Terms of Service (Terms of Use)

Upon signing up for and/or using Penguin Enterprises Corp.'s (dba on this website as PenguinWebHosting.com), hereinafter PenguinWebHosting, services, all customers agree to comply with PenguinWebHosting's Terms of Use. The spirit of this policy is to ensure our customers are using PenguinWebHosting' services with due regard to the rights of other Internet users and in conformity with the requirements of PenguinWebHosting's network environment.

Illegal Use

PenguinWebHosting servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Examples of unacceptable content or links include: pirated software, hacker programs or archives, Warez sites, MP3, and IRC bots.

Security

Violations of system or network security are prohibited. Examples include but are not limited to the following: unauthorized access, use, probing, or scanning of systems security or authentication measures, data, or traffic; interference with service to any user, host, or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system, broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.

Server Resources

Any web site that uses a high amount of server resources (such as, but not limited to, CPU index over 500, memory usage, and network resources) will be assessed additional fees, (usually between $100 and $200/yr which will depend on the resources required) and/or upgrade its service. PenguinWebHosting shall be the sole arbiter of what is considered to be a high server usage level.

Any web hosting account deemed to be adversely affecting server performance or network integrity will be shut down without prior notice.

Plan Specifications

PenguinWebHosting reserves the right to add, discontinue, or modify any plan once per year on January 1st, or at any time with notice via an email to the primary contact on file for your account. If your plan changed and you wish to terminate your agreement due to this, contact us with in 15 days (by January 16th, or 15 days after receipt of a plan change email) to close your account and receive a refund for the unused portion. For your convenience we may set your plan to a higher disk space allotment in order to help prevent website errors and lost emails and automatically upgrade your plan and/or bill you for the additional used disk space, if you'd like to opt out of this please write to our helpdesk.

Service Level Agreement (SLA)

Our SLA can be found here: https://www.PenguinWebHosting.com/sla.php Any credits and/or refunds will be limited to our SLA, which states the maximum compensation you will receive in any circumstance. Claims for an SLA credit must be made within 30 days of an outage. Under no circumstances will PenguinWebHosting be liable for any claims greater than the lower of 1 month of service or the amount described in this SLA. You agree to hold PenguinWebHosting, and any associated companies and/or parties harmless, (for damages in excess of our SLA) for any problems, outages, loss of revenue, and/or additional expenses incurred from our service including those resulting from human error and/or gross negligence. Additionally you agree that any disputes between you and PenguinWebHosting, including its owners, operators and affiliates will be handled by the Better Business Bureau (BBB), and you waive your right to go to court to assert or defend yourself or company. Additionally you waive your right to arbitration, legal action, litigation, including but not limited to class action. Under no circumstances will you seek damages of more than what our SLA states, in total. All claims will be brought solely in DuPage County, Illinois, USA (or the nearest regional BBB for that area) and you waive any objection as to inconvenient forum. In the event the BBB cannot or will not handle the issue, PenguinWebHosting will be the sole arbiter of how much credit you will receive.

User Level Security-3rd party scripts, passwords, and account security

You, the customer are responsible for keeping your account secure at the user level, this includes but is not limited to any software you install, including those installed with an initial script installer we provide, such as Fantastico and/or the cPanel script manager/Site Software, including 3rd party scripts and passwords you choose, and software you requested PenguinWebHosting install in your account.

If you install 3rd party scripts you are required to check for security issues with those on a regular basis and upgrade them as needed or as instructed to by PenguinWebHosting. PenguinWebHosting reserves the right to disable any script(s) that pose a potential security risk to your account or the server, or that were not upgraded upon request, and/or suspend your entire account. PenguinWebHosting is not responsible for any negative effects to other areas of your site as a result of disabling one or more particular scripts.

PenguinWebHosting reserves the right to install plugins if they are deemed a security improvement. These plugins include, but are not limited to, auto-update plugins, which may overwrite custom code changes, and security scanning plugins. PenguinWebHosting reserves the right to disable and/or remove out of date, vulnerable, unsupported and/or abandoned plugins and/or themes. Any addons (themes or plugins) not updated within 1 year may be considered abandoned, if have such an instance you must contact the developer to confirm its still being maintained and no known security issues are present.

It is your responsibility to choose secure passwords, change them regularly, and properly manage passwords associated with your account. PenguinWebHosting reserves the right to change or disable insecure or old passwords. PenguinWebHosting reserves the right to perform security audits on accounts to help ensure the security of the servers and network, this may include, but is not limited to, vulnerability scanning, penetration testing, and password audits.

Payment Card Industry (PCI) Compliance

Ordering hosting from PenguinWebHosting and/or passing a PCI scan, does not mean you are PCI compliant. You, the customer are responsible for ensuring your site, server, database and software are secure and PCI Compliant, if needed. We recommend you use an outside certified PCI QSA (Qualified Site Assessor) to verify your site meets all the PCI requirements. If you are found out of compliance you agree to hold PenguinWebHosting.com, its partners, operators, employees, affiliates, PCI scanner vendor, and PCI seal provider harmless and not liable for any fines or damages you incur. Any PCI Compliance and/or security advice, instructions, opinion, or suggestions given to you by PenguinWebHosting.com, its partners, operators, employees, affiliates, PCI scanner vendor, and/or PCI seal provider, shall be regarded only as opinion and you should verify them with a PCI certified QSA before implementing them.

Bulk mail, UCE (Unsolicited Commerce Email) - SPAM, Emails Limits

We do not allow bulk mail of any kind, whether it is spam or opt-in or double opt-in. If you are sending bulk mail you must email our helpdesk for approval prior to sending. Any amount of emails which we believe are spam will result in the account being immediately suspended. This also includes using another server to send out emails to advertise a URL or email hosted on one of our servers. Email forwarders to major ISP's or major email providers, such as Gmail, Yahoo, or MSN are not allowed, due to those providers frequently automatically blocking or rate limiting the IP forwarding the email. Any such forwarders may be removed or disabled. PenguinWebHosting will be the sole arbiter of what constitutes a violation of our Bulk mail policy. PenguinWebHosting reserves the right to limit email usage, including by not necessarily limited to an hourly email limit. Contact our helpdesk to find out the email limit for your particular account.

Server Abuse

Any attempts to undermine or cause harm to a PenguinWebHosting server or customer are strictly prohibited.

Bandwidth Overage

Bandwidth for VPS servers shall be billed as follows $100 for each Mbps over. Which will be calculated as follows, overage charge times ((total bandwidth allowed per month / 350), subtracted from your 95th percentile bandwidth usage). For example if your plan allows 1400GB (approximate equivalent of 4Mbps on a 95th percentile scale) of monthly bandwidth and you used 5Mbps, you would be billed for 1Mbps of bandwidth Overage. Immediate payment may be required as well as a retainer for potential future bandwidth overages.

Software Distribution, File Storage, Large Files, and Number of Files (Including Emails)

PenguinWebHosting's shared web hosting accounts are not configured for the purposes of distributing software and/or multimedia products. In addition your hosting account cannot be used for file storage, for example backing up your home computer to your hosting account, or linking from a site hosted else where to files within your hosting account. Large files, over 500mb, are not allowed, with the exception of 2 backups made from the cpanel backup manager. Number of files/inodes are limited to 100,000. Email left on the server in the Spam or Trash folders, as well as mail in the catch-all box may be purged periodically. Additionally individual account unread mail may be purged after 90 days and read mail in the cur folder may be purged after 365 days.

Tech Support

Tech support is not unlimited. We reserve the right to limit tech support if it exceeds a reasonable level. PenguinWebHosting will be the sole arbiter of what constitutes a reasonable level. If your account requires support above a normal level we may provide support to you for an hourly fee. Our support is limited to the main domain of an account. For reseller accounts you must support the domains under the main domain. We do not provide tech support for addon domains other than adding them initially. We reserve the right to terminate and create a blank new account if a tech support issue arises with your account that cannot be easily and/or quickly fixed. 24x7 tech support indicates the hours in which you can open a ticket with our helpdesk, a representative may not be available to respond immediately during all hours.

Other

Any content which generates reasonable complaints directed by others to us directly is prohibited. PenguinWebHosting will be the sole arbiter as to what constitutes a reasonable complaint. This includes, but is not limited to, any content containing a persons or organizations sensitive personal data, including but not limited to credit card numbers, social security numbers, and drivers license numbers is prohibited. Adult sites including sites which contain nudity are prohibited. PenguinWebHosting is not responsible for bank over draft fees. Offshore bank sites are prohibited. Any content related to terrorist groups or their affiliates are prohibited.

Affiliate Program (Referrals)

Each customer referred must stay with PenguinWebHosting for more then 45 days to collect payment. All payments paid via Paypal or credited unless otherwise agreed upon. Applies to new customers only.

Payment

Payments are automatically billed to your credit card on file. In the event the credit card or payment method on file is no longer valid you must contact us with new payment information within five days. Unpaid accounts are subject to discontinuation of service. Payments over 30 days past due may be subject to a late fee.

Cancellation

All hosting plans are automatic recurring billing cycles. To cancel click the cancel link inside the billing center. You will receive a confirmation number within 3 business days. Accounts cancelled after the 30 day money back guarantee period are subject to a $50 early termination fee, and proration will be based on the monthly billing amount, domain registrations, and other services, such as SSL's, are non-refundable. Dedicated servers and VPS servers require 1 month notice of cancellation. 30-day money back guarantee limited to new shared hosting plan orders and not renewals. Yearly or longer renewals cancelled within the first 30 days after renewal are subject to a $20 cancellation fee. We do not accept cancellation requests via email or in the form of a charge back. The term charge back used hereinafter also includes bad checks as well as stopped payment on checks. Refunds will not be given in the form a charge back. To obtain refund call 630-221-8451. If you do a charge back you must pay an administration fee equal to the amount of the charge back plus an additional $35 per charge back plus any collection fees and/or legal fees.

Refusal of Service

CHIHost reserves the right to refuse or discontinue service to anyone for any reason, or for no reason at the end of your current term and/or for a violation of this TOS.

Hate speech, Vulgar and Abusive Language

Hate speech, including but not limited to, unfavorable text or content towards a particular race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity is not allowed and will result in the suspension and/or termination of your account. The use of vulgar or abusive language to our support staff or any of our partners or suppliers is not tolerated and may result in immediate termination of your account.

Copyright Violations

The Digital Millennium Copyright Act ("DMCA") sets forth the requirements for valid copyright infringement notification. If you would like to notify PenguinWebHosting of an infringement of your copyright, the DMCA requires that you:

Send your notification to PenguinWebHosting's designated agent. You may choose any of the following three avenues for this notification:

Email to abuse@ChiHost.com
Mail or courier to PenguinWebHosting, Attention: Abuse, PO Box 3570 Glen Ellyn, IL 60138. Include in your notification the following information:
- A physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf (the "Claimant").
- Identification of the copyrighted work(s) claimed to have been infringed.
- Identification of the material claimed to infringe the copyright(s), and enough information for PenguinWebHosting to locate it.
- The Claimant's name, address, and telephone number(s).
- A statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or his agent.
- A statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner.

Actions Taken by PenguinWebHosting

The failure by a customer to meet or follow any of the above Terms of Use is grounds for account deactivation. PenguinWebHosting will be the sole arbiter as to what constitutes a violation of the Terms of Use. When PenguinWebHosting becomes aware of an alleged violation of its Terms of Use, PenguinWebHosting will initiate an investigation. During the investigation, PenguinWebHosting may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, PenguinWebHosting may, at its sole discretion, restrict, suspend, or terminate a customer's web hosting account. If such violation is a criminal offense, PenguinWebHosting will notify the appropriate law enforcement authorities of such violation. PenguinWebHosting does not issue credits for outages incurred through service disablement resulting from Terms of Use violations.

Domain Registration and Renewals

Domains registered with PenguinWebHosting may be renewed at any time prior to expiration for a maximum period of up to 10 years. While we will often email you prior to domain expiration, it is your responsibility to keep track of your domain's expiration date. Failure to renew your domain prior to expiration may result in your domain being turned into a pay per click site. The pay per click site may include, and is not limited to images, text and links, and content chosen by PenguinWebHosting's parent registrar. By registering a domain with PenguinWebHosting you agree that images, text, links, etc. of the parent registrars choice may be displayed if you do not renew your domain prior to expiration. You are also subject to any rules, decisions, and actions of the parent registrar at any time during valid registration period and/or renewal. Expired domain registration may result in loss of domain or additional charges to get the domain back, we recommend renewing your domain at least 3 months before it expires.

Upgrades

PenguinWebHosting will upgrade the server on a regular basis and/or as necessary. This will, among other things, help prevent security breaches due to known exploits of open source software, and prevent poor programming techniques which may cause a potential security risk. Prior notice of upgrades will not always be given. PenguinWebHosting is not responsible for any negative effects or non compatibility of your scripts and/or content on your website, after an upgrade, including misdeilvery, nondelivery and/or loss of data.

Backups, Delivery of Service & Indemnification

PenguinWebHosting customers agree to indemnify and hold harmless PenguinWebHosting from any claims resulting from the use of our services that damages them or any other party. The PenguinWebHosting service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement, except as stated in our SLA. While we do make a reasonable effort to maintain a regular backup, our backups are non-guaranteed and you, the customer, are responsible for backing up your files, databases, emails, etc. PenguinWebHosting is not responsible for any loss of data, mis-deliveries, wrong delivery, or any service interruption. PenguinWebHosting expressly disclaims any representation or warranty that the PenguinWebHosting service will be error-free, secure or uninterrupted. No oral advice or written information given by PenguinWebHosting, its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. PenguinWebHosting and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service. If PenguinWebHosting is sued or threatened with a lawsuit from a third party because of something you do with the services, you agree to pick up the tab. Not only do you agree to reimburse PenguinWebHosting for what it pays to satisfy a judgement or settle a case, you also agree to pay PenguinWebHosting's reasonable attorney's fees and all other costs PenguinWebHosting incurs in defending itself. You also agree to indemnify PenguinWebHosting of any claims from your clients, customers, affiliates, employees, or any other party connected to you without a paid account with PenguinWebHosting.

Modifications

PenguinWebHosting reserves the right to add, delete, or modify any provision of its Terms of Use once per year on January 1st, and/or at any time with notice via an email to the primary contact on file for your account. You agree to visit this page on January 1st of each year, and after receipt of a TOS change email, to view the changes. Should you wish to terminate your agreement due to the TOS change, contact us with in 15 days (by January 16th, or 15 days after receipt of a TOS change email) to close your account and receive a refund for the unused portion. The updated TOS supercedes any previous TOS and any other document or agreement.

Should any part of this TOS be deemed unenforceable or invalid, the remainder of the TOS will remain in effect.