Term and Conditions of Use
I. General
A. At Vertical Penguin, we value our customers and wish to provide them with a positive experience that exceeds their expectations. To offer you the best service possible, all customers need to follow the same rules and guidelines. These policies are intended to make Vertical Penguin's service available to all our customers as consistently and efficiently as possible.
B. By using our website or registering with Vertical Penguin as a customer, you are agreeing to all of the terms and conditions as set forth below and which may be modified in any way and at any time by Vertical Penguin.
C. If you have questions about this Terms and Conditions of Use, please contact us via e-mail, telephone or U.S. Mail at the following addresses:
Vertical Penguin, 1257 Iris St. #6, San Luis Obispo, Ca 93401.
Phone: 1-805-743-3583
Email: info@verticalpenguin.com
II. Disclaimer
A. Vertical Penguin disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or material displayed in any and all Vertical Penguin’s services results. Vertical Penguin disclaims any responsibility or liability for the deletion, failure to store, mis-delivery, or untimely delivery of any information or material. Vertical Penguin disclaims any responsibility or liability for any harm resulting from downloading or accessing any information or material on the Internet through Vertical Penguin
website or services.
B. Vertical Penguin furthermore requires that its customers who provide Internet services to others will fully comply with all applicable laws concerning the privacy of online communications. A customer's failure to comply with those laws will violate this policy.
C. Vertical Penguin wishes to emphasize that in accepting its services, customers indemnify Vertical Penguin for the violation of any law or Vertical Penguin policy that results in loss to Vertical Penguin or the bringing of any claim against Vertical Penguin. This means that if Vertical Penguin is sued because of activities of the customer that violate any law, or this policy, the customer will pay any damages awarded against Vertical Penguin, plus costs and reasonable attorneys' fees.
D. VERTICAL PENGUIN SERVICES AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN THE VERTICAL PENGUIN WEBSITE AND SERVICES PROVIDED ARE PROVIDED "AS IS," WITH NO WARRANTIES EXPRESSED OR IMPLIED. VERTICAL PENGUIN EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. VERTICAL PENGUIN DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE VERTICAL PENGUIN WEBSITE OR SERVICES PROVIDED. VERTICAL PENGUIN DISCLAIMS, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE VERTICAL PENGUIN WEBSITE OR SERVICES PROVIDED. VERTICAL PENGUIN DISCLAIMS ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE VERTICAL PENGUIN WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED BY VERTICAL PENGUIN, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS OR ANY MEMBER CONTRIBUTIONS PROVIDED ON THE VERTICAL PENGUIN WEBSITE OR OTHER MEDIA.
E. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE VERTICAL PENGUIN WEBSITE OR SERVICES PROVIDED, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
F. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
III. Limitation of Liability
A. UNDER NO CIRCUMSTANCES SHALL VERTICAL PENGUIN BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER’S USE OR MISUSE OF, OR RELIANCE ON, VERTICAL PENGUIN SERVICES. ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF VERTICAL PENGUIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON VERTICAL PENGUIN SERVICES, FROM INABILITY TO USE THE VERTICAL PENGUIN SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF VERTICAL PENGUIN SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED BY VERTICAL PENGUIN OR RECEIVED THROUGH ANY LINKS PROVIDED BY VERTICAL PENGUIN, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE VERTICAL PENGUIN WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE VERTICAL PENGUIN WEBSITE. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF VERTICAL PENGUIN OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE VERTICAL PENGUIN WEBSITE OR SERVICES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
B. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
C. Without limiting the foregoing, under no circumstances shall Vertical Penguin be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of,
or fluctuations in, heat, light, or air conditioning.
IV. User-Supplied Content
A. All services may be used for lawful purposes only. Through the use of Vertical Penguin's services, you may have access to chat areas, bulletin boards, web pages, email, or other services (“network”) that enable you to send or post materials ("content") and make that content available to others. You agree not to submit, publish, or display on the network any defamatory, inaccurate, abusive, obscene, infringing, or threatening content. In addition, you agree not to submit, publish, or display any content that violates any United States Federal, State, or Local laws. You are solely responsible for the content you make accessible through the Vertical Penguin network. You also agree to not use the service to assist any other person or entity to violate any United States Federal, State, or Local laws, ordinances, or regulations.
B. Vertical Penguin is not obligated to monitor the network to examine available content. You hereby acknowledge that if we are made aware of content that is determined to be, in our sole discretion, unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, Vertical Penguin has the right, but not the obligation, to edit, remove or deny access to such content. Vertical Penguin may disclose any content or records concerning customer's account as required, to satisfy any law, regulation, governmental request or court order.
C. Pornography and sex-related merchandising are prohibited on all Vertical Penguin servers. This includes sites that may infer sexual content, display nudity, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to Vertical Penguin's servers or any other server on the Internet. Links to such materials are also prohibited. In addition, any site selling or promoting bulk email service is not allowed. Below are some examples of non-acceptable content or links:
Adult Sites - Any erotic or pornographic material, links to adult sites, or advertisements for adult sites.
Pirated Software (Warez) - Any software that is copyrighted and not freely available for distribution without cost; i.e. ROMs, ROM Emulators and MPEG Layer 3 files (MP3).
Copyright Violations - Violation of copyrights held by individuals and corporations or other entities can result in civil and criminal liability for the infringer.
Hacking/Phreaking - Includes sites with material, links, or resources for hacking, phreaking, viruses, anarchy, or any type of site that promotes or participates in willful harm to Internet sites or providers.
V. Network Security
A. You may not use the Vertical Penguin services, website or network with an attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for your use, logging into a server or account that you are not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy.
B. You may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail “bombing,” or other deliberate attempts to overload or crash a host or network. Vertical Penguin will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.
VI. CGI Scripts
A. Each Vertical Penguin account comes fully equipped with its own pre-configured CGI-Bin. Customers are free to use any CGI-scripts provided with their account or add any additional ones they require.
B. Any CGI-scripts deemed to be adversely affecting the server performance or the network integrity may be shut down without prior notice. CGI-script sharing with domains not hosted by Vertical Penguin is not allowed.
VII. Chat Rooms
A. Vertical Penguin prohibits its customers from installing outside chat rooms on their domain, as these tend to be a resource problem.
B. Vertical Penguin does provide its customers a choice of chat rooms to choose from for a nominal monthly charge. These chat rooms were designed to meet the growing needs of customers and function without hindering the performance of the servers for others.
VIII. Server Resources
Any web site that uses a high amount of server resources (such as, but not limited to CPU time, memory usage, and network resources) will be given an option of either upgrading their service level or reducing the resource used to an acceptable level.
IX. Background Running Programs
Background daemons in general are prohibited. Vertical Penguin will consider requests on a per-application basis. If allowed, extra charges will be assessed based on resource requirements for system maintenance.
X. IRC
Vertical Penguin currently prohibits its customers from operating IRC or IRC Bots on any of the servers in the Vertical Penguin Network.
XI. Commercial Advertising/Mass Mailings
A. You must not use the Vertical Penguin service, website, network, equipment or any Vertical Penguin email address in connection with the transmission of spam, flames, mail “bombs,” or substantially similar, unsolicited email messages. Your domain may not be referenced as originator, intermediary, or reply-to address in any of the above. This prohibition extends to the sending of unsolicited mailings from another service that in any way implicates the use of the Vertical Penguin service, website, network, equipment or any Vertical Penguin email address.
B. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's email address accessible to the public will not constitute a request or invitation to receive messages.
C. If you are found to have violated the Terms stated in Sections XI (A) and (B), above, Vertical Penguin reserves the right, without further warning, to disable, suspend and/or terminate your domain.
D. Vertical Penguin may impose a $100 penalty for each spam policy violation. Vertical Penguin solely reserves the right to refuse or cancel service to known spammers.
E. Vertical Penguin reserves the right to determine what violates this policy. As such, any violation may result in cancellation of services without refund.
XII. Distribution and/or Transmission of Obscene or Indecent Speech or Materials
Violation of indecency and obscenity laws can result in criminal penalties. As stated elsewhere in this policy, Vertical Penguin will assist law enforcement in the prosecution of all criminally-based activities.
XIII. Intellectual Property Rights
A. Material accessible to you through Vertical Penguin's website, network or services may be subject to protection under the United States or other international copyright laws, or laws protecting trademarks, trade secrets or proprietary information. Except when expressly permitted by the owner of such rights, you must not use Vertical Penguin services in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material, which you access or receive through the Vertical Penguin website, services or network.
B. If you use a domain name in connection with the Vertical Penguin service or similar service, you must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.
XIV. Defamation
Defamatory speech distributed over the Internet can result in civil liability for the defamer.
XV. Refusal of Service
A. Vertical Penguin reserves the right, at its sole discretion, to refuse or cancel service.
B. Violation of any of Vertical Penguin's Terms and Conditions of Use could result in a warning, suspension, or possible account termination. Accounts terminated due to policy violations will not be refunded.
XVI. Service Cancellation
A. To authenticate a service cancellation request, you must fill out the Online Cancellation Form. If this is not possible, you may email the notice to info@verticalpenguin.com or mail the cancellation notice to Vertical Penguin, 1257 Iris St. #6, San Luis Obispo, CA, 93401, US. You must include your account email address, account name, account password and the domain on which you want to cancel the hosting.
B. For security reasons, we cannot accept cancellation requests over the phone.
XVII. Indemnification
A. Customer agrees that it will protect, indemnify, save and hold Vertical Penguin harmless from any and all stipulations, liabilities, losses, expenses and claims, as well as reasonable attorney's fees assessed against Vertical Penguin, its agents, customers, officers, employees and administration that may arise or result from any service provided or performed or agreed to be performed or any product sold by its customers, agents, employees or assigns.
B. Customer further agrees to defend, indemnify and hold Vertical Penguin harmless against liabilities arising out of (1) any injury to person or property caused by any products sold or distributed in association with Vertical Penguin's services; (2) any material furnished by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright violation and any defective products sold to a customer from Vertical Penguin's website, service or network.
XVIII. Changes in Terms and Conditions of Use
A. We may modify or terminate our services from time to time, for any reason and without notice, including the right to terminate with or without notice, without liability to you, any other member or any third party.
B. We reserve the right to modify these Terms and Conditions of Use from time to time without notice. Please review these Terms each time you visit our website so
that you will be apprised of any changes.
C. If you have any additional questions, please feel free to contact us.
XIX. Data Protection
A. Users should be aware that there are inherent security risks in transmitting data, such as emails, credit card or personal information via the Internet, because it is impossible to safeguard completely against unauthorized access by third parties. Nevertheless, we shall safeguard your data, subject to this cautionary limitation.
B. In particular, personal information will be transmitted via the Internet only if it does not infringe upon third-party rights, unless the respective party has given its prior consent in view of such security risks.
C. Accordingly, as the web site provider, we shall not be held liable for any damages incurred as a consequence of such security risks or for any related acts of omission on our part. ALSO, PLEASE SEE OUR PRIVACY POLICY, STATED SEPARATELY ON OUR WEB SITE.
D. As stated elsewhere in these Terms, we strongly oppose the use of any available contact information by a third party for sending unsolicited advertisements (SPAM).
E. As the web site provider, Vertical Penguin reserves the express right to take legal action against unsolicited mailing or emailing of SPAM and other similar advertising materials. Vertical Penguin will report all violators to the appropriate legal authority.
XX. Correspondence with Vertical Penguin
A. All correspondence shall be made through our contact form at http://www.verticalpenguin.com/contact.htm. CHANGE AS NECESSARY!!!
B. While we may reply to correspondence sent by email or to telephone voice mails, all questions or issues which require a reply MUST be submitted via our contact form.
C. In the event you do not use our online contact form, as stated herein, we are under no obligation to respond to any problems or claims that may arise. Further, you expressly agree to waive any claim(s) and hold us harmless from any liability for any problems that may arise, until such time as they are properly communicated to us through the online contact form.
XXI. Intellectual Property Policy
A. It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office website, http://lcWeb.loc.gov/copyright/) and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity.
B. Vertical Penguin retains the right to non-exclusive use of all customer-submitted content, as we see fit, however, same content remains the intellectual property of the customer or its actual owner.
C. Vertical Penguin disclaims any and all responsibility or liability for infringements or damages made by its customers in regards to violation of all intellectual property rights. Additionally, Vertical Penguin is not liable for any and all lost, damaged, deleted or stolen materials submitted by its customers.
XXII. Waiver
Vertical Penguin’s failure to exercise or enforce any right or provision of this Terms and Conditions of Use shall not constitute a waiver of such right or provision, nor any other rights or provisions stated herein.
XXIII. Choice of Law
A. The Terms and Conditions of Use stated herein shall be governed by and construed in accordance with the laws of the State of California, without reference to conflicts of law rules.
B. You expressly consent to exclusive jurisdiction and venue in the courts located in San Luis Obispo County, California, for all matters in connection with these Terms and Conditions of Use or your use of Vertical Penguin’s website, services or network.
XXIV. Severability of Provisions
A. Any provision (or part thereof) of these Terms and Conditions of Use which may be found invalid, prohibited, or unenforceable, shall be ineffective only to the extent of such prohibition and unenforceability, without invalidating the remainder of the provision or the remaining provisions herein.
B. To the extent permitted by the applicable law, each of the parties hereto (user, customer, Vertical Penguin) hereby waives any provision of law which prohibits or renders unenforceable any provisions herein in any respect.
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