Last Updated: February 20th, 2015
This site is owned and operated by CMYKreative Co., Ltd., a registered company in Bangkok, Thailand trading as cmykHOSTING (“cmykHOSTING”). Web Hosting services are provided through cmykHOSTING.
This is a Terms of Service Agreement between cmykHOSTING, a wholly owned subsidiary of CMYKreative Co., Ltd., as well as its partners and affiliates on the one hand, and the user of cmykHOSTING’s products and services on the other hand (“Agreement”). In this Agreement “You” and “Your” refer to You as the user of Our Services, or any agent, employee, servant or person authorized to act on Your behalf. “We”, “Us” and “Our” refer to cmykHOSTING, owned and operated by CMYKreative Co., Ltd. as a full-service web hosting company, as well as its subsidiaries and sister companies (collectively, “cmykHOSTING”). This Agreement explains Our obligations to You, and explains Your obligations to Us for the various services or products offered by cmykHOSTING (“Services”). When You use Your account or permit someone else to use it to purchase or otherwise acquire access to additional Services or to cancel Your Services (even if We were not notified of such authorization), You signify Your agreement to the terms and conditions contained in this Agreement.
You agree that cmykHOSTING may modify this Agreement and the Services it offers to You from time to time. You agree to be bound by any changes cmykHOSTING may reasonably make to this Agreement when such changes are made. If You have purchased Services from cmykHOSTING, the terms and conditions of this Agreement shall continue in full force and effect as long as You take advantage of and use the Services. By continuing to use the Services after any revision to this Agreement or change in services, you agree to abide by and be bound by any such revisions or changes.
You agree to maintain accurate information by providing updates to cmykHOSTING, as needed, while You are using the Services. You agree You will notify cmykHOSTING within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by cmykHOSTING to determine the validity of information provided by You will constitute a material breach of this Agreement. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if cmykHOSTING has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, cmykHOSTING has the absolute right, in its sole discretion, to terminate its Services and close Your account.
cmykHOSTING’s Acceptable Use Policy (“AUP”), which is incorporated herein by reference, is applicable to all Services. You should use all Services for lawful purposes only. You agree to maintain Your website in full compliance with the terms and conditions set forth in the AUP. By using any Services, You agree:
At all times, You shall bear full risk of loss and damage to Your server and all of Your server content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of Your server content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your server content; (ii) maintain independent archival and backup copies of Your server content; (iii) ensure the security, confidentiality and integrity of Your server content transmitted through or stored on cmykHOSTING servers; and (iv) ensure the confidentiality of Your password. cmykHOSTING’s servers are not an archive and cmykHOSTING shall have no liability to You or any other person for loss, damage or destruction of any of Your content. The Services offered by cmykHOSTING are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. cmykHOSTING shall have no liability to You or any other person for Your use of cmykHOSTING Services in violation of these terms.
Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“IP rights”) are owned by cmykHOSTING or its licensors, and you agree to make no claim of interest in or ownership of any such IP rights. You acknowledge that no title to the IP rights is transferred to you, and that You do not obtain any rights, express or implied, in the Services, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by cmykHOSTING and all right, title and interest in and to each such Derivative Work shall automatically vest in cmykHOSTING. cmykHOSTING shall have no obligation to grant You any right in any such Derivative Work.
If You have licensed software from cmykHOSTING, cmykHOSTING grants You a limited, non-exclusive, nontransferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time. You agree to not alter or modify the software. You agree You are not authorized to combine the software with any other software program, create derivative works based upon the software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code. cmykHOSTING reserves all rights to the software. The software and any copies You are authorized to make are the intellectual property of cmykHOSTING. The source code and its organization are the exclusive property of cmykHOSTING and the software is protected by copyright law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the software and all rights are reserved by cmykHOSTING.
Any such software and Services are provided to You “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
cmykHOSTING provides some third party software to You for easier account management including, but is not limited to cPanel, Fantastico, Softaculous, etc. Such software is provided on an “as is” as available basis. We do not guarantee that any specific results can be obtained by using such software. cmykHOSTING does not take responsibility for any faults in such software functioning. You agree that Your use of any cmykHOSTING Services shall be used by You in accordance with the terms of any relevant third party licenses. Your failure to abide by any third party license may result in the immediate termination of Your Services by cmykHOSTING.
You can add and use third party software on Your account only if it is compatible with Our servers and is approved by cmykHOSTING. Your use of any third party software is at Your own risk. cmykHOSTING does not control and therefore cannot be responsible for any third party software performance and provides no guarantees that its use will result in any particular outcome or result. cmykHOSTING will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Your use of third party software or products. cmykHOSTING reserves the right, at its sole discretion, to terminate, suspend, cancel or alter Your access to third party software at any time.
You are solely responsible for any license and other fees required by the software providers, for using any third party software installed on Your account apart from the initial account setup.
If You elect to sell or resell advertising or web space to a third party then You will be responsible for the contents of that advertising and the actions of that third party. cmykHOSTING has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current cmykHOSTING policy or agreement. Such content may result in the suspension or in the immediate termination of Your account. You are responsible for monitoring all service renewals and orders. In the event that an error occurs the account holder must notify cmykHOSTING immediately of the error. In no event shall cmykHOSTING be liable to the Account Holder for any damages resulting from or related to any failure or delay of domain registration, transfer or renewal.
All fees for the Services shall be in accordance with cmykHOSTING’s fee schedule then in effect, the terms of which are incorporated herein by reference, and shall be due at the times provided therein. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period. cmykHOSTING may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance for each month or fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due cmykHOSTING remains unpaid fourteen (14) days after such payment is due, cmykHOSTING, in its sole discretion, may immediately terminate this agreement, and/or withhold or suspend Services. There will be a $15.00 fee to reinstate accounts that have been suspended or terminated. All taxes, fees and governmental charges relating to the Services provided hereunder shall be paid by You.
If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchased the products or Services. If You signed up for an annual (or longer) payment plan, and You elected the automatic renewal option, cmykHOSTING will automatically renew Your Services when they come up for renewal and will take payment in accordance with the designated payment method at cmykHOSTING’s then current rates.
If you improperly charge back for web hosting services rendered, we may disable the ability to transfer any of your other cmykHOSTING services away from cmykHOSTING or CMYKreative Co., Ltd.
The initial term of Your agreement with cmykHOSTING shall be as set forth in Your Order Form. The Initial Term shall begin upon commencement of the Services in the Order Form. After the Initial Term, your agreement with cmykHOSTING shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or cancelled by either party as provided in this section.
This agreement may be terminated: (i) by You by submitting a helpdesk ticket under Billing Issues category at least three (3) working days before the account is due to renew; or (ii) by cmykHOSTING at any time, without prior notice, if, in cmykHOSTING’s judgment, You are in violation of any terms or conditions herein; or (iii) in cmykHOSTING’s sole judgment, Your use of the Services places or is likely to place unreasonable demands upon cmykHOSTING or could disrupt cmykHOSTING’s business operations; or (iv) by cmykHOSTING if it so determines that You are or are alleged to be violating the terms and conditions of any other agreement entered into by You and either cmykHOSTING or CMYKreative.
In the event of termination or suspension of Services under the above circumstances, You agree (a) that no pre-paid fees will be refunded to You; and (b) that cmykHOSTING may take control of any domain name associated with the terminated Services, provided such domain name was registered through the domain name registration of either cmykHOSTING or CMYKreative.
You may receive a refund if Your account is cancelled within the initial 14 days after sign up. If the account holder cancels after the time period specified, there will be no refund given. Refunds do NOT apply to dedicated servers, dedicated IP addresses, SSL certificates, renewals, any licenses (WHMCS, cPanel, Fantastico, Softaculous, Windows, etc.) that are not included into the package and are purchased at additional fee, domain registration related fees.
In the event of termination of this Agreement caused by your default hereunder, you shall bear all costs of termination, including any reasonable costs cmykHOSTING incurs in closing your account. You agree to pay any and all costs incurred by cmykHOSTING in enforcing your compliance with this Section. Upon termination, you shall destroy any copy of the materials licensed to you hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, cmykHOSTING may delete all information related to you on the Services.
cmykHOSTING provides Technical Support to You at no additional fee for hosting related issues only. cmykHOSTING has the right to decide what is a hosting related issue and to charge additional fees or refuse support for non-hosting related issues. Any fees paid by You for providing non-hosting related support are non-refundable.
You can request technical support only by opening a ticket trough the HelpDesk system located in the Customer area. cmykHOSTING will have no liability to provide technical support if it is requested in any other way apart from the HelpDesk system. You are solely responsible to use the appropriate HelpDesk category when posting a ticket. cmykHOSTING will have no liability to respond to tickets opened in inappropriate categories. You acknowledge that by asking our technical representatives for technical assistance, You authorize their intervention and operation in Your hosting account.
You must provide cmykHOSTING with all information and access to facilities that cmykHOSTING may reasonably require to provide the requested Technical Support.
You are solely liable for performing and storing a back-up copy of his data, files and hosting account prior to requesting technical support and agreeing to any technical interference or operation, provided by cmykHOSTING. In the event You are not satisfied with the outcome of any technical action You shall be solely responsible for restoring the back-up copies of Your hosting account and uploading Your website. You should not abuse the HelpDesk system. Abuse of the HelpDesk system includes, but is not limited to, excessive number of tickets opened by a single Customer, aggressive and/or harassing behavior, repetitive use of inappropriate categories for posting a ticket, etc. Any abuse of the HelpDesk system may result in warning, HelpDesk access restrictions, hosting account suspension or possible hosting account termination with no refund. cmykHOSTING has the sole right to decide what constitutes abuse of the HelpDesk system.
The web hosting and reseller hosting account and/or related electronic services can only be used for legal purposes under all applicable international, federal, provincial, and municipal laws. The intent of cmykHOSTING is to provide space to serve web documents, not as an off-site storage area for electronic files and is governed by the AUP. Violations of the AUP or any other provisions of this Agreement may result in termination of the Services provided by cmykHOSTING, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of cmykHOSTING based upon the severity of the violation. cmykHOSTING reserves the right to refuse Service if any of the content within, or any links from, the Your website is deemed illegal, misleading, or obscene, or is otherwise in breach of cmykHOSTING’s AUP, in the sole and absolute opinion of cmykHOSTING. You agree that cmykHOSTING shall not be liable to you for loss or damages that may result from its refusal to host your website or provided the Services under this Agreement.
You agree to follow generally accepted rules of “Netiquette” when sending e-mail messages or posting to newsgroups. You are responsible for security of Your password. cmykHOSTING will not change passwords to any account without proof of identification, which is satisfactory to cmykHOSTING, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes You, You understand that cmykHOSTING will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will cmykHOSTING be liable for any losses incurred by You during this time of determination of ownership, or otherwise. You agree to defend (through counsel of Our choosing), indemnify and hold harmless cmykHOSTING from any and all claims arising from such ownership disputes.
While all purchases are processed in US dollars, cmykHOSTING may provide an estimated conversion price to currencies other than US dollars. You acknowledge and agree that the pricing displayed during the checkout process is an estimate. Due to potential slight time delays between actual purchase and the payment settlement, the actual price charged may fluctuate. Accordingly, cmykHOSTING makes no representations or warranties that the actual price will be the same or substantially similar to the actual price You will pay and You waive any and all claims based upon any discrepancy between the estimate and the actual price. In addition, You may be charged VAT, based on the country indicated in Your billing address section. Any amounts to be charged will appear during the checkout process.
The Services offered by cmykHOSTING are being provided on an “AS IS” and cmykHOSTING expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose and non-infringment, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, cmykHOSTING expressly does not warrant that the cmykHOSTING Services will meet Your requirements, function as intended, or that the use of the provided Services will be uninterrupted or error free. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data. No advice or information, whether oral or written, obtained by you from web-hostgin.com shall create any warranty not expressly made herein. You agree that cmykHOSTING will not be liable for any (i) suspension or loss of the Services, except to the limited extent that a remedy is provided under this Agreement; (ii) interruption of business; (iii) access delays or access interruptions to the website(s) provided through or by the Services; (iv) loss or liability resulting from acts of god; (v) data non-delivery, mis-delivery, corruption, destruction or other modification; (vi) events beyond the control of cmykHOSTING; (vii) the processing of Your application for Services; or (viii) loss or liability resulting from the unauthorized use or misuse of Your account identifier or password.
In no event shall cmykHOSTING be liable for any or all direct, indirect, incidental, special, exemplary or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including, but not limited to, negligence or otherwise) arising in any way out of the use of the Services, even if cmykHOSTING is aware of or has been advised of the possibility of such damages.
In addition, You specifically acknowledge and agree that any cause of action arising out of or related to cmykHOSTING or the Services provided by cmykHOSTING must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred.
In addition, You specifically acknowledge and agree that in no event shall cmykHOSTING’s total aggregate liability exceed the total amount paid by You for the particular Services that are the subject of the cause of action.
The foregoing limitations shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of these Terms of Service or Your use of cmykHOSTING or its Services offered.
No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of cmykHOSTING.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge cmykHOSTING and all affiliates of cmykHOSTING, and all officers, agents, employees, and representatives of cmykHOSTING, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Services and Your acquisition and use thereof, including, but not limited to, the provision of the cmykHOSTING products and/or services by cmykHOSTING and its agents and employees. Further, You agree to defend, indemnify and hold harmless cmykHOSTING and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by cmykHOSTING’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Services or your use of the Services, including without limitation infringement or dilution by You or by another using the Services from Your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data You supplied to cmykHOSTING, including, without limitation, any misrepresentation in Your application, if applicable; (v) the inclusion of metatags or other elements in any website created for you or by you via the Services; (vi) any information, material, or services available on your licensed cmykHOSTING website; or (vii), any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of You elsewhere. Should cmykHOSTING be notified of a pending law suit, or receive notice of the filing of a law suit, cmykHOSTING may seek a written confirmation from You concerning Your obligation to defend, indemnify cmykHOSTING. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that cmykHOSTING shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify cmykHOSTING of any such claim promptly in writing and to allow cmykHOSTING to control the proceedings. You agree to cooperate fully with cmykHOSTING during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
cmykHOSTING is a service provider and respects the copyrights and other intellectual property rights of others [and herein incorporates its Copyright Infringement Policy]. To the extent cmykHOSTING receives a proper notice of infringement of copyright, trademark or other intellectual property, cmykHOSTING reserves the right to access, preserve and disclose to third parties any of Your information or data (including personally identifiable information and private communications) related to a written complaint of infringement if cmykHOSTING believes in its sole discretion that such access, preservation, or disclosure is necessary or useful to respond to or otherwise address such complaint.
cmykHOSTING expressly reserves the right to terminate in appropriate circumstances an account or the access rights of a subscriber for repeated copyright infringement. cmykHOSTING also reserve the right to terminate an account or subscriber for even one instance of infringement.
Proper notice of infringement shall include the following information in writing to cmykHOSTING’s designated agent:
Notice of infringement must be sent to cmykHOSTING’s designated agent to receive notification of claimed infringement as follows: Attn: Legal Dept, cmykHOSTING, 99/478 Soi Sukhapiban 2 Soi 25, Dok-Mai, Prawet, Bangkok, 10250 Thailand.
cmykHOSTING expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any account or any Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by cmykHOSTING in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by cmykHOSTING in offering or delivering any Services (including any domain name registration); (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry; (iii) to assist with our fraud and abuse detection and prevention efforts; (iv) to comply with applicable local, state, national and international laws, rules and regulations; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of cmykHOSTING, its officers, directors, employees and agents, as well as cmykHOSTING’s affiliates.
In the event that cmykHOSTING need exercise any of its rights expressed herein to investigate any potential breach or violation of the terms and conditions of this Agreement, service fees may continue to accrue on your accounts, and you will continue to remain responsible for the payment of any service fees that accrue during the relevant period.
Except as otherwise set forth in the UDRP or any similar policy with respect to any dispute regarding the Services provided under this Agreement, Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of California, as if the Agreement was a contract wholly entered into and wholly performed within the State of California. You agree that any action to enforce this agreement or any matter relating to Your use of the Services must be brought exclusively in the United States District Court for the Central District of California, or if there is no jurisdiction in such court, then in a state court in Los Angeles County, State of California.
You agree that any notices required to be given under this Agreement by Us to You will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information You have provided. You acknowledge that it is Your responsibility to maintain current contact information in the account and/or domain name WHOIS information You have provided.
You attest that You are of legal age to enter into this Agreement, in accordance with the laws of Your jurisdiction.
This Agreement, together with all modifications, constitute the complete and exclusive agreement between You and Us, and supersede and govern all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by You except by means of a written document signed by both You and an authorized representative of Us. By applying for cmykHOSTING’s services through the online application process or otherwise, or by using the Services under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without cmykHOSTING’s prior express written consent.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over cmykHOSTING, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, cmykHOSTING may immediately terminate this Agreement.
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.