Pennywell Corporation Terms of Service

Revised June 24, 2014

Content

All services provided by Pennywell Corporation (Pennywell) are to be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or Local law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, material that jeopardizes national security, or material protected by trade secret or other laws. The subscriber agrees to indemnify and hold harmless Pennywell, from any claims resulting from the subscriber's use of Pennywell's services which damages the subscriber or any other party.

Examples of prohibited content or links include (but are not limited to):

Pennywell will be the sole arbiter as to what constitutes a violation of this provision. Content that does not meet these standards will be removed without prior notice to the subscriber.

Housing of any of the following files is considered a violation of the terms of service:

Commercial Advertising - Email

Advertising & Promotions Limitations

In the following scenarios Pennywell clients are prohibited from advertising, promoting or making claims related to services which are hosted upon infrastructure at Pennywell. This limitation includes what is allowed to be stated on your website, to customers, in promotions and in advertising materials. This limitation applies to claims by the client which relate to services hosted by Pennywell.

Server Abuse

Any attempts to undermine or cause harm to a Pennywell server or subscriber of Pennywell is strictly prohibited including, but not limited to:

You will be held responsible for all actions performed by your account whether it be done by you or by others.

All sub-networks of Pennywell and all servers must adhere to the above policies.

Password Security and Account Authorization

Pennywell provides customers flexibility over their own passwords, account access and authorization procedures. Customers are responsible for selecting the appropriate authentication procedures and selecting the proper information which will be used to authenticate the account. It is the responsibility of the customer to protect the information used to authenticate their account. Account access, password security and server security are the responsibility of the customer. Pennywell will not be liable for any damages, direct or indirect, that result from unauthorized account access, password compromise or hacking.

Bandwidth Measurement and Overage Fees - Internet Data Transfer

Pennywell provides two ways to purchase bandwidth packages for Internet Data Transfer i) Bundled Bandwidth Packages - or - ii) Pay As You Go.

When purchasing a Bundled Bandwidth Package your outgoing bandwidth transfer will be used to calculate your bandwidth usage. Incoming data transfer will not be counted towards your bundled bandwidth usage. If your actual data transfer usage exceeds the amount of your bandwidth package you will be charged a bandwidth overage fee in addition to your Bundled Bandwidth Charge. The bandwidth overage fee will be specified in your order. Currently the bandwidth overage fee is the same as the stated Pay As You Go outgoing bandwidth charge. ($0.05 per Gig)

When purchasing a Pay As You Go bandwidth package, incoming and outgoing data transfer is charged separately at different rates specified when you purchased the bandwidth package. Incoming data transfer is currently free. When using a Pay As You Go bandwidth plan you will only be charged for your actual bandwidth usage.

CDN (Content Delivery Network) Bandwidth and Overage Fees

When choosing to use our Content Delivery Network (CDN) to accelerate your website - as well as images/videos/etc on that website - you are responsible for all bandwidth costs associated with delivery of your content over the public internet. This responsibility includes bandwidth costs incurred due to piracy. Pennywell makes options readily available that can prevent overage charges caused by "hot-linking." When using a CDN, all assets are assigned a CDN URL. There are individuals, or 3rd party sites, that target these asset URLs and serve them without the site owner's permission. We strongly recommend that you take steps to protect yourself, your content, and your invoice from hot-linking. Due to a range of customer preferences, Pennywell does not enable hot-linking protection measures by default. It is recommended that you take measures to protect yourself such as:

1) Constantly monitor bandwidth utilization and verify alerts containing information on abnormal CDN bandwidth usage  2) Implement proactive measures to make accessing your site's source code more difficult

Server Support

Basic support and maintenance of dedicated servers is provided at the discretion of Pennywell. In the case of erroneous instances or support issues extending beyond what we determine to be within the realm of reasonable assistance, support is priced as follows:

Scheduled Maintenance and Downtime

Pennywell will use its commercially reasonably efforts to provide services 24 hours a day, seven days a week. Subscriber acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades ("Scheduled Downtime"); or service malfunctions, and causes beyond Pennywell's control or which are not reasonably foreseeable by Pennywell, including the interruption or failure of telecommunications or digital transmission links, hostile network attacks, or network congestion or other failures. Pennywell will provide at least 48 hours advance notice to the subscriber for Scheduled Downtimes, and will use commercially reasonable efforts to minimize any other disruption, inaccessibility and/or inoperability of its web servers. Pennywell has no responsibility for downtime resulting from a user's actions.

Fees

Pennywell will charge you the fees stated in your Order. When launching a Server your credit card will be charged or your account balance will be deducted for a minimum commitment which will be either the pro-rated monthly charge for the base price of the Server you have selected or the full monthly charge at the time service is provided to you. This minimum commitment will be stored as a Credit in your account and your actual hourly usage of the Server and all related services will be deducted from this credit. Servers are charged in monthly billing increments. Unless you have made other arrangements, Pennywell will charge your credit card or deduct from your available balance without invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Pennywell's option; provided that Pennywell may wait to charge your credit card or deduct from your account balance until the total aggregate fees due are at least $50. Unless otherwise agreed in the Order, your billing cycle will be pre-paid monthly, beginning on the date that Pennywell first makes the Services available to you.

Pennywell may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. Pennywell may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Pennywell brings a legal action to collect, or engages a collection agency, you must also pay Pennywell's reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any "credit" that we may owe you, such as a credit for failure to meet a service level guaranty, will be applied to fees due from you for services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Pennywell with accurate factual information to help Pennywell determine if any tax is due with respect to the provision of the Services, and if Pennywell is required by law to collect taxes on the provision of the Services, you must pay Pennywell the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Pennywell to obtain a credit report at any time during the term of the Agreement. Any credit that we may owe you, such as a credit for a SLA remedy, will be applied to unpaid fees for services or refunded to you, at our option.

Cancellation & Refunds

To Terminate your Pennywell account, submit a cancellation request in writing to support@pennywell.us. After our support team verifies you are authorized to cancel the account, your entire Pennywell account will be cancelled and any remaining credit balance on your account will be immediately refunded to your credit card.

Any violation of Pennywell's Terms of Service Agreement shall result in no refund.

Account Setup, Termination, and Billing

The account will be charged on the day the order is processed, regardless of the account billing date. The account will not be charged again until the next month's billing cycle. Billing dates are recurring on the day the account was opened.

Check Orders: Check Orders: Accounts for subscribers who wish to pay by check will be setup when the check is received by Pennywell.

EVENT OF DEFAULT BY CUSTOMER (Disabling of accounts due to overdue payment). If the CUSTOMER fails to pay an invoice within 14 days of the date of that invoice, Pennywell reserves the right to disconnect service without further warning. If services are disconnected for non payment, customer must pay all past due charges up to the day of service disconnection in order to reconnect service. If your account has been disabled for non payment, you may be charged a reconnection fee of up to $50 in order to re-enable your account.

Pennywell'S REMEDY UPON DEFAULT; TERMINATION. In addition to all rights and remedies granted to Pennywell in this Terms of Service (including, but not limited to, the right to charge and collect Late Charges), upon the occurrence of an Event of Default, Pennywell shall have the right (a) to cease providing the Services to Customer without notice to Customer, (b) upon not less than one (1) business days written notice to Customer, to terminate the Hosting Services, all at Customer's cost and expense. Upon such termination, Customer agrees to and shall immediately pay to Pennywell all Fees and other amounts due and owing for Services provided through and including the effective date of termination.

Cancellation Procedure: Valid proof of account ownership will be required to terminate an account. This includes, but is not limited to, the billing password or an account passphrase created by customers. Non-secure information, such as the contact email address or account billing address, is not sufficient as a security verification. The month-to-month agreement for services is automatically renewed each month in perpetuity subject to written cancellation via help desk ticket (https://pennywell.us/clients) or email sent to support@pennywell.us (email subject to valid proof of account ownership). Pennywell is not able to schedule cancellation requests. Customer is responsible for any fees incur for Services to customer if no formal cancellation request is submitted.

Returned Check Fee and Credit Card Charge Backs A returned check penalty fee of $25 will be charged to any customer's account for any check dishonored by their financial institution. This fee will be waived if the check was returned in error, provided that supporting documentation is submitted. The returned check and penalty fee must be paid immediately in order to guarantee that services will remain online and available. If a customer or anyone paying on the customer's behalf has written two or more returned checks, check cashing privileges will be revoked. If a returned check was used to pay for more than one customer's account, each account will be assessed the $25 returned check fee. Payments made by a returned check are reversed from the customer account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in server suspension or account termination. If the account is terminated all information within the account will be deleted.

A credit card charge back fee of $50 will be charged to any customer's account for any charge back received by their financial institution. The original charge amount and penalty fee must be paid immediately in order to guarantee that services will remain online and available. If a customer or anyone paying on the customer's behalf has used a credit card to pay for services ending in 2 or more chargebacks, will result in credit card payment privileges being revoked (full payment will be due via money order or wire transfer). This fee will be waived and credit card payment privileges reinstated if the chargeback resulted in error, provided that supporting documentation is submitted. If a credit card was used to pay for more than one customer account resulting in multiple chargebacks, each account will be assessed the $50 fee. Chargebacks received are reversed from the customer's account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in server suspension or account termination. If the account is terminated all information within the account will be deleted.

Courtesy Services for Customers

All services such as backup and Cpanel are provided for the courtesy of the subscriber. It is the sole responsibility of the subscriber to maintain the subscriber's own backup of any data. Pennywell is not responsible for lost data or for lost data due to third party software that is not maintained by Pennywell programming staff. (Cpanel is not associated with Pennywell)

Promotional Use

Pennywell may refer to You, Your company, or your logo's for promotional purposes. Your company name, logos and the services that were provided to the customer by Pennywell may be used in promotional materials, advertising, marketing releases, newsletter, public disclosures and on the Pennywell website. This reference will be strictly limited to disclosure that Pennywell has provided services to the company and will not contain any confidential, sensitive or proprietary information in such a reference. The reference will also not provide any personally identifiable information about the individual or technical information regarding the server configuration and design used by the customer at Pennywell. However, Pennywell may disclose any information requested by law enforcement or when compelled by court order, applicable laws or regulations.

Any work or professional services performed or provided by Pennywell under this Agreement shall not be deemed .Work For Hire,. but Pennywell shall grant a non-exclusive, non-transferable license to You, for the duration of this Agreement, its employees, affiliates, and third parties commissioned by Pennywell.

Limitation of Damages or Liability

EXCEPT AS DESCRIBED IN THE SLA, PENNYWELL CORPORATION SHALL NOT BE LIABLE TO CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER'S SERVICES OR INABILITY TO UTILIZE THE SERVICES UNLESS CUASED BY WILLFUL MISCONDUCT. PENNYWELL CORPORATION SHALL NOT BE LIABLE TO CUSTOMER FOR LOST PROFITS, INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. NOTHWITHSTANDING ANYTHING ELSE IN THIS TERMS OR SERVICE AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF PENNYWELL CORPORATION AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW SHOULD NOT EXCEEN THE AMOUNT OF FEES IT HAS COLLECTED ON THE ACCOUNT. EXCEPT AS OTHERWISE PROVIDED IN THIS TERMS OF SERVICE AGREEMENT, PENNYWELL CORPORATION PROVIDES ALL PRODUCTS AND SERVICES "AS IS", WITHOUT WARRANTY OR ANY KIND, WHETHER EXPRESS, OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, AND SUITABIL ITY OF ANY PRODUCT AND SERVICE AND PENNYWELL CORPORATION SHALL HAVE NO LIABILITY ASSOCIATED WITH THE FORGOING. CUSTOMERS ARE RESPONSIBLE FOR ENSURING SECURITY OF SERVERS.

General

Dispute Resolution

Any dispute between Pennywell and a subscriber shall be determined by arbitration conducted by the American Arbitration Association pursuant to its commercial arbitration rules. The arbitrator shall decide any dispute in accordance with Illinois law, without the application of choice of law principles. Each party shall bear its own expenses and legal fees for the arbitration. The arbitration shall be conducted in Cook County, Illinois, unless both parties agree in writing to a different location. The arbitration award is enforceable as a judgment of any court having proper jurisdiction.


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