Terms of Service
ACCEPTANCE OF TERMS OF SERVICE
As a precondition and requirement to use the services available via UpwindProductions.com, you, for yourself and for the company or other person(s), if any, you represent ("Subscriber" or "Subscribers", as applicable), hereby accept and agree to be legally bound by these Terms of Service ("Terms"). These Terms are effective immediately between the Subscriber and UpwindProductions.com. Each Subscriber is subject to these Terms, and by using Upwind Productions services, network and/or systems (collectively the "Services"), Subscriber agrees to be legally bound by and subject to all terms and conditions contained in these Terms, including as well all usage policies and other policies herein. To the extent not inconsistent therewith, these Terms are also incorporated into the individual service agreement, if any, of each Subscriber.
Subscriber represents and warrants that, if an individual, Subscriber is at least 18 years old and otherwise legally competent in all respects to, or, if an entity, Subscriber is a corporation, limited liability company, partnership, or other legal entity duly formed and in good standing, as applicable, and possesses all legal authority and power to accept and be bound by these Terms. Additionally, Subscriber represents and warrants that neither it, she, or he (as applicable), nor any entity it, she or he represents, is prohibited under any part of these Terms from registering or signing up with or otherwise subscribing to or receiving any of the Services from Upwind Productions. Further, Subscriber represents and warrants all information provided by Subscriber to Upwind Productions has been and is complete, accurate, and current, and that Subscriber shall continue to provide complete, accurate and current information to Upwind Productions in connection with all registration or renewal processes and further agrees to update all such information as necessary to maintain complete, accurate and current information. Although Subscribers of paid services offered through Upwind Productions must be at least eighteen (18) years of age and otherwise legally competent to accept and be legally bound by these Terms.
Upwind Productions intends to provide the best possible web hosting service to each of its Subscribers. However, due to changing technologies, changing laws and the individual and collective needs of our Subscribers, Upwind Productions reserves the right, in its sole discretion, to change, modify, add or remove all or any part of these Terms at any time with or without notice.
Hardware Equipment and Software.
You are responsible for and must provide all internet connections, computer, hardware and software equipment and services necessary to access your website’s services from Upwind Productions.
We make no representations, warranties, or assurances that your ISP, or any internet connection from your computer equipment to our services will be compatible or may encounter any connection problems due to the internet network between your computer and our web server or the compatibility of your computers hardware or software with our services.
We will perform maintenance services as we determine reasonably necessary to maintain the continuous operation of our hosting servers. You agree to periodically-scheduled maintenance downtime periods (usually in the middle of the night). We will provide prior notice of the maintenance downtime, except when circumstances beyond our control limit our ability to do so.
Email and Hosting Policies
Using the Services to transmit any material (by e-mail, uploading, posting, or otherwise) that harasses another either by the frequency of the activity or by the content to any recipient is strictly prohibited.
B. Fraudulent activity.
Using the Services to make fraudulent offers to sell or buy products, items, or services, or to advance any type of financial scam such as "pyramid schemes" and "chain letters." E-mail that consists of make-money-fast schemes, pyramid or chain letters, unsolicited commercial information and/or information offensive to any recipient is strictly prohibited.
C. Forgery or impersonation.
Adding, removing, or modifying identifying network header information in an effort to deceive or mislead is prohibited. Attempting to impersonate any person by using forged headers or other identifying information via your hosting services at Upwind Productons.com is strictly prohibited. The use of anonymous re-mailers or nicknames does not constitute impersonation. Using deliberately misleading headers in news postings in order to avoid Spam e-mail address collectors is allowed.
D. Unsolicited commercial e-mail/ Unsolicited bulk e-mail.
Using the Services to transmit any unsolicited commercial e-mail or unsolicited bulk e-mail (e.g. spamming) is prohibited. Activities that have the effect of facilitating unsolicited commercial e-mail or unsolicited bulk e-mail whether or not that e-mail is commercial in nature are prohibited.
E. Unauthorized access
Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Upwind Produtions server, electronic communications system, whether or not the intrusion results in the corruption or loss of data. Security violations include but are not limited to: 1) attempts to compromise or gain unauthorized access to any other Internet account or unauthorized system 2) altering the header of e-mail messages that conceal your e-mail address or prevents recipients from responding 3) interfering with any user, system or network, including any denial of service attack 4) any use or distribution of tools designed for compromising security including cracking tools, network probing tools, programs for guessing passwords or credit card numbers and any application that allows the remote control of another system without the knowledge of that systems operator.
ENFORCEMENT AND BREACH OF CONTRACT
Upwind Productions reserves the right to suspend, block or cancel access to any and all Services when, in our judgment and sole discretion, an account which may have violated the hosting agreement terms herein. Upwind Productions, by way of example and not limitation, may take any one or more of the following actions in response to complaints of conduct that amounts to a violation of these terms. Issue written or verbal warnings, suspend the customer's account, terminate the customer's account, bill the customer for administrative costs and/or reactivation charges. Bring legal action to enjoin violations and/or to collect damages, if any, caused by violation.
NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your email addresses), use of the Service, or access to the Service.
You agree to the following payment terms in consideration for the services provided under this Agreement. The monthly Service Fee is subject to adjustment from the current agreed Web Server price, with a 30 day notice from Upwind Productions whether or not client is paying monthly, every six months or on a per year basis. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments.
For credit card payments, no additional notice or consent will be required for billings to that credit card or Account. You will advise us of any changes to your credit card account, such as credit card account number or expiration date changes. Time is of the essence for payment. If we do not receive payment in full by the due date on your bill, you may be charged a late fee of the greater of 1.5% per month (18% annually) or $5/month, subject to the maximum allowed by law. Acceptance of late or partial payments (even if marked "Paid in Full") shall not waive any of our rights to collect the full amount due under this TOU. We may assess an additional fee of fifty dollars ($50) for any check returned for nonpayment. We may use a collection agency and you agree to pay collection agency fees we incur to collect payment. If we accept late or partial payments, we do not waive our right to collect all amounts that you owe, including late fees. If your check is dishonored or returned, we may charge you up to $20, require another payment method, and/or immediately suspend or cancel your Service. We will not honor limiting notations you make on or with your checks.
DELINQUENT OR NON-PAYMENT
Upwind Productions reserves the right to remove or suspend access to an account without notice that has an outstanding balance for monthly recurring fees, setup fees, handling charges, or any other fees and charges that may be due and also reserves the right to remove or suspend access to any other accounts, regardless of their payment status, you have in your same name until such charges are paid. Suspended accounts continue to accrue charges until account is restored with the balance paid in full, even if the account holder does not use the account. Accounts that are delinquent by more than 30 days may be purged from the system without notice and without recourse to the account holder for any lost files or data stored on Upwind Productions systems. The balance due on any account purged from Upwind Productions system remains due and may be sent to collections if not paid in full. You agree to pay Upwind Productions all costs, including attorney fees, collectors fees, accrued interest, and court costs associated with Upwind Productions collection of your past due amounts.
In the event you need to cancel your hosting service with Upwind Productions, you must notify Upwind Productions 30 days ahead of your next monthly fee. In the event of not canceling your service within the 30 day window you will be expected to pay for the next months hosting fees. In the event you have elected to prepay subsequent, additional months' Service Fees, we retain the right to charge you an administrative fee and deduct the administrative fee from the subsequent, future months' Service Fees before refunding them to you.
Disclaimer of warranty
You, the subscriber, acknowledge that the services and the software are provided "as is, as available" without any warranty of any kind. Upwind Productions does not guarantee that users will be able to use the services at times or locations of their choosing. Upwind Productions does not warrant that the services are compatible with any third party service or software, even if such third party claims, represents or warrants that such service or software is compatible with any service or Upwind Productions in particular.
Limitation of Liability
Upwind Productions shall not be liable for nonperformance or delay in performance caused by any reason, whether within or outside of its control. In no event shall Upwind Productions be liable under contract, negligence, tort, conversion, copyright infringement, trademark infringement, ip rights holder infringement, strict liability or any other legal or equitable theory for any direct, indirect, incidental, exemplary or consequential damages (including, without limitation, loss of use, lost profits, loss of data or information of any kind or loss of business goodwill or opportunity) whether or not Upwind Productions has been advised of the possibility of such loss or damages. Upwind Productions shall not be liable for the cost of procurement of substitute goods, services or technology. Upwind Production's entire liability and subscriber's exclusive remedy with respect to any use of the services is the cancellation of subscriber's account as set forth herein. In no event shall Upwind Production's liability to you, the subscriber, exceed the greater of one dollar ($1.00) or any amounts actually paid in cash by you, the subscriber, to Upwind Productions for the prior one month period. No action, regardless of form, arising out of these terms or out of the services may be brought by you, the subscriber, more than one year after the event which gave rise to the cause of action.