Terms of Service (TOS)
These Terms of Service (the “Agreement”) set forth the terms and conditions of Your Use of hosting and related services (“Services”). In this Agreement “You” and “Your” refer to You as the user of Our Services, or any agent, employee, servant or person authorized to act on Your behalf. “We”, “us” and “our” refer to Daku Solutions LLC, Inc., as well as its subsidiaries and sister companies (“Daku Solutions LLC”). This Agreement explains Our obligations to You, and explains Your obligations to Us for the various services or products offered by Daku Solutions LLC (“Services”). When You use Your account or permit someone else to use it to purchase or otherwise acquire access to additional Services or to cancel Your Services (even if We were not notified of such authorization), You signify Your agreement to the terms and conditions contained in this Agreement.
- Term of Agreement; Modification
You agree that Daku Solutions LLC may modify this Agreement and the Services it offers to You from time to time. You agree to be bound by any changes Daku Solutions LLC may reasonably make to this Agreement when such changes are made. If You have purchased Services from Daku Solutions LLC, the terms and conditions of this Agreement shall continue in full force and effect as long as You take advantage of and use the Services. By continuing to use the Services after any revision to this Agreement or change in services, you agree to abide by and be bound by any such revisions or changes.
- Accurate Information
You agree to maintain accurate information by providing updates to Daku Solutions LLC, as needed, while You are using the Services. You agree You will notify Daku Solutions LLC within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Daku Solutions LLC to determine the validity of information provided by You will constitute a material breach of this Agreement. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Daku Solutions LLC has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, Daku Solutions LLC has the absolute right, in its sole discretion, to terminate its Services and close Your account.
- Accepted Use Policy
Daku Solutions LLC’s Accepted Use Policy (“AUP”), which is incorporated herein by reference, is applicable to all Services. You should use all Services for lawful purposes only. You agree to maintain Your website in full compliance with the terms and conditions set forth in the AUP. By using any Services, You agree:
- not to violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government.
- not to transmit any unsolicited commercial or bulk email, not to be engaged in any activity known or considered to be spamming or Mail Bombing.
- not to make any illegal communication to any Newsgroup, Mailing List, Chat Facility, or another Internet Forum.
- not to make, attempt or allow any unauthorized access to Daku Solutions LLC website, servers, your own hosting account or the account of any other customers of Daku Solutions LLC.
- not to allow any remote code execution of malicious software through the hosting account provided by Daku Solutions LLC.
- not to cause denial of service attacks, port scans or other endangering and invasive procedures against Daku Solutions LLC servers and facilities or the servers and facilities of other network hosts or Internet users.
- not to forge the signature or other identifying mark or code of any other person or engage in any activity to attempt to deceive other persons regarding the true identity of the User.
- not to use Daku Solutions LLC services to host any website, other content, links or advertisements of websites that: infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party information; contain nudity, pornography or other content deemed adult related; profess hatred for particular social, ethnical, religious or other group; contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs that may damage the operation of a computer or a person’s property; contain warez; contain any kind of proxy server or other traffic relaying programs; promote money making schemes, multi-level marketing or similar activities; contain lottery, gambling, casino; contain torrent trackers, torrent Portals or similar software; violent or encouraging violence.
- not to upload unacceptable material which includes: IRC bots, warez, image, file storage, mirror, or banner-ad services, topsites, streaming, Escrow, High-Yield Interest Programs (HYIP) or related sites, investment sites (FOREX, E-Gold Exchange, etc), bitcoin miners, sale of any controlled substances without providing proof of appropriate permit(s) in advance, AutoSurf sites, Bank Debentures, Bank Debenture Trading Programs, Prime Banks Programs, lottery sites, muds / rpg’s, hate sites, hacking focused sites/archives/programs, or sites promoting illegal activities, IP Scanners, Brute Force Programs, Mail Bombers and Spam Scripts.
- not to engage in or to instigate actions that cause harm to Daku Solutions LLC or other customers. Such actions include, but are not limited to, actions resulting in blacklisting any of Our IPs by the any online spam database, actions resulting in DDOS attacks for any servers, etc. Daku Solutions LLC reserves the right to refuse service to anyone upon Our discretion. Any material that in Daku Solutions LLC judgment, is either obscene or threatening is strictly prohibited and will be removed from Daku Solutions LLC servers immediately with or without prior notice and may lead to possible warning, suspension or immediate account termination with no refund. You agree that We have the sole right to decide what constitutes a violation of the acceptable policy use described above as well as what is the appropriate severity of any corrective action to be applied. In the event that a violation of Our Acceptable Use Policy is found, Daku Solutions LLC will take corrective action upon our own discretion and will notify You. Daku Solutions LLC decision in such case is binding and final, and cannot be a subject of a further change. Daku Solutions LLC cannot and shall not be liable for any loss or damage arising from Our measures against actions causing harm to Daku Solutions LLC or any other third party. We have the right to terminate each and any hosting account that has been suspended for any reason for more than 14 calendar days after the suspension date, unless You have taken corrective measures to remove the initial suspension threat or violation. Any backup copies of the hosting account will be permanently deleted upon termination and no refund will be due. Daku Solutions LLC will not be liable for any loss or damages in such cases.
- not to violate the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promote, encourage or engage in the sale or distribution of prescription medication without a valid prescription.
At its discretion, Daku Solutions LLC reserves the right to investigate the use of its services for violations of its policies. This includes all hosting packages and services. Daku Solutions LLC further reserves the right to remove any content we determine to be prohibited by this agreement or our Terms and Conditions. No backups will be kept of removed content.
- Storage and Security
At all times, You shall bear full risk of loss and damage to Your server and all of Your server content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of Your server content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your server content; (ii) maintain independent archival and backup copies of Your server content; (iii) ensure the security, confidentiality and integrity of Your server content transmitted through or stored on Daku Solutions LLC servers; and (iv) ensure the confidentiality of Your password. Daku Solutions LLC services are not intended to be used for data backup or archiving purposes. Using an account as an online storage space for archiving electronic files is prohibited and will result in termination of hosting services without prior notice. We reserve the right to delete Your archives if they affect Our overall server performance and Daku Solutions LLC shall have no liability to You or any other person for loss, damage or destruction of any of Your content. The services offered by Daku Solutions LLC are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. Daku Solutions LLC shall have no liability to You or any other person for Your use of Daku Solutions LLC products and/or services in violation of these terms.
Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (“IP rights”) are owned by Daku Solutions LLC or its third party partners, and you agree to make no claim of interest in or ownership of any such IP rights. You acknowledge that no title to the IP rights is transferred to you, and that You do not obtain any rights, express or implied, in the Services, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Daku Solutions LLC and all right, title and interest in and to each such Derivative Work shall automatically vest in Daku Solutions LLC. Daku Solutions LLC shall have no obligation to grant You any right in any such Derivative Work.
- Non-Exclusive Right To Use
If You have purchased and/or been given permission to use software from Daku Solutions LLC, Daku Solutions LLC grants You a limited, non-exclusive, nontransferable and non-assignable right and ability to use the software for such purposes as are ordinary and customary. You agree to not alter or modify the software. You agree You are not authorized to combine the software with any other software program, create derivative works based upon the software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code. Daku Solutions LLC reserves all rights to the software. The software and any copies You are authorized to make are the intellectual property of Daku Solutions LLC. The source code and its organization are the exclusive property of Daku Solutions LLC and the software is protected by copyright law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the software and all rights are reserved by Daku Solutions LLC.
Any such software and Services are provided to You “as is” without warranty of any kind either express or implied, including but not limited to the implied warranties or conditions of merchantability or fitness for a particular purpose.
- Third-Party Software
Daku Solutions LLC provides some third-party software to You. Such software is provided on an “as is” as available basis. We do not guarantee that any specific results can be obtained by using such software. Daku Solutions LLC does not take responsibility for any faults in such software functioning.
By using Daku Solutions LLC Services that include such third-party software, you specifically agree to the relevant third-party terms of service and that You shall use the services in accordance with such terms.
You can add and use third-party software on Your account only if it is compatible with Our servers and is approved by Daku Solutions LLC. Your use of any third party software is at Your own risk. Daku Solutions LLC does not control and therefore cannot be responsible for any third party software performance and provides no guarantees that its use will result in any particular outcome or result. Daku Solutions LLC will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Your use of third party software or products. Daku Solutions LLC reserves the right, at its sole discretion, to terminate, suspend, cancel or alter Your access to third-party software at any time.
You are solely responsible for any license and other fees required by the software providers, for using any third-party software installed on Your account apart from the initial account setup.
- Third-Party Content
If You elect to sell or resell advertising or web space to a third party then You will be responsible for the contents of that advertising and the actions of that third party. Daku Solutions LLC has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current Daku Solutions LLC policy or agreement. Such content may result in the suspension or in the immediate termination of Your account. You are responsible for monitoring all service renewals and orders. In the event that an error occurs the account holder must notify Daku Solutions LLC immediately of the error. In no event shall Daku Solutions LLC be liable to the Account Holder for any damages resulting from or related to any failure or delay of domain registration, transfer or renewal.
- Billing and Payment
All fees for the Services shall be in accordance with Daku Solutions LLC ‘s fee schedule then in effect, the terms of which are incorporated herein by reference, and shall be due at the times provided therein. Fees for renewal periods after the Initial Term shall be due and owing immediately upon the first day of such renewal period. Daku Solutions LLC may impose a debt service charge equal to $20.00 for each month or fraction thereof the overdue amount remains unpaid. In addition, in the event that any amount due Daku Solutions LLC remains unpaid seven (7) days after such payment is due, Daku Solutions LLC, in its sole discretion, may immediately terminate this agreement, and/or withhold or suspend Services. There will be a $250.00 fee to reinstate accounts that have been suspended or terminated. All taxes, fees and governmental charges relating to the Services provided hereunder shall be paid by You.
If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchased the products or Services. If You signed up for an annual (or longer) payment plan, and You elected the automatic renewal option, Daku Solutions LLC will automatically renew Your Services when they come up for renewal and will take payment in accordance with the designated payment method at Daku Solutions LLC ‘s then current rates.
If you improperly charge back for web hosting services rendered, we may disable the ability to transfer any other your Daku Solutions LLC services away from Daku Solutions LLC.
- Termination & Cancellation Policy
The initial term of Your agreement with Daku Solutions LLC shall be as set forth in Your Contract. The Initial Term shall begin upon commencement of the Services in the Contract. After the Initial Term, your agreement with Daku Solutions LLC shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or cancelled by either party as provided in this section.
Daku Solutions LLC provides customer support to You at no additional fee for issues related to Daku Solutions LLC service only. Daku Solutions LLC has the right to decide what is a service related issue and to charge additional fees or refuse support for non-service related issues. Any fees paid by You for providing non-service related support are non-refundable.
You can request customer support only by opening Live Chat or by emailing email@example.com. Daku Solutions LLC will have no liability to provide customer support if it is requested in any other way apart from the email system.
- Account Use
You agree to follow generally accepted rules of “Netiquette” when sending e-mail messages or posting to newsgroups. You are responsible for security of Your password. If you are required to supply or transmit sensitive information to Daku Solutions LLC you should take all due precautions to provide any sensitive information over a secure communication channel.
All purchases are processed in US dollars.
- Limitation of Liability; Waiver and Release
The Services offered by Daku Solutions LLC are being provided on an “AS IS” and Daku Solutions LLC expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose and non-infringment, to the fullest extent permitted or authorized by law.
In no event shall Daku Solutions LLC be liable for any or all direct, indirect, incidental, special, exemplary or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including, but not limited to, negligence or otherwise) arising in any way out of the use of the Services, even if Daku Solutions LLC is aware of or has been advised of the possibility of such damages.
In addition, You specifically acknowledge and agree that any cause of action arising out of or related to Daku Solutions LLC or the Services provided by Daku Solutions LLC must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred.
In addition, You specifically acknowledge and agree that in no event shall Daku Solutions LLC’s total aggregate liability exceed the total amount paid by You for the particular Services that are the subject of the cause of action.
The foregoing limitations shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of these Terms of Service or Your use of Daku Solutions LLC or its Services offered.
No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Daku Solutions LLC.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge Daku Solutions LLC and all affiliates of Daku Solutions LLC, and all officers, agents, employees, and representatives of Daku Solutions LLC, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Services and Your acquisition and use thereof, including, but not limited to, the provision of the Daku Solutions LLC products and/or services by Daku Solutions LLC and its agents and employees. Further, You agree to defend, indemnify and hold harmless Daku Solutions LLC and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by Daku Solutions LLC’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Services or your use of the Services, including without limitation infringement or dilution by You or by another using the Services from Your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data You supplied to Daku Solutions LLC, including, without limitation, any misrepresentation in Your application, if applicable; (v) the inclusion of metatags or other elements in any website created for you or by you via the Services; (vi) any information, material, or services available on your Daku Solutions LLC Hosted website; or (vii), any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of You elsewhere. Should Daku Solutions LLC be notified of a pending law suit, or receive notice of the filing of a law suit, Daku Solutions LLC may seek a written confirmation from You concerning Your obligation to defend, indemnify Daku Solutions LLC. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Daku Solutions LLC shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Daku Solutions LLC of any such claim promptly in writing and to allow Daku Solutions LLC to control the proceedings. You agree to cooperate fully with Daku Solutions LLC during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
- Trademark or Copyright Claims
Daku Solutions LLC is a service provider and respects the copyrights and other intellectual property rights of others [and herein incorporates its Copyright Infringement Policy]. To the extent Daku Solutions LLC receives a proper notice of infringement of copyright, trademark or other intellectual property, Daku Solutions LLC reserves the right to access, preserve and disclose to third parties any of Your information or data (including personally identifiable information and private communications) related to a written complaint of infringement if Daku Solutions LLC believes in its sole discretion that such access, preservation, or disclosure is necessary or useful to respond to or otherwise address such complaint.
Daku Solutions LLC expressly reserves the right to terminate in appropriate circumstances an account or the access rights of a subscriber for repeated copyright infringement. Daku Solutions LLC also reserve the right to terminate an account or subscriber for even one instance of infringement.
Proper notice of infringement shall include the following information in writing to Daku Solutions LLC’s designated agent:
- the electronic or physical signature of the rights holder or the person authorized to act on behalf of that person;
- identification of the work that has been infringed;
- an identification of the material that is claimed to be infringing, and information reasonably sufficient to permit Daku Solutions LLC to locate the material (for example, by providing a URL to the material); or, if applicable, identification of the reference or link to material or activity claimed to be infringing, and information reasonably sufficient to permit Daku Solutions LLC to locate that reference or link;
- Your name, address, telephone number, and email address;
- a statement by You that You have a good faith belief that the disputed use is not authorized by the rights holder, its agent, or the law; and
- a statement that the information in Your notification is accurate and a statement, made under penalty of perjury, that You are the rights holder or are authorized to act on the behalf of the rights holder.
Notice of infringement must be sent to Daku Solutions LLC’s designated agent to receive notification of claimed infringement as follows: Attn: Legal Department, Daku Solutions LLC, 7850 White Ln STE E #115 Bakersfield, CA 93309-7689 facsimile: (323) 487-2990.
- Additional Reservation of Rights
Daku Solutions LLC expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any account or any Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by Daku Solutions LLC in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by Daku Solutions LLC in offering or delivering any Services (including any domain name registration); (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry; (iii) to assist with our fraud and abuse detection and prevention efforts; (iv) to comply with applicable local, state, national and international laws, rules and regulations; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of Daku Solutions LLC, its officers, directors, employees and agents, as well as Daku Solutions LLC’s affiliates.
In the event that Daku Solutions LLC need exercise any of its rights expressed herein to investigate any potential breach or violation of the terms and conditions of this Agreement, service fees may continue to accrue on your accounts, and you will continue to remain responsible for the payment of any service fees that accrue during the relevant period.
- Governing Law and Jurisdiction for Disputes
Except as otherwise set forth in the UDRP or any similar policy with respect to any dispute regarding the Services provided under this Agreement, Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of California. You agree that any action to enforce this agreement or any matter relating to Your use of the Services must be brought exclusively in the United States District Court of California, or if there is no jurisdiction in such court, then in a state court in Kern County, State of California.
You agree that any notices required to be given under this Agreement by Us to You will be deemed to have been given if delivered in accordance address on the contract. You acknowledge that it is Your responsibility to maintain current contact information.
- Legal Age
You attest that you are of legal age (18 or over) to enter into this Agreement.
- Final Agreement
This Agreement, together with all modifications, constitutes the complete and exclusive agreement between You and Us, and supersede and govern all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by You except by means of a written document signed by both You and an authorized representative of Us. By applying for Daku Solutions LLC’s services through the online application process or otherwise, or by using the Services under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
- No Agency Relationship
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
- Assignment and Resale
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Daku Solutions LLC’s prior express written consent.
- Force Majeure
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Daku Solutions LLC, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Daku Solutions LLC may immediately terminate this Agreement.