Hosting Services Terms And Conditions

The use of services from Naked Hosting (hereafter referred to as “Naked Hosting”) constitutes agreement to these terms.

PLEASE READ THE FOLLOWING HOSTING SERVICES TERMS AND CONDITIONS. BY SUBSCRIBING TO NAKED HOSTING’S SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I ACCEPT,” OR CHECK THE APPROPRIATE BOX MANIFESTING YOUR INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE ACCOUNT SET-UP PROCESS. YOU SHOULD PRINT-OUT A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “BACK” BUTTON ON YOUR BROWSER AND DO NOT SUBSCRIBE TO NAKED HOSTING’S SERVICES. NAKED HOSTING AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN.

1. SERVICES

At the time of initial registration, you will select from the list of available services the service plan(s) to which you wish to subscribe (“Services”). All subscriptions to Services are subject to acceptance by Naked Hosting. Your subscription to the Services will be deemed accepted by Naked Hosting when Naked Hosting delivers a confirmation of the subscription to you. Naked Hosting reserves the right to refuse to provide you with any Service for any reason. Naked Hosting also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional services at any time, provided that you agree to pay the then-current fees for such additional services. All additional services shall be considered “Services” hereunder. All Services provided are subject to the terms and conditions of this Agreement.

2. DURATION OF AGREEMENT AND CANCELLATION POLICY

2.1 The Initial Term shall begin upon confirmation of Client’s order or commencement of the Services to Client and receipt of lawful funds. The term’s length is chosen by Client and shall be indicated in the Order Form. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.

2.2 This agreement may be terminated by either party any time prior to the billing period ending cycle, Clients need to use the Cancellation Request Form at http://nakedhosting.com/myaccount, or by Naked Hosting in the event of nonpayment or violation of terms of service by Client at any time, without notice, if in Naked Hosting’s sole judgment Client has in any way breached this Agreement (Termination for Cause).

2.3 Dedicated Server cancellation requires a 30 day notice in writing via email and an official cancellation via the My Account admin area.

2.4 Naked Hosting may also terminate this agreement in its sole discretion at any time for any or no reason (Termination without Cause). No refunds will be issued.

2.5 If Naked Hosting cancels this agreement pursuant to any of the terms outlined in this agreement, with the exception of Termination without Cause pursuant to paragraph 2.3, Naked Hosting shall not refund to Client any fees paid or prepaid in advance of such cancellation and Client shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that Naked Hosting terminates the agreement for cause all prepaid hosting fees will be forfeited and are not refundable.

2.6 Cancellations must be done in writing via the cancellation form provided. Once we receive your cancellation and have confirmed all necessary information with you via e-mail, we will inform you in via email to the email address on file that your account has been canceled. If you do not hear back from us, or do not receive the confirmation email within 24 hours after submitting your cancellation, please contact us immediately via phone. We require that cancellations of service are done through the online form to (a) confirm your identity, (b) confirm in writing you are prepared for all files/emails to be removed, and (c) document the request. This process reduces the likelihood of mistakes, fraudulent/malicious requests, and ensures you are aware that the files, emails, and account may be removed immediately after a cancellation request is processed.

3. ACCOUNT SET UP

Naked Hosting will setup your account upon receipt of payment and the order has passed our fraud screening process. You must provide us with an email address which is not @ the domain(s) you are requesting an account for. This email address will be considered the primary email address on file. All notices and communications will be sent to that email address. It is your responsibility to ensure the email address on file is current or up to date at all times. Providing false contact information of any kind may result in the termination of your account. Dedicated server purchases or orders that we deem high risk, we will require a valid government issued identification and a scan copy of the credit card (front and back) used for the purchase. If you do not provide the required documents in the time frame requested, the order may be considered fraudulent in nature and be denied.

WEBSITE FILE TRANSFERS

Naked Hosting, as a courtesy, will transfer web site files from your previous host to your new Naked Hosting account. We will make every effort to help you move your site files and get your websites functional on your hosting account. Please understand that this service is provided as a courtesy. Naked Hosting makes no guarantees regarding any aspect or portions involved with web site files transfers, or time required to complete an account transfer. Some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult if not impossible to migrate some or all account data. Naked Hosting will put forth our best efforts to help you with this transfer, but in some cases we may be unable to assist you in a transfer of data from an old host.

4. CONTENT

All services provided by Naked Hosting may only be used for lawful purposes. The laws of the State of Nevada, the State of California, and the United States of America apply.

The Client agrees to indemnify and hold harmless Naked Hosting from any claims resulting from the use of our services.

Use of Naked Hosting’s service requires a certain level of knowledge in the use of Internet languages, protocols, and software. This level of knowledge varies depending on the Client’s use of the web hosting services. The Client agrees they have necessary knowledge to create and maintain their website(s). Client agrees that it is not the responsibility of Naked Hosting to provide this knowledge or provide support outside of server and network related issues.

Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of copyright will be immediately removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting services. If you believe that your copyright or trademark is being infringed upon, please email abuse@icertified.net with the information required. Please view our notice and take down procedures.

We respect the intellectual property rights of all parties, and have adopted a policy regarding termination of repeat copyright infringers under the Digital Millennium Copyright Act. Copies of Our Repeat Infringer Policy are available on request to our customers or subscribers.

Shared hosting accounts cannot be used for the sole purpose of storing files. You must have an active website. Using a shared account as a backup/storage device is not permitted, with the exception of one cPanel backup of the same account. Please do not make backups of your backups.

The Client agrees to the UNLIMITED policy for shared hosting accounts located at http://nakedhosting.com/unlimited

Examples of unacceptable material on all Shared and Reseller servers include:

  • Copyrighted material that you do not have a license to distribute
  • AutoSurf/PTC/PTS/PPC sites
  • Bank Debentures/Bank Debenture Trading Programs
  • Banner-Ad services (commercial banner ad rotation)
  • Brute Force Programs/Scripts/Applications
  • Commercial Audio Streaming (more than one or two streams)
  • Escrow/Bank Debentures
  • File Dump/Mirror Scripts (similar to rapidshare)
  • Forums and/or websites that distribute or link to warez/pirated/illegal content
  • Fraudulent Sites
  • Hacker focused sites/archives/programs
  • Hateful/Racist/Harassment oriented sites
  • High-Yield Interest Programs (HYIP) or Related Sites
  • Image Hosting Scripts
  • Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme)
  • IP Scanners
  • IRC Scripts/Bots
  • Lottery Sites
  • Mail Bombers/Spam Scripts
  • MUDs/RPGs/PPBGs
  • Pirated Software/Warez
  • Prime Banks Programs
  • Proxy Scripts/Anonymizers
  • Sale of any controlled substance without prior proof of appropriate permit(s)
  • Sites promoting illegal activities
  • Topsites
  • File Sharing
  • File Upload
  • File Archive
  • Backup
  • Site Mirroring
  • Content Distribution Sites

Examples of unacceptable material on all Dedicated servers include:

  • Copyrighted material that you do not have a license to distribute
  • Bank Debentures/Bank Debenture Trading Programs
  • Brute Force Programs/Scripts/Applications
  • Escrow
  • Forums and/or websites that distribute or link to warez/pirated/illegal content
  • Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com)
  • Hacker focused sites/archives/programs
  • Hateful/Racist/Harassment oriented sites
  • High-Yield Interest Programs (HYIP) or Related Sites
  • Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme)
  • IP Scanners
  • IRC Scripts/Bots
  • Lottery Sites
  • Mail Bombers/spam Scripts
  • Pirated Software/Warez
  • Prime Banks Programs
  • Sale of any controlled substance without prior proof of appropriate permit(s)
  • Sites promoting illegal activities

Naked Hosting’s services, including all related equipment, networks and network devices are provided only for authorized Client use. Naked Hosting’s systems may be monitored for all lawful purposes, including ensuring that use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of Naked Hosting’s system(s) constitutes consent to monitoring for these purposes.

We reserve the right to refuse service to anyone. Any material that, in our judgment, is obscene, threatening, illegal, or violates our terms of service in any manner may be removed from our servers (or otherwise disabled), with or without notice.

Failure to respond to email from our abuse department within 48 hours may result in the suspension or termination of your services. All abuse issues must be dealt with via ticket/email and will have a response within 48 hours.

Potential harm to minors is strictly forbidden, including but not limited to child pornography or content perceived to be child pornography (Lolita)

Any site found to host child pornography or linking to child pornography will be suspended immediately without notice.

Resellers: Your Client’s account in question will be suspended and we will notify you so you may terminate the account. We will further monitor your account activity; more than one infraction of this type may result in the immediate termination of your reseller account.

Shared Hosting and Dedicated Server Clients: Your services will be terminated with or without notice.
Violations will be reported to the appropriate law enforcement agency.

It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of installation method. When at all possible, set the permissions on most directories to 755 or as restrictive as possible. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as user name and password.

5. PROPERTY RIGHTS

As between you and Naked Hosting, Naked Hosting acknowledges that it claims no proprietary rights in or to the content (including without limitation, text, software, music, sound, audio visual works, motion pictures, photographs, animation, video and graphics) supplied by you for use on your web site (“Your Content”). You hereby grant to Naked Hosting a non-exclusive, worldwide and royalty-free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Your Content, solely for the benefit of you and in accordance with Naked Hosting performance of its obligations hereunder.

In connection with performance of the Services and at the sole discretion of Naked Hosting with no obligation, Naked Hosting may provide you with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Naked Hosting or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to you, and other know-how, methodologies, equipment, and processes used by Naked Hosting to provide you with the Services to Client (“Host Materials”). Subject to the terms and conditions of this Agreement, Naked Hosting hereby grants you a limited, revocable, non-transferable, non-exclusive license to use the Host Materials solely in connection with the Services. As between you and Naked Hosting, you acknowledge and agree that Naked Hosting owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any use of the Host Materials is not licensed and strictly prohibited. You agree that you will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express written permission to do so from Naked Hosting.

This Agreement does not constitute a license to use Naked Hosting’s trade names, service marks or any other trade insignia. Any use of any of Naked Hosting’s trade names, services marks or any other trade insignia shall be subject to Naked Hosting’s prior written consent.

6. ZERO TOLERANCE SPAM POLICY

Naked Hosting has a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. “Safe lists” and purchased lists will be treated as spam. Any user who sends out spam will have their account terminated with or without notice.

Please read our full spam policy at http://nakedhosting.com/spampolicy

Sites advertised via SPAM may not be hosted on our servers. This provision includes, but is not limited to SPAM sent via fax, email, instant messaging, or usenet/newsgroups. No organization or entity listed in the ROKSO may be hosted on our servers. Any account which results in our IP space being blacklisted will be immediately suspended and/or terminated with or without notice.
Naked Hosting reserves the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with its established policies, or to make any such modifications in an emergency at its sole discretion.

Naked Hosting reserves the right to charge the holder of the account used to send any unsolicited e-mail a cleanup fee or any charges incurred for blacklist removal. This cost of the cleanup fee is entirely at the discretion of Naked Hosting.

7. PAYMENT

You agree to supply appropriate payment for the services received from Naked Hosting, in advance of the time period during which such services are provided. You agree that until and unless you notify Naked Hosting of your desire to cancel any or all services received, those services will be billed on a recurring basis.

As a client of Naked Hosting, it is your responsibility to ensure that your payment information is up to date, and that all invoices are paid on time. Naked Hosting provides a 10 day grace period from the time the invoice is generated and when it must be paid. Any invoice that is outstanding for 10 days and not paid will result in a $10 late fee and/or an account suspension until account balance has been paid in full.

Invoices that have been paid more than once with multiple PayPal Subscriptions can only be added as credit towards the account and cannot be refunded via PayPal.

Naked Hosting will not responsible for any banking fees incurred by use of a check card with a Visa or Master Card logo for recurring services. If a recurring charge causes your bank account to be overdrawn, Naked Hosting shall not be responsible for any fees incurred.

Naked Hosting reserves the right to change the monthly payment amount and any other charges at any time.

You agree to pay any taxes, including personal property, value added, or sales taxes, resulting from your use of the Services. If Naked Hosting should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, Naked Hosting will invoice you for the difference between payment received and the Fees due. You agree to pay all attorney and collection fees arising from our efforts to collect any past due Fees from you to the extent allowed by law.

7. BACK UPS & DATA LOSS

Your use of this service is at your sole risk. UNLESS OTHERWISE AGREED TO IN WRITING, Naked Hosting DOES NOT MAKE A BACK-UP OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS

8. CANCELLATIONS AND REFUNDS

Naked Hosting reserves the right to cancel the account at any time with or without notice.

Any abuse of our staff in any medium or format will result in the suspension or termination of your services.

Clients may cancel at any time via a cancellation form. Naked Hosting gives you an unconditional 30 day money back guarantee on managed shared hosting and reseller solutions for any Client who paid the first invoice with a credit card or with PayPal.

Dedicated Server cancellation requires a 30 day notice in writing via email and an official cancellation via the My Account admin area.

The following methods of payments are non-refundable, and refunds will be posted as credit to the hosting account:

  • Bank Wire Transfers
  • Google Check Out
  • Epassporte
  • Checks
  • Money orders

There are no refunds on dedicated servers, administrative fees, install fees for custom software, or domain name purchases. Refund requests for shared and reseller accounts after the initial 30 days will be refunded on a prorated basis of any unused time.

Only first-time accounts are eligible for a refund. For example, if you’ve had an account with us before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with us.

Violations of the Terms of Service will waive the refund policy.

9. RESELLER: CLIENT RESPONSBILITY

Resellers are responsible for providing technical and Client service support to their clients. Naked Hosting does not provide support to our Reseller’s Clients. If a reseller’s client contacts us, we reserve the right to place the client account on hold until the reseller can assume their responsibility for their client. All support requests must be made by the reseller on their clients’ behalf for security purposes. Resellers are also responsible for all content stored or transmitted under their reseller account and the actions of their clients’. Naked Hosting will hold any reseller responsible for any of their client’s actions that violate the law or the terms of service.

10. SHARED HOSTING: (non-reseller accounts)

Shared hosting account holders may not resell web hosting. If you intend to resell hosting you must use a reseller account.

11. DEDICATED SERVER POLICIES

11.1 Bandwidth pricing and measurement frequency is subject to change at Naked Hosting’s discretion. Clients affected by such changes will be notified no less than thirty (30) days in advance by Naked Hosting.

11.2 Naked Hosting is under no obligation to compensate Client for downtime, whether the downtime is caused by Client, Naked Hosting, or Naked Hosting’s upstream providers.

11.3 Client agrees that dedicated server payments are NONREFUNDABLE. For example, if Client submits payment for twelve (12) months of service, service will be provided for twelve (12) months and will not be refunded if Client chooses to discontinue service with Naked Hosting mid-way through the term.

11.4 No Refunds will be granted or honored for dedicated servers. 30 day money back guarantee does not apply to dedicated servers.

11.5 Hardware upgrades to an existing server will be performed by Naked Hosting and shall incur a mutually agreed upon fee as well as an increase to Client’s standard monthly rate.

11.6 Naked Hosting reserves the right to alter the dedicated server packages advertised on its website at its discretion. Naked Hosting is not required to upgrade Clients’ hardware or bandwidth allocation as a result of a pricing or service package change. Client will not be required to upgrade hardware as a result of a pricing change.

11.7 For managed services, Naked Hosting is responsible for the security of the network, the kernel, and the base operating system (defined as the standard set of FreeBSD packages that come installed with the server). Naked Hosting may take any steps it deems necessary at any time to protect the security of your server (this generally includes applying security patches as well upgrading the entire operating system).

11.8 Naked Hosting reserves the right to reset the password on a dedicated server if the password on file is not current so that we may do security audits. It is the responsibility of the client to ensure that there is a valid email address and current root password on file for their dedicated server on file to prevent downtime from forced password resets. Naked Hosting reserves the right to audit servers as needed and to perform administrative actions. Dedicated servers are NOT backed up unless a back up is specifically ordered. Having a paid back up service in place still places responsibility on the Client to maintain other backups. It is your responsibility to maintain backups.
Naked Hosting is not responsible for notifying unmanaged servers of the need to apply patches. Failure to comply with these requirements is grounds for termination of contract without refund. Naked Hosting reserves the right to take any action upon unmanaged dedicated servers it deems necessary at any time to protect the security and integrity of Naked Hosting’s network.

11.9 Dedicated Server cancellation requires a 30 day notice in writing via email and an official cancellation via the My Account admin area.

12. RESOURCE USAGE

Naked Hosting does not impose hard set limits each account’s system resources. We do not actively disable accounts until they greatly exceed an acceptable level of usage. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc. Naked Hosting will advise Client of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.

Naked Hosting Clients have the option to add on protection to any shared or reseller hosting plan. Certified insurance will insure an account is never suspended for resource usage.

The following is prohibited:

  • Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons, such as IRCD.
  • Run any type of web spider or indexer (including Google Cash / AdSpy) on shared servers.
  • Run any software that interfaces with an IRC (Internet Relay Chat) network.
  • Run any bit torrent application, tracker, or client. You may link to legal torrents off-site, but may not host or store them on our shared servers.
  • Participate in any file-sharing/peer-to-peer activities
  • Run any gaming servers such as counter-strike, half-life, battlefield1942, etc
  • Run cron entries with intervals of less than 15 minutes
  • When using PHP include functions for including a local file, include the local file rather than the URL. Instead of include(“http://yourdomain.com/include.php”) use include(“include.php”)

12.2 INODES

Naked Hosting does not impose hard set limits with regard to a specific number of inodes. Naked Hosting will advise any Client found having a high number inodes of a temporary block placed on the account. The offending account will automatically be removed from our backup system to avoid over-usage. For every file (a webpage, an image file, email, etc.) on your account, the server uses up one inode.
Accounts that constantly create and delete large numbers of files on a regular basis, have hundreds of thousands of files, or cause file system damage may be flagged for review and/or suspension. The primary cause of excessive inodes seems to be due to users leaving their catchall address enabled, but never checking their primary account mailbox. Over time, tens of thousands of messages (or more) build up, eventually pushing the account past our inode limit. To disable your default mailbox, login to cPanel and choose “Mail”, then “Default Address”, “Set Default Address”, and then type in: :fail: No such user here.

13. BANDWIDTH USAGE

You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount, we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, and terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month.

14. MONEY BACK GUARANTEE

Naked Hosting’s shared and reseller accounts carry an Any Time Money Back Guarantee. If you are not completely satisfied with our services, you will be given a full refund for unused time.

  • Guarantee applies to first time clients only.
    If you have had an account before and received a refund, you will not eligible for any further refunds.
  • Prepaid (discounted) plans who wish to cancel, will be refunded any remaining balance. Balance is calculated using the difference between your original payment and the amount of usage to date. Usage is billed at plan regular monthly rate.
  • Free domain names will charged at full price.
  • Domain name registration is non-refundable.
  • Set Up Fees are non-refundable.
  • Add Ons (Naked Protection, IP Addresses) are non-refundable.
  • Period begins on the date you receive your login information.
  • ~DEDICATED SERVERS PLEASE READ~
    NO REFUNDS PROVIDED FOR DEDICATED SERVERS.
  • Refund is granted at Naked Hosting’s sole discretion.
  • Refund decisions made by Naked Hosting are final. DOMAIN NAMES: Your domain is eligible for transfer after the standard 60 days. After 60 days, you are welcome to transfer you domain to any registrar of your choosing. During the 60 days you can update your name servers to point elsewhere in order to continue use of your domain.

15. UPTIME GUARANTEE

If your shared / reseller server has a physical downtime that is not within the 99.9% uptime you may receive one month of credit on your account. Approval of the credit is at the discretion of Naked Hosting dependent upon justification provided. Third party monitoring service reports may not be used for justification due to a variety of factors including the monitor’s network capacity/transit availability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services. To request a credit, please contact downtime@nakedhosting.com with justification. All requests must be made in writing via email. Uptime guarantees only apply to shared / reseller solutions. Dedicated servers are covered by a network guarantee in which the credit is prorated for the amount of time the server is down which is not related to our uptime guarantee.

16. PRICE CHANGE

The amount you pay for hosting will never increase from the date of purchase. We reserve the right to change prices listed on nakedhosting.com at any time, without notice, and the right to increase the amount of resources given to plans at any time. It is the Client’s responsibility to check our website for plan or price changes. Naked Hosting does not automatically update Client’s plans. All upgrades or downgrades will be performed at the request of the Client.

17. COUPON/PROMO CODES

Discounted coupon or promotional codes are valid for first-time customers only. Unless otherwise stated, codes may not be used towards the purchase of a domain registration. If you have had an account with us previously you may not resign up for that same domain using another coupon at a later date. Any account found in violation of these policies will invoiced appropriately. Any invoices generated for misuse of coupon/promos codes are due on receipt. Nonpayment of open invoices will result in account suspension. Coupon/Promo code abuse will not be tolerated and may result in the suspension or termination of the account.

18. INDEMNIFICATION

You agree to defend, indemnify, and hold Naked Hosting and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach of your covenants under this Agreement; (b) your use of the Services; (c) all conduct and activities occurring under your user ID and password; (d) any item or service sold or advertised in connection with Your Content or your information and data; (e) any defamatory, libelous or illegal material contained within Your Content or your information and data; (f) any claim or contention that Your Content or your information and data infringes any third party’s patent, copyright or other intellectual property rights or violates any third party’s rights of privacy or publicity; (g) third party’s access or use of Your Content or your information and data; (h) any violation of the applicable Acceptable Use Policy; (i) to the extent applicable, Your Content complies with Title 18, U.S.C. s. 2257 and that all models depicted in the Your Content are over the age of eighteen (18); (j) Your Content does not contain any images which constitute child pornography, obscenity, bestiality, actual depictions of violence, or are otherwise illegal in the United States of America; and (k) all representations and reproductions of any aspect of the likeness of actual people in the Your Content have been duly authorized and permitted by the persons depicted. Naked Hosting reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from you, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Naked Hosting, which shall not be unreasonably withheld.

19. NO WARRANTIES

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. NAKED HOSTING EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NAKED HOSTING MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES NAKED HOSTING MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS 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.

NAKED HOSTING MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO YOU THAT ARE NOT PART OF THE SERVICES (“THIRD-PARTY SERVICES”). NAKED HOSTING HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE THIRD-PARTY.
NAKED HOSTING MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NAKED HOSTING OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE.

UNLESS OTHERWISE AGREED TO IN WRITING, NAKED HOSTING DOES NOT MAKE A BACK-UP OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE YOU TO MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS.

20. LIMITATION ON LIABILITY

YOU ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEB-SITE AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL NAKED HOSTING BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB-SITE AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB-SITE AND/OR BUSINESS.
THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL NAKED HOSTING, OUR AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON THE SERVICES (“AFFILIATES”), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF NAKED HOSTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE TOTAL AGGREGATE AND MAXIMUM LIABILITY OF NAKED HOSTING AND THE AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS YOU HAVE PAID TO NAKED HOSTING DURING THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.

21. GENERAL PROVISIONS

A. Governing Law. This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of the State of Nevada, excluding its conflict of law provisions. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Nevada. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Clark County, Nevada.
B. Arbitration. If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in Clark County, Nevada and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees. Each party shall bear its own attorneys’ fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorney’s fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law.
C. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.
D. Severability. If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
E. No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
F. Complete Agreement. This Agreement (including the Acceptable Use Policy and Privacy Policy) constitute the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
G. Relationship Between the Parties. Naked Hosting is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
H. Headings. Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
I. Force Majeure. Naked Hosting shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, including Y2K errors or omissions, for so long as such event continues to delay Naked Hosting’s performance.
J. Export. You understand and acknowledge that the software elements of the Host Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that you will abide by such laws and regulations.
K. Government Rights. The software elements of the Host Materials have been developed at private expense and are “commercial computer software” or “restricted computer software” within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
L. Notices Electronic Communications. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of us may communicate with the other by electronic means as described in this Agreement. Each of us agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communication, is legally sufficient to verify the sender’s identity and the communication’s authenticity; (ii) An electronic communication sent by you containing your user identification establishes you as its originator and has the same effect as a document with your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.

22. CHANGES TO THE TOS

Naked Hosting reserves the right to revise its policies at any time without notice.

Last Revised 01/04/10

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