Acceptable Use Policy (AUP)/Terms of Service

Neosurge Web Solutions strives to provide the best possible service to all our customers, but we will not tolerate any unlawful activity or abuse on our servers. We respect freedom of speech and expression unless it is harmful to others. These brief guidelines are imposed to protect you, other Neosurge Web Solutions customers and us against such harm.

In the absence of any other Agreement, you will have accepted this Policy and these Terms and be bound by them if you use any of the services offered by Neosurge Web Solutions ("Services") or otherwise indicate your affirmative acceptance of such Services.

This Policy and these Terms may change from time to time. Neosurge Web Solutions will try to inform all of our customers of the changes and subject to applicable laws and this Agreement those changes will be effective after 30 days.

Due to rules set in place by the government of the United States of America we cannot host clients from the following countries: Burma, Cuba, Iran, Iraq, Liberia, Libya, North Korea, Sudan, Syria, or Zimbabwe.

We reserve the right to refuse service to anyone for any reason not prohibited by law. Also we reserve the right to terminate service to any client for any reason not prohibited by law. Any deliberate attempt to cause damage to Neosurge Web Solutions or any other Internet servers will result in immediate account deactivation without prior notice. No refund will be issued in this case.

Full payment is required before any hosting service is rendered, which includes renewals. All payment-due notices will be sent by electronic mail. No bills or invoices will be sent by postal mail or fax, unless requested and agreed upon in writing before service is rendered. Prepayment is due each anniversary (one month, one year, or other agreed upon period) following the date the account was established. Billing will continue until you cancel your hosting account. As a policy, we do not offer credits or refunds for hosting time already expended or on any promotional credit, such as a free month of hosting. Credit cards may be billed up to seven days in advance of the due date to assure that service will not be affected if there is a problem with the credit card. Neosurge Web Solutions considers all credit card or PayPal chargebacks for services rendered, or partially rendered, to be fraudulent. Such accounts will be assessed a $50 fee, per incident, and have their balance sent to a third-party collections agency. Please follow the refund procedures we have defined.

We do give refunds for full months unused, not partial months, and billing is only done on full month or annual terms. If you decide to cancel after prepayment, you will not receive a refund for the current month in use (we do not give partial months refunds). If you have prepaid and received a multi-month discount, upon cancellation we will figure the refund retroactively withdrawing the discount back to the start date of the contract. This will result in paying full undiscounted price for the months used and refunding the balance. This only applies to cancellation by the client. If cancellation is done by Neosurge Web Solutions due to an account violation, there will be no refund. Additional features can be added at any time. Neosurge Web Solutions reserves the right to change prices at any time, but will notify all clients before such changes take place. Refunds are also issued according to our Service Level Agreement and Money Back Guarantee, included with shared hosting plans, which must be requested by clicking the Money Back icon in the control panel.

All dedicated server and colocation customers will receive invoices 7 days before the due date and any credit card on file will be charged 2 days before the due date. After the due date, there is a 2 day grace period in which to fully pay the invoice, with an overdue notice being emailed daily. If payment is not made, or other adequate arrangement put in place, the system(s) will be promptly shutdown after the 2nd day. The system will be maintained in full working order, with the original data, for a period of at least one additional week. The customer is fully responsible for making sure payment is made in a timely manner and is fully responsible for keeping accurate billing information on file.

In regards to colocation customers, Neosurge Web Solutions reserves the right to take ownership of the colocated equipment as compensation after a period of 30 days of non-payment. If the equipment is sold, the selling price, minus a 15% processing charge will be deducted from the amount of the bill which is forwarded to collections. Colocation customers must also abide by the posted Colocation Policies.

You agree to allow us and our agents the right of access to equipment and data, as is reasonably needed, for purposes of installing, servicing, configuring, maintaining, inspecting, upgrading, replacing and removing the services and/or equipment used to receive any of the Services. In so doing Neosurge Web Solutions will take all reasonable care to insure the work is complete in a professional manner with minimal interruptions to Services. In all instances Neosurge's liability will not exceed what is provided within this Agreement.

You may cancel at anytime, except prior to dedicated server delivery. A dedicated order cannot be cancelled for a refund unless it is for a server which is not delivered in the appropriate time frame. That time frame is 72 business hours for in-stock servers and 10 business days for custom order systems, systems with any hardware modifications, extra RAM, RAID card, etc. To cancel your account, please email billing@neosurge.com. Notification of cancellation must be received at least one full week prior to your cycle date, with the cycle date being the day of the month you sign up, in order to avoid charges in full for the next cycle. It is the client's responsibility to secure email confirmation from Neosurge Web Solutions that account has been cancelled. If the client has not yet received email confirmation of account cancellation, then the account remains active, and you will continue to be invoiced. Clients are responsible for all charges associated with an account until cancellation is verified via email.

If the client has a balance due at the time of cancellation, this balance must be paid in full. Cancellation does not absolve client of any outstanding financial obligations. Neosurge Web Solutions reserves the right to go through a third-party collection agency to collect any overdue payments. All accounts sent through a third-party collection agency will have an additional fee of 38% of the amount owed added to cover the collections fees and other related expenses, subject to applicable laws.

You are solely responsible for maintaining insurance coverage for any claims which may arise under this Agreement and for which you may be legally liable. It is your responsibility to adequately insure yourself against business interruption, loss of business or other losses. Neosurge Web Solutions shall not have responsibility to you for your failure to maintain sufficient insurance coverage. Neosurge Web Solutions. liability shall not exceed that which is set forth in this Agreement.

You agree to use all Neosurge Web Solutions services and facilities at your own risk. Neosurge Web Solutions specifically disclaims all warranties of merchantability and fitness for a particular purpose. In no event shall Neosurge Web Solutions be liable for any loss, or loss of data, or other commercial damage, including but not limited to special, incidental, consequential or other damages. The client agrees that it shall defend, indemnify, save and hold Neosurge Web Solutions harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against Neosurge Web Solutions, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the client, it's agents, employees or assigns. The client agrees to defend, indemnify and hold harmless Neosurge Web Solutions against liabilities arising out of:

• Any injury to person or property caused by any products sold or otherwise distributed in connection with a Neosurge Web Solutions server;
• Any material supplied by the client infringing or allegedly infringing on the proprietary rights of a third party;
• Copyright infringement and
• Any defective products sold to the client from a Neosurge Web Solutions server.

Neosurge Web Solutions shall be the sole arbitrator of what violates this policy.

CUSTOMER ACKNOWLEDGES THAT NEOSURGE WEB SOLUTIONS PERMITS OTHER LICENSEES TO INSTALL THEIR EQUIPMENT IN THE PREMISES. NEOSURGE WEB SOLUTIONS WILL HAVE NO LIABILITY FOR ANY DAMAGES, COSTS, OR LOSSES INCURRED BY CUSTOMER (OR ITS CLIENTS) CAUSED BY SUCH OTHER LICENSEES. ACTS, EQUIPMENT, OR FAILURES TO ACT.

THE LIMIT OF NEOSURGE WEB SOLUTIONS. LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR BY STATUTE OR OTHERWISE TO CUSTOMER (OR ITS CLIENTS) CONCERNING PERFORMANCE OR NON-PERFORMANCE IN ANY MANNER RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS WILL NOT, IN THE AGGREGATE, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO NEOSURGE WEB SOLUTIONS UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING 2 MONTHS FROM THE DATE THE CLAIM AROSE. IN NO EVENT WILL NEOSURGE WEB SOLUTIONS BE LIABLE FOR ANY LOST PROFITS, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.

Neosurge Web Solutions is committed to a strict anti-spamming policy. Under this policy, we prohibit spam, or any unsolicited commercial email, from being sent either: Over the Neosurge Web Solutions network, by clients or any other users of the Neosurge Web Solutions network (including the client's customers); AND/OR over ANY network - if the message sent advertises or mentions a site hosted on the Neosurge Web Solutions network.

We react quickly and seriously to violations, and we further reserve the right to terminate the services of any client disregarding this policy. Notice of at least 6 hours is given to all dedicated hosting and colocation clients. Shared hosting and VPS customers may have their accounts suspended without notice, depending on the severity of the incident. Sending unsolicited commercial email (a.k.a. "spam"), cross-posting messages to a large number of usenet groups, posting obscene or threatening messages while using or referring to an email address or web site URL on Neosurge Web Solutions' network is prohibited. The use of Neosurge Web Solutions' network as a mail drop for responses to activities described above is also prohibited. Accounts cancelled due to spam will be billed a "clean up" fee of $100 along with a potential fee of $50 per mailing/complaint if they are deemed to be unresponsive to our requests.

If you have any complaints or comments regarding spam on our network, please email abuse@neosurge.com.

Note: Neosurge Web Solutions explicitly reserves its right to act in accordance with this policy in all instances. However, we will generally not suspend an account due to a single violation. In general, we will first attempt to work with you to resolve the situation. If problems persist or there is no cooperation the account may be suspended and have the above charges applied. As a web host we understand you may not have control of all your users/clients and we are more than happy to work with you as long as you are cooperative. We give all clients the right to defend themselves before accounts are permanently suspended or charged the specified clean-up fees.

All services provided by Neosurge Web Solutions may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any American law is prohibited. This includes, but is not limited to: copyrighted material, trademark, intellectual property, material that promotes any illegal activity, or material protected by trade secret and other statutes without proper authorization. Neosurge Web Solutions will comply with all requirements of all Federal and State laws and regulations and will comply with orders of any court of competent jurisdiction or regulatory agency with authority over Neosurge Web Solutions or its business. The subscriber agrees to indemnify and hold harmless Neosurge Web Solutions from any claims resulting from such compliance or the use of the service which damages the subscriber or any other party.

Examples of unacceptable content include, but are not limited to, the following:

• Pirated software, including warez or any other commercial software which you do not have the legal right to distribute;
• Serial numbers and cd keys for commercially available software which you do not have the legal right to distribute;
• Music (.mp3, .wma, .ogg, etc.), Movies and Television shows (.mpg, .avi, .wmv, etc.), images (.jpg, .gif, .png, etc.) or compressed files or archives containing such files (.zip, .rar, .tar, etc.) which you do not have the legal right to distribute;
• Child pornography, rape, or bestiality;
• Security circumvention software or archives;
• Any content that facilitates in identity theft, credit card fraud, or any other type of fraud;
• Torrent files and trackers that facilitate the download of any materials included in this list;
• Any software that facilitates any activity prohibited in this policy.

Any illegal activity may result in your site being suspended immediately, without notification. Any sites breaking the above rules will be subject to a $100 clean-up fee if they are deemed to be unresponsive to our requests.

Neosurge Web Solutions will be the sole arbiter as to what constitutes a violation of this provision.

Neosurge Web Solutions is a strong believer in everyone's right to practice free speech and we do not feel that it is our obligation to rid the Internet of any material which others feel may be inappropriate or offensive. We feel that the right of free speech trumps any other claims of content being inappropriate or offensive as those terms are objective, while the laws of the United States are quite clear. As long as the content is legal, we will not suspend your account without notice, though we do reserve the right to refuse hosting to any party for any reason with proper notice being given.

Violations of system or network security are strictly prohibited, and may result in criminal and civil liability. Neosurge Web Solutions investigates all incidents involving such violations and will cooperate with law enforcement if a criminal violation is suspected.

Examples of system or network security violations include, but are not limited to, the following:

• Introduction of malicious programs into the network or server (example: viruses, worms, Trojan Horses and other executables intended to inflict harm);
• Effecting security breaches or disruptions of Internet communication and/or connectivity. Security breaches include, but are not limited to, accessing data of which the client is not an intended recipient or logging into a server or account that the client is not expressly authorized to access. For purposes of this section, "disruption" includes, but is not limited to, port scans, ping flooding, email-bombing, packet spoofing, IP spoofing and forged routing information;
• Executing any form of network activity that will intercept data not intended for the client's server;
• Circumventing user authentication or security of any host, network or account;
• Interfering with or denying service to any user other than the client's host (example: denial of service attack or distributed denial of service attack);
• Using any program script/command, or sending messages of any kind, designed to interfere with or to disable a user's terminal session, via any means, locally or via the Internet.

Inadequate security, insecure/unpatched software, insecure passwords, etc. are not the responsibility of Neosurge Web Solutions. The client is responsible for assuring that their account is as secure as possible and the account holder accepts all responsibility for actions taken using their allocated resources, whether they are authorized or not. The account holder on file agrees to be held responsible for all bandwidth overage fees, clean-up fees, and managed service fees.

Each shared account includes support for running CGI scripts and programs. You are free to use any CGI software you wish, however we reserve the right to disable any CGI script or other software that affects normal server operation or service to other Neosurge Web Solutions customers on shared hosting accounts. If an account uses scripts which prohibit normal use of the server the account can be suspended without notice. The client will then have an opportunity to repair the problem.

Neosurge Web Solutions strictly prohibits the running of IRCd, eggdrop, or other IRC related scripts, programs, or bots from shared hosting, reseller, and VPS accounts. Such scripts, programs, or bots are allowed on dedicated servers and colocated systems as long as they are not connected to one of the major networks and are not targets for DDoS or similar attacks. If you are running such scripts, programs, or bots you take full responsibility for any and all costs that may be involved in resolving such an attack, with a minimum fee of $50 per incident.

No guarantees are made of any kind, either expressed or implied, as to the integrity of our backups. It is the clients' responsibility to maintain local copies of their content and other stored information. If loss of data occurs due to a failure on Neosurge Web Solutions' part, we take reasonable action to recover the data in-house at no charge to the client. If data loss occurs due to negligence of client in securing their account, by an action of the client, or any actions not under the direct control of Neosurge Web Solutions, Neosurge Web Solutions will have no liability.

Local backups are done nightly on all shared hosting and reseller accounts with bi-weekly backups being kept off site. By default no backups are kept of our backup, VPS, or dedicated server accounts. The customer is fully responsible for assuring that backups are kept. With the dedicated servers, backup space is provided with all accounts, but it is the customer.s responsibility to activate that backup space and to backup their data.

It is the responsibility of the client to assure that the complete contact and billing information on-hand is up-to-date and accurate, including full mailing address and a list of authorized contacts. Neosurge Web Solutions will contact users via the email addresses and/or phone numbers entered by the user and will not be held responsible for the accuracy of this information. Neosurge Web Solutions provides a direct way for all users to verify this information through the control panel. Support services for dedicated server and colocation clients is only rendered to those users whose information is on file as an authorized contact on the account.

You represent and warrant that you are at least 18 years of age.

Neosurge Web Solutions reserves all rights not specifically granted herein.

Neither party will be liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, or other similar event beyond the control of the party affected ("Force Majeure"). If any Force Majeure occurs, the party claiming the Force Majeure will promptly notify the other. The party claiming the Force Majeure will use commercially reasonable efforts to eliminate or remedy the Force Majeure. This Section will not apply to excuse a failure to make any payment when due.

No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.

This Agreement will be governed and interpreted by the laws of the State of Illinois, without regard to its conflicts of law provisions. The parties hereby irrevocably and unconditionally attorn to the non-exclusive jurisdiction of the courts of the jurisdiction where the Premises are located, and all courts competent to hear appeals therefrom.

This Agreement supersedes all previous Agreements and Service Agreement Addendums between the parties. This Agreement and any subsequent Service Agreement Addendums constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEOSURGE WEB SOLUTIONS MAKES NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.