BurlyHost.com, Inc. Acceptable Use Policy

BurlyHost.com, Inc. (or "BurlyHost" or "Burly Host") offers web site hosting and other Internet-related services and outsourcing. BurlyHost offers its customers (also known as "subscribers" or "clients"), and their customers and users, the means to make use of and communicate a variety of data and information, be it public, private, commercial, and non-commercial information. BurlyHost respects that the Internet provides a forum for free and open discussion and dissemination of information, however, when there are competing interests at issue, BurlyHost reserves the right to take certain preventative or corrective actions. In order to protect these competing interests, BurlyHost has developed an Acceptable Use Policy ("AUP"), which supplements and outlines certain terms and conditions of each customer's respective service agreement and is intended as a guide to the customer's rights and obligations when utilizing BurlyHost's services. This AUP will be revised from time to time with appropriate prior notice for any non-urgent conditions that may need to be addressed or clarified at a later time. A customer's use of BurlyHost's services after changes to the AUP are posted on BurlyHost's web site, www.BurlyHost.com, will constitute the customer's acceptance of any new or additional terms of the AUP that result from those changes. With due respect, we will make every effort to notify customers via email and explain the reasons for the changes.

When subscribers obtain information through the Internet, they must keep in mind that BurlyHost cannot monitor, verify, warrant, or vouch for the accuracy and quality of the information that subscribers may acquire. For this reason, the subscriber must exercise his or her best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because BurlyHost cannot monitor or censor the Internet, and will not attempt to do so, BurlyHost cannot accept any responsibility for injury to its subscribers that results from inaccurate, unsuitable, offensive, or illegal Internet communications.

When subscribers disseminate information through the Internet, they also must keep in mind that BurlyHost does not review, edit, censor, or take responsibility for any information its subscribers may create. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information they create is carried over BurlyHost's network and may reach a large number of people, including both subscribers and nonsubscribers of BurlyHost, subscribers' postings to the Internet may affect other subscribers and may harm BurlyHost's goodwill, business reputation, and operations. For these reasons, subscribers are in violation of the BurlyHost policies and the service agreement when they, their customers, affiliates, or subsidiaries engage in the following prohibited activities:

Spamming -- Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming"). It is not only harmful because of its negative impact on consumer attitudes toward BurlyHost, but also because it can overload BurlyHost's network and disrupt service to BurlyHost subscribers. When a complaint is received, BurlyHost has the discretion to determine from all of the evidence whether the email recipients were legitimate recipients of spam or unwanted email. If the recipient did not specifically request an email promoting a service or activity or notice from your site, and it is sent out to multiple recipients, then you should consider that it is unwanted by them, and they did not specifically show interest in receiving said information from you, and it is unsolicited and likely considered spam. For example, any mailing lists run on BurlyHost must require users to have a means to verify the request to be added to the mailing list by having a verification email sent to the email address in question, whereupon the authentic owner of that email account can subscribe or refuse subscription to said list. For this reason, to obtain only addresses of people whom have legitimately subscribed and verified their interest, we recommend that clients do not be obtain pre-existing email lists from another party which sells or otherwise distributes it under the claim it contains interested parties. Therefore, you are strongly encouraged to use a method known as "double opt-in" subscriptions. More information regarding this practice can be found in our knowledgebase.

Intellectual Property Violations -- Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Also, engaging in activity that violates privacy, publicity, or other personal rights of others. BurlyHost is required by law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also BurlyHost's policy to terminate the privileges of customers who commit repeat violations of copyright laws.

Obscene Speech or Materials -- Using BurlyHost's network to advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material. BurlyHost is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through BurlyHost's network and we will make every effort to ensure those responsible are apprehended.

Defamatory or Abusive Language -- Using BurlyHost's network as a means to transmit or post defamatory, harassing, abusive, or threatening language.

Forging of Headers -- Forging or misrepresenting message headers, whether in whole or in part, to mask the originator of the message.

Illegal or Unauthorized Access to Other Computers or Networks -- Accessing illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual's system (often known as both "cracking", or the popular media term of "hacking"). Also, any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity). This includes, but is not limited to the above, as well as attempting to test or circumvent the limitations of the BurlyHost network or servers, security, services, operation, client sites or the like, in an attempt to gain unauthorized access to, obtain information for, or otherwise circumvent or bypass any measures to prevent or remove such abilities which have been put in place, offered or are expressed, for any reason, from such activities which can cause damage or violate the aforementioned conditions.

Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities -- Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mailbombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment.

Facilitating a Violation of this AUP -- Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mailbombing, denial of service attacks, and piracy of software.

Export Control Violations -- Exporting encryption software over the Internet or otherwise, to points outside the United States or where prohibited by law.

Other Illegal Activities -- Engaging in activities that are determined to be illegal, including advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software.

Unacceptable Content -- IRC Bots, Warez, Pirated Software, cracking/hacking content or any sites that promote or provide information about or access to such data, programs or scripts to facilitate such activity, including spam related materials, or links to such sites, file sharing or repository sites, including image hosting sites or remote storage services that are not for personal use or that of the site itself (such as photobucket sites, rapidshare, megaupload, filedump, mirroring and similar sites or services), commercial banner ad rotation and affiliate services, proxy scripts or anonymizers or other web based surfing sites where such a gateway is provided, or any investment, trading, stocks, or other financial institution sites such as Escrow, High-Yield Interest Programs (HYIP, FOREX, egold exchange), banking sites, lottery sites, or any other material or content that promotes, makes access to information or programs or services that otherwise violate our terms or service or are illegal in the state of California or the United States of America.

Other Activities -- Engaging in activities, whether lawful or unlawful, that BurlyHost determines to be harmful to its subscribers, operations, reputation, goodwill, or customer relations.

As we have pointed out, the responsibility for avoiding the harmful activities just described rests primarily and ultimately with the subscriber. BurlyHost will not, as an ordinary practice, monitor the communications of its subscribers to ensure that they comply with BurlyHost policy or applicable law. When BurlyHost becomes aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a web site, implementing screening software designed to block offending transmissions, denying access to any services or data, or take any other action it deems appropriate. We will aggressively pursue civil and/or legal action to impede, cease or remedy any such violation as outlined above, for the sake of our subscribers and our responsibilities as a web hosting provider.

BurlyHost also is aware that many of its subscribers are, themselves, providers of Internet services, and that information reaching BurlyHost's facilities from those subscribers may have originated from a customer of the subscriber or from another third-party. BurlyHost does not require its subscribers who offer Internet services to monitor or censor transmissions or web sites created by customers of its subscribers. BurlyHost has the right to directly take action against a customer of a subscriber. Also, BurlyHost may take action against the BurlyHost subscriber because of activities of a customer of the subscriber, even though the action may effect other customers of the subscriber. Similarly, BurlyHost anticipates that subscribers who offer Internet services will cooperate with BurlyHost in any corrective or preventive action that BurlyHost deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of BurlyHost policy.

BurlyHost also is concerned with the privacy of on-line communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, BurlyHost urges its subscribers to assume that all of their on-line communications are insecure. BurlyHost cannot take any responsibility for the security of information transmitted over BurlyHost's facilities.

BurlyHost will not intentionally monitor private electronic mail messages sent or received by its subscribers unless required to do so by law, governmental authority, or when public safety is at stake. BurlyHost may, however, monitor its service electronically to determine that its facilities are operating satisfactorily. Also, BurlyHost may disclose information, including but not limited to, information concerning a subscriber, a transmission made using our network, or a web site, in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, or governmental request. BurlyHost assumes no obligation to inform the subscriber that subscriber information has been provided and in some cases may be prohibited by law from giving such notice. Finally, BurlyHost may disclose subscriber information or information transmitted over its network where necessary to protect BurlyHost and others from harm, or where such disclosure is necessary to the proper operation of the system.

BurlyHost expects that its subscribers who provide Internet services to others will comply fully with all applicable laws concerning the privacy of on-line communications. A subscriber's failure to comply with those laws will violate BurlyHost policy. Finally, BurlyHost wishes to emphasize that in signing the service agreement, subscribers indemnify BurlyHost for any violation of the service agreement, law, or BurlyHost policy, that results in loss to BurlyHost or the bringing of any claim against BurlyHost by any third-party. This means that if BurlyHost is sued because of a subscriber's or customer of a subscriber's activity, the subscriber will pay any damages awarded against BurlyHost, plus costs and reasonable attorneys' fees.

We hope this AUP is helpful in clarifying the obligations of Internet users, including BurlyHost and its subscribers, as responsible members of the Internet. Any complaints about a subscriber's violation of this AUP should be sent to abuse@BurlyHost.com.

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BurlyHost.com, Inc. Terms Of Service

BurlyHost.com attempts to make your web hosting experience a positive one and facilitate an easy to understand and simple set of guidelines to ensure you understand operations, billing procedures, usage rights, policies, guarantees, and what methods should be used for what type of requests. Below is a generalized outline for you to be aware of and follow:

Customer Contact -- We encourage and require that our clients provide a valid phone contact, email contact and postal mailing address contact on file with us, should we need to contact you regarding any billing/payment issues, abuse issues, notices regarding your account which require action, and any normal type of emergency based contact a hosting provider would potentially need to properly contact a client.

Resource Usage -- Resource usage is a term used to describe the amount of CPU processing and Memory (RAM) usage. While we attempt to offer generous allowances of processing, and while we impose restrictions to prevent a user or their scripts from creating load issues on the server, at times a client may be able to either intentionally or unintentionally circumvent these restrictions and cause CPU or memory loads on the system, which can negatively impact web services or otherwise overstep the boundaries imposed that are intended to retain a stable environment for all users which share a shared, reseller, semi-dedicated or VPS server (note: Dedicated clients are not restricted with the amounts of memory, cpu, processing they can run, as it's their own server). For this reason, we would like to make you aware that no script or process initiated by you may use over 25% of the systems resources that will run for a period longer than 90 seconds. Should a process run longer or consume a higher amount of CPU processing or memory usage, the script's process may be terminated automatically by our system monitor or manually by our staff. Should the script(s) pose continual resource issues, we may be forced to disable access to the script(s) in question. We would then notify the client of the issue, but due to the nature of the issue, we may not be able to provide prior notice of such actions taken (for example, if a script is crashing a service, we would not be able to contact a client and wait for them to resolve the issue, so immediate action would need to be taken and then the client would be notified promptly). Other scenarios are where a site is the target of an attack, where it's affecting other users on the server, where access might need to be limited or disabled to protect the services and other clients, including protecting your own site. We take measures to anticipate, prevent and cope with such scenarios, but in rare instances, such actions could be taken to protect the service should a problem transpire.

Disk Usage -- We impose disk space quotas on all accounts. Upon meeting or exceeding these limits imposed, the system will not allow any new files to be created or written to. You are provided an interface in your control panel to view and be notified of any disk space warnings, so you can take preventative actions to free up space, compress certain files or to upgrade the amount of disk space. Beyond the usage in size, we do impose a generous 100,000 file(s) usage, otherwise known as "inodes". While we allow clients to often step over this number, having the option to notify a client to take action to remedy a usage issue is a right we retain. An inode is a single file or directory, meaning your account would have to house at least 100,000 individual files or directories before it would meet the limits we would impose. This is to protect the file system from becoming full from a single user's extreme usage of a large amount of files, such as certain poorly structured SEO scripts that create physical files on their account for every word or phrase, which often results in several hundred thousand or several million individual files. To combat this, we reserve the right to impose reasonable limits and will notify a client of an issue. We also can recommend alternative and superior methods to offering such technologies, where only a single script and a few lines of code can result in the same SEO friendly "on the fly" matching, without the need for millions of physical files to be created. Please also note that, as a policy, accounts using over 100,000 inodes may not be backed up by our backup system. Finally, be aware, these disk space/inode restrictions do not apply to dedicated server clients.

Bandwidth Usage -- Based upon the type of hosting plan you order, you are allocated a defined amount of bandwidth, which is limited to that amount. You may use up to that amount over the total month that it is tallied. You are provided an interface in your control panel to view and be notified of your bandwidth usage, so you can take preventative action(s) to reduce it if you're getting too close to your limit (such as disabling access to or removing some large file(s) people are downloading). Overages are sometimes overlooked if they are not extreme, but we reserve the right to have our system automatically suspend the site once you exceed this monthly limit, at which time you may request to be upgraded to a hosting plan that offers more bandwidth, or purchase additional bandwidth at a per GIG amount (which we only charge you what we pay our upstream providers -- we do not profit from bandwidth overages). Otherwise, the account, if suspended, may remain in such a state until midnight of the start of the very next month.

Scripts, Programs, Account security -- While BurlyHost makes every effort to ensure the servers are up to date, secure and impose security policies and restrictions, a client's overall site security is based upon how secure their actual scripts are that they decide to use, how often they check those scripts for updates and patch/update them, as well as how they decide to configure the scripts, programs and the overall site and permissions. Additionally, how secure the passwords are they decide to set, how they decide to make what information and data available or accessible, and in what means, and how they store their passwords both on and off the site. Again, we make every effort to ensure the server, services, accounts are secure and add many layers of protection, but the ultimate and most basic element of how secure your site is, will be based upon your understanding of the programs you chose to run, the strength of the passwords you use and how you store that information. Therefore, clients are responsible for these aspects, since they are in control of those elements and decisions, and we can not be held liable for any negative ramifications that could result from failure of a client to properly understand and secure these aspects of their account or how they chose to operate their own site.

Backups/Data Loss -- While BurlyHost makes every effort to ensure the most stable, recent, and error free backup snapshots of all data on the servers exist, the primary intention is for these methods to serve as a disaster recovery protocol. While we treat all data with the utmost importance with respect to both security and data retention, we always recommend operating under the assumption that the only safe and complete backups are the one's you retain yourself. You should never rely upon our data backups as your only means of redundancy, and you should always retain your own personal backups on your local system or network. BurlyHost can not be liable for any loss of data or any missing, incomplete or otherwise corrupt files/data on your account. It is very important that you keep your own backups in the rare event that we are not able to recover the data you may one day need. Your control panel interface offers a means for you to create backups as often and as necessary as possible, so you can have any needed recent data, such as important changes to your site, database updates and backups, and so on. Please note specifics for semi-dedicated and dedicated server accounts below, if you have one of those plans.

Termination Policy -- BurlyHost reserves the right to cancel an account at any time and without notice. However, as a policy, such an action would only be taken in a very rare instance where it was justified, and we would make every effort to contact the client and verify information or to provide notice in the event that an account should need to be canceled.

Cancellations and Refunds -- You may cancel at any time, and without prior notice. Any unused hosting fees will be refunded in a pro-rated amount for any unused portion of hosting time you may have remaining. If your account is in debt, you must pay the current balance to cancel the account. If you are within the first 30 days of the 30 day unconditional guarantee, you will receive a full refund (provided your account wasn't suspended for abuse). The 30 day unconditional refund only applies to new, first-time account holders with us. Please note that any administration fees, install fees, domain name or SSL purchases are non refundable. Dedicated server plans are also non refundable.

Shared and Semi-Dedicated -- It is against our terms of service to resell web hosting accounts on a shared or semi-dedicated hosting plan. These plans are not designed for or intended for a client to resell accounts to other clients. If you wish to resell accounts, you should look at our Reseller Hosting Plans, VPS Hosting or Dedicated Server Hosting Plans.

Reseller Hosting and responsibilities -- As a Reseller, you are responsible for any billing and payments regarding your resold clients. You are also responsible for making an effort to verify the clients you host, if they are fraudulent accounts, spammers, run any type of service or host any type of content that is against any portion of our terms of service and acceptable user policies, and so on. We are not able to verify or run our pre-order checks against your resold clients, and therefore, you should take steps to ensure that the client signing up appears to be legitimate and that you are careful to capture any relevant information upon the order, their site's domain name, order name, country and IP to cross check this information to ensure it appears to be a legitimate order and that if there is abuse by a resold client of yours, that you can take action to suspend or terminate their account and notice if they are attempting to sign up again under another account. Additionally, due to the nature of anonymous reselling, you must provide direct support to your clients. Clients should not contact us directly, and you may then contact us yourself, as the middle-man, regarding any support requests that are relevant to our services. Ultimately, it is your responsibility to ensure your clients abide by our policies and terms outlined on this page.

Semi-Dedicated Hosting -- Due to the unique nature of this service and the expected high data usage, we are not able to guarantee automated backups in every case and you should always retain your own backups. We do offer the ability to have a backup drive or a backup service (for remote backups) for these plans, but in general, the usage and costs and the limited number of overall accounts on the semi-dedicated servers means that we do not offer the backup service, unless specified otherwise for your plan order.

Dedicated Server Hosting -- It is important that you inform BurlyHost of any changes to your server's root password, or, upon notification by our upstream provider of any abuse reports, depending on the urgency of the issue, if we are unable to get a response in a reasonable time frame, we may be required to reset the root password on your server to take action (such as stopping an outgoing network attack that's originating from your server, massive spam emails outgoing or other type of abuses). It is vital that you ensure any email contacts and phone numbers for your personal or business contacts be up to date and working in the rare instance where we need to contact you in such situations. Dedicated Servers are NOT included in our backups in general, so you must either purchase a dedicated server plan with a backup drive, or get a quote on a remote backup service we can provide. Of course, you're also welcome to use a 3rd party service for backups, though we aren't able to guarantee the service or integrity, but that option is there as well. Essentially, you are responsible for your backups and ensuring their integrity, as well as the overall security and reliability of your server, as well as software updates, services, configurations, installs of scripts and softwares, etc., unless you purchase a higher level, fully managed dedicated server where we can do certain checks, monitoring and updates for you, when required.

Plan and Service Pricing -- BurlyHost reserves the right to modify/change its prices posted on the site for plans and services at any time, and without notice. Please be aware, that all hosting plan prices have a price freeze and will NOT go up in cost, even if the new prices posted on the site may later be increased.

Billing/Payments -- When obtaining services from BurlyHost, you are agreeing to be bound by these terms and conditions, and to pay the specified amount charged for said services outlined when using the order form. Payments are to be made in advance, and in accordance with the billing cycle you select upon ordering the service, and not after the service has been supplied. You may request a change of the billing cycle at any time, however it will only take effect after the currently used billing cycle has ended (this saves you money). The billing/payment agreement is in effect until such time as you cancel services with us, or unless we've canceled your service, and this will be billed on a recurring basis in accordance with the billing cycle you've selected. While BurlyHost sends out billing invoices and reminders to the email contact(s) you have on file with us, it is the client's responsibility to ensure that payments are made on time, and that all of your account/billing information is up to date. We provide a 10 day grace period and automatically send out invoice reminders. After the grace period has lapsed, if payment has not been made, the account will be suspended and a late fee of $10 will be applied to the invoice. The account would then remain in suspension until the total amount has been paid.

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Privacy Policy -- BurlyHost will only retain information you provide to us that is necessary for you to obtain an account with us, and for billing purposes, or to otherwise be used as verification of account ownership or abuse/emergency contact information regarding your site. We will not disclose any of your personal or account information at any time, unless ordered to do so by law enforcement or obligated to do so via a court order. Your information is never sold or shared to anyone and is never used for anything that's not related directly to the account you have on us. It is really as simple as that.

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BurlyHost Guarantee

30 Day Money Back Guarantee -- BurlyHost offers an unconditional 30 day money back guarantee on all of our shared, reseller, VPS, and semi-dedicated hosting plans, provided that you do not violate the terms outlined above on this page. We are unable to provide an unconditional money back guarantee on dedicated server plans, but can refund or credit for legitimate reasons, of course. We are unable to refund or provide credit on domain registration services or SSL certificates, though you are free to use your domain(s) and SSL certificate(s) on any provider online and are not forced to retain services with us (you own them, not us). The 30 day unconditional refund only applies to new, first-time account holders with us.

Uptime Guarantee -- Should your shared, reseller, VPS or semi-dedicated server suffer a physical downtime of a major service that does not meet our 99.9% uptime guarantee, then you may contact us and request a credit. Credit amounts may vary based upon the duration of the downtime, type of service down and the frequency of the downtime(s), and may result in a pro-rated credit or a full month's credit over that time. No credit amount may exceed the full month's plan fee you're on. A special note for Dedicated Server Clients; Since dedicated server clients are effectively in charge of their own servers and services, we are therefore only able to be responsible for any network downtime, unless you have purchased a fully managed dedicated server plan, whereupon you can provide other reasonable justification to request a credit. No credit may exceed more than one month's service fee.

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BurlyHost.com, Inc. Legal/Arbitration

Indemnification -- The Customer shall indemnify and hold harmless BurlyHost.com, Inc. from any and all loss, cost, expense, legal fees, and damages on account of any and all manner of claims, demands, actions, and proceedings that may be initiated against BurlyHost.com, Inc. on the grounds that the service or content violates any copyright, proprietary right of any person, state and federal regulations, or contains any matter that is libelous or scandalous.

Warranties/Disclaimer -- With respect to the service to be provided herein, the Customer acknowledges that BurlyHost.com, Inc. makes absolutely no warranties whatsoever, express or implied. As a result, the Customer agrees that BurlyHost.com, Inc. shall not be liable to the Customer for any claims or damages which may be suffered by the Customer, including, but not limited to, losses or damages resulting from the loss of data as the result of delays, non-deliveries, or service interruptions.

Arbitration and Governing Law -- By using or contracting any of the BurlyHost.com, Inc. services or its subsidiaries, you agree to be bound by all terms and conditions herein, and the parties agree that any claim or dispute arising under, out of, in connection with, or relating to, this agreement or any alleged breach thereof, shall be settled by binding arbitration. Any award rendered by the arbitrator or arbitrators shall be final and binding on each of the parties hereto, their successors and assigns, and judgment may be entered thereon in any court having jurisdiction thereon. The parties agree that these methods shall be the sole remedy for any controversy or claim arising out of this agreement and expressly waive their right to file any legal action in any civil court or agency against one another for such disputes, except to enforce an arbitration decision, and that you are also responsible for any and all costs related to such arbitration. This Agreement shall be governed by the laws of California in the United States of America. In the event that any term or provision of this instrument is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this instrument and the agreement which it evidences, shall remain in full force and effect.

Changes to this page -- This page ("Terms of Service", "Acceptable User Policies", "Guarantees", "Legal/Arbitration") or any portion or conditions; BurlyHost retains the right to revise these terms and conditions, or other content, at any time, without notice.

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This Page Was Last Modified June 8, 2008.