Web Hosting Service Agreement
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.
1. Description of Service
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.
Hardware and Software
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.
Availability of Services
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.
Backup, Data Loss and Business Interruption
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.
Web Site Content
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.
2. Your Obligations
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.
Acceptable Use Policies
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.
THE HOST GROUP does not allow the hosting of adult material or content. This includes pornographic material and other material that is of a sexually explicit nature.
Billing and Overage Charges
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.
Expiration, Termination and Automatic 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 complete our secure online web hosting cancellation process at least 24 hours before your renewal date (30 days in advance for dedicated hosting customers).
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.
Storage and Security
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.
Choice of Law and Arbitration
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.
Termination For Cause
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.
Unless otherwise specified, all notices and/or communications regarding this Agreement may be directed to email@example.com. You agree that posting on THE HOST GROUP website shall constitute sufficient notice to you for all matters related to the Services.
Limitation of Liability
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.
Disclaimer of Warranties
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.
No Third Party Beneficiaries
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.
4. Infringement Policy Statements
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 firstname.lastname@example.org with the words “TRADEMARK CLAIM” in the subject line, and must include the following information:
- Sufficient evidence that the party posting the trademark that is claimed to be infringing is a customer of THE HOST GROUP.
- The trademark, service mark, or other item (the “Mark”) claimed to be infringed.
- The name, post office address and telephone number of the owner of the Mark.
- The goods and/or services covered by or offered under the Mark.
- The date of first use of the Mark identified.
- The date of first use in interstate commerce of the Mark.
- The trademark, service mark, or other item (the “Infringing Mark”) you believe is an infringement of your Mark.
- The goods and/ or services covered by or offered under the Infringing Mark.
- The precise location of the Infringing Mark.
- A good faith certification, signed under penalty of perjury, stating:
- The Infringing Mark infringes the rights of another party,
- The name of the owner of the Mark
- The Mark being infringed, and
- 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 email@example.com with the words “COPYRIGHT CLAIM” in the subject line, and must include the following information:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 firstname.lastname@example.org and including the following:
- Your electronic signature.
- 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.
- 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.
- 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 email@example.com or at the address or phone number for THE HOST GROUP listed elsewhere on this site.
Last revision October 2007