Terms and Conditions of Service

Effective 1/07 until amended

Welcome to SMILING PEANUT web hosting. BY ACTIVATING OR USING OUR SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS (”T&Cs” or “Agreement”). PLEASE READ THESE T&Cs CAREFULLY. They affect your legal rights. IF YOU DO NOT AGREE TO THESE T&Cs, DO NOT ACTIVATE OR USE THE SERVICE.

These Terms and Conditions constitute the entire agreement (”Agreement”) between SMILING PEANUT LLC and its affiliates (together, “SMILING PEANUT”, “we”, or “us”) and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of SMILING PEANUT, or by the posting by SMILING PEANUT of a revised version. Except to the extent applicable law, if any, provides otherwise, these Terms and Conditions, any access to or use of the Service will be governed by the laws of the state of Colorado, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Larimer County, Colorado. If any part of these Terms and Conditions is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of these Terms and Conditions or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under these Terms and Conditions to any party that consents to, and agrees to be bound by, its terms; SMILING PEANUT may assign its rights under these Terms and Conditions without condition. These Terms and Conditions will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

Hosting plan and feature information for the Services you select or use are available to you when you purchase the Service, and are a part of our agreement and are incorporated by reference into these T&Cs.

ACCEPTANCE OF AGREEMENT

You accept this Agreement by: (a) activating or using the Service; (b) signing, orally or electronically accepting the Agreement; or (c) are deemed to accept the Agreement, whichever occurs first.

YOUR HOSTING ACCOUNT AND WEBSITE(S)

Upon provisioning of your Service, you will be granted a username and password to the SMILING PEANUT management system to configure your website(s). As a condition of service, you are responsible for maintaining the security of your account and website(s), and you are fully responsible for all activities that occur under the account and any other actions taken in connection with it. You must immediately notify SMILING PEANUT of any unauthorized uses of your account, your website(s) or any other breaches of security. SMILING PEANUT will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.

The Service contains pre-set allotments for your account, including disk space and bandwidth, as stated in your registration e-mail and as agreed to in advance before your account is activated. Your are responsible for your understanding of said allotments and you may request a new allotment at any time by filing a help ticket inside the account management system. Any request for a change in allotment must be approved by a authorized representative of SMILING PEANUT and no request is guaranteed. Additional fees will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan. The current fee for a bandwidth overage is $5 per gigabyte used and is payable immediately. An account that has exceeded the allowed bandwidth may be suspended until payment for bandwidth overages has been made.

APPROPRIATE USE OF SERVICES

You agree that you will not distribute or otherwise transmit or display any materials to any SMILING PEANUT server in connection with your use of the Services which:

  1. violate any state, federal or foreign laws or regulations;
  2. infringe on any intellectual property rights (e.g., copyright, trademark, patent or other proprietary rights) of SMILING PEANUT or any third party;
  3. are defamatory, slanderous or trade libelous;
  4. are threatening or harassing;
  5. are discriminatory based on gender, race, age or promotes hate;
  6. violate any SMILING PEANUT policy posted on smilingpeanut.com (the “SMILING PEANUT Site”) including, without limitation, these T&Cs and our Privacy Policy.
  7. contain viruses or other computer programming defects which result in damage to SMILING PEANUT or any third party.

PAYMENT OBLIGATIONS

By the Tenth (10th) of each month, SMILING PEANUT shall deliver, either by e-mail or postal mail, an invoice to you in accordance with the applicable Service fees for the following month as well as any extra applicable fees you may owe. Upon delivery of the invoice by SMILING PEANUT, you shall remit payment by no later than the Fifteenth (15th) (the “Due Date”) of the month unless otherwise stated in the invoice or agreed to in writing by an authorized representative of SMILING PEANUT.

If payment is not received within Seven (7) days of the Due Date, SMILING PEANUT will suspend your Service until your account is brought to current status. A late fee of Twenty Dollars ($20 US) shall be imposed if your payment is not received by the Due Date. Should payment not be received within Seven (7) days of the Due Date, SMILING PEANUT may exercise its right to terminate this Agreement (see TERMINATION below).

NO “SPAM”

You shall not use the Services for chain letters, junk mail, spamming, or any use of distribution lists to any person who has not given specific permission to be included in such a process. You also shall not engage in any unsolicited email practices at SMILING PEANUT, or otherwise, that mentions or reference any domain hosted on SMILING PEANUT servers or parked on SMILING PEANUT DNS servers. This policy applies to all hosting accounts, all domains, name servers, and parked domains hosted by SMILING PEANUT.

COPYRIGHT INFRINGEMENT AND DMCA POLICY

As SMILING PEANUT asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by The SMILING PEANUT Site violates your copyright, you are encouraged to notify SMILING PEANUT in accordance with SMILING PEANUT’s Digital Millennium Copyright Act (”DMCA”) Policy. SMILING PEANUT will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. In the case of a visitor who may infringe or repeatedly infringes the copyrights or other intellectual property rights of SMILING PEANUT or others, SMILING PEANUT may, in its discretion, terminate or deny access to and use of the Service.

Without limiting any of these representations or warranties, SMILING PEANUT has the right (though not the obligation) to, in SMILING PEANUT’s sole discretion, refuse or remove any content that, in SMILING PEANUT’s reasonable opinion, violates any SMILING PEANUT policy or is in any way harmful or objectionable. SMILING PEANUT will have no obligation to provide a refund of any amounts previously paid.

To report suspected infringement, please contact abuse at smilingpeanut dot com.

ADULT MATERIAL POLICY

This policy governs our clients use and exhibition of adult-oriented and pornographic material. The terms of this policy shall be integrated into this Agreement and are housed separately solely for the convenience of our clients.

TERMINATION

SMILING PEANUT reserves the right to refuse service to anyone.

Without limiting any of these representations or warranties, SMILING PEANUT, in its sole discretion, for any reason or no reason at all, may immediately terminate this Agreement at any time. Termination may result if you (i) engage in any abusive activities as reasonably determined by SMILING PEANUT, (ii) fail to remit payment in a timely manner, (iii) engage in any conduct that may expose you or SMILING PEANUT to liability, or (iv) violate this Agreement in any way.

You may terminate this Agreement at any time. Should this Agreement be terminated early, you shall be responsible for any outstanding fees owed to SMILING PEANUT and agree to pay any and all fees incurred by you immediately upon termination. Because the Services are provided on a monthly, quarterly or yearly basis, you will be responsible for Service fees incurred each term regardless of when you provide or are provided notice of termination. Thus, for example, if you provide notice to terminate on the 1st of a particular month, you will still owe fees for the entire month and such fees will not be pro-rated or refunded.

We do not offer refunds for service periods. You contract with us for a set period of time, be that monthly, quarterly or yearly. You are entitled to hosting services for that contracted period of time, unless canceled by us for violations of our policies or by your own choosing. Should you cancel your hosting account previous to the end of you contracted term, you are not entitled to a refund for any unused portion of time. Canceling service previous to the end of the term results in forfeiting funds paid for that term.

BACKUP FILES

You will have the ability to reinstate files which are automatically archived by SMILING PEANUT; however, SMILING PEANUT does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, you are responsible for making back-up files in connection with your use of the Services. Backup capability is available through the account management system.

TRADEMARKS

SMILING PEANUT, SMILING PEANUT web hosting, smilingpeanut.com, the SMILING PEANUT ‘Nutz’ logo, and all other trademarks, service marks, graphics and logos used in connection with the Service are trademarks or registered trademarks of SMILING PEANUT or SMILING PEANUT’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Service may be the trademarks of other third parties. Your use of the Service grants you no right or license to reproduce or otherwise use any SMILING PEANUT or third-party trademarks.

You acknowledge that your usage of the Service in no way constitutes an endorsement or sponsorship by SMILING PEANUT of any service, product or other content that you may host on your website(s).

CHANGES

The Service, including without limitation all content there available and these Terms and Conditions, may be changed at the sole discretion of SMILING PEANUT and without notice. You are bound by any such updates or changes, including but not limited to those affecting these Terms and Conditions, and so should periodically review these Terms and Conditions.

LIMITATION OF WARRANTIES OF SMILING PEANUT, ITS SUPPLIERS AND ITS LICENSORS

Except as otherwise expressly stated, the Service is provided “as is”, and SMILING PEANUT, its suppliers and its licensors make no representations or warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, title or non-infringement of proprietary rights. You understand and agree that you download from, or otherwise obtain services through, the Service at your own discretion and risk, and that SMILING PEANUT, its suppliers and its licensors will have no liability or responsibility for any damage to your computer system or data that results from the download or use of such content or services. If you’re actually reading this, pat yourself on the back. Some jurisdictions may not allow the exclusion of implied warranties, so some of the above may not apply to you.

LIMITATION OF LIABILITY OF SMILING PEANUT, ITS SUPPLIERS AND ITS LICENSORS

Except as otherwise expressly stated, in no event will SMILING PEANUT, its suppliers or its licensors be liable to you or any other party for any direct, indirect, special, consequential or exemplary damages, regardless of the basis or nature of the claim, resulting from any use of the Service, or the contents thereof or of any hyperlinked Service including without limitation any lost profits, business interruption, loss of data or otherwise, even if SMILING PEANUT, its suppliers or its licensors were expressly advised of the possibility of such damages. In no event will the aggregate liability for any and all of your claims against SMILING PEANUT, its suppliers and its licensors arising out of or related to use of the Service, or the contents thereof or of any hyperlinked Service exceed the amounts actually paid by you to SMILING PEANUT during the 12-month period prior to the date a claim is made. Some jurisdictions may not allow the exclusion or limitation of liability for certain incidental or consequential damages, so some of the above limitations may not apply to you. The parties agree that this Section represents a reasonable allocation of risk.

GENERAL REPRESENTATION AND WARRANTY

You represent and warrant that your use of the Service will be in accordance with the SMILING PEANUT Privacy Policy, with these Terms and Conditions, with any applicable laws and regulations, including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside, and with any other applicable policy or terms and conditions.

INDEMNIFICATION

You agree to defend, indemnify and hold harmless SMILING PEANUT, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Service, including but not limited to out of your violation of any representation or warranty contained in these Terms and Conditions.

THANKS

A great deal of these Terms and Conditions were “borrowed” from WordPress.com and are legally available via a Creative Commons Sharealike license. We here at SMILING PEANUT heart WordPress and Creative Commons. :)

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