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This Terms of Service ("Agreement") is a legally binding contract between A Small Orange LLC ("A Small Orange") and you ("Customer," "you," "your" or the “Company”) that shall govern the purchase and use, in any manner, of the services provided by A Small Orange to Customer (collectively, the "Services").
By purchasing and/or using the Services in any manner, you represent that you have read, understand, and agree to all terms and conditions set forth in this Agreement, and that you are at least eighteen (18) years old and have the legal ability to engage in a contract in the State of North Carolina.
If you do not agree to all the terms and conditions set forth in this Agreement, then you may not use any of the Services. If you are already a customer of A Small Orange and do not agree with the terms and conditions set forth in this Agreement, you should immediately contact A Small Orange to cancel your Services.
1. Ownership and Services Purchased
1.1. The individual or entity set out in our records as the primary billing contact shall be the owner of the account.
1.2. The features and details of the Services governed by this Agreement are described on the web pages setting out the particular services or products you have purchased ("Service Description Page") based on their description on the Service Description Page as of the Effective Date, as defined below. A Small Orange may modify the products and services it offers from time-to-time. Should the Service Description Page change subsequent to the Effective Date, we have no obligation to modify the Service to reflect such a change. The services and products provided to you by A Small Orange as set out on the Service Description Page, are referred to as the "Services."
1.3. Certain aspects of the Services are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. You may terminate this Agreement if such a change materially affects the Services.
2. Term of Agreement
2.1. This Agreement becomes effective immediately when Customer clicks "I Agree." ("Effective Date") and remains effective and binding until terminated by either party as outlined below. This Agreement may only be modified by a written amendment signed by an authorized executive of A Small Orange, or by the posting by A Small Orange of a revised version.
2.2. The term of this Agreement is set to the Customer's billing term ("Term"). If no Term is set out, the Term shall be one (1) year. Upon expiration of the initial Term, this Agreement shall renew for periods equal to the length of the initial Term, unless one party provides notice of its intent to terminate as set out in this Agreement.
3. Compliance with Applicable Law
3.1. A Small Orange is registered and located within the United States of America and as such, we are required to comply with the laws of the United States of America, regardless of where the Services are provided.
For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) (“GDPR”) and any applicable national implementing laws in your jurisdiction, and with respect to your subscribers’ or customers’ personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) insofar as you may store personal data through your use of our Services only as permitted and subject to the terms of this Agreement. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).
To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data to us and that you have the necessary permission to allow us to receive and process (e.g., store) such personal data on your behalf. The additional data processing terms set forth here shall apply where you are a Controller subject to the GDPR.
4. Payments and Billing
4.1. A Small Orange will automatically bill your payment method on file up to fifteen (15) days prior to the due date on all terms of one (1) or more years; for terms less than one (1) year in length, A Small Orange will attempt to bill your payment method on file up to five (5) days prior to due date. All fees are billed in United States Dollars (“USD”) and are subject to change with thirty (30) days notice prior notice to you.
4.2. Your "Billing Term" is the period of time you have chosen to receive bills for the Services. For example, your Billing Term may be monthly, quarterly, or annually.
4.3. A Small Orange is only able to automatically collect payment from customers with credit cards stored on file (as opposed to credit cards used one for one time transactions) or active PayPal subscriptions. All other payment methods (one time credit card payments, check, money order, PayPal one time payments, etc.) must be initiated manually by you. It is your obligation to ensure that recurring fees are paid on their due date.
4.4. As a customer of A Small Orange, it is your responsibility to ensure that all billing information on file with A Small Orange is accurate, and that any credit card or other automated payment method on file has sufficient funds for processing. You are solely responsible for any and all fees charged to your payment method by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds and over the credit limit fees. A Small Orange screens all orders for fraud and other unethical practices. Services will not be activated until this fraud screen is completed. In certain cases, if your account is flagged for fraud, third party services, such as domain name registrations, will not be processed. A Small Orange has no liability for the failure to provide Services, including third party services, if your account fails its fraud screen.
5. Late Payments
5.1. Any account not paid in full by the end of the first day of the Billing Term will be given a seven (7) day grace period. If payment is not made within the seven (7) day grace period, A Small Orange reserves the right to suspend your Service(s) with A Small Orange. Forty-five (45) days following suspension of Services for non-payment, A Small Orange reserves the right to terminate Service(s) for non-payment.
5.2. A Small Orange is not responsible for any damages or losses as a result of suspension or termination for non-payment of your account. In addition, A Small Orange reserves the right to refuse to re-activate your Services until any and all outstanding invoice(s) have been paid in full.
6. Refund Policy and Billing Disputes
6.1. A Small Orange offers a ninety (90) day money back guarantee on shared web hosting, reseller packages, Cloud VPS and Semi-Dedicated plans. After the ninety (90) day money back guarantee, eligible plans are eligible for an account credit on a prorated basis. Such credits will have any previous extended term discounts withheld from the total credit amount and will be calculated based on the number of months remaining in your billing cycle. A Small Orange offers a ten (10 day) money back guarantee from the day of purchase on starter, business, and e-commerce website design and fulfillment packages. Beyond 10 days, no refunds are available for any reason, including, but not limited to dissatisfaction with the design process or dissatisfaction with the final product delivered to you.
6.2. No refunds are offered on Clementine dedicated servers, dedicated server packages, custom packages, setup fees, domain registrations, domain transfers, domain renewals, SSL certificates, SiteLock addons or products, dedicated IP addresses, advanced support fees, processing fees, or software licenses. A Small Orange reserves the right to deduct fees for value added services that may have been included in the Services at no additional fee, such as a SSL certificate or free domain name registration, from any refunds or account credits.
6.3. Only first-time accounts are eligible for a refund under the 90 day money back guarantee. For example, if you had or still have an account with A Small Orange before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with A Small Orange. In addition, refunds are not offered for accounts that are suspended or terminated for violating this Agreement.
6.4. Refunds will be issued only to the payment method that the original payment was sent from, and may take up to one (1) week to process. Eligible payments older than sixty (60) days may require a refund via PayPal due to A Small Orange's merchant account policies and procedures.
6.5. The following methods of payment are not refundable any circumstances (including during the money back guarantee period, if one applies), and refunds will be posted solely as credit to the hosting account for current or future Services: bank wire transfers, Western Union payments, checks, and money orders.
6.6. A Small Orange will not activate new orders or provide additional Services for customers who have an outstanding balance with A Small Orange. For a new order to be setup or a new package to be activated, you must have a balance of $0.00, unless otherwise stated by A Small Orange in writing.
6.7. Exchange rate fluctuations for international payments are constant and unavoidable. Like all payments, all refunds are processed in U.S. dollars, and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and A Small Orange is not responsible for any change in exchange rates between time of payment and time of refund. In addition, A Small Orange reserves the right to refuse a refund at any time for any or no reason.
6.8. If you believe there is an error in A Small Orange's billing, you must contact A Small Orange about it, in writing, within thirty (30) days of the date you are billed or charged. A Small Orange's obligation to consider your claim is contingent on your providing it with sufficient facts for A Small Orange to investigate your claims. You waive your right to dispute any charges or fees if you fail to notify A Small Orange in writing or meet the deadline set out above. If A Small Orange finds that your claim is valid, A Small Orange agrees to credit your account on your next billing date. Third party fees are not subject to this dispute provision and are final.
7. Chargebacks, Reversals, and Retrievals
7.1. If A Small Orange receives a chargeback or payment dispute from a credit card company, bank, or PayPal your Services may be suspended without notice. A $50 chargeback fee (issued to recoup mandatory fees passed on to A Small Orange by the credit card company), plus any outstanding balances accrued as a result of the chargeback(s), must be paid in full before service is restored. Instead of issuing a chargeback, please contact A Small Orange's billing team to address any billing issues.
7.2. If A Small Orange appeals a chargeback or other payment dispute and wins the dispute or appeal, the funds will likely be returned to A Small Orange by the credit card company or bank. Any double payment resulting from this process will be applied to Customer's account in the form of a service credit.
8. Cancellation of Services
8.1. Either party may terminate this Agreement by providing notice to the other as provided herein.
8.2. You may cancel Service(s) with A Small Orange by submitting a cancellation request in writing by logging into A Small Orange's account center located at https://customers.asmallorange.com/. In the event that you are unable to login to your billing account with A Small Orange, please contact our billing department via email and we will assist you. However, A Small Orange prefers that cancellations are submitted through the account center to reduce the likelihood of error and ensure the security of your account. Cancellations are not final until confirmed by a representative of A Small Orange in writing by email.
8.3. Cancellations must be requested via the form indicated above 48 hours or more prior to the Service's renewal date. If a cancellation notice is not received within the required time frame, you will be billed for the next Billing Term and are responsible for payment as set forth above.
8.4. If you pay A Small Orange via PayPal, it is your responsibility to cancel any subscription for recurring PayPal payments. A Small Orange (which has no control over PayPal subscription payments) is not responsible for payments made from your PayPal account after cancellation and is under no obligation to refund such payments made after cancellation.
When upgrading or downgrading package(s), you are responsible for canceling any previous package(s). To cancel previous package(s), you must submit a written cancellation request as described in Section 8.2 above.
8.6. A Small Orange may terminate this Agreement at any time by providing notice to Customers via email. Should A Small Orange terminate this Agreement for any reason other than a material breach, or violation of A Small Orange's Acceptable Use Policy, any prepaid fees shall be refunded.
8.7. One party may also terminate this Agreement upon the occurrence of a material breach which has not been cured by the other party within ten (10) days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action.
9. Refusal of Service
9.1. A Small Orange reserves the right to refuse service to anyone at any time. Any material that, in A Small Orange's judgment, is obscene, threatening, illegal, or violates A Small Orange's terms of service in any manner may be removed from A Small Orange's servers (or otherwise disabled), with or without notice.
9.2. Similarly, A Small Orange reserves the right to cancel, suspend, or otherwise restrict access to the Service(s) it provides at any time, for any or no reason, and with or without notice. A Small Orange is not responsible for any damages or loss of data resulting from such suspension or termination.
9.3. If any manner of communication with A Small Orange's staff could be construed as belligerent, vulgar (curse words), attacking, highly rude, threatening, or abusive, you will be issued one warning. If the communication continues, your account may be suspended or terminated without refund. This includes, but is not limited to, threats to sue, slander, libel, publicly post, or initiate a chargeback.
9.4. A Small Orange happily accepts orders from outside the United States, but may limit accounts from certain countries with a high fraud rate. To help protect A Small Orange and its customers from fraud, A Small Orange may ask you to provide a copy of a government issued identification and/or a scan of the credit card used for the purchase. If you fail to meet these requirements, the order may be considered fraudulent in nature and denied.
9.5. The Services are subject to export control and economic sanctions laws and regulations administered or enforced by the United States Department of Commerce, Department of Treasury’s Office of Foreign Assets Control (“OFAC”), Department of State, and other United States authorities (collectively, “U.S. Trade Laws”). You may not use the Services to export or reexport, or permit the export or reexport, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Services, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of OFAC sanctions (including Cuba, Iran, Syria, Sudan, North Korea, or the Crimea region of Ukraine); (b) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (c) otherwise a prohibited party under U.S. Trade Laws; or (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license. Unless otherwise provided with explicit written permission, A Small Orange also does not register, and prohibits the use of any of our Services in connection with, any Country-Code Top Level Domain Name (“ccTLD”) for any country or territory that is the target of OFAC sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.
10. Resource Usage
10.1. Each customer is required to utilize as little server resources as possible, so as to allow for reasonable performance by all A Small Orange customers. Because server CPU and memory are shared resources, excessive consumption of these resources can interfere with or completely prevent normal service performance for other users. A Small Orange reserves the right to suspend or terminate Services on any account that, at its sole discretion, is abusing server resources. Such suspension or termination can occur at any time without prior warning, and for any or no reason.
10.2. Enforced resource limits for shared and reseller packages:
10% CPU Usage
5% Memory Usage (or 512 MB)
50 Running Processes
15 Minute Max Execution Time
100,000 Total Inodes
500 outgoing email messages per 60 minute period (all excess messages will be discarded and not delivered)
10.3 Cloud VPS services leverage a shared, network based, Storage Area Network (SAN) and shared Hardware Virtual Machines (HVM) providing Central Process Unit (CPU) time. So as to allow reasonable performance for all customers, individual customers are expected to demonstrate responsible resource usage of the Storage Area Network (disk throughput MB/s / disk IN/OUT operations per second), Hardware Virtual Machine CPU (Central Processor Unit Time), and any other shared resource not explicitly mentioned herein. A Small Orange regularly monitors all Storage Area Networks and Hardware Virtual Machine CPU loads for normal usage patterns and routinely evaluates customer deployments for abnormal usage patterns. A Small Orange reserves the right to suspend, terminate, and/or limit (such as through disk throughput limiting, in/out operation per second limiting and lowering of CPU priority) services on any account, that at its sole discretion, is using an abnormally large amount of shared resources. Such suspension, termination, or limitation can occur at any time without prior warning, and for any or no reason.
11. Bandwidth Usage
11.1. You are allocated a monthly bandwidth allowance depending on the hosting package you purchase.
11.2. Should your account pass the allocated amount, A Small Orange reserves the right to: a) suspend the account until the start of the next allocation, b) suspend the account until more bandwidth is purchased at an additional fee, c) suspend the account until you upgrade to a higher level of package, and/or d) charge you an additional fee for the overages.
11.3. Unused transfer in one month cannot be carried over to the next month and bandwidth is not pooled among multiple servers or accounts unless otherwise specified by a representative of A Small Orange in writing.
11.4. Like other resources, customers are expected to demonstrate responsible usage of bandwidth resources, so as to allow for reasonable performance by all A Small Orange customers. A Small Orange regularly monitors bandwidth usage and reserve the right to suspend, terminate, and/or limit (such as through port speed limiting) Services on any account, that at its sole discretion, is using an abnormally large amount of bandwidth. Such suspension, termination, or limitation can occur at any time without prior warning, and for any or no reason.
12.1. A Small Orange grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by A Small Orange solely to access and use the Services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in A Small Orange's technology shall remain with A Small Orange, or its licensors. You are not permitted to circumvent any devices designed to protect A Small Orange, or its licensor's ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
12.2. You grant A Small Orange, or to any third parties used by A Small Orange to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free, license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your End Users, in conjunction with the Services. This license terminates on the expiration or termination of this Agreement. All right, title and interest in your technology shall remain with you, or your licensors.
13. Service Modifications
13.1. A Small Orange reserves the right to add, modify, or remove any or all features from any service A Small Orange provides, at any time, with or without notice. This includes, but is not limited to, disk space limits, bandwidth limits, domain limits, pricing, and third party applications. These changes can be made for any or no reason and A Small Orange does not guarantee the availability of any feature, whether written or implied. If the removal of a feature materially impacts your ability to use the Service, you may terminate this Agreement. For the purposes of this paragraph only, the term "materially" means that a reasonable business person would not have purchased the Services for the purposes used by you.
14. Uptime Guarantee
14.1. A Small Orange guarantees that your website and services that directly affect its display to the Internet (such as HTTP or MySQL) will be accessible 99.9% of the time in any given calendar month. If A Small Orange fails to meet its uptime guarantee, you will be issued a credit equivalent to one (1) day of service per forty five (45) minutes downtime. The first 45 minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of service. This clause does not apply to subscribers of Virtual Private Servers ("VPS"), Cloud Hosting, Semi-Dedicated, or Dedicated Server packages.
14.2. Credits are only available for future services/invoices and cannot be issued as refunds. All credit requests must be sent via email to A Small Orange's billing department no later than the tenth (10th) day of the month following the SLA (as that term is defined below) violation. Credits are issued based on the uptime for the previous calendar month only and requests not submitted within the required time frame cannot be approved.
14.3. For example, if you experienced less than 99.9% uptime in the month of November, you would need to submit your request for credit no later than December 10th.
14.4. The following circumstances are not eligible for credit and are specifically excluded from our Uptime Guarantee: scheduled maintenance, DDoS or similar attack, hardware failure, third-party software failure, customer maxing its resource container, issues resulting from errors or omissions by the customer, issues relating to the customer's ISP, firewall blocks/bans, or any other circumstance beyond our reasonable control. All credits are at the discretion of A Small Orange, based on its investigation of any issue that is covered by this section.
14.5. If A Small Orange provides a credit, or Service Level Agreement, for a particular Service, this shall be your sole and exclusive remedy for defects in, or issues with, the Service.
15. Support Policy
15.1. A Small Orange will provide technical support to you twenty-four (24) hours a day, three-hundred-sixty-five (365) days a year. The only official method for technical support is via A Small Orange's help desk at http://customers.asmallorange.com. Telephone and live chat support are not official methods of support and are governed by the terms and conditions set forth in the following clause.
15.2. Limited support will be provided, at A Small Orange's discretion and subject to availability of staff, via telephone and/or live chat. A Small Orange will always do its best to provide fast, friendly, and helpful support over the telephone and live chat, but these options are not official methods of support and no guarantee is made as to the availability, accessibility, or technical expertise provided via these mediums.
15.3. Inquires via telephone or live chat support should be limited to general questions which do not require access to any account or server to investigate or resolve and should not be used to request the status of or provide updates to a help desk ticket. Any issue requiring investigation, research, or access to an account/server should be sent via the help desk. A Small Orange reserves the right to direct any issue to the help desk at its discretion and to refuse to provide support for such issues via telephone or live chat.
15.4. Resellers are responsible for supporting their own customers. A Small Orange does not provide support to its resellers' customers. If a reseller's customer contacts A Small Orange, A Small Orange reserves the right to place the customer account on hold until the reseller can assume its responsibility for its customer. All support requests must be made by the reseller on its customers' behalf for security purposes. Resellers are also responsible for all content stored or transmitted under their reseller's account and the actions of their customers. A Small Orange will hold any reseller responsible for any of its customers' actions that violate the law or the terms of service set forth in this Agreement.
16. Advanced Support Policy
16.1. Support to Customer is limited to A Small Orange's area of expertise and is available only for issues related to the physical functioning of the Services. A Small Orange does not provide support for any third party software including, but not limited to, software offered by but not developed by A Small Orange. A Small Orange reserves the right to refuse assistance with and/or assess an "Advanced Support Fee" of $35.00 USD per hour (1 hour minimum) for any issue that, at A Small Orange's sole discretion, is: (a) outside the scope of standard support; or (b) caused by customer error or omission. A Small Orange will always ask for your permission before providing advanced support that may be subject to a fee. By providing your permission, you agree to pay Advanced Support Fees as billed.
17. Backup Services
17.1. Your use of A Small Orange's Services is at your sole risk. This service is provided to you as a courtesy. A Small Orange is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on A Small Orange's servers. Any and all backup services provided by A Small Orange, whether paid or not, are offered with no warranty or guarantee of their date, accuracy, and integrity.
17.2. Backups are performed on servers that house shared and reseller packages only. No backups are performed for virtual private server (VPS/VDS), cloud hosting, semi-dedicated or dedicated server packages, unless you specifically purchase an additional service for this purpose. If your hosting account exceeds 100,000 inodes, the account will not be included in A Small Orange's automatic backup process.
17.3. If you ask A Small Orange to restore a backup of your data that is located on a backup server maintained by A Small Orange, you will receive one courtesy backup restore per calendar month. For any further restores within the same calendar month, you agree to pay a non-refundable "restoration fee" of $10.00 per backup restored to complete the request. By requesting that A Small Orange restore a backup for you, whether paid or unpaid, you also confirm a backup restoration will overwrite any and all current data on your account. A Small Orange cannot be held liable if a backup restoration does not complete successfully. A Small Orange will never charge a backup fee to restore a backup to address an error or omission caused by A Small Orange.
18. Domain Name Registrations, Transfers, and Renewals
18.1. A Small Orange will make every effort to ensure domain names are registered, transferred, and/or renewed on time. If a domain name registration, renewal, or transfer is not processed when due, it is your responsibility to contact A Small Orange within fifteen (15) days of the incident for A Small Orange to investigate. Redemption fees may be charged to Customer for domains that remain expired for more than thirty (30) days, when no contact is made to A Small Orange in the required timeframe. A Small Orange's liability is limited to the amount paid for the domain name.
19. Expired Domain Deletion Policy
19.1. Immediately after the expiration of the term of a domain name's registration services and before deletion of the domain name in the applicable registry's database, you acknowledge that A Small Orange may direct the domain name to name servers and IP address(es) designated by A Small Orange, including, without limitation, to no IP address or to IP address(es) which host a parking page and/or a commercial search engine that may display advertisements. You acknowledge that A Small Orange may either leave your WHOIS information intact or that A Small Orange may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name.
19.2. For a period of approximately thirty (30) days after expiration of the term of domain name registration services, you acknowledge that A Small Orange may provide a procedure by which expired domain name registration services may be renewed. You acknowledge and agree that A Small Orange may, but is not obligated to, offer this process, called the "reactivation period." You acknowledge that you assume all risks and all consequences if you wait until close to or after the expiration of the original term of domain name registration services to attempt to renew the domain name registration services. You acknowledge that A Small Orange, for any reason and in its sole discretion, may choose not to offer a reactivation period and that A Small Orange shall not be liable therefore. You acknowledge that reactivation period renewal processes, if any, may involve additional fees which A Small Orange may determine at its discretion. You acknowledge and agree that A Small Orange may make expired domain name services(s) available to third parties, that A Small Orange may auction off the rights to expired domain name services (the auction beginning near the end or after the end of the reactivation period), and/or that expired domain name registration services may be re-registered to any party at any time.
20. IP Address Allocation
20.1. Any dedicated IP order, in addition to ones provided with a hosting package, may be subject to IP justification. Justification practices are subject to change to remain in conformity with policies of American Registry for Internet Numbers ("ARIN"). A Small Orange reserves the right to deny any dedicated IP request based on insufficient justification or current IP utilization.
21. Acceptable Usage Policy
21.1. You shall use A Small Orange's services only for lawful purposes. Transmission, storage, or presentation of any information, data, or material in violation of the laws of the State of North Carolina or the United States is prohibited. This includes, but is not limited to: copyrighted material in which you are not the copyright holder or material protected by trade secrets or other statutes. You agree to indemnify and hold harmless A Small Orange from any claims resulting from the use of the service which damages you or any other party.
21.2. You may not use the Services to publish content or engage in activity that is harmful to others or illegal under applicable law, including without limitation in connection with any of the following illegal, harmful or fraudulent activities:
21.3. In addition, hosting accounts may not be resold unless the account is a Reseller account, VPS, or dedicated server. You may not resell individual services within any single account such as web space, emails accounts, add on domains, or mailing lists. All domains, add-on domains, and sub domains must be for sites controlled by or promoting published content or businesses that are solely controlled by the owner of the account as described above.
21.4. A Small Orange responds to valid notices of alleged copyright infringement. Copyright complaints are handled pursuant to the Digital Millennium Copyright Act ("DMCA"). Complaints that do not comply with the DMCA will not be processed. For more information on how to submit a DMCA complaint, please see our DMCA Policy.
21.5. Defamation and Objectionable Material. A Small Orange values the freedom of expression and encourages Users to be respectful with the content they post. As a web host, A Small Orange is not a publisher of User content and is generally not in a position to investigate the veracity of individual defamation claims or to determine whether certain material, which A Small Orange may find objectionable, should be censored. Accordingly, A Small Orange generally requires a court order from a court of competent jurisdiction, as determined by A Small Orange in its sole discretion, to take down alleged defamatory or objectionable content. However, A Small Orange reserves the right to disable or remove any content to prevent harm to others or to A Small Orange, as determined in A Small Orange’s sole discretion.
22. Restrictions on Storage Space Usage
22.1. All accounts are subject to the following restrictions on storage space usage: a) accounts must have valid, working websites, and not violate any previously subscribed terms; b) accounts are not for use of mass storage of backups, files, audio, video, zip files or others, as determined by A Small Orange, at its sole discretion; and c) accounts are not for use of mass distribution of files, such as torrents or mirrors. Any account found violating these terms may be suspended or terminated without warning.
23. Multi-Location Hosting
23.1. A Small Orange does not guarantee the availability of any and all host locations, and reserves the right to add, move, modify, or remove any location at any time without notification. A Small Orange also reserves the right to deny the transfer of any account to a new location for any or no reason.
24.1. Your Warranties to A Small Orange
24.1.1. You represent and warrant to A Small Orange that: (i) you have the experience and knowledge necessary to use the Services; (ii) you will provide A Small Orange with material that may be implemented by it to provide the Services without extra effort on A Small Orange's part; and (iii) you have sufficient knowledge about administering, designing, and operating the functions facilitated by the Service to take advantage of it.
24.1.2. You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all material provided to A Small Orange, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
24.2. A Small Orange's Warranties
24.2.1. YOU EXPRESSLY AGREE THAT USE OF A SMALL ORANGE'S SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED AS-IS AND AS-AVAILABLE. OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, A SMALL ORANGE HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OR NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OR MERCHANTABILITY, AND/OR TITLE. NEITHER A SMALL ORANGE, ITS PARENT, ITS EMPLOYEES, AGENTS, RESELLERS, THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, WARRANT THAT A SMALL ORANGE'S SERVICES WILL NOT BE INTERRUPTED OR BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, OR RELIABILITY, OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH A SMALL ORANGE'S NETWORK, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. A SMALL ORANGE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY A SMALL ORANGE. NO WARRANTIES MADE BY THESE THIRD PARTIES TO A SMALL ORANGE SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
24.2.2. THE WARRANTY DISCLAIMERS CONTAINED IN THIS AGREEMENT EXTEND TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM A SMALL ORANGE, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
24.2.3. SOME STATES DO NOT ALLOW A SMALL ORANGE TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
24.3. The parties expressly disclaim the applicability of the United Nations Convention on the International Sale of Goods.
25. Limitation of Liability
25.1. YOU ALSO ACKNOWLEDGE AND ACCEPT THAT ANY DAMAGES WILL BE LIMITED TO NO MORE THAN THE FEES PAID BY YOU FOR ONE (1) MONTH OF SERVICE.
25.2. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL A SMALL ORANGE, ITS OFFICERS, AGENTS OR THIRD PARTIES PROVIDING SERVICES THROUGH A SMALL ORANGE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY THIRD PARTY; OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO A SMALL ORANGE RECORDS, PROGRAMS OR SERVICES. YOU AGREE THAT THIS PARAGRAPH APPLIES EVEN IF A SMALL ORANGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENTS ON ALL SERVERS AND ALL SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS, A SMALL ORANGE'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
26.1. You agree to indemnify, defend and hold harmless A Small Orange, and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and collectively, "indemnified parties") from and against any and all claims, damages, losses. liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of, or relating to: (i) your use of the Services; (ii) any violation by you of any of A Small Orange's policies; (iii) any breach of any of your representations, warranties or covenants contained in this Agreement; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services the use of which is facilities by A Small Orange.
27. Governing Law and Disputes
27.1. This agreement shall be governed by the laws of the State of North Carolina, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. Exclusive venue for all disputes arising out of or relating to this Agreement shall be the state and federal courts in Durham County, North Carolina, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
28. Partial Invalidity
28.1. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. A Small Orange and Customer agree to renegotiate any term held invalid and to be bound by mutually agreed substitute provision.
29. Changes to the Terms of Service
29.1. A Small Orange reserves the right to modify this Agreement, in whole or in part, from time-to-time. A Small Orange will provide you with notices of such a change by posting notice on your control panel. Unless A Small Orange is required to make a change in an emergency, any change will be effective thirty (30) days after it is posted. If such a change materially diminishes your ability to use the Services, you may terminate this Agreement. You are encouraged to review the content of this Agreement on a regular basis.
30.1. This Agreement may be assigned by A Small Orange. It may not be assigned by you. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
31. Force Majeure
31.1. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event.
32. No Waiver
32.1. No waiver of rights under this Agreement or any A Small Orange policy, or agreement between Customer and A Small Orange shall constitute a subsequent waiver of this or any other right under this Agreement.
33. No Agency
33.1. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
34.1. The following paragraphs shall survive the termination of this Agreement: 19, 25 through 28, and 34.
35. HIPAA Disclaimer
35.1. We are not "HIPAA compliant." Users are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Users acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. A Small Orange does not control or monitor the information or data you store on, or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act ("HIPAA"). Customers requiring secure storage of "protected health information" under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to "protected health information," as defined under HIPAA is a material violation of this User Agreement, and grounds for immediate account termination. We do not sign "Business Associate Agreements" and you agree that A Small Orange is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact customer support.