Terms of Service

Last Updated: 8/24/2006

By using DataComm’s service, Customer hereby agrees to DataComm’s Web Hosting Terms of Service (TOS)

Unless otherwise specified, in this TOS, the usage of “us”, “we”, “our”, and “ours” shall refer to DataComm. The usage of “you”, “your”, “they”, and “them” shall refer to the Customer of DataComm.

1. Backups.

1.1. In order to allow us to provide the best service to you, DataComm accounts are backed up daily and weekly. However, these backups are intended for DataComm’s administrative purposes only, to allow us to provide excellent service to our customers. As part of its commitment to first-rate customer service, DataComm always seeks to create complete and accurate backups of customer accounts.
1.2. Even the best and most complete and redundant backup systems can and do fail for a variety of reasons, despite the best efforts of the Web hosting service. THEREFORE, DATACOMM DOES NOT GUARANTEE THE AVAILABILITY, COMPLETENESS, CURRENCY, OR INTEGRITY OF THESE BACKUPS OR THE DATA THEY CONTAIN. Consequently, you must not rely upon the availability, completeness, currency, or integrity of these backups.
1.3. Customers are responsible for maintaining their own backups on their own personal computers or other computers.
1.4. DataComm does not provide any sort of compensation for lost, inaccurate, incomplete, or outdated data in the event that DataComm’s backups do not function properly, regardless of the reason(s) for any such malfunction, even if the malfunction was due to the fault or negligence of DataComm or any of its employees or agents, and regardless of whether DataComm had been informed of the possibility of such malfunction, or any fault or negligence that might cause it.
1.5. In the event that you need to recover data from a backup, DataComm will use reasonable efforts to restore data to your account from the appropriate backup. HOWEVER, PLEASE NOTE THAT THIS SERVICE IS INTENDED TO COMPLEMENT YOUR OWN BACKUPS TO YOUR OWN COMPUTER, AND IS NOT A SUBSTITUTE FOR THOSE BACKUPS. AGAIN, DATACOMM DOES NOT GUARANTEE THE AVAILABILITY, COMPLETENESS, CURRENCY, OR INTEGRITY OF ITS BACKUPS.
1.6. You understand and agree that DataComm’s backup policy does not create any warranties for whose breach DataComm can be held liable.

2. Customer agrees to defend, indemnify, and hold harmless DataComm, and the parents, subsidiaries, successors, assigns, employees and agents of DataComm against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) to which an indemnified party may become subject and which Losses arise out of, or relate to this Agreement or Customer’s use of the Services, and to reimburse an indemnified party for all legal and other expenses, including reasonable attorneys’ fees incurred by such indemnified party in connection with investigating, defending, or settling any Loss whether or not in connection with pending or threatened litigation in which such indemnified party is a party.

3. DATACOMM SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL,SPECIAL OR CONSEQUENTIAL DAMAGES, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, OR LOSS OF DATA RESULTING FROM THE USE OF DATACOMM’S SERVICES BY CUSTOMER OR ANY THIRD PARTIES, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, OR

3.1. ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS.

4. DATACOMM PROVIDES THE SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. DATACOMM DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, AND SUITABILITY OF THE SERVICES AND DATACOMM SHALL HAVE NO LIABILITY THEREFOR.

5. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DATACOMM DISCLAIMS, ALL WARRANTIES, REPRESENTATIONS OR OTHER ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION ACCESSED FROM, OR THROUGH, THIS SERVICE, THE SYSTEMS WHICH PROVIDE IT, AND THE INTERNET, INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS.

6. DATACOMM DOES NOT ASSUME ANY LIABILITY FOR THE COMPLETENESS, ACCURACY, OR USEFULNESS OF ANY INFORMATION DISCLOSED OR MATERIALS ACCESSED THROUGH ITS SERVICES, ITS SYSTEMS, ITS NETWORKS, OR THE INTERNET.

7. No Waiver of Rights by DataComm.

Any failure by DataComm to enforce this Agreement in every instance in which it might apply does not amount to a waiver of any of DataComm’s rights.

8. Force Majeure.

DataComm shall not be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, terrorism, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, magnetic interference, interruptions of electrical power or other utility service, unavailability of any telecommunications or wireless service or connection to any telecommunications or wireless service, or any cause beyond the reasonable control of DataComm.

9. Denial of Service

DataComm reserves the right to refuse or discontinue service to anyone at our sole discretion.

10. Security & Use

10.1. Subscribers must not allow DataComm resources to be used for SPAM or Unsolicited Commercial Email (UCE), hosting of content advertised by UCE, perpetration of security breaches or hacking, network attacks, illegal activities, child pornography, fraudulent activity, Trademark or Copyright infringement, virus distribution, and like activities.
10.2. Subscriber is responsible for any activity conducted on their account, including unauthorized activity by hackers. This includes any TOS violations or bandwidth or transfer usage caused by hackers. DataComm will endeavor to assist Subscriber but DataComm is not responsible for protecting Subscribers from hackers and their actions and use of Subscriber’s account.
10.3. Datacomm does not monitor Subscriber content and activities but reserves the right to disable service or remove content pending investigation of possible TOS violations without first giving notice.
10.4. Datacomm does not issue refunds for terminating service due to suspected TOS violations.

If YOU breach or default on any of YOUR obligations to US under YOUR Agreement with US or any policy contained in that Agreement, YOU understand and agree that such a breach or default may result in the suspension or termination of YOUR account and hosting privileges with US. YOU further understand and agree that the loss of YOUR account and hosting privileges may create negative business, economic, or legal consequences (collectively the “Consequences of Breach or Default”) between YOU and YOUR customers.

YOU hereby agree to assume all responsibility for the Consequences of Breach or Default.

YOU hereby further agree to defend, indemnify, and hold harmless DataComm, and the parents, subsidiaries, successors, assigns, employees and agents of DataComm against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) that are or arise out of the Consequences of Breach or Default, and to reimburse an indemnified party for all legal and other expenses, including reasonable attorneys’ fees incurred by such indemnified party in connection with investigating, defending, or settling any Loss whether or not in connection with pending or threatened litigation in which such indemnified party is a party.