Legal

Web Hosting General Terms and Conditions Agreement
Acceptable Usage Policy
Privacy Policy

Web Hosting General Terms and Conditions Agreement

The Web Hosting General Terms and Conditions Agreement ("Agreement") governs the terms of use of the web hosting service ("Service") described on this website ("http://www.bluepenguinconsulting.com") for use by Customers ("Customer") offered by Blue Penguin Consulting ("Provider"). The Agreement is made between Customer and Provider whenever Service is requested or ordered by Customer. The Agreement is maintained independently of any other agreement between Provider and Customer, even if Provider and Customer are engaged in other Service Agreements or arrangements such as professional services, software development, or web development.

Definitions

Web Hosting. An Internet web hosting service rendered by Provider that includes the installation, maintenance, repair, and the 24 hour Internet connection of one or more shared or physical computers for use by Customer.

Network Transfer. A finite amount of Provider’s network transfer (bandwidth) capability for use by Customer using the Services requested by Customer.

Technical Support. Technical phone and electronic support is provided only to Customer’s authorized Contacts ("Contacts") as listed within Customer's account information. Technical Support does not include computer training, software training, or any other general technical or Internet training.

Fees

Setup fee. Customer agrees to pay in full the amount of any non-recurring one-time setup fees listed in the Service description prior to any server provisioning, equipment acquisition or installation by Provider.

Recurring fee. Customer agrees to pay any recurring fees listed in the Service description one term in advance each anniversary date.

Network Transfer overage fee. Should Customer exceed the total amount of combined network transfer as described in the Service description, Customer agrees that overage fees will apply and be due immediately.

Term. This Agreement shall be effective as long as Customer or Customer's contacts continue to use Provider's Service. Customer shall pay any applicable federal, state or local use, franchise, excise, sales or privilege taxes, duties, fees or similar liabilities chargeable to or against Provider resulting from the services furnished by Provider.

Acceptable Use . Customer’s use of Provider’s services is further governed by the Provider’s Web Hosting “Acceptable Usage Policy” ("AUP") which promotes safe computing practices. Provider may at its sole discretion change, update and revise the AUP.

Account Ownership

Account Owner. The highest authority of a single specific Account is the Account Owner. Individual Services that are associated with an Account, are controlled by the Account and its Account Owner. The Account Owner is established at the time the Account is created. The details of an Account Owner must be that of a real person. It is not permitted to use non-fictious or "fake" names for the details of an Account Owner. Accounts containing non-fictious or "fake" names, and contact details that do not reflect the details of a real person may be suspended or terminated without notice.

Transfer. The Account Owner role can be transfered only to an existing Contact on an Account and only with the permission of the current Account Owner. If the Account ownership role is transferred to another Contact, the previous Account Owner is no longer privelaged beyond the basic privileges of their new role.

Cancellation

Customer can terminate the services with advance notice in writing only to the billing department by mail or e-mail billing@bluepenguinconsulting.com. Customer understands that there will be no reimbursement and no pro-rate if he decides to terminate the services before the end of a prepaid term, regardless of the reason for the termination. Provider can terminate this agreement at the end of a billing period, with a 30 days notice. Provider can terminate the agreement immediately without any compensation if Client does not comply with the "Acceptable use policy" available on-line at this address http://www.bluepenguinconsulting.com/legal.php. Credit card accounts will be automatically renewed unless notified prior to expiration date of service.

Other

Compliance with Law. Customer will use the Services offered by Provider in a manner consistent with all applicable local, state and federal laws and regulations.

Common Carrier. Provider and Customer agree that Provider is solely acting as a common carrier in its capacity of providing services hereunder, is not a publisher of any material or information and has no right to edit or censor the material at the Servers in use by the Customer. Provider is not responsible nor pre-approves any of Customer’s website content. All material submitted by Customer for publication will be considered publicly accessible. Provider does not screen in advance Customer's material submitted to Provider for publication. Provider's publication of material submitted by Customer does not create any express or implied approval by Provider of such material, nor does it indicate that such material complies with the terms of this Agreement.

Availability of service. Customer understands and agrees that interruptions of Web Hosting Services may occur due to scheduled maintenance and repair by Provider, or by strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts , power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other causes beyond Provider's control, as defined by standard practices in the industry. Customer agrees that under no circumstances will Provider be held liable for any financial or other damages due to such interruptions. In no event shall Provider be liable to Customer or any other person for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, loss of income or cost of replacement services. Such failure or delay shall not constitute a default under this Agreement.

Limitation/Disclaimer of Liability. Provider is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider or services its customers may utilize.

DISCLAIMER OF WARRANTIES. PROVIDER'S SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. PROVIDER SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, EVEN IF PROVIDER HAS BEEN ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IF PROVIDER'S SERVICE TO CUSTOMER IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON, PROVIDER SHALL NOT BE RESPONSIBLE FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE, BEYOND THE FEES PAID BY CUSTOMER TO PROVIDER FOR SERVICES, DURING THE PERIOD OF DISRUPTION OF MALFUNCTION.

Indemnity. (a) Customer agrees to defend, indemnify and hold Provider harmless from and against any and all claims, obligations, losses, liabilities and expenses (including reasonable attorneys' fees and costs) incurred by Provider arising from or due to claims made by third parties (including customers of Customer) that are related to or arising out of: (a) false advertising claims against Customer (or customers of Customer), (b) liability claims for products or services sold by Customer (or Customer’s customers) any other transactions between Customer and third parties, or (c) any content submitted by Customer for publication by Provider. The preceding sentence excludes any third party claims due to the negligence of Provider in connection with providing products or services to Customer under this Agreement.

(b) Provider agrees to defend, indemnify and hold Customer harmless from and against any and all claims, losses, liabilities and expenses (including reasonable attorneys' fees and costs ) incurred by Customer arising from or due to claims made by third parties (including customers of Customer) relating to (a) claims alleging Provider’s infringement of the proprietary rights of third parties; or (b) Provider’s contractual relationship with any third party providers of services or products to Provider in connection with the services and products provided under this Agreement. The preceding sentence excludes any third party claims due to the negligence of Customer in connection with the transactions contemplated by this Agreement.

Force Majeure. Provider shall not be liable to Customer or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes including, but not limited to strikes, riots, vandalism, fires, inclement weather, third-party provider outages, cable cuts , power crisis shortages, acts of terrorism, and or uncontrollable acts of God, or other similar occurrences; any law, order, regulation, direction, action or request of the United States government or of any other government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, riots, wars; or strikes, lockouts, or work stoppages or other labor difficulties; failures, shortages, breaches or delays.

Liability of Customer. Any mistakes, accidents, omissions, interruptions, delays, errors or defects in transmission or Service which are caused or contributed to, directly or indirectly, by an act or omission of the Customer or by the use of Customer-provided facilities or equipment, or by the use of facilities or equipment furnished by any other person using Customer's facilities which are connected to Provider’s facilities, shall not result in the imposition of any liability upon Provider and Customer shall pay to Provider any reasonable costs, expenses, damages, fees or penalties incurred by Provider as a result thereof, including costs of local exchange company, labor and materials.

Nondisclosure. Provider and Customer shall use their best efforts to keep the provisions (including price) of the Agreement from the public, competitors, or others who may gain benefit from such knowledge unless required by law to divulge such information to regulatory authorities or unless required in connection with enforcing that party's rights hereunder.

Governing Law/Venue. This Agreement shall be governed by the laws of the State of California. Venue for any action hereunder shall be in San Diego County, California.

Relationship of the Parties. The parties intend that an independent contractor relationship will be created by this Agreement, and that no additional partnership, joint venture or employee/employer relationship is intended – unless otherwise specific in a special agreement.

Taxes. If any federal, state or local governmental entity with taxing authority over the services provided under this Agreement imposes a tax directly on the services provided by Provider to Customer under this Agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then Provider may pass the direct amount of such cost on to Customer, and Customer shall promptly pay such cost.

Waiver. Any party's failure to insist on compliance or enforcement of any provision of this Agreement shall not affect its validity or enforceability or constitute a waiver of future enforcement of that provision or of any other provision of this Agreement.

Attorneys' Fees. If a legal proceeding is commenced to enforce or obtain a declaration of rights under this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys' fees and costs incurred in the proceeding from the non-prevailing party, as well as any reasonable attorneys' fees and costs that the prevailing party incurred prior to commencing the proceeding.

Notices. Any notice under this Agreement may be e-mailed, delivered personally or mailed by registered mail to the addresses written below, or to such other places as the parties may designate in writing.

Data Back-up. Customer is responsible for independent backup of data stored on Provider's servers; unless the Customer’s Web Hosting Service Order includes backup services in which case data backup will be performed under the terms of the specific data backup plan chosen by Customer.

Domain Names. Throughout the course of service rendered to Customer by Provider, Customer will remain the full owner and controlling entity for the Customer's established domain name. Registration and modification of domain name status, including name server location is handled by independent domain name registrars.

Acceptable Usage Policy

This Acceptable Usage Policy (the "Policy") governs, in addition to the Blue Penguin Consulting "Web Hosting General Terms and Conditions Agreement", the terms of use by the ("Customer"), which is defined as any individual, web designer, or third-party consultant granted permissible access by Customer to Customer's account or Blue Penguin Consulting's ("Provider") servers or services.

Customer agrees when using, or accessing Blue Penguin Consulting's services that the following terms and conditions of this policy will be met:

Overview

In order to provide a high class, professional service, we have a few conditions for Customers of our service. Some of these conditions may seem strict, but they insure a safe, functional, and trusted environment for our customers to publish their information on the World Wide Web.

Some example scenarios that may warrant a service suspension:

  • Customer is knowingly or unknowingly hosting pornographic videos or photographs.
  • Copyrighted media such as music or videos are found to be distributed without the copyright owner's consent.
  • Illegal or un-licensed software or 'warez' download sites.
  • A site set up to function as an open http proxy.
  • Large amounts of unsoclicited email (SPAM) are sent using a customer's SMTP service or mail script.
  • An unusual spike in resource usage is detected by our systems resulting in an account far outstripping the allotted resources. To protect the customer, a site may be suspended in order to verify that this resource spike is legitimate.
  • A hacked script or otherwise compromised site is discovered. This condition usually results in one or more of the above conditions.

Some of our competitors do not require their customers to comply with such conditions. If any of our existing or potential customers are unwilling or unable to comply with these conditions, we respectfully invite them to visit one of our competitors.

Web, FTP, Publishing Content Policies

Provider does not allow any of the following content, or links to such content, to be published on Blue Penguin Consulting's Hosting Systems:

  • Content of a pornographic, sexually explicit, or violent nature.
  • Content of an illegal nature (including stolen copyrighted material).
  • Pirated software sites.
  • "Hate sites" or content that could be reasonably considered as slanderous or libelous.

Customers posting any of the above content on their sites will be notified using Customer's current email address on file, and given a 48 hour grace period to make any corrective actions. If no corrective actions are taken, Provider will suspend the services of the hosting account until a resolution is met between Provider and Customer. A repeated violation of this Policy may cause cancellation of service without refund of any fees.

Email Usage Policies

Blue Penguin Consulting does not support unsolicited email messages sent by Customers of our system (also known as junk email or SPAM). Customers sending unsolicited email messages from our system, or through other systems with messages referencing their website, will have all of their services temporarily suspended. They will then be contacted by Blue Penguin Consulting and informed of the suspension before having their services reinstated. A repeated violation may cause cancellation of service without refund of any fees.

Illegal Activities

Customers found using our system for illegal activities, including but not limited to breaking in to remote systems, credit card fraud, theft, vandalism, threats, or violence, will have their accounts immediately canceled without refund of any fees.

Hostnames, IP Addresses

Provider will remain the sole owner of all IP network addresses within the Provider's network. Customer shall not knowingly modify any TCP/IP configuration that will conflict, or otherwise disrupt network service by using configurations not allocated to Customer by Provider. Best effort will be taken to maintain permanency of customer's allocated IP address, however Provider reserves the right to change customer's underlying IP network address during upgrades, security provisioning, or any other network migration service.

Privacy Policy

Blue Penguin Consulting respects the privacy of every individual who visits our websites. This privacy statement provides notice of the standards and terms under which Blue Penguin Consulting protects the privacy of information supplied by visitors to sites on the World Wide Web that are owned and operated by Blue Penguin Consulting. This privacy statement provides notice of our information collection practices and of the ways in which your information may be used. This policy may change from time to time, so please check back periodically to review this information.

A. Personally-Identifiable Information:

Blue Penguin Consulting typically receives specific data about its website visitors only when such information is provided voluntarily, such as when our visitors request information, purchase or enroll for services, open a customer support inquiry ticket, provide resume information for employment opportunities, or send us e-mail. Of course, some of these activities require that you give us information, such as when you make a purchase, use a credit card to pay for services, submit your resume, or request certain types of information. When you provide personally-identifiable information to Blue Penguin Consulting through one of our websites, it will be used to fulfill your specific request. In most cases, you will be given the opportunity to select whether you do, or do not, want Blue Penguin Consulting to use this information for additional purposes. You may also request that Blue Penguin Consulting not use your information by sending an e-mail to privacy@bluepenguinconsulting.com, however, Blue Penguin Consulting reserves the right, in its discretion, to send you bulletins and other important information about your Blue Penguin Consulting services. Blue Penguin Consulting will not, however, sell or trade your personally-identifiable information unless we are authorized or legally required to do so, or in the case of imminent physical harm to the visitor or others. On those Blue Penguin Consulting sites where you may provide Blue Penguin Consulting with credit card or other ordering information via the web, Blue Penguin Consulting protects and secures this information by employing commercially customary web-based security and encryption protocols, examples of which include Secure Socket Layer (SSL) and Secure Electronic Transaction (SET). On those sites where you voluntarily offer any feedback, data, answers, questions, comments, suggestions, ideas or the like, Blue Penguin Consulting will treat that portion of the information as non-confidential and nonproprietary and, except as otherwise expressed in this privacy statement, Blue Penguin Consulting assumes no obligation to protect such information from disclosure.

B. Non Personally-Identifiable (Generic) Information:

In general, Blue Penguin Consulting gathers some generic information automatically. Generic information does not reveal the identity of the visitor. It usually includes information about the Internet address assigned to your computer, the number and frequency of visitors, and the Blue Penguin Consulting sites visited. Blue Penguin Consulting gathers this information for the limited purpose of determining customer service and website needs. We accomplish this by using certain technologies, including "cookies" (a technology that can be used to provide the visitor with tailored information about Blue Penguin Consulting services). Blue Penguin Consulting does not combine information collected in this way with any personally-identifiable information. You can set your browser to notify you when you receive a cookie and you can refuse it; this may however reduce functionality of certain website features.

C. Your Blue Penguin Consulting hosted website, server, bulletin boards, forum, Third-Party Sites:

Information that you disclose in a public space, including on any blog, bulletin board, chat room, or website Blue Penguin Consulting may host for you as part of your Blue Penguin Consulting services, is available to anyone else who visits that space. Blue Penguin Consulting cannot safeguard any information you disclose in these locations. Additionally, Blue Penguin Consulting websites contain links to sites that belong to third parties unrelated to Blue Penguin Consulting. Blue Penguin Consulting cannot protect any information you may disclose in these sites and recommends that you review the privacy policy statements of those sites you visit.

D. Exceptions and Limitations:

Notwithstanding the foregoing and in compliance with applicable laws, Blue Penguin Consulting (i) cooperates fully with state, local, and federal officials in any investigation relating to any content (including personal or private electronic communications transmitted to Blue Penguin Consulting) or purported unlawful activities of any user of the Service, and (ii) takes reasonable measures to protect its proprietary rights. For the limited purposes of accomplishing such cooperation and measures and in compliance with applicable laws, Blue Penguin Consulting may be required to disclose personally identifiable information. In addition, Blue Penguin Consulting may elect to monitor the areas of communication of any kind (i) to satisfy any law, regulation, or government request; (ii) if such disclosure is necessary or appropriate to operate Blue Penguin Consulting; or (iii) to protect the rights or property of Blue Penguin Consulting or others.