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PLEASE READ THIS AGREEMENT BEFORE ORDERING SERVICES. BY ORDERING SERVICES YOU AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND ARE AWARE OF OUR FEE STRUCTURE AND TERMS OF SERVICE.
EXCOGNITO, INC. is the company doing business as "Excognito.com" and "PortalHood.com" TERMS OF SERVICE CONTRACT & ACCEPTABLE USAGE AGREEMENT v.1.0 This WEB HOSTING SERVICE LEVEL AGREEMENT AND TERMS OF SERVICE AGREEMENT ("Agreement") is made and entered between EXCOGNITO, INC. (hereinafter referred to as "EXCOGNITO") and ALL EXCOGNITO, INC. CUSTOMERS CREATING ACCOUNTS VIA WEB SITE WWW.PORTALHOOD.COM, WWW.EXCOGNITO.COM, OTHER RELATED WEBSITES AND/OR TELEPHONE ORDERS FOR WEB HOSTING SERVICES (hereinafter referred to as "Client"), effective as of the signing of this Agreement by the later of EXCOGNITO, INC. or Client. WITNESSETH: WHEREAS, EXCOGNITO, INC., provides web hosting services for web sites and desires to provide web hosting for a website for Client; WHEREAS, Client desires to have a web site hosted or services provided by EXCOGNITO; NOW, THEREFORE, in consideration of the mutual covenants, warranties, and representations herein contained and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, EXCOGNITO and Client agree as follows: Customers of Excognito agree to comply with the terms and conditions set forth below, and upon activation of customers account with Excognito, customer agrees to have reviewed the following terms and agree to be bound by the following terms. The Company reserves the right to change these terms of service, and recommends all subscribers to frequently view this contract. This agreement is structured in accordance to laws of the state of Georgia, and the county of Fulton. This agreement sets out the terms and conditions ("Terms and Conditions") applicable to members of the web hosting network ("PortalHood.com") operated by Excognito, Inc. In order for a customer to be a member of our service, and as a condition for participation, customer must agree to the following Terms and Conditions. In the event a customer breaches or otherwise fails to comply with any provision of these Terms and Conditions then in addition to any other remedy available Excognito, Inc. may terminate the participation of such websites and customers from network. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE. EXCOGNITO, INC. CONTENT AND SERVICES ARE PROVIDED ON "AS IS" AND "AS AVAILABLE" BASIS. EXCOGNITO DISCLAIMS ANY IMPLIED WARRANTIES. EXCOGNITO, INC., ANY OF ITS EMPLOYEES, MANAGEMENT OR AFFILIATES MAY NOT BE HELD RESPONSIBLE OR THUS LIABLE FOR ANY POSSIBLE DAMAGES RESULTING IN USE OR MISUSE OF ANY INFORMATION, CONTENT OR SERVICES PROVIDED BY EXCOGNITO, INC., INCLUDING DIRECT OR INDIRECT, PUNITIVE, AND INCIDENTAL RESULTING FROM ANY FAILURE TO PROVIDE SERVICES, SUSPENSION OF SERVICES, OR TERMINATION OF SERVICES. Scope and Reach of Agreement:
This agreement applies to customers of the following services of EXCOGNITO, Inc. 1.0 Right to Refusal With Out Cause 1.1 Excognito may refuse to accept any customer or any website for participation in the Excognito, Inc. hosting network as determined by Excognito at its sole discretion. 2.0 Modification of Agreement 2.1 Excognito reserves the right to change the Terms and Conditions at any time. It is the customer's responsibility to check these Terms and Conditions from time to time for such changes. In the event the Excognito offers any additional or replacement services then this agreement shall apply to such services in the absence of any new agreement specific to such services which is entered into between the parties. 3.0 Hold Harmless (a) 3.1 The customer agrees to indemnify and hold Excognito, Inc. and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any and all claims and lawsuits for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation of the customer in the Excognito, Inc. hosting network , (ii) operation of the customer's web site or any URL submitted to Excognito, Inc. for participation in the Excognito, Inc. or (iii) otherwise arising from customer's relationship with Excognito, Inc.. The customer also agrees to indemnify Excognito, Inc. for any legal fees incurred by Excognito, Inc., acting reasonably, in investigating or enforcing its rights under this agreement. 4.0 Account Termination 4.1 Excognito, Inc. reserves the right to cancel an account at will at its sole discretion. A customer may terminate an account with Excognito, Inc., given that the following provisions are meeting:
4.1.1 Account is in good standing, all payments have been made; 5.0 Illegal Activity 5.1 Excognito hosting services may only be utilized for lawful purposes. Any actions by the customer that violate state laws, federal, local, or international laws are strictly prohibited, and will result in immediate removal of the customers account, including any files that may be stored within the account. The following activities are forbidden, and will result in immediate dismissal of customer accounts and files. 5.2 Host, or serve any material that contains threatening, unlawful, abusive, obscene, offensive, or otherwise material that Excognito finds inappropriate, will result in removal of services.
5.2.1 The hosting of unlicensed software that is available to the public; 6.0 Agreement Activation 6.1 Customer agrees upon activation of Excognito services that Excognito rates were clearly visible, and have been communicated to the customer. Customer is also aware that rates may change from time to time, and in this case, customer will first be notified before any additional charges are posted on the customers account. 6.2 This agreement is active once the customer has submitted the information located at the Excognito, Inc. Order Forms, and has been approved by Excognito. The duration of this agreement depends on the plan selected by the customer. Plans include, but are subject to change at any time: Monthly Billing, and Yearly Billing. All packages are to be prepaid, as set forth in the product section of PortalHood.com, and if the customer decides to cancel any services before they have utilized services that they have already submitted payment for, customer realizes that a refund is subject to Excognito's approval, or denial. 7.0 Cancellations and the "Risk Free" Money Back Guarantee in Detail - It is important that you read this section before submitting a cancellation form. 7.1 Excognito as earlier mentioned provides an RISK-FREE Money Back Guarantee. This covers payments and pre-payments made within the 30 days after joining Excognito's web hosting services. Our guarantee does not cover any and all setup fees incurred while signing up for Excognito services. In addition, prepayments for long-term web hosting packages will pro-rated before refund is issued. In short, you will be refunded a pro-rated amount less any incurred setup, configuration or over usage costs. Closed web hosting accounts are not eligible for this money-back guarantee if terminated for violation of our Terms of Service or Acceptable Use Policy by Excognito -- regardless if the cancellation form was submitted. The rate quoted during sign up will be used to pro-rate refunds. All cancellation requests must be made via our cancellation request form found at the contact area of our site. The money-back guarantee applies to situations of Excognito's fault that result in you not being satisfied with Excognito services. All Excognito web hosting accounts, come with a variable setup cost between $0.00 and $99.95 which is non-refundable and one-time. 7.2 Refunds are only issued if the cancellation is within the allowed period. The allowed period is defined as: A 30 day period includes all weekends, holidays, business days, and day of purchase. Period begins on day of purchase and ends at the end of the 30 day from the day of purchase. 7.3 While Excognito issues refunds on a regular basis when the above conditions are met and the closed account is in good standing, Excognito reserves the right to refuse a refund at its sole discretion in order to protect itself against abuse of our generous guarantee policy. 7.4 Excognito, Inc. will issue refunds only using the same method of payment that was made to Excognito, Inc. We do not issue cash refunds. 7.5 Accounts must be in financial good standing before they can be closed. You must not have any failed invoices or unpaid invoices on your account. Any invoices due within 72 hours before or after of submitting a cancellation form must be paid before the cancellation will be processed. 7.6 Time from cancellation to completed processing. Due to the process involved in closing an account, it may take up to 14 business days to close your account fully. Refund is the final step in the cancellation process, and will be issued once the remainder of the process is over. Due to our bank and other bank delays, once a refund is issued it will take up to 72 hours for it to be reflected on your bank statement. In certain cases, a cancellation may take longer than 14 business days to complete. And, while The Company will do everything in its power to complete your cancellation on time and issue any due refunds on time, the following are some reasons that cancellations may be delayed:
* A delay in response to questions, or communication sent to you. 7.7 Domain Names - Please see section 8.2 for policies regarding refunds when a free domain name was issued, or a free transfer was issued. 7.8 NON-USAGE OF AN ACCOUNT IS NOT PROOF OF CANCELLATION OF SERVICE. Clients are responsible for full payment on all accounts whether or not the account is or was ever utilized. If a client cancels without using the account outside of the guarantee period, there is no refund allowed. 8.0 Domain Name Services & Registration / Free Registration 8.1 As part of the hosting plans, a domain registration service can be obtained. Please review our domain registration agreement and uniform domain name dispute resolution policy set forth by ICANN. It is the customer's responsibility to check these agreements on a regular basis. 8.2 Excognito, Inc. will, on occasion, register or transfer a domain name for a customer at no cost as part of the package the customer ordered. This domain name will be registered or transferred under Excognito's information and shall remain listed under our contact information until one of two conditions is met: a. The customers account with The Company is over one year old and has no current payment issues, up-to-date billing information and the customer has requested the domain be transferred into their name or b. The customers account is cancelled and the customer is either eligible to continue to receive free registration for the next year or, if not eligible for free registration, is will and does pay for the registration of the domain name. Excognito charges an annual rate of $21.95 for domain registration, renewal and transfer. This rate will be charged when an account is cancelled via refund deduction. 8.3 Excognito, Inc. will utilize the registration systems provide by third parties RegisterFly, Inc. and Network Solutions, Inc. Your domain name usage will be governed by the Terms and Conditions set forth by these third parties. 9.0 Harm to Excognito Servers 9.1 Any attempt to undermine or cause harm to a server or customer of Excognito, Inc. is strictly prohibited. 10.0 Acceptable Use of Services / Acceptable Access to Services 10.1 Excognito, Inc. will strongly react to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include "Internet scamming" (tricking other people into releasing their passwords), password robbery, security hole scanning etc. Any unauthorized use of accounts or computers by a Excognito, Inc. customer, whether or not the attacked account or computer belongs to Excognito, Inc., will result in action against the attacker. Possible actions include warnings, account suspension or cancellation and civil or criminal legal action, depending on the seriousness of the attack. 10.2 Bandwidth Stealing -- Bandwidth Stealing is defined as using a temporary URL to access your website after the first 72 hours of your account, or using the temporary URL as a download link for large files. This is against this Terms of Service agreement and will result in:
a. First offence - suspended account and warning 10.3 CPU usage (or usage of the Central Processing Unit(s)) on the web server your account is hosted on is regulated as follows. Each account is allowed to use 10% of the CPU power at any given time. However, we do enforce and require that all accounts only use a reasonable amount of CPU at any given time. If your account is found to affect other clients on the server, or if your account causes the web server to slow down for any reason, we may suspend your account. We will notify you of this suspension, depending on the circumstances it may be after the suspension has been performed. In this case, we may require that you either upgrade to a dedicated or semi-dedicated web hosting solution, or reduce the amount of load and traffic your web site receives. We may lock specific files or scripts if they are found to be overusing CPU on their own and notify you of this. Any attempt to hide, mask or disguise your usage will result in immediate termination without refund for TOS violation. 11.0 Mutual Contacts - Customer agrees to provide Excognito with accurate, up-to-date and valid contact information at all times. When changing addresses, a customer must notify Excognito within 10 business days of the address change taking effect. Excognito in turn, will provide and maintain contact information on our website at all times, and insure the information is valid. Our goal is an accurate and positive flow of information between our offices and our customers. 12.0 SPAM, Junk Mail, UCE, Chat Rooms, Message Forums and Penalty for Actions 12.1 Commercial advertisements are NOT WELCOME in most discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account suspension or cancellation. See the newsgroup or mailing list's charter for whether advertising is allowed or not. "Spamming" or sending a message to many different off-topic newsgroups is particularly unethical and will be treated as such breach of this ethical policy. 12.2 Sending a message, especially an advertisement, to more than THREE recipients, is by itself UCE/SPAMMING unless the individuals have specifically requested to be added to a mailing list on that topic. E-mail is a person-to-person medium, not a broadcast medium. Excepted are opt-in mailing lists where the recipients have explicitly requested to receive advertisements and have an opt-out option. Proof must be made that recipient has opted-in to receive advertisements and / or newsletters in case of complaint. Customers who are found to be sending UCE or SPAM to more than THREE e-mail address will be TERMINATED WITHOUT REFUND. 13.0 Service Guarantees 13.1 Excognito will guarantee an uptime average of 99.98% across our network and 99.995% network stability uptime. Excognito will pro-rate refunds and credits for downtime on a requested basis. 13.2 Excognito price lock guarantee and feature lock guarantee: Excognito will not raise prices without permission nor will Excognito downgrade features for customers. What you sign up with is what you will continue Excognito service with for your entire contract duration. In certain occasions, Excognito MAY grant additional services for all customers during package changes. 14.0 Refusal of Services 14.1 Excognito, Inc. reserves the right to refuse service to anyone. Customers may only use Excognito, Inc.'s servers for lawful purposes. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene and material protected by trade secrets. Excognito, Inc. expressly forbids anyone from using Excognito, Inc. servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, adult OR pornographic material, or any other material which we deem to be objectionable, including, but not limited to, again - pornography, again - adult materials, satanic materials, and any and all materials of an adult nature. The designation of any materials as such described above is left entirely to the discretion of Excognito, Inc. management. 15.0 Payment, Charge backs and Returned Checks 15.1 Excognito, Inc. does not allow charge backs to occur to its merchant accounts and contracts with VISA / MASTER CARD International, American Express Bank. and Discover Financial Services. It is not recommended to initiate a charge back hence customer agreed to AUP (this document) and Terms & Conditions as outlined in this document and Excognito, Inc. will use this document and customer's agreement at the time of order to wholeheartedly fight a charge back and / or dispute. If customer supplied a valid reason for refund, Excognito, Inc. will gladly apply a refund ONLY if requirements as specified above are met. Any dispute / charge back attempts will immediately result in suspension of web hosting account and another charge applied to the customer credit card under the same order / authorization number. 15.2 Excognito, Inc. will charge posted fees for all new and previous orders. Your fees will be based on the free structure when you created your account. Current pricing can be found at www.excognito.com or at PortalHood.com for an up-to-date list. However, this pricing may vary from the pricing and features on your account. Excognito, Inc. reserves the right to modify and change packages as needed. 15.3 Upon customer account activation, customer agrees to pay on either a 30-day basis, or a 365-day basis. Excognito gives customer 48 hours over payment deadline, and if the payment has not been received customers account will be suspended. * Any customer who provides a credit card charge back in response to a bill and or order placed at Excognito, Inc. will be subject to collections and legal action. Charge backs are NEVER acceptable means of attaining a refund. Further, by ordering an account with Excognito you are bound by these terms and conditions and must follow and agree to them. The following fees will be assessed for all chargebacks:
$25.00 charge back processing fee
If collections action is required, a 22% collections fee will be assessed as well for the total amount. 16.0 Customer Service Surveys 16.1 Service Surveys may be issued. Please be warned, any response to surveys may result in use of your comments/question answers in promotional materials such as our testimonials web page or rotating testimonials. We may also gather aggregated figures and post them. BY CHOOSING TO FILL OUT A SURVEY, YOU CONSENT TO OUR USE OF SAID MATERIAL. If you wish to complete a survey, but do not wish that your response be posted in public please request they are not in the survey and make sure you mark the PRIVATE OPTION which is noted at the bottom of the survey form. Excognito will read and respond to many surveys. By completing a survey, you consent to us contacting you regarding your experience. 17.0 Service Denial 17.1 Excognito may temporarily, or indefinitely deny service of terminate this agreement upon failure to collect payment from customer. Such termination with no payment will result in customer being indebted to Excognito, and customer will be responsible for reasonable interest and collection fees. 18.0 Warranties and representations 18.1 Excognito makes no warranties or representations for the services being offered. Excognito provides hosting services on an "as is" and "as available" basis with no warranties for the services provided to customer. Excognito provides no warranty for connection issues, or uninterrupted service customers may incur while hosting with Excognito. 19.0 Miscellaneous Headings 19.1 This Agreement contains the entire understanding between the parties hereto with respect to the transaction contemplated hereby, and it may not be amended, modified, or altered except by an instrument in writing signed by the party to be charged. 19.2 This Agreement shall be construed under and interpreted in accordance with the laws of the State of Georgia. 19.3 This Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 19.4 The captions and headings contained herein are inserted for convenient reference only, are not a part hereof, and the same shall not limit or construe the provision to which they apply. The Exhibits hereto are hereby incorporated herein by this reference and made a part hereof. 19.5 This Agreement may be executed in counterparts, each of which shall be deemed an original 19.6 Survival of this agreement: This FULL agreement is to survive the holders account by a period of 60 days. 20.0 Press & News Releases * Forward Looking Statements: Any statements in this website that are not historical facts are forward-looking statements that involve risks and uncertainties; actual results may differ from the forward-looking statements. Sentences or phrases that use such words as "believes," "anticipates," "plans," "may," "hopes," "can," "will," "expects," "is designed to," "with the intent," "potential" and others indicate forward-looking statements, but their absence does not mean that a statement is not forward-looking. The Company undertakes no obligation to publicly release the results of any revisions to these forward-looking statements that may be made to reflect events or circumstances after the date hereof or to reflect the occurrence of unanticipated events. 21.0 Limitation of Liability 21.1 Customer agrees that no Excognito Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Excognito at the time) which may exist in the Services or Excognito's equipment used to provide the Services. Under no circumstances, including negligence, shall any Excognito Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Excognito has been advised of the possibility of such damages. No Excognito Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Excgnito's records, programs, equipment or services. Notwithstanding anything to the contrary in this Agreement, Excognito's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. Customer understands, acknowledges and agrees that if Excognito takes any corrective action under this Agreement because of an action of Customer or one if its customer or a Reseller Customer, that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Excognito shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Excognito. This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement. 22.0 Customer Website; E-commerce; Customer Warranties/Guarantees; Advertisements 22.1 Customer shall be solely responsible for any of their extensions to provided hosted service, for the customization, operation and maintenance of Customer's web content, online store and e-commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer's products, including, without limitation (i) the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products, (ii) ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and (iii) ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store. 22.2 Customer shall be responsible for the security and confidentiality of any customer information (including, without limitation, customer credit card numbers) that Customer may receive as a result of its web site or online store. 22.3 Customer represents and warrants to Excognito that Customer owns or has the right to use the Customer Content and material contained therein, including all text, graphics, sound, music, video, programming, scripts and applets, and the use, reproduction, distribution and transmission of the Customer Content and any information and materials contained therein does not, and will not, (i) infringe or misappropriate any copyright, patent, trademark, trade secret or any other proprietary right of a third party, (ii) violate any criminal laws or (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity or violate any other law or regulation. Customer grants Excognito the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services. 22.4 Customer understands that Excognito may include commercial advertisements as part of hosted web sites and that these advertisements contain no implied warranty, testimonial, or guarantee by Excognito on behalf of any third parties' products or services. Customer shall have no rights to or initiate claims upon fees collected by Excognito for said commercial advertisements. 22.4.1 Customer may include commercial advertisements as part of web site content and will soley benefit from fees raised by such activity. 22.4.2 Advertisements published by Customer are the sole responsibility of the Customer. Excognito will be held harmless in any case where Customer advertisements violate the law or cause harm to any party. 23.0 Force Majeure 23.1 Excognito, Inc. shall not be liable for failure or delay in performing it obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services. 24.0 Verification of Agreement & Ratification 24.1 By activating your account, you understand that by placing files on Excognito servers, you are openly offering your files to the public, and that Excognito has no way of limiting this access, and do not warrant the protection of your files. It is your sole responsibility to upload files to your allocated space with discretion, and we strongly recommend that you not upload any personal files or information that you would not publicly post on your website(s). 24.2 Completing order form shall constitute electronic signature of this document. Document is agreed upon by Excognito, Inc. 25.0 Assignment 25.1 Customer shall not have the right to assign this Agreement without the prior written consent of Excognito. This Agreement shall be binding upon and inure to the benefit of Customer and Excognito and their successors and permitted assigns. 26.0 Entire Agreement; Severability of Agreement 26.1 This Agreement, together with the Order Form and any other documents or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supercedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect. 26.2 Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer. 27.0 Contact Details
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