Introduction

This Terms of Service is an agreement between Customer and SmartBeast.com ("Agreement") and applies to Customer's account(s) with SmartBeast.com. PLEASE READ THIS DOCUMENT CAREFULLY and retain it for future reference. YOUR USE OF THE SERVICES PROVIDED BY SMARTBEAST.COM CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. Please note that the information contained herein is subject to change without notice. Customer agrees to periodically consult this website for changes or amendments to this Agreement. SmartBeast.com may, but is under no obligation to, provide notices of any amendment, modification or update of this Agreement via e-mail to Customers.

General Provisions

While using Services provided by SmartBeast.com, you agree to the following terms and conditions.

Definitions

1. "We" "Us" "Provider" or "SmartBeast.com"; and
   
   
2. "You" "Your" "Client" or "Customer" refers to each person or entity who applies for internet service or is a designate of any one who applies for internet service with LiquidNeon.com.

Services Provided by SmartBeast.com

SmartBeast.com will rent Internet server space ("Services") to its customers for the purpose of allowing customers to provide a website attached to the SmartBeast content manager available via http internet content to the general public. The Services allow SmartBeast.com customers to maintain 1 internet website using the SmartBeast Software, receive and maintain e-mail accounts, and access web space via the SmartBeast Web Content Manager to upload files for their websites. SmartBeast.com customers will use the provided Services in a manner consistent with all applicable State and Federal laws. SmartBeast.com will make control, monitor or restrict the content of data other than as necessary to provide Services. If any of the activities referenced below are committed, SmartBeast.com may immediately terminate Customer's account(s) without notice. SmartBeast.com will be the sole and final arbiter as to what constitutes a violation of the terms and conditions of this Agreement.

Customer Use of Services

1. Disk Space and Client Content: SmartBeast.com offers 100 MB of space with web content manager package. Disk space can be increased to 200 MB by upgrading to our Level 2 package. Disk space can be further upgraded to 300 MB by upgrading to our Level 3 package or if more space is needed, it can be provided as agreed between the Customer and SmartBeast.com. We reserve the right to not host any website that consumes over 1 GB disk space. Accounts are to be used by the primary owner only or agents of the Account holder. Account holders are not permitted to resell web-hosting services of their website to other parties. Client agrees that webpages and files uploaded to our servers will not violate any state, federal or foreign laws or regulations; infringe on any intellectual property rights of SmartBeast.com or any third party; be defamatory, slanderous or trade libelous; be threatening or harassing; be discriminatory based on gender, race, age; promote hate; or contain viruses or other computer programming defects which result in damage to SmartBeast.com or any third party. This includes adult content, nudity, and any link to such website. Customers may not run IRC bots or clients. Unacceptable uses of our service also include: Bulk emailing, unsolicited emailings, newsgroup spamming, pornographic content or links to adult websites, nudity, copyrighted MP3s, illegal content, copyright infringement, trademark infringement, warez, cracks, or software serial numbers. SmartBeast.com will be the sole and final arbiter as to what constitutes a violation of this policy.
   
   
2. Bandwidth Usage: SmartBeast.com does not have any preset Bandwidth limits, but we reserve the right to charge for sites that exceed normal usage. Normal usage is determined at the discretion of SmartBeast.com and sites that exceed normal usage will either need to upgrade their service or pay as agreed upon between the Customer and SmartBeast.com. We reserve the right to not host any website that consumes over 1 GB per month.
   
   
3. Excessive Resource User Policy: Resources are defined as bandwidth and/or processor utilization. A website is considered to be using "Excessive amounts of resources" when it monopolizes the resources available by using 5% or more of system resources for longer than 60 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, PHP, FTP, HTTP, etc. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers. We reserve the rights to suspend or terminate any hosting account that we feel is jeopardizing our network. SmartBeast.com will be the sole and final arbiter as to what constitutes a violation of this policy.
   
   
4. MySQL: MySQL databases are used to control the SmartBeast Content Manager.  Additional databases can be made via a support ticket.  Customers recieve 2 databases that control 2 forms on the Content Manager included in their monthly fee.  Each additional form that is created increases the monthly service subscription by $3. 36,000 queries/user per hour and 3,600 connections per hour.
   
   
5. No "Spam": UCE/UBE or "Spam" originating from a SmartBeast.com account, or associated with a SmartBeast.com account, is not tolerated. This includes any e-mail that promotes web sites hosted on a SmartBeast.com account but is sent from an e-mail address not associated with that SmartBeast.com account. Client shall not use their SmartBeast.com services for chain letters, junk mail, bulk-email, or any use of distribution lists to any person who has not given specific permission to be included in such a process. SmartBeast.com reserves the right to deactivate or terminate any account(s) upon any indication of such activity without notice. There will be a $150 clean up fee if an account was suspended for policy violation. There is a 500 Email limit that can be sent out within a 24 hour period.
   
   
6. False Information: False Information. Client agrees not to post false or inaccurate information to news groups in violation of the news groups' rules and regulations. If any news groups or service providers contact SmartBeast.com concerning unethical, false or unlawful activities by you, SmartBeast.com reserves the right to terminate your service without notice.
   
   
7. Licensed Software Only: Client agrees to use only properly licensed Smart Beast software in connection with Client's use of the Services.
   
   
8. Back-Up Files:SmartBeast.com will make every reasonable effort to protect and backup data for Client on a regular basis, however SmartBeast.com does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, client is solely responsible for independent backup of data stored on Providers server and network.

Payment Obligations, Renewals, and Cancellations

1. Payment Obligations: Full payment is required in advance, before paid hosting and website service via the Smart Beast Content Manager is established. You warrant and represent that the information you supply in the Order Form (or other information that SmartBeast.com may require) is accurate and truthful. All payment-due notices will be sent by electronic mail. No bills or invoices will be sent by postal mail or fax. If payment was not received by the renewal date, your account will may be terminated. Once your account is terminated, you will need to pay for the monthly fees in addition to a $25 re-activation fee to reopen the account. There is a $15 fee for bounced check and a $25 processing fee for chargebacks.  The base price of our monthly service is $34.99.  This does not include any additional services as stated in the quote provided to SmartBeast.com.  Monthly payments may vary depending on the amount of services needed.
   
   
2. Renewals: Your account will be automatically renewed under the same time and fee structure unless you give written notice to SmartBeast.com fifteen (15) days before the renewal date that you do not wish to renew such account. Promotions are not included in renewals. An automatic subscription may be set up through PayPal if agreed to at the time of ordering.  Otherwise, a monthly invoice will be sent via Google Checkout for your monthly payment.
   
   
3. Cancellation: You may cancel at anytime. If you cancel before the first 30 days, please refer to the details under "Limited 30-day Money Back Guarantee." If you cancel after the first 30 days from the opening of your account, you will be obligated to pay all fees and charges accrued prior to the effectiveness of the cancellation. SmartBeast.com will refund to you the prepaid fees for the full months remaining after effectiveness of cancellation, less any prior fees and charges, and an early cancellation fee of $25. Accounts that are terminated by SmartBeast.com will not receive any refund. All cancellations must be received in writing as per the deadlines indicated; e-mail. Phone requests will not constitute acceptance of any cancellation.

Limited 30-day Money Back Guarantee

If you are not completely satisfied with our services within the first 30 days from the opening of the account, you will be given a full refund of your fees excluding a $10 fee to pay our designer and tech support. If paid by credit card, refunds will be issued to the original credit card provided at the time of purchase. If your account has been cancelled by us due to a breach of the terms and conditions on your part, you will not be eligible for a refund. Domain name registration is non-refundable. Phone requests will not constitute acceptance of any cancellation.

Server/Network Maintenance

In the event a planned outage would be necessary, The Network/Server Maintenance is performed by Prohosters.com / Carpathia Host.  This does not mean there will be an outage at the specified time, and does not include unplanned outages if any should occur for reasons beyond SmartBeast.com's control.

Disclaimer of Warranty

You agree to use the Services and any information obtained through or from SmartBeast.com at your own risk. You acknowledge and agree that SmartBeast.com exercises no control over, and accepts no responsibility for, the content of information passing through SmartBeast.com host computers, network hubs, points of presence or the internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. SmartBeast.com MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES IT PROVIDES. SmartBeast.com MAKES NO WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR-FREE OR THAT ANY RESULTS OBTAINED FROM THE USE OF SERVICES IS ACCURATE AND RELIABLE. SmartBeast.com EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY SmartBeast.com. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY SmartBeast.com PERSON WILL CREATE ANY WARRANTY OR MAY YOU RELY ON SUCH INFORMATION OR ADVICE. The terms of this Section will survive any termination of this Agreement.

SmartBeast.com is not responsible for any interruption in service or down time that may occur, whether due to external network disruptions or negligence of SmartBeast.com. This includes loss of data resulting from delays, non-deliveries, wrong delivery, equipment failure and any and all other service interruptions caused by SmartBeast.com.

Limitation of Liability

You agree that SmartBeast.com will not be responsible for any losses that may incur where Services are accessed by third-parties through illegal or otherwise unauthorized means, including but not limited to situations where data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to SmartBeast.com at the time) which may exist in the Services or in Prohosters / Carpathia equipment used to provide the Services.

Under no circumstances will SmartBeast.com be liable for any consequential, indirect, incidental, special or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, or of any other third party, whether in an action in contract or tort or strict liability or other legal theory. SmartBeast.com will not be liable to Customer, any of its customers, or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to LiquidNeon.com's records, programs, equipment or services.

Notwithstanding anything to the contrary in this Agreement, LiquidNeon.com's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) will not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.

This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this Section will survive any termination of this Agreement.

Right to Refuse Service

At its sole discretion,SmartBeast.com has the right to refuse any and all service or Services to any applicant, Customer, Client whether it be an individual or legal entity.

Indemnification

Customer agrees to indemnify, defend and hold harmless SmartBeast.com, its officers, directors, employees, shareholders and agents from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party arising out of or relating to (i) Customer's use of the Services, (ii) any breach by Customer of this Agreement, or (iii) any acts or omissions of Customer. The terms of this Section will survive any termination of this Agreement.

Force Majeure

SmartBeast.com will not be liable for failure or delay in performing it obligations if such failure or delay is due to circumstances beyond its reasonable control, including but not limited to acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.

Disclosure of Customer Information and Legal Process

Although SmartBeast.com maintains strict confidentiality on Customer's information, there are certain exceptions in which SmartBeast.com may disclose information in its possession, including but not limited to information about the Customer's internet transmissions and website activity in order to comply with court order, subpoena, discovery request, warrant, statute, regulation or official governmental requests. LiquidNeon.com has no obligation to notify Customer about whom the information is sought or that SmartBeast.com has provided the information. Customer acknowledges the above exceptions and agrees to them without reservation.

Governing Law; Jurisdiction; Arbitration

This Agreement is governed by California law and both parties will submit to personal jurisdiction in California. Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, will be subject to arbitration administered by the American Arbitration Association ("AAA") in accordance with its then existing Commercial Arbitration Rules (collectively, the "AAA Rules") and any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration will be Redding, CA, or Medford, OR any other place selected by mutual agreement of the parties. An award rendered in connection with arbitration pursuant to this Section shall be final and binding upon the parties. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The terms of this Section will survive any termination of this Agreement.

Assignment

Customer will not have the right to assign this Agreement without the prior written consent of California.

Entire Agreement; Severability

This Agreement represents the entire agreement between the parties, and supersedes all previous representations, understandings or agreements. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement will remain in full force and effect.

Customer hereby represents that he, she or it, is either an individual entering this Agreement for his or her personal use and is over 18 years of age, or is a corporation other legal corporate entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.