Terms Of Service and Acceptable Use Policy

Terms Of Service:

1. Disclosure to Law Enforcement: Subscriber agrees that HostCherry.com may disclose all subscriber information to any law enforcement agents without consent or notification to the Subscriber. In addition HostCherry.com shall have the right to terminate all services of the Subscriber. 

2. Service Rates: Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Subscriber. For Monthly payment terms, fees for account add-ons begin the next payment term for hosting services and subsequent payments are due on the anniversary date of the payment term for hosting services. For all other payment terms, the Subscriber will be charged for account add-ons for the full months remaining in the current payment term for hosting services and subsequent payments are due on the next anniversary date of the payment term for hosting services. Subscriber is aware that HostCherry.com may prospectively change the specified rates and charges from time to time.

3. Payments and Fees: All payments are final and nonrefundable! Accounts are set up on a prepaid basis. Subsequent payments are due on the anniversary date of the payment term for that term's service. Credit/debit cards will be charged automatically each payment term until a proper request for cancellation is received. There is a $1 declination fee each time a credit/debit card is declined regardless of the reason. If you dispute a charge to your credit/debit card issuer that, in HostCherry.com's sole discretion is a valid charge under the provisions of the TOS and AUP, you agree to pay HostCherry.com an "Administrative Fee" of $100. All payments must be in U.S. currency.

4. Failure to Pay: Subscribers are responsible to keep their e-mail address and credit/debit card information up to date with HostCherry.com to avoid account cancellation if a problem should arise with the processing of payment. Any account not brought current within 48 hours of e-mail notice or exceeding this time frame in any way is subject to suspension. Accounts not paid by due date are subject to a $10 late fee. Service interrupted for non-payment is subject to a $10 reconnect charge. A 10% annually finance charge is assessed to all outstanding balances until payment has been received. Account may be turned over to a collection agency if payment has not been received in full within 30 days. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS. Such termination will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.

5. Account Cancellation: All account cancellation requests must be sent to sales@hostcherry.com and include the following information:

   1.  domain name

   2. ftp password

   3. reason for cancellation

   4. desire date of cancellation

   5. last 4 digits of the credit/debit card used to pay (use postal code if paid by e-check)

   A cancellation confirmation e-mail will be sent to the primary e-mail address on the account. Subscriber's account cancellation is not complete unless Subscriber receives a confirmation e-mail with a cancellation code. A cancellation code can only be generated if the billing information for the Subscriber has been removed from our system.

6. Domain  Registration: If the domain name is registered through a link on the HostCherry.com website, the domain name will be registered at Wild West Domains. Wild West Domains will charge the Subscriber a registration fee for the new domain name. Wild West Domains must be contacted for all issues relating to domain name registration.

7. Domain Record Modification: The domain record modification/transfer process is the complete responsibility of the the domain owner. If you need assistance modifying your domain record, please contact your domain registrar for technical support. HostCherry.com will not provide excessive support resources assisting customers in the domain record modification process. It is important to understand that HostCherry.com has no more power to make modifications to a Subscriber's domain record than a complete stranger would. The domain name owner is completely responsible for the information (including the name servers) that is contained within the domain record.

8. Technical Support Boundaries: HostCherry.com provides support related to issues of the server not functioning within acceptable established parameters. HostCherry.com does not offer support for application specific issues and application/server conflicts with cgi programming, html, asp, php, mysql, or any other such issue.

9. Backups: HostCherry.com performs periodic backups of critical system files for emergency purposes. Subscribers should not rely on HostCherry.com to perform site/data backups for them. Subscribers are responsible for backing up their own data. MySQL backups can easily performed by the Subscriber via the included control panel. Subscribers are advised to backup all of their own files to their local drives.

10. Unsolicited Commercial E-mail (SPAM): HostCherry.com takes a zero tolerance approach to the sending of Unsolicited Commercial E-mail or SPAM over our network. Very simply this means that Subscribers of HostCherry.com may not use or permit others to use our network to transact in SPAM in any way. Violations of this policy carry severe penalties, including termination of service.
    
    

    1. Violation of HostCherry.com's SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, HostCherry.com will initiate an immediate investigation. During the investigation, HostCherry.com may restrict Subscribers access to the network to prevent further violations. If a Subscriber is found to be in violation of our SPAM policy, HostCherry.com may, at its sole discretion, restrict, suspend or terminate Subscriber's account. HostCherry.com reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. HostCherry.com will notify law enforcement officials if the violation is believed to be a criminal offense.

    2. A violation of this policy will result in an "Administrative Fee" of $150 and the Subscriber's account will be terminated. Subscribers who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $175 per hour that HostCherry.com personnel must spend to investigate the matter. Please do not SPAM from your account or even from an outside account that references a domain name that is hosted by HostCherry.com.

11. Personal Account Security: Subscribers are responsible for any misuse of their account. Subscribers must take steps to ensure that others do not gain unauthorized access to their account. It is the responsibility of the Subscriber to keep his/her password secure. Subscribers must keep all scripts within their web space up-to-date and secure on a daily basis. Any vulnerable script found in Subscriber's web space may be disabled or removed from the server without notice at the discretion of management. If Subscriber's web space is hacked due to Subscriber failing to keep all scripts within his/her web space up-to-date and secure on a daily basis, the account may be permanently removed from the server without refund at the discretion of management or all files in Subscriber's web space will be deleted and Subscriber will be required to recreate and reupload Subscriber's files. If Subscriber's web space is hacked a 2nd time due to vulnerable scripts within Subscriber's web space, the account will be permanently removed from the server without refund.

12. Third Party Accountability: HostCherry.com Subscribers will be held responsible and accountable for any activity by third parties, using their account, that violate HostCherry.com's AUP and TOS. Subscribers are forbidden to allow 3rd parties to use their web space unless the Subscriber is a company reseller. Company resellers must take caution when allowing use of their account by third parties. If a user of a reseller violates any of HostCherry.com's policies, the reseller's account may be terminated without refund.

13. Network Usage
    
    

    1. IP Address Usage: Our allocation of IP addresses is limited by ARIN's policies. These policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that we must use name-based hosting where possible.

    2. Data Transfer and Disk Space Usage: Subscriber agrees that data transfer and disk usage shall not exceed the number of megabytes per month for the services ordered by Subscriber on the Order Form (the "Agreed Usage"). HostCherry.com shall have the right to take corrective action if Subscriber's data transfer or disk usage exceeds the agreed usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services. If HostCherry.com takes any corrective action under this section, Subscriber shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that Subscriber exceeds the included allocation, HostCherry.com may, at its sole discretion, collect a deposit, in an amount determined by HostCherry.com, against Subscriber's credit/debit card on file with HostCherry.com.

    3. System and Network Security: Violations of system or network security are prohibited, and may result in criminal and civil liability. Examples include, but are not limited to the following: Unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.

14. Suspension of Service or Cancellation: HostCherry.com reserves the right to suspend and cancel service at any time for any reason without credit or refund. Any violation of policies which results in extra costs will be billed to the Subscriber. (i.e. transfer, space etc.) Prior notification to the Subscriber is not assured. In extreme cases, law enforcement will be contacted regarding the activity.

15. Indemnification: Subscriber agrees that it shall defend, indemnify, save, and hold us harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against us, 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 customer, its agents, employees or assigns. Subscriber agrees to defend, indemnify, and hold us harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with our servers; (2) any material supplied by Subscriber's infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customer from our servers.

16. Disclaimer: We will not be responsible for any damages your business may suffer. We make no warranties of any kind, expressed or implied for services we provide. We disclaim 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 the hosting company and its employees. We reserve the right to revise our policies at any time. Subscriber further acknowledges that the HostCherry.com's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall the company be liable for any special or consequential damages, loss or injury.

17. Amendments: HostCherry.com reserves the right to revise its policies and service(s) at anytime. If you do not agree with any revision to the Agreement or change in service(s), you may terminate this Agreement at any time by terminating your account following the proper cancellation procedure as outlined in this TOS. You agree that, by not terminating the account following any revision to this Agreement or change in service(s), you shall be bound by any such revisions and service changes. The current policy can be viewed 24 hours a day on the HostCherry.com website at http://www.hostcherry.com/policy.html.

Acceptable Use Policy:

1. Illegal Use: HostCherry.com's services may not be used for any purpose that violates any law, whether local, state, federal or international.

2. Fraudulent Activity: Use of HostCherry.com to violate any applicable federal, state, local or international laws is prohibited. You agree that you will not use HostCherry.com to commit a crime or fraud, or to plan, encourage or help others to commit a crime or fraud, including but not limited to engaging in a pyramid scheme, a ponzi scheme, or sending chain letters.

3. Forgery or Impersonation: Use of HostCherry.com to impersonate another user, falsify one's user name, age or identity in e-mail or in any post or transmission to any newsgroup or mailing list or other similar groups or lists is prohibited. You agree that you will not forge any message header of any electronic transmission, originating or passing through HostCherry.com.

4. Copyright or Trademark Infringement: Use of HostCherry.com to send or receive any information which infringes the patents, trademarks, copyrights, trade secrets or proprietary rights of any other person or entity is prohibited. This includes, but is not limited to digitization of music, movies, photographs or other copyrighted materials or software.

5. Adult Oriented / Objectionable Material: We expressly forbid anyone from using our servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable, including, but not limited to, pornographic and swim suit material, racist material, satanic material, and any and all materials of an adult nature. The designation of any materials as such described above is left entirely to the discretion of our management.

6. Unsolicited Bulk E-mail (SPAM): Even though HostCherry.com cannot entirely control what e-mail our customers receive, we do take action against Subscribers that use our servers to send SPAM. If it is brought to our attention that one of our Subscribers is abusing their account regarding SPAM, then we will immediately terminate the offending Subscriber's account under the guidelines of our AUP and TOS.

7. E-mail / News Bombing: Use of HostCherry.com to send a crippling number of files across a network is prohibited.

8. E-mail / Message Forging: Attempting to forged headers or other identifying information is prohibited. Using deliberately misleading e-mail addresses (user@domain.name.NOSPAM) in news postings in order to avoid SPAM e-mail address collectors is allowed.

9. Newsgroup SPAMing: Use of HostCherry.com to post a similar item to more than three newsgroups or mailing lists is prohibited. All post to any newsgroup must be in accordance with that newsgroup's policies.

10. Network Disruptions: Use of the HostCherry.com for any activity which affects the ability of other people to use HostCherry.com Services or the Internet is prohibited. This includes denial of service attacks.

11. Distribution of Viruses: Use of HostCherry.com to intentionally transmit computer “viruses,” worms, “Trojan horses” or other harmful software programs is prohibited. User must make their best efforts to prevent the unintentional transmission of such viruses or other harmful software.

12. Misuse of System Resources: HostCherry.com hosting accounts operate on shared servers. What this means is there are many other domains hosted on one server. Excessive use of shared server resources by one Subscriber could have a negative impact for all Subscribers hosted on that server; therefore, we have certain restrictions regarding system resource usage. Our intent is to provide web hosting for web pages to our Subscribers for convenience of not having to worry about web space and data transfer usage. Subscribers are prohibited from excessive consumption of CPU and memory. Subscribers may not use resource-intensive programs which negatively impact other customers or the performance of the server. If the server performance is seriously deteriorated by Subscriber's use of account resources, HostCherry.com may take corrective action which may, at HostCherry.com's sole discretion, include the assessment of additional charges at the rate of $1 per minute of downtime, disconnection, and/or termination of any and all services.

    • Excessive Resource Usage: Resources are defined as CPU usage, disk read/write usage, disk space usage, bandwidth usage, and memory usage. This policy is only used in extreme cases to prevent misuse and is in effect to keep our servers fast and stable at all times. Subscriber's site shall not use more than 15 simultaneous processes. A single process from a Subscriber's site cannot use more than 10% of CPU or memory resources for longer than 60 seconds. The sum of all processes of a Subscriber's site cannot use more than 10% of CPU or memory resources at any time. Binary files such as images, video and sound (i.e. MP3, WAV, RA, GIF, JPG but not limited to those file extensions) may only account for a maximum of 50% of the bandwidth used by the Subscriber before Subscriber must upgrade to a higher performance solution.

    • Background Running Programs: We do not allow programs to run continually in the background. Port forwarders are not allowed under any circumstances.

    • Unauthorized Processes: Subscribers may not run unauthorized processes from their account due to adverse effects on server load, invitations to hackers/spammers/criminal activity, etc.. This includes but is not limited to:
        

      • IRC bots, bouncers, clients

      • IP spoofers

      • Proxy servers

      • Screened processes

      • Server daemons

      • Port scanners

      • Mail bombers

      • Anonymous mailers

      • lstmrge.cgi

      • Greymatter

      • Movable Type

      • Shell, SSH, Telnet Scripts and Alternatives

      • ICQ clients or any form of instant messaging service

      • Any script that uses & processes a massive number of flatfiles or large flatfile databases
           

    • Multiple Accounts: Subscribers are not allowed to use multiple accounts to avoid overages. (Example: A download company orders two accounts. The company places some files on each account to avoid paying for additional disk space. This is not allowed.)   

    • Chat Rooms: We do not allow Subscribers to install chat rooms. Chat rooms tend to use an excessive amount of systems resources and we cannot allow it as an account option on our shared servers. The chat rooms that we provide are ok to use.

    • Forums: Subscribers are prohibited from installing forums without approval from HostCherry.com. There is generally no cost to run a forum. If the forum uses an excessive amount of system resources, an extra charge will be incurred based on system resources used by the forum. Forum software using flat-file databases (e.g. UltimateBB, YaBB, IkonBoard flat-file version) are strictly prohibited. Forums configured to allow visitors to post without logging in are not allowed under any circumstances.

    • Comment Scripts: Scripts that allow visitors to post comments on your site are allowed only under the following conditions:

      • Subscribers must monitor all comments and take corrective actions within 24 hours for all comments that violate our Terms of Service and Acceptable use policies.

      • Subscribers must delete all comment spam within 24 hours from the time the spam was posted.

      • Subscribers that receive more than 10 instances of comment spam per day must implement a CAPTCHA or remove the comment script.

    • Disk Space: All (90%) of Subscriber's web pages must be 'linked' with files stored on the server. Sites that are being used as storage for backups are prohibited. Sites with massive amounts of automatically generated pages are prohibited; this includes but is not limited to pages created for the purpose of search engine spamming. Sites found to contain no html documents, a large number of unlinked files, or sites being used as mirrors are prohibited. Sites used for the purpose of being a repository for graphics, cgi scripts, multimedia files, or any other type of file are subject cancellation without refund at the discretion of management. Multimedia repository sites are deemed to be sites whose disk space usage for storing binary files exceed 50% of its total usage, either in terms of total size or number of files. Sites with files running from their domain used on other domains are prohibited.

    • E-mail: Maximum mailbox size is 10 MBs. Spam from mailboxes must be promptly deleted. Important e-mails must be downloaded. Sites cannot send more than 100 e-mails per hour nor more than 1,000 per day. Sites that need to send between 1,000 and 5,000 non-SPAM e-mails per day will need to upgrade to a mail server for an additional $40/month. Sites that need to send more than 5,000 non-SPAM e-mails per day must contact the sales department to make special arrangements. Sending a single email to more than 10 recipients is endangering the overall server performance; therefore, each individual e-mail sent by the Subscriber must not have more than 10 recipients.

13. Unauthorized Access: We will strongly react to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include "internet scamming" (tricking other people into releasing their passwords), password robbery, security hole scanning etc. Any unauthorized use of accounts or computers by a user, whether or not the attacked account or computer belongs to us, will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action.

14. Collection of Personal Data: Use of HostCherry.com to collect, or attempt to collect, personal information about third parties without their knowledge or consent is prohibited.

15. Harm to Minors: Use of HostCherry.com to harm or attempt to harm a minor, including but not limited to using HostCherry.com to send pornographic, obscene or profane materials is prohibited.

16. Threats And Harassment: Use of HostCherry.com to transmit any material that threatens or encourages bodily harm or destruction of property or which harasses, abuses, defames, or invades the privacy of any other person or entity is prohibited.

17. Unfriendly Activities: HostCherry.com users must be courteous and respectful at all times. Refrain from obscene, offensive, or rude language. Abusing or harassing other users or staff members by any method is prohibited and will result in cancellation of Subscriber's account. Please respect the rules, others with whom you share the service, and the staff members who work hard to improve upon and provide you these services. Adherence to these guidelines will help to make use of the service a positive experience. If an issue arises that simply infuriates you, please consider canceling your account.