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Terms of Service
Customers using any services offered by Mountain of Success agree to be obligated by and must comply with all policies in this TOS or must otherwise opt out of and cancel their web hosting service with Mountain of Success. Mountain of Success retains the sole discretion to make judgment regarding any violation by any Mountain of Success customer and may take action against any customer deemed to be in violation of these terms including the cancellation of any customer's services without refund and/or, if deemed appropriate, be legally prosecuted.
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General Provisions
In consideration for Mountain of Success maintaining one or more accounts (each "Account"), you, as the Mountain of Success customer, agree to the following terms of service.
Definitions
- "We" "Us" or "Provider" or "Mountain of Success" - Mountain of Success; PO Box 31607; Windhoek; Namibia
- "You" "Your" "Client" "Customer" or "Member" - Each person or entity who applies for internet service or is a designate of anyone who applies for internet service.
Disclaimer of Warranty
The Internet and web site hosting relies on a complex network of hardware, software, network services and providers of information. Due to the need for an aggregate of all of these providers and service companies working properly not all services may be available to you at all times.
Mountain of Success however, offers a 99.9% uptime guarantee. This is valid for only the Mountain of Success servers and our primary co-location internet connection. Mountain of Success shall pursue partnerships with all tier-1 resource and channel available to maintain maximum uptime, however, Mountain of Success is not responsible for any down time caused by any provider's hardware or network malfunction which is outside of Mountain of Success' capability to directly correct. Mountain of Success clients are diverse and their web sites and the function of those web sites are diverse and Mountain of Success cannot be held responsible for any service interruption due to client's error, including but not limited to spamming, the target of a DDOS attack, or any other internet or cyber attack.
Mountain of Success MAKES NO EXPRESS OR IMPLIED WARRANTIES (INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE) WITH RESPECT TO THE SERVICES IT PROVIDES. Neither Mountain of Success nor any one else involved in the provision of Service is liable to you or any third-party for direct or indirect damages resulting from the use, non-use of services provided herein, whether or not such damages resulted from the negligence of Mountain of Success, even if Mountain of Success has been advised to the possibility of such damages.
Limitation of Liability
IN NO EVENT SHALL Mountain of Success BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS, EMAIL DATA AND OR DATABASE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE Mountain of Success' SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF Mountain of Success' SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF Mountain of Success HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Mountain of Success's MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO Mountain of Success FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE LOCAL LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, Mountain of Success LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW
Indemnification
You agree to indemnify, defend and hold Mountain of Success and its affiliates, directors, officers, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto Mountain of Success' servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to Mountain of Success's equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by Mountain of Success's gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.
CHOICE OF LAW
This Agreement shall be interpreted under the laws of Namibia without regard to any conflict of laws provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be venued in the Superior Court of Namibia. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue.
Services Provided by Mountain of Success
Mountain of Success will provide Internet server rental ("the Service") to its members for the express purpose of allowing customers to provide http Internet content to the general public. The Service allows Mountain of Success members to maintain Internet websites, receive and maintain e-mail accounts and access web space via FTP to upload files for their websites. Mountain of Success members will use the provided services in a manner consistent with any and all applicable laws. Mountain of Success provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such Services. Mountain of Success reserves the right to refuse service to potential and/or existing customers to protect its existing paying customers. If any of the below violates are committed, Mountain of Success can terminate client's account without notification.
Mountain of Success provides timely web site hosting support to our clients through emails, chat and phones. By accepting your client contract agreement with Mountain of Success You agree not to abuse whether verbally or physically or whether in person, via email, live chat or telephone or otherwise (a) any other customer of Mountain of Success and any employee or contractor of Mountain of Success.
- Client Content:
Client agrees that web pages and files uploaded to servers will not violate any state, national or foreign laws or regulations; infringe on any intellectual property rights of Mountain of Success or any third party; be defamatory, slanderous or trade libellous; be threatening or harassing; be discriminatory based on gender, race, age; promote hate; or contain viruses or other computer programming defects which result in damage to Mountain of Success or any third party. Customers may not run IRC, bots or clients. Clients may not use Mountain of Success servers for file storage unrelated to the client's web site, storage Space is for active web site file pages only. Mountain of Success's shared hosting account holders may not act as a reseller, which means that clients may not host any web sites in their addon domains that are not domains owned by the client on record atMountain of Success. Unacceptable uses alsoinclude: Bulk unsolicited emailing, unsolicited e-mailings, newsgroup spamming, child pornography, hardcore pornography or links to such sites, copyrighted MP3, copyrighted music, copyrighted video, illegal content, copyright infringement, trademark infringement, warez, cracks, software serial numbers, proxy(ies) and image/file sharing web sites. Mountain of Success will be the sole and final arbiter as to what constitutes a violation of this policy. Mountain of Success does not normally monitor the contents of clients servers, however if suspicion occurs, Mountain of Success reserves the right to investigate and terminate the clients subscription to the service.
- Unlimited Features:
What do you mean by "unlimited disk space and bandwidth/data transfer"
We do not set limits on the disk space and bandwidth (data transfer) that we provide in plans that are marked "Unlimited". We want you to have the resources available to you to build a great online presence.
Even though we want you to succeed, we need to ensure that we're providing all of our customers with optimum service. As such we do require all of our customers to be fully compliant with our Excessive Resource User Policy/Terms of Service and utilize disk space and bandwidth related to normal operation of a personal or small business web site.
If a customer's hosting account is found to have violated the client content, excessive resource user policy and/or is storing files for archiving purposes, the contents will be removed and while we take every effort to contact customers before hand, this can occur without notice.
- Excessive Resource User Policy:
Resources are defined as bandwidth, memory and/or processor utilization. Mountain of Success offers a shared web hosting service in which environment customers may share resources with other customers, therefore it is imperative that Mountain of Success control any excessive usage by customers so that they do not disrupt the service quality of other customers using the same resources. A website is considered using "Excessive amounts of resources" when it monopolies the resources available using 8% or more of Mountain of Success system resources for longer than 60 seconds. There are numerous issues that could cause such problems, including but not limited to: cgi scripts, FTP, HTTP, etc. Any site that consumes over the account limit of bandwidth is also considered an "excessive resource" user. In the event of excessive resource usage Mountain of Success may act in the following manner: if the excessive usage may cause a disruption of service to any other customer, Mountain of Success may suspend that customer's account prior to notify that customer, Mountain of Success may also contact the "excessive usage" customer prior to taking any action if Mountain of Success feels that the excessive usage will not interfere with the service of any other customer. Client suspensions prior to notification by Mountain of Success is rare and is only implemented in extreme circumstances and is intended to prevent the misuse of our servers. Mountain of Success's will be the sole and final arbiter as to what constitutes a violation of this policy.
- No "Spam":
UCE/UBE or "Spam" originating from a server located on our network or associated with a Mountain of Success server is not tolerated. This includes any e-mail that promotes web sites hosted on a server located on the Mountain of Success network but is sent from an e-mail address not associated with that Mountain of Success account. Client shall not use their Mountain of Success services for chain letters, junk mail, bulk-email, or any use of distribution lists to any person who has not given specific permission to be included in such a process. Mountain of Success reserves the right to deactivate or terminate any account(s) upon any indication of such activity without notice.
- Excessive Exploits
Mountain of Success allows 3rd party scripts to be uploaded/installed from our auto-installer or manually (those scripts that are/aren't included in the auto-installer) on your web hosting account. It is the responsibility or our web hosting clients to maintain the latest exploit free version of the scripts. If a script that our web hosting clients uploads to our servers is found to have security lapses and allows a third party to "hack", "exploit", "deface" their site(s) it is the responsibility of our clients to either remove that script or Mountain of Success reserves the right to terminate that clients' account and provide them with a prorated refund.
- False Information:
Customer agrees not to post false or inaccurate information to news groups in violation of the news groups rules and regulations. If any news groups or service provider contact Mountain of Success concerning unethical, false or unlawful activities by you, Mountain of Success reserve the right to suspend or terminate your service with or without notice.
- Licensed Software Only:
Client agrees to use only properly licensed third party software in connection with Client's use of the Services.
- Back-Up Files:
Mountain of Success provides the tools needed to create back ups of account data. Mountain of Success also backs up its servers and retains a copy for 24 hours for disaster recovery purposes only. It is the responsibility of the customer to keep up-to-date archives of their backed up data. Mountain of Success does not provide or keep records or copies of our clients web site files for customer use and is not responsible for any loss of data.
Payment, Renewal, Cancellations
- Payment Obligations:
Full payment is required in advance before hosting service is established. Mountain of Success sends out invoices that are due every pay period. You are given fifteen (15) days to fully pay the invoice.
You warrant and represent that the information you supply in the Order Form (or other information that Mountain of Success may require) is accurate and truthful. All payment-due notices will be sent by e-mail. No bills or invoices will be sent by postal mail or fax. If payment was not received by the due-date, your account will be suspended. It is the client's responsibility to ensure that payment is made to Mountain of Success prior to the renewal date and although Mountain of Success sends renewal notices to our customers prior to their renewal date, because of the ability for a customer to change their contact email addresses without notifying Mountain of Success, the customer is ultimately responsible for remembering their renewal date and to make sure payment is made upon the renewal.
- Renewals:
It is the obligation of the Mountain of Success customer to know when their account comes up for renewal and if their intention is to non renew their account they must log a cancellation request 5 business days prior to their account's renewal date to ensure that Mountain of Success billing department receives the cancellation request well in advance of the renewal date so that they can stop any renewal charges. Mountain of Success clients receive email notification 15 days prior to the renewal date of their account informing them that their renewal date is approaching. It is the customer's responsibility to ensure that Mountain of Success has a valid email address for which we can send out renewal notices to our clients. If Mountain of Success does not receive a cancellation request prior to the customer's renewal we will renew the clients' account on the renewal date and we will apply the appropriate charges. Accounts will be automatically renewed under the same time and fee structure as the plan that the client signed up for (unless plan changes were made or upgraded between the time when the client signed up & their renewal date). The 30 day money back guarantee applies only to the start date of the clients' service with Mountain of Success and does not apply to renewals of service.
- Late Fees:
Clients have the option to pay an invoice at any time by logging into their Mountain of Success account and submitting a payment. An invoice that is not paid by the due date is automatically marked overdue in the system. If an invoice is overdue by more than four days (the grace period), the account is automatically suspended and a $15.00 late fee is added to the account. To reactivate an account that is suspended for failure to submit a payment within the grace period, a payment for the original invoiced amount plus $15.00 must be submitted to Mountain of Success.
- Cancellation & Refunds:
Should you become dissatisfied with our services within the first 30 days of your account activation, Mountain of Success will refund your hosting fee subject to the money back guarantee terms listed in this agreement. Refunds are not available for customers after the 30 days of account activation. You may however cancel your account at any time in order to make sure that your account is not renewed. You will need to contact customer service and verify information before cancellation takes place. You will be charged in full for the entire month in which you cancelled your account. Accounts which have negative balances will be sent to collections and all services will be terminated, including domain registrations. Refunds are never available for domain registrations or any of the other products supplied by Mountain of Success. Domain Names transferred to our service incur an additional year of registration and therefore are considered a domain registration. Domain names of customers which leave our hosting service will be refunded the package price total less the domain registration fee if the customer leaves Mountain of Success hosting service within the 30 day money back guarantee.
In addition refunds are not available for additional services which you may purchase at Mountain of Success for instance an additional domain name we may purchase for a client is not refundable and a dedicated IP which we may setup for a client for a charge is not refundable.
Web site files are the responsibility of the Mountain of Success customer and should a Mountain of Success customer decide to cancel their service it is the customer's responsibility to make sure that they have backed up & downloaded the web site files and any emails from the Mountain of Success server prior to requesting that Mountain of Success cancels their account. Once the cancelation request has been submitted to Mountain of Success a cancelattion of the web site hosting service may occur anytime after the request is received by Mountain of Success and when a cancelation request is completed the client's hosting account with Mountain of Success and their web site files are permenantly removed from the Mountain of Success servers. Therefore again it is the client's obligation to ensure that they have downloaded their web site files and any emails from the server prior to their cancelation request.
99.9% Service Level Agreement " SLA"
Mountain of Success offers its clients a 99.9% network uptime guarantee for customer satisfaction purposes and also to ensure that your business is running problem free. Mountain of Success will try to maintain maximum uptime. Mountain of Success is not responsible for any downtime caused by the client.
30-Day Money Back Guarantee
Mountain of Success offers an unconditional 30-day money back guarantee that covers cancellations of a web hosting account made during the first 30 days of service, due to the inability to deliver satisfactory services. As a part of our strive to achieve industry leading customer satisfaction, the customer will be refunded all hosting charges made to their credit card minus any setup fees, domain name costs or any other product sold by Mountain of Success which are non-refundable. The guarantee does not apply to accounts with non-use, misuse, and/or abuse of this agreement. Domain name registrations are also non-refundable.Domain Names transferred to our service incur an additional year of registration and therefore are considered a domain registration. Domain names of customers which leave our hosting service will be refunded the package price total less the domain registration fee if the customer leaves Mountain of Success hosting service within the 30 day money back guarantee. Any questions regarding the 30-day money back guarantee should be forwarded to
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