Terms of Service
Where the content states: "We" includes Monterey Bay Design or any party acting on Monterey Bay Design's implicit instructions. "You" includes the person purchasing the services or any party acting on the customer's instructions. "Member" includes the purchaser of services or any party acting on the purchaser's instructions. "The Registrant" includes the person applying for a domain name or any party acting on the Registrant's instructions. "The Registry" refers to the relevant domain names Registry. "Server" means the computer server equipment in connection with the provision of the Services. "Web Site" means the area on the Server allocated by us to you for use by you as a site on the Internet. "TOS" includes this agreement. Monterey Bay Design reserves the right to modify this policy at any time, effective immediately upon posting of the modification to this URL: http://www.montereybaydesign.com/tos.php. In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:
You must be 18 years or older to register or own services on this site. If you are under 18, a parent or guardian must register for you.
Hate sites, or any site that promotes violence or racial intolerance, or any site with content that could be reasonably considered as an advocation of racist views are forbidden on Monterey Bay Design servers. Any of the aforementioned content that is discovered on an existing site will result in the termination of the account without refund of any fees and without further consideration as this violates terms of service. Further, no domain with the intention of hosting the aforementioned content shall be registered via Monterey Bay Design.
1.1 We make no representation that the domain name you wish to register is capable of being registered by or for you or that it will be registered in your name. You should therefore not assume registration of your requested domain name(s) until you have been notified that it has or they have been registered. Any action taken by you before such notification is at your risk.
1.2 The registration and use of your domain name is subject to the terms and conditions of use applied by the relevant naming authority; you shall ensure that you are aware of those terms and conditions and that you comply with them. You shall have no right to bring any claim against us in respect of refusal to register a domain name. Any administration charge paid by you to us shall be non-refundable notwithstanding refusal by the naming authority to register your desired name.
1.3 We shall have no liability in respect of the use by you of any domain name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
1.4 We shall not release any domain to another provider unless full payment for that domain has been received by us.
1.5 Domain Pricing for registration, transfer and renewal is based on the industry's wholesale prices and fluctuations. When you purchase a domain for a period of time, your pricing is locked in for that period. Renewal pricing after your current registration period is subject to change.
2.1 We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server.
2.2 You shall effect and maintain adequate insurance coverage in respect of any loss or damage to data stored on the Server.
2.3 You represent, undertake and warrant to us that you will use the Web Site allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that:
2.3.1 You will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party; nor will you authorize or permit any other person to do so.
2.3.2 You will not post, link to or transmit:(a) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, profane or otherwise objectionable as determined by Monterey Bay Design in any way.
(b) any material containing a virus or other hostile computer program.
(c) any material which constitutes, or encourages the commission of a criminal offence, or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
2.3.3 You will not send bulk email, whether opt-in or otherwise, from our network. Nor will you promote a site hosted on our network using bulk email from our network. Sending bulk email through your Monterey Bay Design hosting account is grounds for contract termination.
- For sites requiring registration and/or membership where regular mailings will be a factor, you must employ an external mailing list/newsletter service.
2.3.4 You will not employ programs which consume excessive system resources including, but not limited to, processor cycles and memory. We do not host IRC, IRC bots, or other server resource intensive programs.
2.3.5 You are responsible for monitoring Bandwidth and Disk space usage of your site. This is easily done from your Control Panel. If you go over the amount indicated in your current plan, you will be informed of the overage and will be expected to rectify it by either purchasing a package that conforms more to your usage needs or reducing the diskspace and bandwidth used. If the overage continues, you may be assessed a surcharge based upon our pricing structure and your current overage.
2.3.6 Terms and Conditions regarding Email usage are clearly stated in detail in your Hosting Account Welcome Email.
- While hosting a website takes a relatively small amount of space, even for a seemingly large site, email and attachments can accumulate on the server until all your allotted disk space is used up. Caution should be exercised if using only browser-based email directly accessing the server. For hosting accounts with multiple email addresses, a paid, hosted email solution through Google Apps (G Suite) or Office 365 is highly recommended. Using POP3 or Gmail, please set your email program to download and then automatically remove email from the server.
- POP or IMAP is recommend; however, when using IMAP, you must regularly move email to local folders. This will prevent your resources from being used up and will speed up your email.
- When using IMAP, failure to offload email from the server will result in account resources being used up. You are required to offload or delete email.
2.4 We reserve the right to remove any material which we deem inappropriate from your web site without notice. We do not host Warez, Underage Adult, Pornographic, or Copyrighted MP3 content.
2.5 You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorized use of your account or breach of security, including loss, theft, or unauthorized disclosure of your password or other security information.
2.6 You shall observe the procedures which we may from time to time prescribe and shall make no use of the Server which is detrimental to our other customers.
2.7 Members utilizing free hosting (if available) shall exclude themselves from promotions offered and afforded to paying Members.
2.7.1 Members utilizing free hosting (if available) shall display a banner as supplied by Monterey Bay Design.
2.8 You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
2.8.1 Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is expressly prohibited.
- It is a violation of the CAN-SPAM Act law to send any unsolicited mail. A Member doing so from the Monterey Bay Design servers will be considered as grounds for immediate account termination.
- A Member shall not use another site's mail server to relay mail without the express permission of the site.
2.8.2 It is contrary to Monterey Bay Design policy for Members to use our servers to effect or participate in any of the following activities:
- To post to any Usenet or other newsgroup, forum, e-mail mailing list or other similar group or list articles which are off-topic according to the charter or other owner-published FAQ or description of the group or list.
- To send mass e-mailings; whether unsolicited, opt-in, or otherwise.
- To engage in any of the foregoing activities using the service of another provider, but channeling such activities through a Monterey Bay Design provided server, or using a Monterey Bay Design provided server as a mail drop for responses.
- To falsify user information provided to Monterey Bay Design or to other users of the service in connection with use of a Monterey Bay Design service.
2.8.2(a) Consequences of Violation:
When Monterey Bay Design becomes aware of an alleged violation of its Acceptable Use Policy, Monterey Bay Design will initiate an investigation. During the investigation Monterey Bay Design may restrict Member's access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, Monterey Bay Design may, at its sole discretion, restrict, suspend, or terminate Member's account and/or pursue other civil remedies. If such violation is a criminal offense, Monterey Bay Design will notify the appropriate law enforcement department of such violation.
2.8.2(b) You shall be held liable for any and all costs incurred by Monterey Bay Design as a result of your violation of these terms and conditions. This is including, but is not limited to, attorney fees and costs resulting from Postmaster responses to complaints from and the cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations.
2.8.3 Monterey Bay Design does not issue service credits for any outages incurred through service disablement resulting from Policy violations.
2.9 Any access to other networks connected to Monterey Bay Design must comply with the rules appropriate for those other networks.
2.10 While we will use every reasonable endeavor to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorized users or hackers and we shall be under no liability for non-receipt or misrouting of email or for any other failure of email.
2.11 The client is solely responsible for insuring adequate backup policies for any site whether designed by Monterey Bay Design or a third party regardless of where it is hosted. This includes, but is not limited to database, site files and email. Monterey Bay Design is not responsible for any damages resulting from the loss of the client's Content. If such a loss occurs, we can be available to help recover and restore data if it is possible.
2.12 You may cancel the Services at any time by logging into your account and requesting cancellation of services.
3.1 We shall use our reasonable endeavors to make available to you at all times the Server and the Services but we shall not, in any event, be liable for interruptions of Service or down-time of the Server.
3.2 We shall have the right to suspend the Services at any time and for any reason, generally without notice, but if such suspension lasts or is expected to last for more than 7 days you will be notified of the reason. As client, it is your responsibility to take care of backup for sites that may be yours or ones under you. We also reserve the right to disallow services/hosting to any client as we feel necessary and hold no liability. Also please note that we do not offer any sort of compensation on our network uptime guarantee.
3.3 The Services provided to you hereunder and your account with us cannot be transferred or used by anyone other than you. No more than one log-in session under any one account may be used at any time by you. If you have multiple accounts, you are limited to one login session per system account at any time; user programs may be run only during log-in sessions. If your account is found to have been transferred to another party, or shows other activity in breach of this sub clause, we shall have the right to cancel the account and terminate the Services and/or this Agreement immediately.
3.4 Monterey Bay Design reserves the right to update or alter products or services. Any product or service in use by the client will not be changed unless it is a change to improve the service or product (such as a server or hosting plan upgrade.) All other products or services are subject to change, regardless of promotional emails or website announcements.
4.1 All charges payable by you for the Services shall be in accordance with the scale of charges and rates published from time to time by us on our web site and shall be due and payable in advance of our service provision. We reserve the right to change pricing at any time although all pricing is guaranteed for the period of pre payment.
4.2 Payment is due each anniversary month, quarter or year following the date the Services were established until closure notice is given. You authorize Monterey Bay Design to debit your account renewal fees from your credit or debit card on file.
- You shall make every effort to insure that your method of payment is current. Interruption, suspension, termination of services and/or late fees may apply should your payment method expire or become invalid.
- Hosting, domains, and other online services require credit card on file for automated payments.
- Payment by check must be approved by Monterey Bay Design for online services.
4.3 All payments must be in US Dollars.
4.4 If your check is returned by the bank as unpaid for any reason, you will be liable for a "returned check" charge of $45.
4.5 Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we shall be entitled forthwith to suspend the provision of Services to you.
5.1 If you fail to pay any sums due to us as they fall due, we may suspend the Services and/or terminate this Agreement forthwith without notice to you.
5.2 If you break any of these terms and conditions we may suspend the Services and/or terminate this Agreement forthwith without notice to you.
5.3 If you are a company and you go into insolvent liquidation or suffer the appointment of an administrator or administrative receiver or enter into a voluntary arrangement with your creditors, we shall be entitled to suspend the Services and/or terminate this Agreement forthwith without notice to you.
5.4 No refunds will be made for Services suspended in accordance with 5.1, 5.2 and 5.3.
5.5 We reserve the right to suspend the Services and/or terminate this Agreement at any time. In the event of this You will a be entitled pro rata refund based upon the remaining period of membership.
5.6 You may cancel the Services at any time by logging into your account and requesting cancellation of services. Prorata refunds issued at the sole discretion of Monterey Bay Design. Cancellation fees may be required.
5.7 During the first 30 days of Services, you are entitled to a refund of fees paid with the exclusion of domain name registration, dedicated server, data transfer fees, and excessive support requests should you decide to cancel the Services for just cause. Monterey Bay Design shall be the sole arbitrator as to the validity of your claim of just cause. And will subtract the aforementioned fees from any monies due you.
5.7.1 During the first fourteen days of service you are entitled to a full, no questions asked refund excluding as set forth in sections 5.7, 5.7.2, 5.7.3, and 12.5; as well as exclusions listed in section 2 above. For the remaining time your refund will be prorated and factored at the full discretion of Monterey Bay Design.
5.7.2 Partner Plans (Resellers), if made available, are eligible for above refund minus usage fees; if such use has been deemed excessive at the discretion of Monterey Bay Design. Such accounts are often more resource intensive than standard shared hosting accounts and, therefore, do not qualify under our standard 30 day guarantee details.
5.7.3 You will not be entitled to a refund on these basis if you have previously had an account with Monterey Bay Design under any plan or service.
5.7.4 Allow 30 (thirty) days for refund payments to process. If you have not received refund within this time allotment; please contact us.
5.8 Where payment has been made by credit or debit card, any refund will only be issued to the same credit or debit card.
5.9 On termination of this Agreement or suspension of the Services we shall be entitled immediately to block your Web Site and to remove all data located on it.
6.1 Errors occur and issues arise on occasion; however, Monterey Bay Design will not be held liable to you or any third party for penalties, losses, damages, costs, or claims including legal fees caused by or resulting indirectly through the following services including, but not limited to Hosting, Domain Registration, PCI Compliance, SSL Certification, Website Security Tools, Website or Graphic Design without limitation or exception.
6.2 It is your responsibility to perform due diligence with regard to your company name, product, brand or any materials including but not limited to text, graphics, photos, and designs provided to Monterey Bay Design for the creation of any work. Monterey Bay Design is not responsible for any legal action arising from copyright infringement.
6.3 Web Design:
6.4 Graphic Design:
7.1 All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to sub clause.
7.2 Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim.
7.3 No claim shall be brought unless you have notified us of the claim within one year of it arising.
7.4 In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
8.1 The account owner is responsible for any behavior on the account by themselves or users of the account which affect the account's standing and by extension, the server reputation.
8.2 IP Blacklisting affects the server reputation and all accounts sharing an IP address on the server, therefore, any account deemed responsible for IP blacklisting may be suspended without prior notice and will be required to purchase a Dedicated IP address without delay.
8.3 An account deemed responsible for IP blacklisting will also be subject to account termination and a fine of no less than a sum equal to three (3) months of the account's hosting charges.
8.4 Any account known to be engaging in any activities which may lead to IP Blacklisting may be suspended without notice until such activities are terminated.
8.5 Any account which may inadvertantly cause blacklisting, including, but not limited to, excessive outgoing email or utilization of an email forward will be required to purchase a Dedicated IP address without delay and regardless of the continuation or cessation of the inadvertant practices that caused the blacklisting.
8.6 High risk accounts are not required to purchase a Dedicated IP, but if account behavior causes a blacklisting, the account may be subject to suspension, termination and/or a fine. High risk accounts include, but are not limited to the following:
- High Risk Website
- If a website is keeping a userbase, regardless of whether or not the mailing list is offsite or on
- If a website uses any local function that notifies a user or requires verification via email
- If a website is using eCommerce or membership plugins
- High Risk Email
- If an email forward exists locally
- If multiple email addresses exist locally
8.7 When you share an IP address with multiple accounts/people (this is always the case on a shared hosting server) you run the risk of either causing an issue or being a casualty of one. Therefore, any client hosting a website and/or email on Monterey Bay Design servers is urged to also purchase a Dedicated IP address. Once a Dedicated IP is assigned, the associated site and local email will be on an IP address unique to its domain.
8.8 Monterey Bay Design utilizes FraudRecord to screen new orders for previous fraudulent activity and report existing clients who violate our Terms of Service. In case of a violation, you may be reported to FraudRecord for misbehavior using one-way hashed information.
9.1 On our site you will find links to all the information to get your web site up and running. All information pertaining to your account, including these Terms of Service, will have been included in the Welcome and New Account Information letters you received when we created your account. If you did not receive a Welcome Letter email and a New Account Information email, please contact our Support Team. There are several reasons an email may not reach you; first and foremost is if the domain you have contracted services for is the same domain your welcome email was sent to. (i.e. your email for your domain will not yet have been set up.)
9.2 The support feature of our service at present time consists of our Support System solving server related problems only.
9.2.1 If you require support for your scripting, there are several online tutorials available we can help you find. You may purchase a technician's services at our current hourly rate, with one half hour minimum billed. We reserve the right to waive this fee at any time.
9.3 Support can only be addressed in English through our Support System.
9.4 All Support requests are to be processed through our Support System. Any other request for support, except as noted in Section 9.5, will be considered a breach of our TOS.
9.5 In the event of a server outage or other such emergency, you are free to contact us in any manner.
10.1 This Agreement shall be governed by and construed in accordance with United States law and the laws governing the state of California. You hereby submit to the non-exclusive jurisdiction of the U.S. courts.
11.1 No one shall post defamatory, scandalous, or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyrights, or other intellectual property rights.
11.2 Any abuse towards any Monterey Bay Design employee will not be tolerated. You are expected to request and respond to support and other issues in a professional manner. When emailing Monterey Bay Design or utilizing the Ticket Desk Support System, please refrain from using caps, exclamation points, and other forms of written yelling. Any cursing, yelling, or intentional disruptive behavior aimed at Monterey Bay Design or its employees shall be considered a violation of this TOS.
11.3 Any threat, whether verbal, oral, written, or delivered by second parties directed towards Monterey Bay Design or any of its employees, partners, equipment, and concerns shall be construed as a violation of this TOS.
11.4 Any conduct viewed as violating this section shall be considered a violation of this TOS. Monterey Bay Design will be the sole arbiter in regards to what is deemed a violation.
11.5 No refunds shall be given when removal of the account is due to violation of the contents of this section.
12.1 You may cancel Hosting Services at any time by logging into your Client Portal.
12.2 If cancellation is requested, you may be eligible for a pro rata refund. This only applies to Hosting services. This does not apply to any of the following, including, but not limited to Domain Registration, SSL Certificates, Web or Graphic Design.
13.1 These Terms & Conditions, together with any written proposal and/or agreement between the Client and Monterey Bay Design, represent the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.
13.2 Monterey Bay Design reserves the right to amend these TOS at any time.
13.3 It is your responsibility to check these Terms of Service on occasion for any such amendments.