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This is a legal document. All
Hostachio customers are bound by it! (Read it!)
You must read and agree to all terms in this
document before using our services. By using or continuing to use Hostachio
services, you are automatically agreeing to the terms of this document!
What is this?
The agreement below is a legal agreement
between Hostachio and all of our customers. If you use any service provided
by or affiliated with Hostachio, you are legally bound by this agreement.
Read it carefully before signing up and ensure that you understand and
agree to all parts. Use of our services implies agreement with this
contract!
Questions?
Any questions regarding this agreement should
be sent to Hostachio's sales department
prior to signing up for service.
Service Agreement
Last Updated:
06/10/2005
SERVICE AGREEMENT
THIS AGREEMENT (“Agreement”) is
made and effective as of the date of acceptance, by and between you
(“Client”) and Hostachio.
WHEREAS, Hostachio owns, distributes and
provides various products and services for conducting business on the
Internet including: shared web hosting, cPanel licensing, and the Hostachio
family of services (hereinafter collectively referred to as the
“Services”).
WHEREAS, Client desires to utilize some or
all of the Services to develop, enhance or maintain Client's business
and/or presence on the Internet.
NOW THEREFORE, in consideration of the mutual
promises set forth herein, the parties hereto agree as follows:
1. Hostachio SERVICES
Hostachio agrees to provide to Client the Services agreed upon between
Hostachio and Client as selected by Client in Hostachio's customer database
that is specified at www.hostachio.com.
2. PAYMENT AND INVOICING
2.1 In consideration of the performance of the Services, Client shall
pay Hostachio monthly in advance the amount set forth in Hostachio's
customer database as such records are amended from time to time for the
Services during the term of this Agreement.
2.2 Client shall receive a confirmation letter via e-mail at the time
Client contracts for the Services, which shall confirm the fees payable to
Hostachio. Thereafter, Client shall receive a monthly billing statement for
the upcoming month. The monthly billing statement shall indicate any
changes in fees, which fees shall become effective upon thirty (30) days'
notice as set forth in Section 2.4 herein.
2.3 Client is responsible for all activities and charges resulting from
Client's use of the Services. Client agrees to pay all fees, bandwidth
charges, connect time charges, surcharges, and other charges incurred by
Client and set forth in the monthly billing statement. Client acknowledges
that no refunds will be given by Hostachio in the event that Client's
account is terminated by Hostachio or Client mid-term. In the event of a
breach of security, Client will remain liable for any unauthorized use of
the Services until Client notifies Hostachio by sending an e-mail with
account information to our sales
department.
2.4 Current rates for using the Services may be obtained on our web site
at www.hostachio.com. Hostachio reserves the right to change fees,
surcharges, monthly membership fees or to institute new fees at any time.
In addition, Hostachio may institute special trial offers, from time to
time, that shall be reflected in the confirmation letter sent to Client
upon sign up. If Hostachio does not receive the full amount of Client's
Service account balance within thirty (30) days of invoice date, a late
charge equal to 1.5% per month or highest amount allowed by law per month
will be added to Client's bill and shall be due and payable. Client shall
also be responsible for all attorney and collection fees arising from
Hostachio's efforts to collect any unpaid balance of Client's account(s),
and Hostachio may terminate Client's account immediately without further
notice to Client.
3. RESPONSIBILITIES AND RIGHTS OF Hostachio
3.1 Means of Performance. Hostachio shall provide Client with the
Hostachio hosting services, as described at www.hostachio.com hereto.
Hostachio has the right to control and direct the means, manner, and method
by which the host services are performed.
3.2 Support. Hostachio shall provide a reasonable level of
technical support to Client via email or Web page for the term of this
Agreement.
3.3 Other Work. Hostachio has the right to perform and license
products to others during the term of this Agreement. Hostachio may elect
to electronically monitor the host services and may disclose any content or
records to satisfy any law, regulation, or other governmental request or to
properly operate host services and protect its Clients. Hostachio reserves
the right to block any site hosted by Hostachio that contains any content
that Hostachio deems in its sole discretion to be unacceptable or
undesirable.
4. RESPONSIBILITIES AND RIGHTS OF CLIENT
4.1 Client. Client represents and warrants that (i) Client is at
least eighteen (18) years of age, (ii) Client possesses the legal right and
ability to enter into this Agreement, and (iii) the performance of Client's
obligations and use of the Services by Client, its customers and users,
will not violate any applicable laws, regulations or the rules and
regulations or cause a breach of any agreement with any third parties or
unreasonably interfere with other Hostachio Clients' use of Services.
Client assumes all risks related to processing of transactions related to
electronic commerce. Client agrees to provide Hostachio with accurate,
complete and updated information required by the registration of the
Hostachio host service (Client Registration Data), including Client's legal
name, address, telephone number(s), and applicable payment data (e.g.,
credit card number and expiration date). Client agrees to notify Hostachio
within thirty (30) days of any changes in Client's Registration Data.
4.2 Breach of Warranties. In the event of the breach of any of
the foregoing warranties, in addition to any other remedies available at
law or in equity, Hostachio will have the right, in its sole discretion, to
suspend or terminate immediately any Services.
4.3 Fees and Expenses. Client shall be responsible for payment of
all costs, fees and expenses assessed by third parties in the course of
being provided Services. Such costs include, but are not limited to, the
fees required to register and maintain domain names, which is governed by a
separate agreement between Client and a third-party domain name
registrar.
4.4 Third-Party Software. Third-party software available through
the Services may be governed by separate end user licenses. By using the
Services and the third-party software, Client agrees to be bound by the
terms of such end user licenses regarding the applicable third-party
software. Client consents and authorizes Hostachio to delegate the
authorizations Client provides to Hostachio to its third party service
provider(s) as Hostachio deems necessary or desirable to provide the
applicable Services. Client agrees that the terms and conditions of this
Agreement, including any of the other terms, conditions, warranty
disclaimers and liability disclaimers incorporated into this Agreement,
inure to the benefit of such third party service providers and such third
party service providers are deemed to be third party beneficiaries of the
Agreement, including any other terms, conditions, warranty disclaimers and
liability disclaimers incorporated into this Agreement. Client also agrees
that all reference to “Hostachio” within this Agreement and any
incorporated terms are also deemed to include, where applicable,
Hostachio's agents, such as the third party service providers.
4.5 Advertising, Solicitation, and Client Name Harvesting. Client
may not use the Services to send unsolicited advertising, promotional
materials, or other forms of solicitation to the Hostachio clients or other
Internet users unless Client receives the express permission of such
individuals. Client may not use the means of unsolicited advertising to
advertise a site hosted on the Hostachio network. Client may not use the
Services to collect or “harvest” user-names of Hostachio
clients or other Internet users without the expressed prior permission of
the member. Hostachio reserves the right to block or filter mass email
solicitations sent from sites hosted on the Hostachio network.
4.6 Management of Site. Client shall be solely responsible for
all content available on or through its site, and shall at all times be
subject to the terms of this Agreement, Hostachio's then-standard Terms of
Service (“TOS”) and any generally applicable guidelines and
service standards published by Hostachio. Client warrants that its site
hosted on the Hostachio network (i) will conform to the Hostachio TOS
attached hereto as Exhibit A; (ii) will not infringe and will not contain
any content that infringes on or violates any copyright, U.S. patent or any
other third-party right; and (iii) will not contain any content which
violates any applicable law, rule or regulation. Hostachio shall have no
obligations with respect to the content available on or through any site
hosted on the Hostachio network, including, but not limited to, any duty to
review or monitor any such content. Hostachio reserves the right to block
any site that violates any of the above-stated terms, or which in
Hostachio's sole discretion, Hostachio deems objectionable or offensive, or
otherwise violates a law or Hostachio policy, or, in the alternative, to
terminate this Agreement in accordance with Section 7.3 herein.
4.7 Compliance Laws. Client agrees that it will use the Services
only for lawful purposes and in accordance with this Agreement. Client will
comply at all times with all applicable laws and regulations and the TOS,
as updated by Hostachio from time to time. The TOS are incorporated herein
and made a part hereof by this reference. Hostachio may change the TOS,
with notice, which notice may be provided by posting such new TOS at the
Hostachio Site. Client may request a current copy of the TOS by sending a
request to Hostachio. Client agrees that it has received, read and
understands the current version of the TOS.
4.8 Proprietary Rights. Unless otherwise specified, all work
performed hereunder, is the property of Hostachio, and all title and
interest therein shall vest in Hostachio. To the extent that title to any
such works may not, by operation of law, vest in Hostachio all rights,
title and interest therein are hereby irrevocably assigned to Hostachio.
All such materials shall belong exclusively to Hostachio, and Hostachio
shall have the right to obtain and to hold in its own name, copyrights,
trademarks, registrations, or such other protection as may be appropriate
to the subject matter; and any extensions and renewals thereof. Client
agrees to give Hostachio and any person designated by Hostachio such
reasonable assistance, at Hostachio's expense, as is required to perfect
the rights defined in this paragraph.
4.9 Marketing Rights. Client agrees that Hostachio may refer to
Client, or Client's business in Hostachio marketing materials, the
Hostachio website, and communication to Hostachio's current and prospective
clients. Client grants Hostachio a limited license and permission to use
any Client trade name and/or trademark for such, and only for such,
purposes.
5. LIMITATION OF LIABILITY, NO OTHER WARRANTY AND DISCLAIMER
5.1 Limitation. In the event that any limited guarantees are
provided by Hostachio, such limited guarantees are null and void if Client
fails to follow Hostachio's TOS and other policies or otherwise breaches
this Agreement in any respect.
5.2 No Other Warranty. Hostachio does not monitor or exercise
control over the content of the information transmitted through its
facilities. Use of the Services or any information that may be obtained
there from is at Client's own risk. The Services are provided on an
“as is” basis, and Client's use of the Services is at its own
risk. Except as provided in the order form(s), Hostachio does not make, and
hereby disclaims, any and all other express and/or implied warranties,
including, but not limited to, warranties of merchantability, fitness for a
particular purpose, non-infringement and title, and any warranties arising
from a course of dealing, usage, or trade practice. Hostachio does not
represent or warrant that the Services will be uninterrupted, error-free,
or completely secure.
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. Hostachio does not and cannot control the flow of information
to or from Hostachio's network and other portions of the Internet. Such
flow depends in large part on the performance of the Internet services
provided or controlled by third parties. At times, actions or inactions of
such third parties may impair or disrupt Client's connections to the
Internet (or portions thereof). Hostachio cannot guarantee that such events
will not occur. Accordingly, Hostachio disclaims any and all liability
resulting from or related to such events.
6. INDEMNIFICATION
Client agrees to indemnify, defend and hold Hostachio and its
affiliates, agents, employees, and licensors (including the third party
service providers) harmless from any and all claim, demand, loss, costs or
expense, including attorneys' fees, made by any person arising out of
Client's violation of this Agreement, State or Federal Securities laws or
regulations, or any other person's rights including but not limited to
infringement of any copyright or violation of any proprietary or privacy
right.
Under no circumstances, including but not limited to a negligent act,
will Hostachio or its affiliates, agents, employees, or licensors
(including third party service providers) be liable for any damages of any
kind that result from the use of, or the inability to use, Services, even
if any such party has been advised of the possibility of such damages.
In no event will Hostachio or its third party service providers be
liable to Client or any third Party for any tort, contract or any other
liability arising in connection with the use of the Services, or reliance
on any information or services provided by Hostachio. Hostachio and its
third party service providers will under no circumstances be liable to
Client and/or any third party, regardless of the form of action, for any
loss of profits, goodwill, use, data or other intangible losses, or any
direct, indirect, special, consequential, incidental or punitive damages
whatsoever, even if Hostachio or its third party service providers has been
advised of the possibility of such damages, resulting from: (i) the use of
the inability to use the Services; (ii) the timeliness, deletion,
misdelivery, or failure to store any user date, communications or
personalization settings; (iii) the cost of getting substitute goods and
services resulting from any products, data, information or services
purchases or obtained or messages received or transactions entered into,
through or from the Services; (iv) statements or conduct of anyone on the
Services; (vi) the use, inability to use, unauthorized use, performance or
non-performance of any third party, even if the third party has been
advised previously of the possibility of such damages; or (vii) any other
matter relating to the Services. Client agrees that Client will not in any
way hold Hostachio responsible for any selection or retention of, or the
acts or omissions of, third parties (including third party service
providers) in connection with the Client Services.
Because some states prohibit the limitation of liability for
consequential or incidental damages, in such states the limitation of
liability only with respect to consequential or incidental damages may not
apply to Client, and the respective liability of Hostachio and its third
party service providers, employees, distributors and agents is limited to
the greatest extent allowable under applicable law in those states.
In the event that a court or arbitration panel, as the case may be,
should hold that the limitations of liability or remedies available as set
forth in this Agreement, or any portions thereof, are unenforceable for any
reason, or that any of Client's remedies under this Agreement fail, then
Client expressly agrees that under no circumstances will the total,
aggregate liability of Hostachio and its third party service providers,
employees, distributors, agents or affiliates, to Client or any party
claiming by or through Client for any cause whatsoever exceed $50 (U.S.),
regardless of the form of action and whether in contract, statute, tort or
otherwise.
7. TERMINATION
7.1 Without Cause. This Agreement may be terminated by either
party at any time during any Renewal Term for any or no reason upon either
party giving to the other no less than five (5) days' prior written notice
of termination. No matter which party terminates the Agreement pursuant to
this Section 7.1, any and all payment obligations of Client under this
Agreement for Service(s) provided through the date of termination will
immediately become due, and Client shall be required to prepay for any
portion of the Services that have not been paid for and are to be rendered
during such five (5) day period.
7.2 For Cause. In addition to any other rights it may have under
this Agreement or applicable law, Hostachio may immediately terminate this
Agreement or suspend service, effective without notice, in the event of (i)
a default in payment, or (ii) Client's breach or failure to comply with the
TOS or other policies of Hostachio. Client may terminate this Agreement if
Hostachio breaches any material term or written notice of same. If this
Agreement is terminated by Hostachio under this Section 7.2, all balance of
the then current term shall immediately become due and payable. In addition
to the foregoing, Hostachio reserves the right to prohibit any conduct or
to remove any materials or content in violation of the TOS or which
Hostachio believes in its sole discretion to be illegal or potentially
harmful to others or may expose Hostachio to harm or liability.
7.3 No Liability for Termination. Neither party will be liable to
the other for any termination or expiration of any Services of this
Agreement in accordance with its terms.
7.4 Survival. The following provisions will survive any
expiration or termination of the Agreement: Section 4, 5, 6, 7, and 8.
7.5 IP Address. Upon expiration, cancellation or termination of
this Agreement, Client shall relinquish any Internet protocol
(“IP”) numbers, address or address blocks assigned to Client by
Hostachio or its network services supplier (but not the URL or top level
domain connected therewith). Hostachio reserves, in its sole discretion,
the right to change or remove any and all such IP numbers, addresses or
address blocks.
8. GENERAL
8.1 Assignment. Client may not assign this Agreement or any of
Client's rights or obligations hereunder without the prior written consent
of Hostachio, and any such attempted assignment shall be void. This
Agreement shall be binding upon the parties' respective successors and
permitted assigns.
8.2 Notices. Any notices or communication under this Agreement
shall be in writing and shall be deemed delivered to the party receiving
such communication at the address specified below (1) on the delivery date
if delivered personally to the party, or a representative of the party; (2)
one business day after deposit with a commercial overnight carrier, with
written verification of receipt; (3) five business days after the mailing
date, whether or not received, if sent by US mail, return receipt
requested; (4) on the delivery date if transmitted by confirmed
facsimile.
If to Client:
To Client address provided at account set-up.
8.3 Governing Law. This Agreement, and all future agreements
Client may enter into with Hostachio, unless otherwise indicated on such
other agreement, will be governed by the laws of the State of Pennsylvania,
without regard to conflicts of law principles thereof. This is the case
regardless of whether you reside or transact business with Hostachio in
Pennsylvania or elsewhere. Unless a dispute would be governed by an
applicable arbitration clause, Client agrees to submit to the personal and
exclusive jurisdiction of the courts located within the County of
Philadelphia, Pennsylvania. If any part of the Agreement is unlawful, void
or unenforceable, that part will be deemed severable and will not affect
the validity and enforceability of any remaining provisions.
8.4 Modifications. No modifications, amendment, supplement to or
waiver of this Agreement or any exhibit hereunder, or any of their
provisions shall be binding upon the parties hereto unless made in writing
and duly signed by both parties.
8.5 Waiver. A failure of either party to exercise any right
provided for herein shall not be deemed to be a waiver of any right
hereunder.
8.6 Severability. In the event any one or more of the provisions
of the Agreement or any exhibit is invalid or otherwise unenforceable, the
enforceability of remaining provisions shall be unimpaired.
8.7 Force Majeure. Hostachio and its affiliates, agents,
employees, or licensors (including third party service providers) shall not
be liable for failure to perform any obligation under this Agreement if
such failure is caused by the occurrence of any contingency beyond the
reasonable control of such party, including without limitation, fire,
flood, strike, and other industrial disturbance, failure to transport,
accident, ware, riot, insurrection, act of God or order of governmental
agency. Performance shall be resumed as soon as possible after cessation of
such cause. However, if such inability to perform continues for fifteen
(15) days, the other party may terminate this Agreement without penalty and
without further notice.
8.8 Independent Contractors. The parties to this Agreement are
independent contractors. Neither party is an agent, representative, or
partner of the other party. Neither party shall have any right, power or
authority to enter into any agreement for or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other party. This
Agreement shall not be interpreted or construed to create an association,
agency, joint venture or partnership between the parties or to impose any
liability attributable to such a relationship upon either party.
8.9 Terms of Services. Client agrees to be bound by Hostachio's
TOS for all Services and products used by Client. The current TOS can be
found on Hostachio's website at www.hostachio.com. Should Client disagree
with any updates to Hostachio's TOS, it is Client's responsibility to
notify Hostachio of Client's desire to terminate their Services
immediately.
8.10 Implied Agreement. CONTINUED USE OF THE SERVICES AND/OR
PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND HOSTACHIO'S
TOS IN THEIR ENTIRETY. BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY
ALL TERMS ASSOCIATED WITH SAID SERVICES, INCLUDING THIS AGREMEENT AND THE
TOS.
CLIENT'S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO
TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7
HEREIN.
8.11 Entire Agreement. This Agreement, and the exhibits reference
herein, sets forth the entire agreement, and supersedes any and all prior
agreements of the parties with respect to the transactions set forth
herein. Neither party shall be bound by, and each party specifically
objects to, any term, conditions or other provisions which are different
from or in which is proffered by the other party in any correspondence or
other document, unless the party to be bound thereby specifically agrees to
such provision in writing.
8.12 No Party Deemed Drafter. In the event that any provision
hereof is construed by a court of law or equity or an arbitrator, no
provision herein shall be construed more harshly against either party as
drafter.
Exhibit A: Hostachio Terms of Service (TOS)
Hostachio's current Terms of Service are available at the following
URL:
http://www.hostachio.com/tos.php or by clicking here.
Questions?
Any questions regarding this agreement should be sent to Hostachio's
sales department prior to signing up for
service.
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