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This Hosting Service Agreement (the "Agreement")
governs your purchase and use, in any manner, of all web site hosting services,
including Dedicated Server Hosting, Virtual Private Server Hosting and Custom Hosting
Services, (collectively, the "Services") as described in the Schedule,
ordered by you (the "Customer") and accepted by Everycontractor.com, Inc.
(the "Provider"), and describes the terms and conditions that apply to
such purchase and use of the Services. You must accept the terms of this Agreement
in order to use the Services.
By using our services, you acknowledge that you have read this agreement and agree
to be bound by the terms and conditions contained herein as well as all policies
and guidelines incorporated by reference. Provider reserves the right to change
or modify any policy or guideline incorporated by reference at any time and from
time to time in its sole discretion, and to determine whether and when any such
changes apply to both existing or future Customers. Any changes or modification
will be effective thirty (30) days after notification to the Customer of the revisions.
Provider will notify Customer of such changes or modifications to referenced policies
and guidelines in writing delivered by fax or E-mail to Customer. Your continued
use of the Services following the notice period will constitute your acceptance
of such changes or modifications.
If you do not agree to the terms of this agreement (or the addendum if they apply
to you), do not sign this agreement. If you do not agree to the terms of any modification,
do not continue to use the Services and immediately notify Provider of your termination
of this agreement in the manner described in section 1.2 below.
1. Term and Payment for Services
1.1 Commencement Date and Term:
This Agreement shall be for an "Initial Term" and Customer's obligations
shall begin on the Commencement Date and continue for the number of periods specified
in the Schedule and shall renew automatically thereafter until terminated by either
party upon not less than sixty (60) days prior written notice. The Commencement
Date with respect to each Service shall be the date of activation of the service
by Provider.
You must provide Provider with your notice of termination by sending an email to
support@everycontractor.com. Any notice of termination will be effective upon Provider's
receipt thereof.
1.2 Termination Policy:
Customer may terminate this Agreement without cause upon written notice to Provider.
If you terminate your receipt of the Services without cause prior to the end of
the Initial Term or the Renewal Term, whichever is then applicable, (a) Provider
shall not refund to you any fees paid in advance of such termination and (b) you
shall be required to pay the lesser of three (3) times the standard monthly charge
or 100% of Provider's standard monthly charge for each month remaining in the term,
unless otherwise expressly provided herein. Notwithstanding the foregoing; if you
terminate this Agreement for cause or due to a change or modification Provider made
to the policies and guidelines incorporated herein, (i) if you have pre-paid for
a one year period of Dedicated Hosting Services, you are entitled to pro-rata refund
of the remaining months in the annual period; and (ii) you shall not incur any further
obligation to pay fees and Provider shall refund to you the pro-rata portion of
pre-paid fees attributable to Services not yet rendered as of the termination date.
Your termination request must be submitted to Provider in the manner described in
Section 1.1. Provider may terminate this Agreement at any time and for any reason
by providing to you thirty (30) days prior written notice of termination. If Provider
terminates this Agreement, Provider shall refund to you the pro-rata portion of
pre-paid fees attributable to Services not yet rendered as of the termination date
unless otherwise expressly provided herein.
1.3 Liability and Obligations on Termination:
Should the Agreement expire or be terminated for any reason, Provider will not be
liable to you because of such expiration or termination for compensation, reimbursement
or damages on account of the loss of prospective profits, anticipated sales, goodwill
or on account of expenditures, investments, leases or commitments in connection
with your business, or for any other reason whatsoever flowing from such termination
or expiration. Any termination of this Agreement shall not relieve you of any obligations
to pay fees and costs accrued prior to the termination date and any other amounts
owed by you to Provider as provided in this Agreement.
1.4 Charges:
You agree to pay for all charges attributable to your use of the Services at the
then current Provider prices, which shall be exclusive of any applicable taxes.
You shall be responsible for the payment of all federal, state, and local sales,
use, value added, excise, duty and any other taxes assessed with respect to the
Services, other than taxes based on Provider's net income.
1.5 Payment:
All charges for Services must be paid in advance according to the then current price
applicable to the Services.
If you choose to be invoiced upon registration for Dedicated or Shared Hosting Services,
Provider will send an invoice to you for the Services applicable to the period for
which you have registered for the Services. Provider may also send periodic invoices
to you for any applicable Supplemental Charges associated with your use of the Services.
You agree to pay to Provider the amount indicated in each invoice by the due date,
net thirty (30) days as reflected on the invoice. If you fail to pay any fees and
taxes within thirty (30) days from applicable due date for credit card or invoice
payments, late charges of the lesser of one and one-half per cent (1.5%) per month
or the maximum allowable under applicable law shall also become payable by you to
Provider. In addition, your failure to fully pay any fees and taxes within thirty
(30) days after the applicable due date will be deemed a material breach of this
Agreement, justifying Provider's suspension of its performance of the Services and/or
termination of this Agreement. You are responsible for any fees associated with
reinstated of Services. Any such termination would not relieve you from paying past
due fees plus interest. In the event of collection enforcement, you will be liable
for any costs associated with such collection, including, without limitation, reasonable
attorneys' fees, court costs and collection agency fees.
1.6 30 Day Guarantee:
Notwithstanding Sections 1.1 through 1.4, if you are not fully satisfied with the
Shared Hosting Services, you may terminate this Agreement at any time during the
first thirty (30) days from your initial order date and receive a full refund of
all payments made by you to Provider for the Shared Hosting Services. To receive
such refund, you must terminate this Agreement in the manner described in Section
1.1 and cease using the Services, and Provider must receive your termination notice,
within the above described thirty (30) day period. You agree to provide Provider
with a description of why you are not satisfied with the Services and are terminating
this Agreement.
2. Use of Services
2.1 Applicable Policies and Guidelines:
The Provider Acceptable Use and Service Guidelines (the "Usage Guidelines")
govern the general policies and procedures for use of the Services. Provider's On-line
Privacy Practices governs how Provider collects, stores, processes and uses information
associated with your use of the Services. The Usage Guidelines and the On-line Privacy
Practices are posted on Provider's Web site (or such other location as Provider
may specify) and may be updated from time-to-time. You should carefully read the
usage guidelines. By using the Services, you agree to be bound by the terms of the
usage guidelines and any modifications thereto. Provider reserves the right to terminate
your account for any violation of the usage guidelines or this agreement.
2.2 Material and Product Requirements:
You must ensure that all material and data placed on Provider's equipment is in
a condition that is "server-ready," which is in a form requiring no additional
manipulation by Provider. Provider will make no effort to validate any of this information
for content, correctness or usability. In the event that your material is not "server-ready",
Provider has the option at any time to reject this material. Provider will notify
you of its refusal of the material and afford you the opportunity to amend or modify
the material to satisfy the needs and/or requirements of Provider. Use of the Services
requires a certain level of knowledge in the use of Internet languages, protocols
and software. This level of knowledge varies depending on the anticipated use and
desired content of your Web site. You must have the necessary knowledge to create
and maintain a Web site. It is not Provider's responsibility to provide this knowledge
or Customer support outside of the Services agreed to by you and Provider.
2.3 Bandwidth, Storage, and E-Mail Usage:
You agree that use of the Services hereunder will not exceed the bandwidth, storage
and E-mail usage limits set out in the Order Form. If you use any bandwidth or storage
space in excess of the agreed upon number of megabytes per month, Provider may,
in its sole discretion, assess you with additional charges as a result of this excess
usage. . Provider will make a reasonable attempt to notify Customer within five
(5) business days of excess usage in an attempt to assist the Customer in controlling
costs. Failure to provide notice by Provider to Customer of excess usage shall not
relieve the Customer of the responsibility of payment of additional charges incurred
because of excess usage.
2.4 Domain Names:
As part of the Services, you will provide Provider with a registered domain name
or names or Provider will register such domain name(s) selected by you, provided
that such domain name is available for registration and does not violate any Network
Solutions' or other registration Services' policies, or any law or regulation. You
agree to promptly reimburse Provider for any fees paid by Provider to Network Solutions
or other registration Services with respect to the registration and maintenance
of such domain name(s). In the event of any dispute or cause of action arising out
of or related to your domain name used in connection with the Services, upon your
request Provider will attempt to register with Network Solutions or other registrar
an alternative domain name chosen by you. You agree to be bound by the terms of
Network Solutions' then current domain name policy and/or the policies of the national
DNS registration authorities to which you become subject upon registration of your
domain name. The inability to use a domain name shall not entitle you to a refund
by Provider of any fees paid with respect to the registration of such unusable domain
name.
3. Intellectual Property Rights
3.1 Your License Grant to Provider:
You hereby grant to Provider a non-exclusive, worldwide, and royalty-free license
for the Initial Term and the Renewal Term, if applicable, to transmit and distribute
over the Internet your content as necessary solely for the purposes of rendering
and operating the Services to you under this Agreement. You expressly (a) grant
to Provider a license to cache materials distributed or made available for distribution
via the Services, including content supplied by third parties, and (b) agree that
such caching is not an infringement of any of your intellectual property rights
or any third party's intellectual property rights. Upon termination of this Agreement,
Provider shall delete any and all cached materials.
3.2 Your Warranties and Representations to Provider:
You warrant, represent, and covenant to Provider that (a) you are at least eighteen
(18) years of age; (b) you possess the legal right and ability to enter into this
Agreement; (c) you will use the Services only for lawful purposes and in accordance
with this Agreement and all applicable policies and guidelines; (d) you will be
financially responsible for the use of your account; (e) you have acquired or will
acquire all authorization(s) necessary for hypertext links to third-party Web sites
or other content; (f) you have verified or will verify the accuracy of materials
distributed or made available for distribution via the Services, including, without
limitation, your content, descriptive claims, warranties, guarantees, nature of
business, and address where business is conducted, and (g) your content does not
and will not infringe or violate any right of any third party (including any intellectual
property rights) or violate any applicable law, regulation or ordinance.
3.3 Provider Materials and Intellectual Property:
All materials, including but not limited to any computer software (in object code
and source code form), data or information developed or provided by Provider or
its suppliers or agents pursuant to this Agreement, and any know-how, methodologies,
equipment, or processes used by Provider to provide the Services to you, including,
without limitation, all copyrights, trademarks, patents, trade secrets, and any
other proprietary rights inherent therein and appurtenant thereto shall remain the
sole and exclusive property of Provider or its suppliers. Provider shall also maintain
and control ownership of all Internet protocol ("IP") numbers and addresses
that may be assigned to you by Provider. Provider reserves, in its sole discretion,
the right to change or remove any and all such IP numbers and addresses.
4. Enforcement
4.1 Investigation of Violations:
Provider may investigate any reported violation of this Agreement, the Addendum
its policies or any complaints and take any action that it deems appropriate and
reasonable under the circumstance to protect its systems, facilities, Customers
and/or third parties. Provider will not access or review the contents of any e-mail
or similar stored electronic communications except as required or permitted by this
Agreement, applicable law or legal process.
4.2 Actions:
Provider reserves the right and has absolute discretion to restrict or remove from
its servers any content that violates this Agreement, the Addendum or related policies
or guidelines, or is otherwise objectionable or potentially infringing on any third
party's rights or in potentially violation of any laws. In the event of becoming
aware of any possible violation by you of this Agreement, the Addendum, any related
policies or guidelines, third party rights or laws, Provider may immediately take
corrective action, including, but not limited to, (a) issuing warnings, (b) suspending
or terminating the Service, (c) restricting or prohibiting any and all uses of content
hosted on Provider's systems, and/or (d) disabling or removing any hypertext links
to third-party Web sites, any of your content distributed or made available for
distribution via the Services, or other content not supplied by Provider which,
in Provider's sole discretion, may violate or infringe any law or third-party rights
or which otherwise exposes or potentially exposes Provider to civil or criminal
liability or public ridicule. It is Provider's policy to terminate repeat infringes.
The above stated rights of action, however, do not obligate Provider to monitor
or exert editorial control over the information made available for distribution
via the Services. In the event Provider takes corrective action due to such possible
violation, Provider shall not be obligated to refund to you any fees paid in advance
of such corrective action unless Provider terminates the Agreement or continues
to suspend the Services after the allegedly violating material or action is removed
or disabled.
4.3 Disclosure Rights:
To comply with applicable laws and lawful governmental requests, to protect Provider's
systems and Customers, or to ensure the integrity and operation of Provider's business
and systems, Provider may access and disclose any information it considers necessary
or appropriate, including, without limitation, user profile information (i.e., name,
e-mail address, etc.), IP addressing and traffic information, usage history, and
content residing on Provider's servers and systems. Provider also reserves the right
to report any activity that it suspects violates any law or regulation to appropriate
law enforcement officials, regulators, or other appropriate third parties. To the
extent any inconsistency exists between any terms of Provider's On-line Privacy
Practices and Provider's right disclose under this section, Provider's right to
disclose under this section will control. Notwithstanding the foregoing, Provider
acknowledges that Customer may be receiving and transmitting confidential information
through its web site and E-mail systems and agrees that it shall take reasonable
steps to protect the security of that information and exercise due care in accessing
and disclosing that information. In the event Provider makes any disclosure under
this section, Provider will promptly provide Customer with notice of the date of
the disclosure, what information was disclosed and to whom it was disclosed. Whenever
possible, Provider will provide Customer with notice in advance of any disclosure
that such disclosure is being requested or demanded.
5. Disclaimed Warranties
You acknowledge and agree that Provider exercises no control over, and accepts no
responsibility for, the content of the information passing through Provider's host
computers, network hubs and points of presence, or the Internet. Except as expressly
warranted in this agreement, all Services performed hereunder are performed "as
is" and without warranty against failure of performance including, without
limitation, any failure due to computer hardware or communication systems.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PROVIDER DOES NOT MAKE AND HEREBY
DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES,
ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
6. Limitation and Exclusion of Liability
6.1 Limitations:
In no event shall Provider or its suppliers have any liability for unauthorized
access to, or alteration, theft or destruction of information distributed or made
available for distribution via the Services through accident, fraudulent means or
devices. Neither Provider nor its suppliers shall have liability with respect to
Provider's obligations under this agreement, the addendum or otherwise for consequential,
exemplary, special, incidental, or punitive damages even if Provider has been advised
of the possibility of such damages. Some states do not allow the limitation or exclusion
of liability for incidental or consequential damages so the foregoing limitation
or exclusions may not apply to you. In any event, the liability of Provider and
its suppliers to you for any reason and upon any cause of action shall be limited
to the amount actually paid to Provider by you under this agreement and the addendum
during the three (3) months immediately preceding the date on which such claim accrued.
This limitation applies to all causes of action in the aggregate, including, without
limitation, to breach of contract, breach of warranty, negligence, strict liability,
misrepresentations, and other torts. The fees for the Services set by Provider hereunder
have been and will continue to be based upon this allocation of risk. Accordingly,
you hereby release Provider and its suppliers from any and all obligations, liabilities,
and claim in excess of the limitation stated in this section 6.1.
6.2 Interruption of Service:
You hereby acknowledge and agree that Provider and its suppliers will not be liable
for any temporary delay, outages or interruptions of the Services. Further, Provider
shall not be liable for any delay or failure to perform its obligations under this
Agreement, where such delay or failure results from any act of God or other cause
beyond its reasonable control (including, without limitation, any mechanical, electronic,
communications or third-party supplier failure). Notwithstanding the foregoing,
Customer shall have the right to terminate this Agreement if the Services are not
available at least 96% of the time during any 7 day period and 98% of the time during
any 30 day period or if the Services are not available for three or more hours on
more than one day during any 30 day period.
7. Indemnification
You hereby release and hold harmless, and agree to indemnify, Provider and its affiliates
and suppliers (and their respective employees, directors and representatives) against
any and all claims, actions, proceedings, suits, liabilities, damages, settlements,
penalties, fines, costs or expenses (including, without limitation, reasonable attorneys'
fees and other litigation expenses) incurred by Provider or its suppliers, arising
out of or relating to (a) your violation or breach of any term, condition, representation
or warranty of this Agreement, the Addendum or any applicable policy or guideline;
(b) your improper or illegal use of the Services; or (c) your violation, alleged
violation, or misappropriation of any intellectual property right (including, without
limitation, trademark, copyright, patent, trade secrets) or non-proprietary right
of a third party (including, without limitation, defamation, libel, violation of
privacy or publicity).
8. Miscellaneous Provisions
8.1 Entire Agreement:
This Agreement, in conjunction with the Addendum and all policies and guidelines
incorporated herein by reference, constitutes the entire agreement between you and
Provider with respect to the subject matter hereof and there are no representations,
understandings or agreements which are not fully expressed in this Agreement and
the related policies and guidelines.
8.2 No Fiduciary Relationship; No Third-Party Beneficiaries:
Provider is not the agent, fiduciary, trustee or other representative of you. Except
for the rights of Provider's suppliers under sections 6 and 7 hereof, nothing expressed
or mentioned in or implied from this Agreement or the Addendum is intended or shall
be construed to give to any person other than the parties hereto any legal or equitable
right, remedy or claim under or in respect to this Agreement and the Addendum. This
Agreement and the Addendum and all of the representations, warranties, covenants,
conditions and provisions hereof are intended to be and are for the sole and exclusive
benefit of the parties hereto.
8.3 Amendments:
Except as expressly provided in this Agreement, no amendment, change, waiver, or
discharge hereof or to the Addendum shall be valid unless in writing and signed
by the parties. Any purported oral modification or amendment of this Agreement in
derogation of the foregoing shall be without any effect.
8.4 Choice of Law and Forum:
This agreement, including the addendum, will be governed by the laws of the United
States and the state of Illinois, without reference to rules governing choice of
laws. Any action relating to this agreement must be brought in the federal or state
courts located in Chicago, Illinois, and you irrevocably consent to the jurisdiction
of such courts.
8.5 Compliance With Laws:
You shall at all times comply with all applicable laws and regulations and shall
indemnify and save Provider harmless from your failure to so comply. You agree that
Provider shall not have to perform any obligations set forth in this Agreement if
such performance would violate any present or future law, regulation or policy of
any applicable government.
8.6 Non-Assignment:
You may not assign this Agreement or any right or obligation hereunder or under
the Addendum, by operation of law or otherwise, without Provider's prior written
consent. Provider may assign its rights and obligations under this Agreement or
the Addendum, and may utilize affiliate and/or agents in performing its duties and
exercising its rights hereunder, without your consent. Subject to that restriction,
this Agreement and the Addendum will be binding on, inure to the benefit of, and
be enforceable against the parties and their respective successors and assigns.
8.7 No Waiver:
A party's failure to enforce the strict performance of any provision of this Agreement
or the Addendum will not constitute a waiver of that party's right to subsequently
enforce such provision or any other provisions hereunder or there under. Neither
party may waive any right hereunder except expressly and in writing. Any other purported
waiver of any such right shall be without any effect.
8.8 Severability:
Should any term or provision hereof be deemed invalid, void or unenforceable either
in its entirety or in a particular application, the remainder of this Agreement
and the Addendum, if applicable, shall nonetheless remain in full force and effect
and, if the subject term or provision is deemed to be invalid, void or unenforceable
only with respect to a particular application, such term or provision shall remain
in full force and effect with respect to all other applications.
8.9 Headings:
The section headings used herein are for reference and convenience only and shall
not enter into the interpretation hereof.
8.10 Survival:
All provisions of this Agreement and the Addendum relating to your warranties, intellectual
property rights, limitation and exclusion of liability, your indemnification obligations
and payment obligations shall survive the termination or expiration hereof and thereof.
8.12 Provision of Services; License:
(a) Provided that Customer pays Provider the fees set forth in the Order Form, Provider
will provide Customer with the Services ordered on the Order Form. Provider shall
provide the Services in a manner consistent with commercially reasonable industry
performance and practices, including without limitation commercially reasonable
security architecture, systems and procedures with respect to its equipment, facilities
and transmissions. Provider shall prevent unauthorized access to restricted areas
of its servers and shall promptly notify Customer of any security breaches.
(b) Subject to the terms and conditions of this Agreement, Provider hereby grants
to Customer a limited, personal, non-exclusive, non-transferable license to use
the Services.
(c) Customer may not copy or transfer any third party products or licenses used
in the fulfillment of Services by the Provider to the Customer. Such third party
products and licenses may include, but are not limited to: Microsoft Windows 2000
Server, Microsoft SQL 2000 Server, Allaire JRun Enterprise Server, I-net Software
SPRINTA 2000 JDBC Drivers, IMail Server, and Microsoft Exchange Server. Such products
are protected by worldwide copyright laws and treaty provisions. Except as provided
herein, these products and licenses may not be copied, reproduced, modified, published,
uploaded, posted, transmitted or distributed in any way, without Provider's prior
written permission.
(d) With respect to any Provider logos and/or hypertext link logos provided for
use with the Services, Customer is granted a non-assignable, non-exclusive, royalty
free license solely to use the logos and/or link logo as a hypertext link icon to
allow users to link from Customer's web page to the Provider web pages, based on
the following terms and conditions:
i. Customer acknowledges the validity and Provider's exclusive ownership of all
right, title, and interest in and to the Provider logos and link logo marks (the
"Marks") and, during or after the term of this Agreement, shall not, in
any way, contest, or help others to contest, such ownership or the validity of any
registrations or rights of Provider now owned or obtained relating to the Marks.
ii. Customer shall not use any names, marks, terms, graphics, or other materials
on its Web page or site that are likely to cause confusion with or dilute the distinctiveness
of either of the Marks or to damage the reputation or commercial image of Provider
or any of its products.
iii. Provider, in its sole discretion, may terminate this license for the Marks
immediately for any reason. Upon termination of this license, Customer shall immediately
cease all further use of the Marks, or any other similar mark, name or logo, including,
without limitation, any name or mark comprising the term "Provider."
8.13 Obligations of Provider:
Provider will have no obligation under this Agreement to correct any bugs, defects
or errors in third party products and Services or Customer provided or Customer
custom software. Provider agrees to provide reasonable technical support to Customer
in the form of telephone consulting and "e-mail" to Customer during Provider's
normal business hours and at Provider's standard pricing. Provider will have Service
personnel available 24 hours per day, 7 days per week, 365 days per year to respond
to and promptly remedy Service disruptions.
8.14 Miscellaneous:
Customer agrees to execute and deliver to Provider such further documents, including,
but not limited to, financing statements, assignments, and financial reports and
take such further action as Provider may reasonably request to protect Provider's
interest in the Service.
The performance of any act or payment by Customer shall not be deemed a waiver of
any obligation or default on the part of Provider. Provider's failure to require
strict performance by Customer of any of the provisions of this agreement shall
not be a waiver thereof.
This Service agreement together with any schedule constitutes the entire understanding
between the parties and supersedes any previous representations or agreements whether
verbal or written with respect to the use of the Services described in that schedule.
In the event of a conflict, the terms of the schedule shall prevail over the Service
agreement.
No amendment or change of any of the terms or conditions herein shall be binding
upon either party unless they are made in writing and are signed by an authorized
representative of each party. Each Schedule is non-cancelable for the full term
specified and each Schedule shall be binding upon, and shall insure to the benefit
of Provider, Customer and their respective successors, legal representatives and
permitted assigns.
All agreements, representations and warranties contained herein shall be for the
benefit of Provider and shall survive the execution, delivery and termination of
this Service agreement, and any Schedule or related document.
Any provision of this Service Agreement and/or each Schedule which is unenforceable
shall not cause any other remaining provision to be ineffective or invalid. The
captions set forth herein are for convenience only and shall not define or limit
any of the terms hereof. Any notices or demands in connection with any Schedule
shall be give in writing by regular or certified mail at the address indicated in
the Schedule, or to any address specified by Provider.
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