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This Web Hosting Service Agreement (the
"Agreement") is by and between Hodie Hosts Inc. d/b/a THE HOST GROUP
("THE HOST GROUP"), a Delaware corporation, and you, including your
heirs, assigns, agents and contractors ("You") and is effective as of
the date of your application for web hosting services. This
Agreement sets forth the terms and conditions of Your use of THE HOST
GROUP’s Web Hosting services (the "Services") and represents the entire
agreement between You and THE HOST GROUP. By using the Services, You
acknowledge that You have read, understand and agree to be bound by all
the terms and conditions of this Agreement, along with any new,
different or additional terms, conditions or policies which THE HOST
GROUP may establish from time to time. By using the Services, you
further agree that the posting of any new, different or additional
terms, conditions, or policies of THE HOST GROUP on our website shall
constitute sufficient notice of the same for You to be bound by such
new, different or additional terms, conditions or policies. You
reaffirm and extend this Agreement each time you continue using our
Services in a new billing period and/or each time you continue using our
Services following the posting of a change in the terms of this
Agreement on our website.
THE HOST GROUP currently provides the Services
to its customers for a monthly or annual fee. THE HOST GROUP will host
Your web site on THE HOST GROUP's owned or leased servers, provided,
however, You abide by the terms and conditions set forth herein and in
each of THE HOST GROUP's policies and procedures.
The Services include various proprietary and
third party software programs, computer servers and network connectivity
which allow You to manage a website. THE HOST GROUP does not
warrant or represent that the Services are sufficient to produce any
specific desired design or outcome for Your website. You agree not
to modify or alter any software programs provided by THE HOST GROUP.
All software programs are offered “as is” with no warranty express or
implied. The Services do not include any third party good,
services, software or hardware used in managing Your website, but not
provided by THE HOST GROUP. THE HOST GROUP reserves the right to
substitute, change, upgrade or modify the hardware and/or software used
in providing the Services at any time. THE HOST GROUP shall not be
responsible for the impact of any change the Services which causes Your
hardware, software or business operations to become obsolete or require
modification.
Subject to the terms and conditions of this
Agreement, THE HOST GROUP shall attempt to provide the Services for
twenty-four (24) hours a day, seven (7) days a week throughout the term
of this Agreement. You agree that THE HOST GROUP has no control over
availability of the Services on a continuous or uninterrupted basis and
offers no refunds based upon the lack of availability of the Services.
You agree that from time to time the Services may be inaccessible or
inoperable for any reason.
You acknowledge that THE HOST GROUP is not
responsible for any loss of data or business interruption You experience
related to the Services. THE HOST GROUP may offer back up services
either directly or through our suppliers and may offer a website archive
tool as a part of the Services. You acknowledge and agree that
these services are offered on an as is basis and despite offering these
services, THE HOST GROUP, shall not be liable for any loss of data,
revenue, or business you experience related to the Services.
You shall be solely responsible for providing,
updating, uploading and maintaining Your website and all associated
content, materials, files, advertisements, text, lists, marks, images,
links, metatags, etc. (“Your Content”). THE HOST GROUP shall not
be responsible for Your Content and acts only as a “service provider” as
that term is defined in U.S. Code Title 17 Chapter 5 section 512 (the
“Digital Millennium Copyright Act” or “DMCA”) in providing the Services.
You, or the individuals who electronically
execute this Agreement on behalf of You hereby represent and warrant
that they have the right, power, legal capacity and appropriate
authority to enter into this Agreement. You represent and warrant that
You are 18 years of age or older, or that You have an agent authorized
by law to represent You who is 18 years of age or older who is entering
into this Agreement on Your behalf.
You represent and warrant to THE HOST GROUP that Your Content does not
in whole or in part actually or potentially violate any applicable law
or regulation or infringe or misappropriate any proprietary intellectual
property, contract or tort right of any person and that You own or have
a right to use all of Your Content in the manner in which Your Content
is used in connection with the Services. You also warrant
that the web site being hosted by THE HOST GROUP will not be used in
connection with any illegal activity.
You represent and warrant not to engage in unacceptable use of any
Services, which includes, without limitation, use of the Services to:
(1) Gain, or attempt to gain unauthorized access to any system that does
not belong to You, (2) Send unsolicited electronic mail (e-mail) or
other messages or communication in any form (e.g., spam), (3) Alter,
deface, or otherwise cause any unauthorized or unapproved modification
of any system that does not belong to You, (4) Store, transmit or
process material in a manner that violates intellectual property rights
or laws or regulations, including, without limitation, those associated
with trade secrets, copyrights, patents and trademarks, (5) Violate the
privacy rights of others, including, without limitation the collection
of information about individuals without their knowledge or consent,
except as allowed by applicable laws and regulations, (6) Transmit or
store any material that is unlawful, obscene, harassing, libelous,
abusive, hateful, encourages unlawful acts, or may be interpreted as
violating the civil rights of others, (7) Store or transmit material
that violates local, state, federal, or international laws or
regulations, (8) Engage in or permit any activity that leads to a
degradation or denial of service any system or site on the Internet, (9)
violate the rules and/or policies of any other hosting provider, message
service, chat room, bulletin board, newsgroup, or similar system,
service or provider, (10) intentionally omit, forge, delete, or
misrepresent transmission information, including but not limited to
headers, return address information, IP addresses, etc., that is
intended to cloak or hide the identity or source of information
transmitted by the Client's systems, customers or users, (11) engage in
or permit any activity that results in the over utilization of power
circuits, (12) engage in any other activity deemed by THE HOST GROUP to
be in conflict with the spirit or intent of this Agreement or any THE
HOST GROUP policy; or (13) use Your server as an "open relay" or similar
purposes.
You are responsible for maintaining accurate billing information on file
with THE HOST GROUP. THE HOST GROUP currently accepts payment by
credit card (Visa, MasterCard, Discover and/or American Express) and
PayPal. You are responsible for ensuring that there is no
excessive overloading on THE HOST GROUP's DNS or servers. In the event
that You exceed Your allotted bandwidth or disk space, You shall be
assessed any and all fees, costs and penalties associated with such
overloading. THE HOST GROUP may cease providing the Services at any time
without notice for failure to pay or late payment of any amount
outstanding on your account. THE HOST GROUP currently bills for
all services in advance on the 25th of each month. Quarterly or
annual subscriptions are currently billed on the 25th of the month in
which your subscription comes up for renewal.
Upon the expiration of Your initial hosting service term, Your hosting
service shall automatically renew for the same period of time and Your
payment method shall be charged for the renewal term on the renewal
date. You acknowledge and agree that in the event You do not desire to
automatically renew Your hosting services for the same period of time,
it is Your responsibility and obligation to initiate a cancellation
ticket including your domain name, user identification and password in
our online help system at least 24 hours before your renewal date (30
days in advance for dedicated hosting customers). Our online help
system can be located at:
http://help.thehostgroup.com In the event You terminate,
moving your web site off of the THE HOST GROUP virtual dedicated servers
is Your responsibility. THE HOST GROUP will not transfer or FTP Your web
site to another provider. In the event Your use of the Services is
terminated, THE HOST GROUP will not transfer or manage Your Services or
Your website content.
You agree to maintain accurate information on file with THE HOST GROUP
including but not limited to Your business name and address, account
contact name, billing contact name, billing information (credit card or
Pay Pal account identification) and associated contact email address(es),
mail address(es) and phone number(s). You agree to update such
information in Your control panel within 48 hours of a change. If
You provide any information that is inaccurate, not current, false,
misleading or incomplete, or if THE HOST GROUP has reasonable grounds to
suspect that Your information is inaccurate, not current, false,
misleading or incomplete, THE HOST GROUP has the absolute right, in its
sole discretion, to terminate its Services and close Your account.
At all times, You shall bear full risk of loss and damage to Your web
site and all of Your Content. You are entirely responsible for
maintaining the confidentiality of Your password and account
information. You agree that you are solely responsible for all acts,
omissions and use under and charges incurred with Your account or
password. THE HOST GROUP shall have no liability to You or any other
person for loss, damage or destruction of any of Your Content, or for
related losses by Your business or Your customers. THE HOST GROUP shall
have no liability to You or any other person for Your use of the
Services in violation of these terms.
This agreement shall be governed by the laws of the state of Delaware.
You agree that all disputes arising under this Agreement shall be
submitted to binding arbitration through the American Arbitration
Association. You agree that any damages awarded to You, including
any penalties, interest or other charges, shall be limited to the amount
of your most recent invoice from THE HOST GROUP as reflected in our
records.
As a condition of purchasing and using the Services, You acknowledge and
agree that THE HOST GROUP may provide Your personal information to our
partners including but not limited to partners providing network
operations, customer service, technical and/or billing support, as
required to provide the plans for which You are purchasing.
Our partners shall be prohibited from using your personal data fro any
purpose other than providing the Services. We shall use your data
only to provide the Services and/or to offers for additional services to
you. We will not sell or otherwise transfer your data to an
un-affiliated company without your consent. THE HOST GROUP reserves the
right at all times to disclose any information as THE HOST GROUP deems
necessary to satisfy any applicable law, regulation, legal process or
governmental request, or to edit, refuse to post or to remove any
information or materials, in whole or in part, in THE HOST GROUP's sole
discretion.
THE HOST GROUP may terminate the Services for Your account at any time
without notice for any reason or no reason at all.
THE HOST GROUP may terminate the Services for Your account at any time
without notice if in THE HOST GROUP’s sole discretion You violate any
term or fail to perform any of your obligations in this Agreement.
THE HOST GROUP does not provide refunds for any unused portion of the
Services once an account has been open for 30 days.
Unless otherwise specified, all notices and/or communications regarding
this Agreement may be directed to
sales@thehostgroup.com.
You agree that posting on THE HOST GROUP website shall constitute
sufficient notice to you for all matters related to the Services.
IN NO EVENT SHALL THE HOST GROUP BE LIABLE TO YOU OR ANY OTHER PERSON
FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR
PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER,
WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT
(INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR
IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND
POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF
DATA OR FILES OR OTHERWISE, EVEN IF THE HOST GROUP HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
Some states may not allow such a broad exclusion or limitation on
liability for damages as contained herein. In such states, THE HOST
GROUP ’s liability is limited to the full extent permitted by law. You
agree that in no event shall THE HOST GROUP ’s maximum aggregate
liability exceed to the amount of your most recent invoice from THE HOST
GROUP as reflected in our records.
THE HOST GROUP expressly disclaims all warranties of any kind, whether
express or implied, including, but not limited to, the implied
warranties of merchantability, fitness for a particular purpose and
non-infringement. Services are provided on an "As Is" and "As Available"
basis. Some jurisdictions do not allow the disclaimer of implied
warranties, in which event that foregoing disclaimer may not apply to
You.
You agree to defend, indemnify and hold harmless THE HOST GROUP and its
contractors, agents, employees, officers, directors, shareholders, and
affiliates from any loss, liability, damages or expense, including
reasonable attorneys' fees, resulting from any claim, action, proceeding
or demand related to Your Services, Your account, or Your breach of this
Agreement or incorporated agreements and policies.
You agree that this Agreement including the policies and agreements it
refers to constitute the complete and only Agreement between You and THE
HOST GROUP regarding the Services contemplated herein.
You agree that the terms of this Agreement are severable. If any part of
this Agreement is determined to be unenforceable or invalid, that part
of the agreement will be interpreted in accordance with applicable law
as closely as possible, in line with the original intention of both
parties to the Agreement. The remaining terms and conditions of the
Agreement will remain in full force and effect.
The failure of THE HOST GROUP to enforce any of the provisions within
this Agreement or its incorporated agreements and policies against You
or others shall not be construed to be a waiver of the right of THE HOST
GROUP thereafter to enforce such provisions.
Nothing in this Agreement, express or implied, is intended to confer
upon any third party any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly provided in
this Agreement.
THE HOST GROUP reserves the right to suspend
Your account, modify Your website and/or take any other actions allowed
under law is response to a good faith claim of trademark or copyright
infringement.
To notify THE HOST GROUP of an alleged copyright or trademark
infringement, please follow the specific instructions below.
If you are responding to a complaint of infringement, please follow our
Counter Notification procedures below.
If any trademark owner or agent thereof would like to submit a claim of
trademark infringement for violation of a mark, THE HOST GROUP requests
that the trademark owner or their agent provide follow the procedures
outlined below:
To be considered effective, a notification of a claimed trademark
violation must be provided via email to THE HOST GROUP at
compliance@thehostgroup.com with the words “TRADEMARK CLAIM” in the
subject line, and must include the following information:
1.
Sufficient evidence that the party posting the trademark that is claimed
to be infringing is a customer of THE HOST GROUP.
2. The trademark, service mark, or other item (the "Mark") claimed
to be infringed.
3. The name, post office address and telephone number of the owner
of the Mark.
4. The goods and/or services covered by or offered under the Mark.
5. The date of first use of the Mark identified.
6. The date of first use in interstate commerce of the Mark.
7. The trademark, service mark, or other item (the “Infringing
Mark”) you believe is an infringement of your Mark.
8. The goods and/ or services covered by or offered under the
Infringing Mark.
9. The precise location of the Infringing Mark.
10. A good faith certification, signed under penalty of perjury,
stating:
a. The Infringing Mark infringes the rights of another party,
b. The name of the owner of the Mark
c. The Mark being infringed, and
d. That use of the Infringing Mark at issue is not defensible.
THE HOST GROUP will investigate all claims of
trademark infringement and take whatever actions THE HOST GROUP deems
appropriate, at our sole discretion, based upon the merits of each
claim.
If any copyright owner or agent thereof would like to submit a claim of
copyright infringement, THE HOST GROUP requests that the copyright owner
or their agent provide follow the procedures outlined below. To be
considered effective, a notification of a claimed copyright infringement
must be provided via email to THE HOST GROUP at
compliance@thehostgroup.com with the words “COPYRIGHT CLAIM” in the
subject line, and must include the following information:
1. An electronic signature of the copyright owner, agent
authorized to act on behalf of the owner, of an exclusive copyright that
has allegedly been infringed.
2. Identification of the copyrighted work claimed to have been
infringed, or, if multiple copyrighted works at a single online site are
covered by a single notification, a representative list of such works on
that site.
3. Identification of the material that is claimed to be infringing
and that is to be removed or access to which is to be disabled, and
information reasonably sufficient to permit THE HOST GROUP to locate the
material.
4. Information reasonably sufficient to permit THE HOST GROUP to
contact the copyright owner or their agent including name, address,
phone number and an electronic mail address.
5. A statement that the Complaining Party has a good faith belief
that use of the material in the manner complained of is not authorized
by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is
accurate, and under penalty of perjury, that the you are the copyright
owner, or their agent authorized to issue claims of infringement, of an
exclusive right that is allegedly infringed.
THE HOST GROUP will investigate all claims of
copyright infringement and take whatever actions THE HOST GROUP deems
appropriate, at our sole discretion, based upon the merits of each
claim, including immediate removal or suspension of access to material
that is the subject of a valid claim of infringement.
If you have received a notice of copyright or trademark infringement,
you may provide Counter Notification by emailing
compliance@thehostgroup.com and including the following:
1. Your electronic signature.
2. Identification of the material that has been removed or to
which access has been disabled and the location at which the material
appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the You have a good
faith belief that the material was removed or disabled as a result of
mistake or misidentification of the material to be removed or disabled.
4. The Your name, address, and telephone number, and a statement
that You consent to consents to the jurisdiction of the Federal District
Court for the judicial district of Delaware, or if the your address is
outside of the United States, for any judicial district in which the
Complaining Party may be found and you will accept service of process
from the Complaining Party or an agent of such Party.
THE HOST GROUP will investigate all counter
claims of infringement and take whatever actions THE HOST GROUP deems
appropriate, at our sole discretion, based upon the merits of each
claim, including restoring access to materials previously removed or to
which access was suspended based upon a good faith claim of
infringement.
It is THE HOST GROUP’s policy to terminate accounts associated with
repeated valid claims of infringement of any kind.
THE HOST GROUP’s registered agent for all claims of infringement can be
contacted via the address
compliance@thehostgroup.com or at the address or phone number for
THE HOST GROUP listed elsewhere on this site.
revision January 2008
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