Rails Machine will deliver the services outlined in the purchaser’s “Rails Machine Order Confirmation” e-mail, subject to the following Terms of Service. We will hereafter refer to the purchaser as the “Customer”, the services purchased as the “Service” and the Terms of Service as “TOS”.

The use of the Service by the Customer constitutes an unconditional acceptance of and agreement to Rails Machine’s TOS, provided Customer is of legal age to form a binding contract and is not barred from receiving services under the laws of the United States or other applicable jurisdiction. Customer is required to provide current and accurate information as part of the account registration process. Rails Machine reserves the right to change or modify the TOS at any time without notice.

I. CUSTOMER MONEY BACK GUARANTEE

Rails Machine offers the Customer a current month money back guarantee. This allows new subscribers to purchase our services with zero risk, and continuing subscribers to use them over time with zero risk. Here’s how it works: the Customer may request a full refund of the current month’s fees and to-date pre-paid fees for future months, less any additional over-usage fees or third-party fees (such as domain name fees). Terminated accounts are not eligible for this guarantee if the termination occurred due to a violation of this TOS.

This refund can be requested at anytime that you are not satisfied with the Service. A request for this guarantee must be submitted via our ticket system to “billing” located at this URL: http://support.railsmachine.com/.

II. 99.9% UPTIME GUARANTEE

Rails Machine guarantees that the Customer’s server (or the Customer’s hardware node, if subscribed via a VPS service) will be up and running at least 99.9% of the time during any 12-month period. This guarantee includes network and server uptime. It does not cover any areas where Rails Machine has no direct influence, such as backbone provider failures, fiber-optic main line cuts, DNS or Registrar issues with the Customer’s domain name, routing issues between the Customer’s location and Rails Machine data center. The uptime guarantee is also not applicable if the service interruption was caused by external issues such as Acts of God, Wars or any other natural or unnatural events that Rails Machine directly influence.

To request a service credit due to an uptime concern, please submit a request for this guarantee via our “ticket system to “billing” located at this URL: http://support.railsmachine.com/.

III. SPAM AND UNSOLICITED COMMERCIAL EMAIL (UCE)

Rails Machine takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM through our network and services. The Customer may not use, or permit others to use, our Service to partake in UCE distribution. The Customer may not host or permit hosting of sites or information that is advertised by UCE from other networks.

Upon notification of an alleged violation of our SPAM policy, Rails Machine will initiate an immediate investigation. During the investigation, Rails Machine may restrict Customer’s access to the network to prevent further violations. The Customer will thereafter be advised of the situation. If Customer is found to be in violation of this TOS, Rails Machine may, at its sole discretion, unilaterally restrict, suspend or terminate the Customer’s Service. Further, Rails Machine reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Rails Machine will notify law enforcement officials if the violation is believed to be a criminal offense.

IV. PROHIBITION OF ADULT CONTENT

The Customer is prohibited from storing or posting adult content, or links to adult content, through the Service. All material of pornographic nature is considered adult content. Online image galleries whose primary purpose is the public display of fine art or artistic mediums are not considered to be adult content.

V. PROHIBITION OF MALICIOUS ATTACKS

Customer is prohibited from introducing malicious programs (such as viruses, worms and other programs intended to inflict harm) into the Rails Machine network. Customer is prohibited from engaging in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the Rails Machine network or on another provider’s network.

VI. PAYMENT

Establishment of this service is dependent upon receipt of payment of stated charges by Rails Machine. Subsequent payments are due on the anniversary date of the month for that month’s service or whichever is the selected billing cycle. Rails Machine is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by Rails Machine. Currency exchange settlements will be based on agreements between Customer and their credit card provider.

VII. FAILURE TO PAY

Rails Machine may temporarily deny or terminate service upon the failure of the Customer to pay the charges when due. Such termination or denial will not relieve Customer of responsibility for the payment of all accrued charges and any collection fees.

VIII. ACCOUNT CANCELLATION

Customer may cancel his account at any time via the Rails Machine web site. The cancellation will take effect immediately and the Customer’s account will remain active until the end of the subscription.

IX. DISCLAIMER OF WARRANTIES

The Service is provided on an “as is” and “as available” basis. Rails Machine expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement. No information or assistance, whether written or oral, provided by Rails Machine or any third party to Customer shall create any warranty.

Rails Machine does not warrant that the Services will be uninterrupted or free of errors or omissions and does not guarantee the privacy, security, authenticity and non-corruption of any information transmitted through it’s network or the Internet. Furthermore, Rails Machine shall not be responsible for any delays, errors, failure to perform, interruptions or disruptions in the Services caused by or resulting from acts of God, acts of third parties, omissions or conditions beyond Rails Machine’s reasonable control.

X. LIMITATION OF LIABILITY

Rails Machine shall have no liability in warranty, contract, tort (including the negligence of Rails Machine, its officers, directors, agents, or employees), strict liability, or otherwise, regarding any Services or other actions performed by Rails Machine and relating in any way to this Agreement. In no event shall Rails Machine be liable for any special, indirect, incidental, or consequential damage or loss of any nature (such as damages for delay, damage to property, lost profits, injury to person, or any claims of those not a party to this Agreement) which may arise in connection with any Services or other acts performed by Rails Machine relating to this Agreement.

XI. LIMITATION OF DAMAGES

The aggregate cumulative amount of any liability of Rails Machine under any duty or obligation connected with this Agreement in any way, whether based on warranty, contract, tort (including the negligence of Rails Machine, its officers, directors, agents, or employees), strict liability, or otherwise, SHALL NOT EXCEED THE PURCHASE PRICE FOR THE SERVICE.

XII. CHANGE OF NAMESERVERS

In cases of new hosting accounts or additions / modifications to hosted domain names or any other cases which involve the change of nameservers of a domain from other DNS servers to Rails Machine’s DNS servers, there may occasionally be a delay of several days, weeks or longer depending on the accessibility of control options at the respective registrar of the domain name registration. It is possible that if the registrar (or the entity having control over the domain registration) is not cooperative, the domain nameservers can not be changed at all. Due to the unpredictable nature of the nameserver change process, no guarantees are made regarding the amount of time a specific change may take. On customer request, nameserver change of domain names is done by Rails Machine on behalf of the account holder. In such cases, a successful change of nameservers cannot be guaranteed in any way or fashion as it solely depends on the accessability or cooperation by the domain name registration’s registrar.

XIII. SUPPORT BOUNDARIES

Rails Machine provides technical support to its Customers. We limit our technical support to our area of expertise. The following is our guideline when providing support: Rails Machine provides support related to your service plan’s features’ physical functioning. Rails Machine provides technical support to Customer only and not to any entity related to or contracting with Customer. The only way to request technical support is to utilize the technical support area of the Rails Machine web site.

XIV. NETWORK

A. IP Address Ownership

If Rails Machine assigns a Customer an IP address for use with the Service, the right to use that IP address shall belong only to Rails Machine and the Customer shall have no right to use that IP address except as permitted by Rails Machine. Rails Machine shall maintain and control ownership of all IP numbers and addresses that may be assigned to subscribers by Rails Machine. Rails Machine reserves the right to change or remove all such IP numbers and addresses in its sole and absolute discretion, at any time.

B. Bandwidth and Disk Usage

Customer agrees that bandwidth and disk usage shall not exceed the maximum number of megabytes per month for the Service (“Agreed Usage”). Rails Machine will monitor Customer’s bandwidth and disk usage. Rails Machine shall have the right to take corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all services, or termination of Service. Which actions may be taken is in Rails Machine’s sole and absolute discretion, at any time deemed necessary by Rails Machine. If Rails Machine takes any corrective action under this section, Customer shall be entitled to a pro-rated refund of any fees paid in advance prior to such action. In any case, Customer will be warned of approaching or exceeded resource limits via email by Rails Machine’s automated notification system.

C. System and Network Security

Customer or any network users are prohibited from violating or attempting to violate the security of Rails Machine’s network or any and all components there in. Violations of system or network security may result in civil or criminal liability. Rails Machine will investigate occurrences which may involve such violations and may involve and cooperate with law enforcement authorities in prosecuting customers who are involved in such violations. These violations include, but are not limited to:

1. Accessing data not intended for such customer or logging into a server or account, which such customer is not authorized to access.
2. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
3. Attempting to interfere with service to any customer, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing.”
4. Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
5. Taking any action in order to obtain services to which Customer is not entitled.

XV. NOTIFICATION OF VIOLATION

Rails Machine is under no obligation or duty to constantly view each Customer’s activities to determine if a violation of this TOS has occurred. Accordingly, we do not assume any responsibility through our TOS to monitor or police Internet-related activities. Rails Machine will only investigate suspicious activities if they are deemed to violate this agreement or to harm any part of the services, network or other customers. If a customer is found to be in violation, the following steps are taken:

1. First violation: Customer shall receive an email warning them of the violation. Customer’s service is subject to a temporary suspension at Rails Machine’s discretion pending a Customer’s agreement in writing to refrain from any further violations.
2. Second violation: Customer shall be subject to immediate suspension or termination of service without further notice.

NOTE: Rails Machine reserves the right to drop the section of IP space involved in SPAM or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer’s network or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact Customer. Rails Machine will contact Customer as soon as it is feasible.

XVI. SUSPENSION OF SERVICE OR CANCELLATION

Rails Machine reserves the right to suspend network access to Customer if in the judgment of Rails Machine, the Customer’s account is the source or target of a violation of any of the terms of the TOS, or for any other reason which Rails Machine deems necessary.

If inappropriate activity is detected, all Service of Customer in question will be deactivated until our investigation is complete. Prior notification to Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. Customer may not be credited for the time Customer’s machines were suspended if Customer is found to be at fault.

XVII. MISCELLANEOUS PROVISIONS

Customer must provide Rails Machine real and current contact information at all times. E-mail address, telephone and fax contacts are used, and in that order of preference.

1. Rails Machine takes no responsibility for any material placed on its network by others. Rails Machine is not responsible for the content of any other websites linked to. Links to other sites are provided as Internet navigation tools only. Rails Machine disclaims any responsibility for any inappropriate use and any liability to any person or party for any other person or party’s violation of this policy.

XVIII. DISCLOSURE TO LAW ENFORCEMENT

The TOS specifically prohibits the use of Service for illegal activities. Therefore, Customer agrees that Rails Machine may disclose any and all Customer information including assigned IP numbers, account history, account use, etc. to any law enforcement agency that requests such information, provided they posses the proper court-approved warrant, without consent or notification to the Customer.

XIX. INDEMNIFICATION

Each party (the “Indemnifying Party”) hereby indemnifies the other party (the “Indemnified Party”), its officers, directors, employees and agents, and agrees to defend and hold them harmless from and against any and all liability, damage, loss or expense (including reasonable attorneys fees) arising from any claim, demand, action or proceeding based upon the alleged breach or untruthfulness of any of the Indemnifying Party’s representations or warranties, or incurred in the settlement or avoidance of any such claim, provided, however, that the Indemnified Party shall give prompt notice to the Indemnifying Party of the assertion of any such claims and provided further that Indemnifying Party shall have the right to select counsel and control the defense thereof, subject to right of the Indemnified Party to participate therein.

XX. SEVERABILITY

If any provision of this TOS shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this TOS is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

XXI. APPLICABLE LAW

This TOS is subject to the governing laws of the State of Georgia. Courts of competent jurisdiction in Savannah, Georgia shall hear and decide any disputes.