|
|
| ASP.NET Web hosting, ASP.NET 1.1 and 2.0 Hosting, and SQL Server Hosting |
| EDTHosting.com SPAM Policy |
| This User Agreement ("Agreement") is an agreement between
EDTHosting Internet, Inc. ("EDTHosting"), a Kentucky corporation, and the party
set forth in the related order form incorporated herein by reference (together
with any subsequent order forms submitted by Customer, the "Order Form"), and
applies to the purchase of all services (collectively, the "Services") ordered
by Customer on the Order Form. Such party is referred to in this Agreement as
"Customer" or "you". PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE
BUTTON ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS
AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS
AGREEMENT, INCLUDING EDTHosting'S USAGE POLICY. YOUR USE OF THE SERVICES
CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. EDTHosting reserves the right to
reject this Agreement for any reason or no reason, prior to acceptance thereof
by EDTHosting. Activation of the Services shall indicate EDTHosting's
acceptance of this Agreement. Subject to the terms and conditions of this
Agreement, EDTHosting will provide to Customer the Services selected by
Customer set forth on the Order Form. 1. Usage Policy. Under this Agreement,
Customer shall comply with EDTHosting's then current "Usage Policy", as
amended, modified or updated from time to time by EDTHosting, which currently
can be viewed at http://www.EDTHosting.com/legal.asp, and which is incorporated
in this Agreement by reference. Customer hereby acknowledges that it has
reviewed the Usage Policy and that the terms of the Usage Policy are
incorporated herein by reference. In the event of any inconsistencies between
this Agreement and the Usage Policy, the terms of the Usage Policy shall
govern. EDTHosting does not intend to systematically monitor the content which
is submitted to, stored on or distributed or disseminated by Customer via the
Service (the "Customer Content"). Customer Content includes content of
Customer's customers and/or users of Customer's website. Accordingly, under
this Agreement, you will be responsible for your customers content and
activities on your website. Notwithstanding anything to the contrary contained
in this Agreement, EDTHosting may immediately take corrective action, including
removal of all or a portion of the Customer Content, disconnection or
discontinuance of any and all Services, or termination of this Agreement in the
event of notice of possible violation by Customer of the Usage Policy. In the
event EDTHosting takes corrective action due to a violation of the Usage
Policy, EDTHosting shall not refund to Customer any fees paid in advance of
such corrective action. Customer hereby agrees that EDTHosting shall have no
liability to Customer or any of Customer's customers due to any corrective
action that EDTHosting may take (including, without limitation, disconnection
of Services). 2. Amendment. EDTHosting may amend, modify or update this
Agreement or the Usage Policy at any time in its sole discretion, and Customer
shall be bound by any such amendment, modification or update. EDTHosting may,
but is under no obligation to, provide notice of any amendment, modification or
update of this Agreement or the Usage Policy. Any modification is effective on
the earlier of two days after posting on EDTHosting's website or two days after
the sending of a notice by EDTHosting to Customer by e-mail or conventional
mail. If any material modification to this Agreement or the Usage Policy is
unacceptable to you, you may terminate your subscription as provided in Section
3. However, if you do not terminate the Agreement, or if you continue to use
the Services following effectiveness of the modification, your continued use
will mean that you have accepted that modification. EDTHosting reserves the
right to amend its service offerings and add, delete, suspend or modify the
terms and conditions of the Services, at any time and from time to time, and to
determine whether and when any such changes apply to both existing and future
customers. 3. Term; Termination; Cancellation Policy. The initial term of this
Agreement shall be as set forth in the Order Form (the "Initial Term"). The
Initial Term shall begin upon commencement of the Services to Customer. After
the Initial Term, this Agreement shall automatically renew for successive terms
of equal length as the Initial Term, unless terminated or cancelled by either
party as provided in this section. The Initial Term and all successive renewal
periods shall be referred to, collectively, as the "Term". This Agreement may
be terminated (i) by either party by giving the other party 30 days prior
written notice (subject to an early cancellation fee as provided below), (ii)
by EDTHosting in the event of nonpayment by Customer, (iii) by EDTHosting, at
any time, without notice, if, in EDTHosting's judgment, Customer is in
violation of any term or condition of the Usage Policy or Customer's use of the
Service disrupts or, in EDTHosting's judgment, could disrupt, EDTHosting's
business operations and (iv) by EDTHosting in accordance with Sections 1, 9,
and 10 of this Agreement. If you cancel this Agreement prior to the end of the
Term, (i) you shall be obligated to pay all fees and charges accrued prior to
the effectiveness of such cancellation, (ii) EDTHosting shall refund to you all
pre-paid fees for basic hosting services (shared, dedicated and/or managed) for
the full months remaining after effectiveness of cancellation (i.e., no partial
month fees shall be refunded), less any setup fees and any discount applied for
prepayment, (iii) you shall be obligated to pay 100% of all charges for all
Services for each month remaining in the Term (other than basic hosting fees as
provided in (ii) above) and (iii) EDTHosting shall have the right to charge you
an early cancellation fee of $25.00. Any cancellation request shall be
effective 30 days after receipt by EDTHosting, unless a later date is specified
in such request. If EDTHosting cancels this Agreement prior to the end of the
Term, EDTHosting shall not refund to you any fees paid in advance of such
cancellation and (i) you shall be obligated to pay all fees and charges accrued
prior to the effectiveness of such cancellation, (ii) you shall be obligated to
pay 100% of all charges for all Services for each month remaining in the Term
and (iii) EDTHosting shall have the right to charge you an early cancellation
fee of $25.00. 4. Billing and Payment. All fees for the Services shall be in
accordance with EDTHosting's fee schedule then in effect, the terms of which
are incorporated herein by reference, and shall be due at the times provided
therein. A $15.00 late fee will apply to accounts past due more than ten (10)
calendar days from the due date. EDTHosting may, with 30 days notice to
Customer, amend the Services and/or the rates and fees it charges for the
Services. Fees for renewal periods after the Initial Term shall be due and
owing immediately upon the first day of such renewal period. EDTHosting may
impose a debt service charge equal to one and one-half percent (1.5%) of the
overdue balance (or such lesser amount as may be required by law) for each
month or fraction thereof the overdue amount remains unpaid. In addition, in
the event that any amount due EDTHosting remains unpaid twenty (20) days after
such payment is due, EDTHosting, in its sole discretion, may immediately
terminate this Agreement, and/or withhold or suspend Services. There will be a
$50.00 charge to reinstate accounts that have been suspended or terminated. All
taxes, fees and governmental charges relating to the Services provided
hereunder (other than income taxes of EDTHosting) shall be paid by Customer.
Customer agrees that EDTHosting may pre-charge Customer's fees for the Services
to the credit card supplied by Customer during registration. Returned checks
will be assessed a $30.00 charge. Wire transfers will be assessed a $30.00
charge. 5. Special Provisions Applicable to Resellers. EDTHosting from time to
time may offer reseller programs which will permit Customers to resell certain
of EDTHosting's products and services, and be eligible for certain discounts,
services and other promotions. A Customer that participates in a reseller
program is referred to herein as a "Reseller". To be eligible to participate in
a reseller program, the Reseller may be required to meet certain requirements
as provided in such reseller program. If you are a Reseller, the terms and
conditions in this section (in addition to any terms or conditions contained in
the reseller program) are applicable to you. As a Reseller, you are
EDTHosting's Customer. A Reseller shall be deemed, and is the "Customer" for
all purposes under this Agreement and the Usage Policy. When you resell the
Services, the purchaser of those resold services becomes your customer (a
"Reseller Customer"). A Reseller Customer is not a Customer of EDTHosting, and
EDTHosting will not support any Reseller Customer. Reseller shall take all
necessary measures to preclude EDTHosting from being made a party to any
agreement with any Reseller Customer. As a Reseller, you are authorized to
resell the Services identified in the applicable reseller program on a
non-exclusive basis. EDTHosting reserves the right to market and sell its
products and services through its own employees, other resellers and other
representatives and retailers that may compete with you. The terms and
conditions of such other relationships may differ from the terms of this
Agreement and the reseller program, and may be better. Reseller shall be
responsible for billing, and collecting payments from, Reseller Customers.
Reseller shall not withhold payments to EDTHosting under this Agreement because
of a failure of a Reseller Customer to make payments to Reseller. Reseller may
set the prices to be paid to it by Reseller Customers for any of the resold
Services. Reseller shall provide all support (including, without limitation,
customer support, first level support, second level support, and other
technical support) for Reseller Customers. Reseller shall pay all sales, use,
transfer, privilege, excise or other taxes and all duties, whether
international, state or local, however designated, which are levied or imposed
on EDTHosting and Reseller under this Agreement and any and all transactions
between Reseller and Reseller Customers. Reseller shall not resell the Services
under EDTHosting's brand name. Reseller shall be solely responsible for
compliance with any regulations governing the export of the Services (or any
portion thereof). Nothing in this Agreement constitutes a license to Reseller
to use or resell the Marks (as defined below). 6. EDTHosting as Reseller or
Licensor. EDTHosting is acting only as a reseller or licensor of the hardware,
software and equipment used in connection with the products and/or Services
that were or are manufactured or provided by a third party ("Non-EDTHosting
Product"). EDTHosting shall not be responsible for any changes in the Services
that cause the Non-EDTHosting Product to become obsolete, require modification
or alteration, or otherwise affect the performance of the Services. Any
malfunction or manufacturer's defects of Non-EDTHosting Product either sold,
licensed or provided by EDTHosting to Customer or purchased directly by
Customer used in connection with the Services will not be deemed a breach of
EDTHosting's obligations under this Agreement. Any rights or remedies Customer
may have regarding the ownership, licensing, performance or compliance of
Non-EDTHosting Product are limited to those rights extended to Customer by the
manufacturer of such Non-EDTHosting Product. Customer is entitled to use any
Non-EDTHosting Product supplied by EDTHosting only in connection with
Customer's permitted use of the Services. Customer shall use its best efforts
to protect and keep confidential all intellectual property provided by
EDTHosting to Customer through any Non-EDTHosting Product and shall make no
attempt to copy, alter, reverse engineer, or tamper with such intellectual
property or to use it other than in connection with the Services. Customer
shall not resell, transfer, export or re-export any Non-EDTHosting Product, or
any technical data derived therefrom, in violation of any applicable United
States or foreign law. 7. IP Address Ownership. If EDTHosting assigns Customer
an Internet Protocol address for Customer's use, the right to use that Internet
Protocol address shall belong only to EDTHosting, and Customer shall have no
right to use that Internet Protocol address except as permitted by EDTHosting
in its sole discretion in connection with the Services, during the term of this
Agreement. EDTHosting shall maintain and control ownership of all Internet
Protocol numbers and addresses that may be assigned to Customer by EDTHosting,
and EDTHosting reserves the right to change or remove any and all such Internet
Protocol numbers and addresses, in its sole and absolute discretion. 8.
Caching. Customer expressly (i) grants to EDTHosting a license to cache the
entirety of the Customer Content and Customer's web site, including content
supplied by third parties, hosted by EDTHosting under this Agreement and (ii)
agrees that such caching is not an infringement of any of Customer's
intellectual property rights or any third party's intellectual property rights.
9. CPU Usage. Customer agrees that Customer shall not use excessive amounts of
CPU processing on any of EDTHosting's servers. Any violation of this policy may
result in corrective action by EDTHosting, including assessment of additional
charges, disconnection or discontinuance of any and all Services, or
termination of this Agreement, which actions may be taken in EDTHosting's sole
and absolute discretion. If EDTHosting takes any corrective action under this
section, Customer shall not be entitled to a refund of any fees paid in advance
prior to such action. 10. Bandwidth and Disk Usage. Customer agrees that
bandwidth and disk usage shall not exceed the number of megabytes per month for
the Services ordered by Customer on the Order Form (the "Agreed Usage").
EDTHosting will monitor Customer's bandwidth and disk usage. EDTHosting 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 this Agreement, which actions may be taken in EDTHosting's sole
and absolute discretion. If EDTHosting takes any corrective action under this
section, Customer shall not be entitled to a refund of any fees paid in advance
prior to such action. 11. Property Rights. EDTHosting owns all right, title and
interest in and to the Services and EDTHosting's trade names, trademarks,
service marks, inventions, copyrights, trade secrets, patents, know-how and
other intellectual property rights relating to the design, function, marketing,
promotion, sale and provision of the Services and the related hardware,
software and systems ("Marks"). Noting in this Agreement constitutes a license
to Customer to use or resell the Marks. 12. Customer Web Site; E-Commerce;
Customer Warranties. Customer shall be solely responsible for the development,
operation and maintenance of Customer's web site, online store and e-commerce
activities, for all products and services offered by Customer or appearing
online and for all contents and materials appearing online or on Customer's
products, including, without limitation (i) the accuracy and appropriateness of
the Customer Content and content and material appearing in its store or on its
products, (ii) ensuring that the Customer Content and content and materials
appearing in its store or on its products do not violate or infringe upon the
rights of any person, and (iii) ensuring that the Customer Content and the
content and materials appearing in its store or on its products are not
defamatory or otherwise illegal. Customer shall be solely responsible for
accepting, processing and filling customer orders and for handling customer
inquiries or complaints. Customer shall be solely responsible for the payment
or satisfaction of any and all taxes associated with its web site and online
store. Customer shall be responsible for the security and confidentiality of
any customer information (including, without limitation, customer credit card
numbers) that Customer may receive as a result of its web site or online store.
Customer represents and warrants to EDTHosting that Customer owns or has the
right to use the Customer Content and material contained therein, including all
text, graphics, sound, music, video, programming, scripts and applets, and the
use, reproduction, distribution and transmission of the Customer Content and
any information and materials contained therein does not, and will not, (i)
infringe or misappropriate any copyright, patent, trademark, trade secret or
any other proprietary right of a third party, (ii) violate any criminal laws or
(iii) constitute false advertising, unfair competition, defamation, an invasion
of privacy, violate a right of publicity or violate any other law or
regulation. Customer grants EDTHosting the right to reproduce, copy, use and
distribute all and any portion of the Customer Content to the extent needed to
provide and operate the Services. 13. Disclaimer of Warranty. Customer agrees
to use all Services and any information obtained through or from EDTHosting, at
Customer's own risk. Customer acknowledges and agrees that EDTHosting exercises
no control over, and accepts no responsibility for, the content of the
information passing through EDTHosting's host computers, network hubs and
points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT
ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF EDTHosting, ITS PARENT,
SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES,
OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY
INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "EDTHosting
PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT
EDTHosting PROVIDES. NO EDTHosting PERSON MAKES ANY WARRANTIES THAT THE
SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY
WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES
OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR
MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. EDTHosting IS NOT
LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA
TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF
CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY EDTHosting. NO ORAL ADVICE OR
WRITTEN INFORMATION GIVEN BY ANY EDTHosting PERSON, WILL CREATE A WARRANTY; NOR
MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall
survive any termination of this Agreement. 14. Indemnification. Customer agrees
to indemnify, defend and hold harmless EDTHosting and its parent, subsidiary
and affiliated companies, and each of their respective officers, directors,
employees, shareholders and agents (each an "indemnified party" and,
collectively, "indemnified parties") from and against any and all claims,
damages, losses, liabilities, suits, actions, demands, proceedings (whether
legal or administrative), and expenses (including, but not limited to,
reasonable attorney's fees) threatened, asserted, or filed by a third party
against any of the indemnified parties arising out of or relating to (i)
Customer's use of the Services, (ii) any violation by Customer of the Usage
Policy, (iii) any breach of any representation, warranty or covenant of
Customer contained in this Agreement or (iv) any acts or omissions of Customer.
The terms of this section shall survive any termination of this Agreement. 15.
Limitation of Liability. Customer agrees that no EDTHosting Person, under any
circumstances, shall be held responsible or liable for situations where the
Services are accessed by third parties through illegal or illicit means,
including situations where such data is accessed through the exploitation of
security gaps, weaknesses or flaws (whether known or unknown to EDTHosting at
the time) which may exist in the Services or EDTHosting's equipment used to
provide the Services. Under no circumstances, including negligence, shall any
EDTHosting Person be liable for any indirect, incidental, special,
consequential or punitive damages, or loss of profits, revenue, data or use by
Customer, any of its customers, any Reseller Customer or any other third party,
whether in an action in contract or tort or strict liability or other legal
theory, even if EDTHosting has been advised of the possibility of such damages.
No EDTHosting Person shall be liable to Customer, any of its customers, any
Reseller Customer or any other third party, for any loss or damages that result
or are alleged to have resulted from the use of or inability to use the
Services, or that results from mistakes, omissions, interruptions, deletion of
files, loss of data, errors, viruses, defects, delays in operations, or
transmission or any failure of performance, whether or not limited to acts of
God, communications failure, theft, destruction or unauthorized access to
EDTHosting's records, programs, equipment or services. Notwithstanding anything
to the contrary in this Agreement, EDTHosting's maximum liability under this
Agreement for all damages, losses, costs and causes of actions from any and all
claims (whether in contract, tort, including negligence, quasi-contract,
statutory or otherwise) shall not exceed the actual dollar amount paid by
Customer for the Services which gave rise to such damages, losses and causes of
actions during the 12-month period prior to the date the damage or loss
occurred or the cause of action arose. Customer understands, acknowledges and
agrees that if EDTHosting takes any corrective action under this Agreement
because of an action of Customer or one if its customer or a Reseller Customer,
that corrective action may adversely affect other customers of Customer or
other Reseller Customers, and Customer agrees that EDTHosting shall have no
liability to Customer, any of its customers or any Reseller Customer due to
such corrective action by EDTHosting. This limitation of liability reflects an
informed, voluntary allocation between the parties of the risks (known and
unknown) that may exist in connection with this Agreement. The terms of this
section shall survive any termination of this Agreement. 16. Force Majeure.
EDTHosting shall not be liable for failure or delay in performing it
obligations hereunder if such failure or delay is due to circumstances beyond
its reasonable control, including, without limitation, acts of any governmental
body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor
disturbance, interruption of or delay in transportation, unavailability of,
interruption or delay in telecommunications or third party services (including
DNS propagation), failure of third party software or hardware or inability to
obtain raw materials, supplies or power used in or equipment needed for
provision of the Services. 17. Governing Law; Jurisdiction; Arbitration. This
Agreement shall be governed in all respects by Kentucky law without regard to
the conflict of law provisions thereof. Both parties submit to personal
jurisdiction in Kentucky. Any controversy or claim arising out of, relating to
or in connection with this Agreement, or the breach thereof, shall be subject
to arbitration administered by the American Arbitration Association ("AAA") in
accordance with its then existing Commercial Arbitration Rules (collectively,
the "AAA Rules") and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The place of arbitration
shall be Los Angeles, Kentucky, or any other place selected by mutual agreement
of the parties. An award rendered in connection with an arbitration pursuant to
this Section shall be final and binding upon the parties and the parties agree
and consent that the arbitral award shall be conclusive proof of the validity
of the determinations of the arbitrations set forth in the award, and any
judgment upon such an award may be entered and enforced in any court of
competent jurisdiction. The parties agree that the award of the arbitral
tribunal will be the sole and exclusive remedy between them regarding any and
all claims and counterclaims between them with respect to the subject matter of
the arbitrated dispute. The parties hereby waive all in personam jurisdictional
defenses in connection with any arbitration hereunder or the enforcement of an
order or award rendered pursuant thereto. In any legal action, the prevailing
party will be entitled to recover all legal expenses incurred in connection
with the action, including but not limited to its costs, both taxable and
non-taxable, and reasonable attorney's fees. The terms of this section shall
survive any termination of this Agreement. 18. Assignment. Customer shall not
have the right to assign this Agreement without the prior written consent of
EDTHosting. This Agreement shall be binding upon and inure to the benefit of
Customer and EDTHosting and their successors and permitted assigns. 19. Entire
Agreement; Severability. This Agreement, together with the Order Form and any
other documents or agreements specifically identified in this Agreement,
represents the entire agreement between the parties, and supercedes all
previous representations, understandings or agreements. If any provision of
this Agreement shall be held by a court of competent jurisdiction to be
invalid, unenforceable, or void, the remainder of this Agreement shall remain
in full force and effect. Customer hereby represents that he, she or it is
either, an individual entering this Agreement for his or her personal use and
is over 18 years of age, or a corporation, limited partnership or other legal
entity, duly organized, validly existing and in good standing under the laws of
the state of its organization and the person acting on behalf of Customer is
duly authorized to accept, execute and deliver this Agreement on behalf of
Customer. EDTHosting Internet Inc. has zero tolerance for UBE/UCE (unsolicited
bulk email/unsolicited commercial email). This policy protects our customers as
well as the internet community from the negative effects of "spam" related
activity. EDTHosting defines UBE/UCE as unsolicited broadcast or commercial
email that is sent to addresses that do not affirmatively and verifiably
request such material from that specific sender. Our Policies: 1. EDTHosting
customers, and customers of EDTHosting customers or any user of bandwidth
and/or services on our network (herein described as 'users') are prohibited
from sending UBE/UCE. Users may be asked to produce records that verify that
explicit affirmative permission was obtained from a recipient before a mailing
was sent. EDTHosting may consider the lack of such proof of explicit
affirmative permission of a questionable mailing UBE/UCE at its sole
discretion. 2. EDTHosting customers are prohibited from maintaining open mail
relays on their servers. Ignorance of the presence or operation of an open mail
relay is not and will not be considered an acceptable excuse for its (the open
mail relay) operation. Multiple infractions of this policy will result in a
discontinuation of service. 3. EDTHosting customers will be notified in the
event that they may be hosting sites listed as violators of the above policy.
Again, failure to rectify such situations may be cause for termination. 4.
EDTHosting customers are prohibited from providing hosting services for
websites that have been included in UBE/UCE. Hosting includes, but is not
limited to, hosting website(s), providing DNS services as well as website
redirect services. 5. Valid complaints received by EDTHosting may lead to
immediate termination or suspension of the service. EDTHosting may block
traffic without prior notice to and from the IP address involved in the UBE/UCE
complaint until the problem is resolved and preventative measures have been
implemented to prevent the violation from recurring. 6. EDTHosting reserves the
right to suspend and/or cancel permanently any and all services provided to the
user without a notification. If a Customer is in violation of any term or
condition of the Usage Policy or Customer's use of the Service disrupts or, in
EDTHosting's judgment, could disrupt, EDTHosting's business operations,
EDTHosting reserves the right to charge a penalty of $500. To report an
incidence of abuse, please report it to abuse@EDTHosting.com
|
|
|
