- HOSTING SERVICES. Host will provide connection to all organizations and individuals who agree to abide by Host’s access terms, conditions, and fee schedules. User is responsible for providing any equipment and/or software necessary to access Host’s system and Internet facilities, unless otherwise provided for in this Agreement. User is entitled to use any Internet services and time-share computer software provided by Host. User is responsible for any licensing fees for any “shareware” products provided by Host to User. Host will provide the Web Hosting services provided in the service package chosen by User, and set forth in Exhibit A, including a server or space on a shared server, connection of the server to Host’s high-speed Internet connection, backup of the server’s hard disk and other maintenance on the server, domain name, e-mail, and file transfer services as provided in the chosen service package, automated server monitoring and limited log file generation and access. All equipment provided by Host shall remain Host’s property. The services and software offered are subject to change and limitation at Host’s discretion, as is any pricing schedule. Host will notify User of any changes by electronic or postal mail to the agent named in this Agreement or other User officer, unless the change is judged by Host to be necessary to preserve proper security or functioning of Host’s system. If User objects to any change in service, unless the change is one Host has determined is necessary for security purposes or to maintain proper operation of Host’s system, User will be entitled to cancel its account. User’s continued use of the Host Web Hosting services after the effective date of such modified general terms and conditions, policies, or changes in services or software will constitute User’s acceptance of such modified terms. This Agreement covers only Internet services and any time-share software related to the provision of Internet services, Web Hosting services, and any ancillary services such as domain name service and electronic mail.
- FEES. User will pay (a) subscription fees in advance, (b) fees for other goods or services as invoiced, and (c) any security deposit, in each case per the applicable price schedule set forth in Exhibit A to this Agreement.
- TERMINATION AND REINSTATEMENT. This Agreement may be terminated by either party on not less than 30-days prior written notice. If User (a) becomes bankrupt or otherwise insolvent or (b) fails to pay for services rendered in accordance with the terms hereof or (c) commits any other breach of this Agreement, Host may, at its sole discretion and without notice or judicial intervention, discontinue performance and terminate this Agreement for default and pursue any other remedies available at law or in equity. If User’s account is suspended due to lack of payment, User will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of service.
- CUSTOMER SUPPORT. Host will provide to User reasonable amounts of consultation via telephone and/or electronic mail in the use of the system, but cannot promise to assist with any services that are not maintained or controlled by Host.
- DISCLAIMER AND LIMITATION OF LIABILITY. With the exception of any express warranty herein, neither Host, nor its affiliates (hereinafter “Host”), nor its suppliers make any warranty, and each of them disclaims any liability, with respect to:
- the accuracy, completeness, currentness, error-free nature, or fitness for any particular purpose of any data or services accessed on or through the Host system, or
- system performance levels, including but not limited to resource utilization, response time or overhead, unless such a performance guarantee is part of the chosen Web Hosting services package, or
- any loss or inconvenience associated with Host’s suspension, termination, or deletion of User’s account, or
- ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN ADVICE GIVEN BY HOST OR ITS STAFF OR AGENTS SHALL CREATE A WARRANTY.
Host will not be liable for delay in delivery or performance of hosting or design services, and is excused from any failure to deliver or perform, due to causes beyond its reasonable control. Host will not be liable for any damage or inconvenience caused by any necessary or scheduled maintenance to Host’s system, or for any service lapses or loss of customer data caused by forces beyond Host’s reasonable control. Host recommends that User make archival copies or otherwise download any important information stored on Host’s system, in addition to any backups Host may perform. THE SOLE AND ENTIRE MAXIMUM LIABILITY OF HOST TO ANY USER FOR ANY AND ALL PROVEN LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND (INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT) WITH RESPECT TO ALL SERVICES PROVIDED BY HOST AND ANY ACT OR OMISSION OF HOST WILL CONSIST OF A DUTY TO REFUND NOT MORE THAN THE AMOUNTS PAID BY THE USER TO HOST DURING THE YEAR PRECEDING SUCH LOSS, CLAIM, DAMAGE OR LIABILITY. IN NO EVENT WILL HOST BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. User, by signing this Agreement or connecting to the Host system, (a) accepts the use of the system/interconnection (including any programs, data, or services) “AS IS”; and (b) waives any and all claims relating thereto, whether such claims are against Host or any of its suppliers or affiliates. Should any legal action or threat of legal action result as a result of User’s use, or of any of Host’s system, interconnection facilities, or services, User agrees to indemnify Host, its staff, or Host’s other Users, for any costs incurred in defending against any such threat or action, including reasonable attorneys’ fees and any equipment replacement costs, even if User is no longer a customer of Host when such expenses arise. This clause also applies to third party claims as well as any legal action taken by Host against User for breach of this Agreement, damage caused by User to Host’s system, or for failure to pay expenses User is obligated to pay Host.
- USE RESTRICTIONS AND INDEMNIFICATION. User agrees to adhere to Host’s “Acceptable Use Policy”, a copy of which is set forth in Exhibit B to this Agreement, and which policy may be changed from time to time – User agrees to adhere to all such changes it has notice of. User will indemnify and hold Host harmless from any costs, expenses (including reasonable attorney’s fees) or liability resulting from any claim based on User’s use of the system. Such indemnification will not be applicable with respect to claims of gross negligence, willful misconduct or infringement by Host. Such indemnity will survive the termination or expiration of this Agreement.
- GENERAL. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of this Agreement or any provision thereof. If any provision of the Agreement is or becomes illegal or otherwise unenforceable, such provision will not invalidate the other provisions hereof; provided if Host determines that any such unenforceable provision is essential, it may terminate this Agreement upon notice. User grants any permissions or licenses (including but not limited to copyright licenses), as may be required, and within User’s power to grant, to Host in order to provide Internet and related services to User, or as may be required for Host to operate for User’s benefit. This Agreement is governed by the laws of the State of Delaware. The parties agree that the courts (state and federal) located in Delaware, will have non-exclusive jurisdiction to determine the validity, construction and performance of this Agreement and the legal relations between the parties. This Agreement constitutes the entire Agreement between Host and User, and supersedes all prior agreements, proposals, representations, or other communications, relative to the subject matter hereof. Paragraph headings are included for convenience and are not to be used to interpret this Agreement. This Agreement may not be assigned by User without the written consent of Host.
- CHANGES IN LEGISLATION. Should any changes in legislation require any changes to this Agreement or any services provided by Host, Host reserves the right to make any such changes, as are determined necessary or prudent, at Host’s sole discretion, without giving User advanced notice. If such changes are made, Host promises to send by electronic or postal mail notice of any changes in a reasonable time period. In event of such changes, User may terminate service without the required 30 day notice, but is not entitled to a refund of any payments already made for services.
Acceptable Use Policy
- LEGAL USES. Host’s system and services may not be used in any way which violates Federal, State, Local, or International law. This prohibits, but is not limited to, any actions which are threatening, obscene, defamatory, or which violate trade secret, copyright or patent protection, or rights of privacy or publicity, or which result in the spread of computer viruses or other damaging programs or data files, or which violate any export restrictions (including making non-exportable information or software available to foreign nationals as may be prohibited by law). In the event User is suspected of any such violation, Host reserves the right to immediately suspend or terminate User’s account.
- NETWORK TRANSMISSIONS. User is responsible for any materials passed via Host’s system to other networks, and agrees to comply with any restrictions posed by the other network’s terms of service or acceptable use policies.
- CONFIDENTIALITY. Host will protect to the best of its ability the confidentiality of any files and electronic mail stored on or exchanged over the system, except as may be necessary to provide the requested Internet services, or as may be necessary to preserve the security and proper operation of Host’s system, or to protect Host’s rights or property. Host, except as otherwise provided for in this Agreement or as required by law, will use its best efforts to avoid disclosing the contents of private electronic mail to anyone other than addressees, authorized recipients, or those to whom such disclosure is necessary to assure forwarding or delivery. User acknowledges that no system on the Internet can be guaranteed safe from unauthorized intrusion, and therefore any confidential information stored on or transmitted through Host’s system is stored or transmitted at User’s own risk.
- SECURITY CONCERNS. User is responsible for choosing a secure password and for keeping it secret. User may not attempt to bypass any security mechanisms in place on Host’s system, or use any of Host’s systems or services to attempt to bypass any security mechanisms in place on any remote system. This includes, but is not limited to, running any password cracking software, or attempting to access a system which any user knows or reasonably should know he or she is not authorized to access in the manner or to the extent attempted.
- COPYRIGHT ISSUES. User agrees not to upload to, download from, make available for public access on, or transmit through Host’s system any copyrighted material in violation of the copyright owner’s rights in that material. By uploading, downloading, making available for public access, or transmitting any copyright-protected material, User warrants that User has the proper authorization to make or authorize the making of any copies involved with such uploading, downloading, making available for public access, or transmission. Unauthorized copying, or authorizing the copying of protected works in excess of any legal right through Host’s system is a violation of federal law and international treaties, and may result in not only termination of User’s account, but also may result in civil and/or criminal fines and prison sentences. User agrees not to remove any copyright ownership information, or falsify such information, on any files uploaded, downloaded, made publicly available through, or transmitted via Host’s system. User explicitly licenses Host to make any copies of copyright protected materials necessary to provide Internet and related services to User, as well as make any necessary copies necessary to preserve and maintain Host’s system and User’s files and electronic mail. User explicitly licenses Host to make any copies, without limitation, of any copyrighted materials submitted to a public forum maintained on Host’s system, or submitted to any forum to which Host provides access. This clause cannot be modified by either party unless any modification is in writing and signed by both parties.
- UNATTENDED FORMS. User is not permitted to run any programs or software which continually send data over or access Host’s system, or run any programs or software on Host’s system unattended, unless such use has been approved in advance by Host’s staff.