Terms Of Service

Terms of Service - Please read these terms before your purchase

This Web Hosting Agreement (this "Agreement") is between KMKHost and the person (individual or legal person) whose signs KMKHost's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of KMKHost's Web hosting service.

1. Services.

Subject to the terms of this Agreement, and contingent on Customer's satisfaction of KMKHost's credit approval requirements, KMKHost agrees to provide the web hosting services described in the Order for the fees stated in the Order.

2. Term.

The initial service term of the Agreement shall begin on the date that KMKHost generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless KMKHost or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."

There is no refund policy.

3. Payments (VPS and Reseller Hosting).

Service will be made inactive on accounts that are not paid by the due date at 12 PM EST. An account means all hosting services provided to you. KMKHost reserves the right to revoke this grace period if a pattern of late payment is observed or if your payment method is listed as other. Any accounts made inactive for non-payment is subject to a $20.00 late payment fee.

4. Cancellation and Early Termination (VPS and Reseller Hosting)

Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event KMKHost terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for KMKHost breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. Customer also acknowledges that a minimum of 10 days cancellation notice or downgrade of current package prior to the following renewal term must be given in writing to KMKHost or the Customer will be responsible for full payment of the following term.

The cancellation request will be subject to the following guidelines:
Cancellation request must be submitted to the billing department
Cancellation request must be submitted from the main email address on file with KMKHost
Cancellation request must contain the main IP address (VPS account) or main domain (shared/reseller account) of the hosting plan you wish to cancel

5. Payments (Dedicated Servers)

We do not offer a money back guarantee.

In the event you fail to pay your invoice by the due date, we reserve the right to suspend your entire account and a late fee of $35 applies. An account is defined as all services being used by the customer such as VPS hosting, etc. If your invoice is still not paid by the 3rd day from the due date on the invoice, we reserve the right to terminate your service entirely and reformat your server.

6. Cancellation and Early Termination (Dedicated Servers)

Customer acknowledges that a minimum of 20 days cancellation notice prior to the following renewal term must be given in writing to KMKHost or the Customer will be responsible for full payment of the following term.

The cancellation request will be subject to the following guidelines:
Cancellation request must be submitted to the billing department
Cancellation request must be submitted from the main email address on file with KMKHost
Cancellation request must contain the main IP address of the server you wish to cancel

7. Law/AUP.

Customer agrees to use the service in compliance with applicable law and KMKHost's Acceptable Use Policy posted at AUP section (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that KMKHost may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of KMKHost's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with KMKHost's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between KMKHost and Customer regarding the interpretation of the AUP, KMKHost's commercially reasonable interpretation of the AUP shall govern.

8. Customer Information.

Customer represents and warrants to KMKHost that the information he, she or it has provided and will provide to KMKHost for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to KMKHost that he or she is at least 18 years of age. KMKHost may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.

9. Indemnification.

Customer agrees to indemnify and hold harmless KMKHost, KMKHost's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.

10. Disclaimer of Warranties.

KMKHost DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW KMKHost DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.

11. Limitation of Damages.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF KMKHost AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

12. Suspension/Termination.

(a) Suspension of Service.

Customer agrees that KMKHost may suspend services to Customer without notice and without liability if: (i) KMKHost reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) KMKHost reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay KMKHost's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

(b) Termination.

The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if KMKHost fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by KMKHost prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon five (5) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from KMKHost describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon five (5) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

13. Resource Usage

KMKHost Customers may not initiate the following (below), if any customer does KMKHost may terminate the account with no refund. Depending on the situation there will/won't be warnings sent.
a) Use 25% or more of system CPU resources for longer then 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
b) Use of any kind of distributed computing software, including but not limited to SETI@home, Node Zero and Folding@home
c) Run any type of interactive real-time chat applications that require server resources. Remotely-hosted services are fully allowed (applies to shared/reseller hosting only).
d) Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons (applies to shared/reseller hosting only).
e) Run any software that interfaces with an IRC (Internet Relay Chat) network.
f) Run any file sharing, bit torrent or other P2P network services, client or server software.
g) Run any gaming servers such as counter-strike, half-life, battlefield 1492, etc

14. 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. If you exceed your bandwidth limit, you are responsible to pay for any overage.

15. Domains

KMKHost is not a domain registrar. We are a reseller for Namecheap so all KMKHost customers who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by Namecheap. You can only purchase a domain from KMKHost or transfer a domain to KMKHost at the time when you are purchasing a hosting package. Domain purchases as well as domain transfers are billed at the displayed amount. If you do not renew your domain by the expiration date you run the risk of loosing your domain.

16. Requests for Customer Information.

Customer agrees that KMKHost may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that KMKHost believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

17. Back Up Copy.

Customer agrees to maintain a current copy of all content hosted by KMKHost nothwithstanding any agreement by KMKHost to provide back up services.

18. Request for Rebuild/Restore of Hosting Package

During any service term, customer may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a $15 one time fee will be enforced.

19. Changes to KMKHost's Network.

Upgrades and other changes in KMKHost's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. KMKHost reserves the right to change its network in its commercially reasonable discretion, and KMKHost shall not be liable for any resulting harm to Customer.

20. Notices.

Notices to KMKHost under the Agreement shall be given via electronic mail to the e-mail address posted for customer support. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

21. Force Majeure.

KMKHost shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond KMKHost's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

22. Governing Law/Disputes.

The Agreement shall be governed by the laws of the State of Virginia, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN FAIRFAX COUNTY, KMKHost, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

23. Miscellaneous.

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on KMKHost unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without KMKHost's prior written consent. KMKHost's approval for assignment is contingent on the assignee meeting KMKHost's credit approval criteria. KMKHost may assign the Agreement in whole or in part.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.

Last updated on 01/24/2009

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