Terms of Service and Acceptable Use Policy

EmergencyServicesHosting.com DBA EMS Hosting and as of December 3, 2003 a legally incorporated entity within the state of New Jersey ("The Company", herein referred to as "we", "ours", "us" and all other appropriate titles) agrees to furnish services to "the Subscriber" (herein referred to as "customer", "client")subject to the following TOS/AUP (Terms of Service).

We reserve the right, at our sole discretion, to change, modify, add to, or otherwise alter these Terms and Conditions at any time. Such changes and/or modifications shall become effective immediately upon their posting, so please review the Terms and Conditions posted at this link periodically. Your continued use of the Site following the posting of changes and/or modifications will constitute your acceptance of the revised Terms and Conditions. For matters of record these Terms of Service were last modified on: August 1, 2009

Use of our services constitutes acceptance and agreement to our AUP as well as our TOS (Terms of Service).

This agreement shall be construed in all respects in accordance with the laws of the state of New Jersey, county of Bergen applicable to contracts enforceable in that state. Venue will be Bergen County, New Jersey.

All provisions of this contract are subject to the TOS (Terms of Service) of EMS Hosting, INC. and AUP (Acceptable Use Policy). The AUP may be changed from time to time at the discretion of the Company. Subscriber understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment.

OWNERSHIP OF INTELLECTUAL PROPERTY; RESTRICTIONS ON USE:

All site software, designs, text, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, or other copyrightable elements, and the selection and arrangements thereof, and trademarks, service marks and trade names (the "Materials") are the property of EMS Hosting, INC. and/or its subsidiaries, affiliates, assigns, licensors or other respective owners, and are protected, without limitation, pursuant to U.S. and foreign copyright and trademark laws.

Users are not permitted or authorized to copy, reproduce, republish, upload, post, transmit, or distribute Materials (or any portion thereof) in any way or by any means, except that you may download one copy of appropriately limited portions of the Materials on any single computer for your personal, noncommercial use only, provided you include "Copyright 2003-2009 EMS Hosting, INC. All Rights Reserved. Used With Permission" or "(c) 2003-2009 EMS Hosting, INC. All Rights Reserved. Used With Permission" on every page containing copyrightable elements and you keep intact other proprietary notices.

Modification of Materials or use of Materials for any other purpose is a violation of EMS Hosting, INC. copyright and other proprietary rights. For purposes of these Terms and Conditions, use of any Materials in any unauthorized manner (including, without limitation, on web pages or sites that contain paid or free advertisements, third-party endorsements of any kind or nature (including without limitation, endorsements of a religious, political, or social orientation nature), promotions, products, games, services, or other inappropriate content) is strictly prohibited. We hereby grant to you a personal, non-exclusive, non-assignable, revocable, non-transferable license to use and display, for noncommercial and personal use only, one copy of appropriately limited portions of the Materials and/or software that are downloadable from this Site, including, without limitation, any files, codes, audio, or images incorporated in or generated by or in conjunction with the Site and/or EMS Hosting, INC., provided that that "Copyright 2003-2009 EMS Hosting, INC. All Rights Reserved. Used With Permission" or "(c) 2003-2009 EMS Hosting, INC. All Rights Reserved. Used With Permission" accompanies all copyrightable Materials and other notices are properly maintained. You agree not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, sell, decompile, reverse engineer, disassemble, or circulate any Materials to any third party (including, without limitation, display and distribute the Materials via a third party website) without EMS Hosting, INC.´ express prior written consent. Unauthorized or prohibited exploitation of Materials will result in deletion of the offender's account      from the Site, and may subject the offender to civil liability and criminal prosecution under applicable federal and state laws.

We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our sole discretion, terminate the accounts of users who infringe the intellectual property rights of others.

JURY TRIAL WAIVER:

YOU AGREE TO GIVE UP YOUR RIGHT TO A TRIAL BEFORE A JURY in connection with any dispute, controversy or claim arising out of, connected with, or relating to these Terms and Conditions, any other agreement you enter into with us, whether through our web site, over the telephone or through the mail (these Terms and Conditions and all such agreements collectively referred to as the "EMS Hosting, INC. Terms and Agreements"), including any dispute, controversy or claim involving the breach, validity, or enforceability of any provision of any of the EMS Hosting, INC. Agreements, and further including any dispute, controversy or claim involving any EMS Hosting, INC. account, product or service (whether applied for, opened, closed, granted, or denied). All such disputes, controversies and claims will be resolved either through arbitration or in the courts, in either case without any jury. To the fullest extent permitted by applicable state and federal law, you and we each agree to waive the constitutional right to a trial before a jury.

Disclosure to Law Enforcement:

The AUP specifically prohibits the use of our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition we shall have the right to terminate all service set forth in this Agreement.

Payments and Fees:

Service will be interrupted on accounts that reach 5 days past due. Service interrupted for nonpayment may and can be subject to a USD$10.00 reconnect charge (individual hosting accounts). Accounts that are not collectable by us may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a "Processing and Collection" Fee of not less than USD$50.00 nor more than USD$150.00. If you desire to cancel your account, please     follow the proper procedure to do this as outlined in this TOS.

Money Back Guarantee:

We will refund to you your initial outlay of first month's payment not including any and all applicable taxes and setup fees. In order for you to collect your money you must prove beyond a reasonable doubt that our service was below par. This does not include network outages either short or prolonged as there is no guarantee of uptime on our service. However we will take into consideration extensive outages and a severely downed network problem. We have the final say in rendering a refund.

The Money Back Guarantee does NOT apply to services rendered, such as support, design, creation, and any other fees assessed from non-hosting related issues.

Failure to Pay:

The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.

Account Cancellation:

All requests for canceling accounts must be made within at least 30 days notice. Notice must be sent to the appropriate contact listed in the "Contact Us" section of our website. You must have all account information to cancel.

Interruption Of Service:

Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of the company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, subscriber agrees that the company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of the company. Subscriber further acknowledges that the company's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall the company be liable for any special or consequential damages, loss or injury.

New Domain Accounts:

All new web hosting accounts involving new domains will be set up and entered into our DNS servers within 1 business day. Due to unforeseen complications, however, this process may sometimes require up to 2 business days.

Account Security and Support:

Domain information, personal information and settings will never be conveyed to third parties. The information retained on the EMS Hosting, INC. Servers stays exactly where it is.

EMS Hosting, INC. reserves the right to access your account information at any time. From time to time during general routine maintenance we reserve the right to change your account information and settings to comply with our standards of quality. We will give you advance notice of this change, and if you fail to alter it within 48 hours we will manually change it for you. This applies primarily to issues of DNS resolution, not personal information.

Support requests generate a necessity for the potential for a tech to access your site. In the event you generate a support request (either through pager, ticket, IM, or any other form of communication, including but not limited to SMS, or telephone request) EMS Hosting, INC. reserves the right to access your account. This access shall include but not be limited to FTP access, Shell Access, Control Panel access, and other various forms as the support tech sees fit.

Transfer of Domains:

If you select transfer domain it DOES NOT mean you will switch from your current registrar to ours. It means you will be using a domain you have registered elsewhere and will transfer the hosting services. You will keep the domain where you registered it unless you give us permission to move the domain registration to us. In that case, please send an email to dnsservices@emshosting.com

Transfer of domain will occur if you agree to such a transfer through our Domain Registration Services.

SPAM and Unsolicited Commercial E-mail (UCE):

We take a zero tolerance approach to the sending of Unsolicited Commercial E-mail (UCE) or SPAM over our network. Very simply this means that our customers may not use or permit others to use our network to transact in UCE. Out customers may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.

Violation of the SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, we will initiate an immediate investigation (within 48 hours of notification). During the investigation, we may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, we may, at our sole discretion, restrict, suspend or terminate customer's account. Further, we reserve the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. We will notify law enforcement officials if the violation is believed to be a criminal offense.

First violation of this policy will result in fourteen (14) day suspension. Their second offense will result in a Administrative Fee of USD$250, and a thirty (30) day suspension. Their third and final offense will result in an Administrative Fee of  USD$500 and immediate account deletion. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $75 per hour that our personnel must spend to investigate the matter. PLEASE, DO NOT SPAM from your account.

As our customers are ultimately responsible for the actions of their clients over the EMS Hosting, INC. network, it is advisable that Customers develop a similar, or stricter, policy for their clients.

IP Address Ownership:

If we assign Customers an Internet Protocol address for Customer's use, the right to use that Internet Protocol address shall belong only to us, and Customer shall have no right to use that Internet Protocol address except as permitted by us in our sole discretion in connection with the Services, during the term of this Agreement.

We shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by us, and we reserve the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Our allocation of IP addresses is limited by ARIN's new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting where possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.

Bandwidth and Disk Usage:

Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form. We will monitor Customer's bandwidth and disk usage. We shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges,  disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken is in our sole and absolute discretion. If we take any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that a customer exceeds the included allocation, we may, at our sole discretion, collect a deposit, in an amount determined by us, against customer's credit card on file with our agents.

System and Network Security:

Users are prohibited from violating or attempting to violate the security of the EMS Hosting, INC. Network. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:

          1. Accessing data not intended for such User or logging into a server or 
              account, which such User is not authorized to access.
          2. Attempting to probe, scan or test the vulnerability of a system or network or
              to breach security or authentication measures without proper authorization.
          3. Attempting to interfere with service to any user, host or network, including,
              without limitation, via means of overloading, "flooding", "mail bombing" or
              "crashing". Forging any TCP/IP packet header or any part of the header
              information in any e-mail or forum posting.
          4. Taking any action in order to obtain services to which such User is not
              entitled.
          5. Attempting to couple many hosting packages together to take advantage of
              massive space or bandwidth allocations.

Each hosting package purchased is unique to a domain name and use - please do not purchase multiple "plan 1's" for instance to get the combined bandwidth & space. We will stop such transactions and label them as deceptive. We have an upgrade path for all services and we can often times work out special deals for users if they ask us for the assistance.

Suspension of Service or Cancellation:

We reserve the right to suspend network access to any customer if in the judgment of our network administrators the customer's server is the source or target of the violation of any of the other terms of the AUP or for any other reason which we choose. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer's machines were suspended. If at any given time a domain is using more then 10% CPU memory, the client will be asked to be moved to a semi-dedicated server at a small monthly fee. This will benefit everyone as we like to maintain server performance to a maximum. If the client chooses not to be moved, 50% of the money is refundable to cover expenses for creating account and removing it.

Miscellaneous Provisions:

You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts are used, in that order of preference.

A waiver by the company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.

Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber.

Company reserves right to cancel customers rights under this contract at anytime without further obligation.

We take no responsibility for any material input by others and not posted to the EMS Hosting, INC. Network by EMS Hosting, INC.. We are not responsible for the content of any other websites linked to the EMS Hosting, INC. Network; links are provided as Internet navigation tools only. We disclaim any responsibility for any such inappropriate use and any liability to any person or party for any other person or party's violation of this policy.

We are not responsible for any damages your business may suffer. We do not make implied or written warranties for any of our services. We deny any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by us.

Government Accounts:

We are respectful of Governmental Accounts hosted on our site, primarily the Fire, Police, and EMS organizations that have chosen to host their site with us. As members of the Emergency Services we are familiar with the basic need of confidentiality and adhere to it to the fullest extent as permitted by state law.

Responsibility for Content:

You, as our client, are solely responsible for the content stored on and served by your EMS Hosting, INC. server. You yourself are solely responsible for the backup of your own data.

Indemnification:

You agree to indemnify, defend and hold harmless EMS Hosting, INC., its affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers to the site from and against all losses, expenses, damages and costs, including reasonable attorneys´ fees, resulting from any violation of these Terms and Conditions by you. EMS Hosting, INC. reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with EMS Hosting, INC. in asserting any available defenses.