligations, neither party shall be liable for any failure of performance due to causes beyond such party’s reasonable control, including, but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, or governmental action, national emergencies, insurrections, riots or wars; unavailability of rights-of-way; or strikes or other labor difficulties not involving Globix, provided however, the affected party shall use commercially reasonable efforts to eliminate such event.
Any complaints regarding spam and copyright infringement claims should be sent through our contact form.