| WEBSITE HOSTING AGREEMENT
By using the website hosting services (hereinafter the
"Services," defined further below), you signify your agreement
to the terms and conditions contained in this Website Hosting
Agreement (hereinafter, the "Agreement"). This Agreement is
between you, your organization (if you are entering into this
Agreement on behalf of an organization), collectively referred
to herein as "you" or "your" (and appropriate formatives), and
the website hosting service provider offering these services to
you, Cybertech Computer Systems, (the "Primary Service
Provider") and the backend service provider, if any (the
"Backend Service Provider").
These terms and conditions may be modified from time to time.
Modifications made to this Agreement will become effective 30
days after the modifications are posted. This Agreement shall be
posted through the interface which you use to configure and/or
otherwise order the Services (the "Services Interface"). You
agree that you will check the terms and conditions periodically
and that, if you no longer agree to the terms and conditions of
this Agreement, that you will stop using the Services and that
you will terminate the Services as described below in paragraph
4.
The Services consist of the website hosting package with the
specific configuration which you selected or are going to select
as you use the Services. You acknowledge and understand that
important service limitations (including bandwidth limitations
and other capacity matrices), pricing (including pricing for
optional Services, such as automatic capacity upgrade in the
event of overage), the term of the Service, payment terms, and
other conditions relating to the Services are set forth on our
web hosting page at
www.cybertechmultimedia.com/computer_services/internet_services/webHostingServices.htm
and are hereby incorporated into this Agreement.
You agree that any chargeback by a credit card company (or
similar action by another payment provider) of a charge related
to the Services, for whatever reason, is a material breach of
this Agreement and is grounds for termination. You further agree
that, upon a chargeback by you, you agree and acknowledge that
Cybertech may suspend your access to any account you have with
Cybertech and your use of any domain names, websites, website
content, email, or other data hosted on Cybertech systems. We
will reinstate your rights solely at our discretion, and subject
to our receipt of the fee owed and our then current
reinstatement fee, currently set at US$200.
You agree that you may not downgrade (reduce) the bandwidth
or other capacity matrices of the Services below the level of
actual use of the Services which you experienced in the current
or previous month.
Your use of the Services may be suspended and/or this
Agreement may be terminated if either the Primary Service
Provider or the Backend Service Provider determines that you are
or are alleged to be violating the terms and conditions of this
Agreement or any other agreement entered into by you and either
the Primary Service Provider or the Backend Service Provider. In
the event of termination or suspension of Services under such
circumstances, you agree a) that no pre paid fees will be
refunded to you and b) that either the Primary Service Provider
or the Backend Service Provider may take control of any domain
name associated with the terminated Services, provided such
domain name was registered through the domain name registration
services of either the Primary Service Provider or the Backend
Service Provider. You understand that taking control of a domain
name includes, without limitation, acts such as listing such
controlling party as the "registrant" and/or "administrative
contact" for the domain name and controlling the DNS settings
for the domain name.
Either the Primary Service Provider or the Backend Service
Provider may elect at any time to terminate this Agreement
without cause and discontinue the Services, whereupon any pre
paid fees for an unused portion of a service term shall be
refunded to you within a reasonable period of time.
The Services are provided through an infrastructure which is
shared by all users of the Services. Your use of the Services
may be limited or suspended indefinitely if your use of the
Services degrades the ability of either the Primary Service
Provider or the Backend Service Provider to provide the Services
to other users of the Services.
You acknowledge that email and/or online communication
systems (chat, account notices, etc.) will be the primary means
of communication between yourself and the Primary Service
Provider and/or the Backend Service Provider. You acknowledge
that it is your responsibility to maintain a current email
address and physical mailing address in your contact
information. You further agree that you will regularly login to
your account to obtain any notices posted through the Services
Interface. You agree that your failure to respond to a
communication from either the Primary Service Provider or the
Backend Service Provider may result in suspension or
cancellation of Services without any refund of pre paid fees, if
any.
You acknowledge that neither the Primary Service Provider nor
Backend Service Provider are obligated to return any data to you
upon termination of this Agreement. You acknowledge that it is
your responsibility to download, make copies of, and/or backup
all data residing on the servers and other equipment which
provide the Services and to do so within the bandwidth
limitations of the Services. You acknowledge that any loss or
corruption of data which occurs due to an interruption in the
Services, regardless of the cause of the interruption, shall not
be the responsibility of the Primary Service Provider or Backend
Service Provider and that you may, following an interruption in
the Services, be required to upload the data to the servers and
other equipment which provide the Services.
You agree that any personally identifying information
provided by you shall be used by the Primary Service Provider
according to the privacy policy of the Primary Service Provider,
if any, and by the of the Backend Service Provider.
You represent and warrant as follows: that a) you are
lawfully entitled to use, display, posses, or access the data
uploaded, linked to, framed, or otherwise posted on your website
by you and/or by the users of your website; b) that your website
and your use of the Services will not infringe the intellectual
property rights of any third party; c) that your website and
your use of the Services will not violate any laws, including,
without limitation, laws relating to unsolicited commercial
email, child pornography, collection of identifying information,
consumer protection, and privacy; d) that neither you nor those
who access your website will upload any worms, virus, or
malicious code to the servers which provide the Services; and e)
that your website and your use of the Services will not subject
either the Primary Service Provider or Backend Service Provider
to any claims by any third party, including claims relating to
infringement of intellectual property rights or claims relating
to the products or services which you may provide or offer
through the website hosted through the Services.
You further represent and warrant that you will not allow any
unauthorized third party to access the account which you use to
access the Services.
EXCLUSIVE REMEDIES FOR UNPLANNED SERVICE INTERRUPTIONS: You
agree that any unplanned or unannounced interruptions in the
Services shall not require a remedy unless such unplanned or
unannounced interruptions exceed 24 hours in any 30 day period,
in which case you agree that the exclusive remedy shall be a
credit toward 24 hours of hosting for each 24 hour period of
unplanned or unannounced interruptions, and that such credit
shall exclusively be applied against the fees owed for your next
period of hosting, if any, or shall be exclusively be
accomplished by adjusting the end of your then current Service
term.
LIMITATION OF LIABILITY: You agree that neither the primary
service provider nor backend service provider will be liable for
any (a) suspension or loss of the services, except to the
limited extent that a remedy is provided under this agreement;
(b) interruption of business; (c) access delays or access
interruptions to the web site(s) provided through or by the
services; (d) loss or liability resulting from acts of god; (e)
data non delivery, mis delivery, corruption, destruction or
other modification; (f) events beyond the control of the primary
service provider or backend service provider; (g) the processing
of your application for the services; or (h) loss or liability
resulting from the unauthorized use or misuse of your account
identifier or password. You further agree that neither the
primary service provider nor backend service provider will be
liable for any indirect, special, incidental, or consequential
damages of any kind (including lost profits) regardless of the
form of action whether in contract, tort (including negligence),
or otherwise, regardless of whether or not either the primary
service provider or backend service provider have been advised
of the possibility of such damages. In no event shall the
maximum aggregate liability of either the primary service
provider or the backend service provider exceed the total amount
paid by you for the services for a one month period, but in no
event greater than one hundred dollars ($100.00). Because some
states do not allow the exclusion or limitation of liability for
consequential or incidental damages, in such states, the
liability of the primary service provider and/or backend service
provider shall be limited to the maximum extent permitted by
law.
INDEMNIFICATION: You agree to release, indemnify, and hold
the primary service provider and backend service provider, their
contractors, agents, employees, officers, directors and
affiliates harmless from all liabilities, claims and expenses,
including attorney's fees and court costs, for third party
claims relating to your use of the services or arising under
this agreement, including without limitation, infringement by
you or someone else using your computer, of any intellectual
property or other proprietary right of any person or entity, or
from the violation of any term or condition of this agreement.
When either the primary service provider and/or backend service
provider may be involved in a suit involving a third party and
which is related to the services under this agreement, either
the primary service provider and/or backend service provider may
seek written assurances from you in which you promise to
indemnify and hold such parties harmless from the costs and
liabilities described in this paragraph. Such written assurances
may include the posting of performance bonds or other
guarantees. Your failure to provide such assurances may be
considered a breach of this agreement by you.
You agree that the Backend Service Provider shall not be
liable for the actions, inactions, negligence, or intentional
misconduct of the Primary Service Provider. You acknowledge and
agree that neither the Primary Service Provider nor the Backend
Service Provider are agents for one another.
DISCLAIMER OF WARRANTIES: Neither the primary service
provider nor backend service provider make any representations
nor warranties of any kind whatsoever, express or implied, in
connection with this agreement or the services, including but
not limited to warranties of merchantability or fitness for a
particular purpose. You understand and agree that any material
and/or data downloaded or otherwise obtained through the use of
the service is done at your own discretion and risk and that you
will be solely responsible for any damage to your computer
system or loss of data that results from the download of such
material and/or data. No advice or information, whether oral or
written, obtained by you from either the primary service
provider or backend service provider shall create any warranty
not expressly made herein..
GOVERNING LAW: This Agreement, your rights and obligations
and all actions contemplated by this Agreement shall be governed
by the laws of the State of New Mexico, as if the Agreement was
a contract wholly entered into and wholly performed within the
State of New Mexico. You agree that any action to enforce this
Agreement or any matter relating to your use of the Services
shall be brought exclusively in the First Judicial District
Court, Santa Fe County, New Mexico. You consent to the personal
and subject matter jurisdiction of any state or Federal court in
Santa Fe County, New Mexico in relation to any dispute arising
under this Agreement. You agree that service of process on you
by either the Primary Service Provider or Backend Service
Provider in relation to any dispute arising under this Agreement
may be served upon you by first class mail to the address listed
by you in your contact information or by electronically
transmitting a true copy of the papers to the email address
listed by you in your contact information. |
