NashWorks Productions, Inc. - Hosting Service Agreement
THIS AGREEMENT is made at the time of purchase of a NashWorks hosting service.
(1) NashWorks, a company incorporated in U.S.A. whose registered offices are at New York, NY and Los Angeles, CA (Provider) ; and
(2) You the client Purchaser (Customer).
THE PARTIES AGREE AS FOLLOWS:-
1. APPLICATION OF TERMS
1.1. Hosting Service Agreement applies to all Hosting Services provided by Provider to you during your use of these services.
1.2. This Hosting Service Agreement together represents the entire agreement relating to the Hosting Services and supersede any hosting service agreements previously entered into between you and Provider. Any other contract provisions imposed by you are expressly excluded.
1.3. Provider may alter this Hosting Service Agreement at any time without notification to you. However, the current Hosting Service Agreement is always available on Provider's website. Your sole remedy in the event that you do not agree to those amendments is to provide us with written notice of termination as described in paragraph 6 within 10 business days of the date of the amendment. Only a Provider officer may alter this Hosting Service Agreement. No agent of, or person employed by or under contract with Provider, has any authority to alter or vary this Hosting Service Agreement in any way. No oral explanation or oral information given by anyparty shall alter the interpretation of this Hosting Service Agreement.
2. GENERAL TERMS AND CONDITIONS
2.1. You will conform to the standards and acceptable use policies of Provider, as set out in our Acceptable Use Policy.
2.2. You are responsible for obtaining any licenses or permissions from public authorities that are required to upload the contents of your site or the web activity undertaken by you.
2.3. Provider may disclose your name and address to a complaining individual or naming authority if in its reasonable discretion it is necessary or appropriate to do so.
2.4. You will receive a password to be used when you log into the 'My Details' section of Nash Dev Central and/or server. You are solely responsible for all passwords, and you shall keep all passwords confidential and take security measures to prevent any unauthorized person from gaining access to your passwords.
2.5. Provider's Service Level Agreement (SLA) sets out the hosting performance you can expect from us. The SLA is your sole and exclusive remedy for our failure to provide the Services to you.
2.6. You have no ownership of, and proprietary rights in, any Equipment.
2.7. If necessary, we will sell/provide an IP address to you. You will have no ownership of this IP address. It may only be used by you while using the Services, and may not be transferred. Upon Termination of this Hosting Service Agreement, or a particular Service, your right to use an IP address will end. IP addresses are recycled.
2.8. Configuration and Support
2.8.1. The Hosting Service is provided to you as configured for our standard customer. In some cases, they may have the manufacturer's default settings. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your hardware, software and any other items you deem necessary to use the Services must be compatible with the Services. We are not obligated to modify the Services to accommodate your use. You may not terminate an Order based on your inability to use the Services because such a use is incompatible with them. If your use of the Services damages the Services or Equipment, you will be charged for any repairs we need to make to the Services or Equipment. We may suspend your use of the Services until we determine whether your use of the Services has damaged the Services or Equipment.
Bandwidth Only. You will ensure that neither you nor any of your End Users makes excessive or wasteful use of the Server to Provider's detriment or that of Provider's other customers. The terms "excessive" and "wasteful" are defined by our experience with similarly situated customers. This means that your use of our resources may not exceed that of similarly situated customers. Unlimited use applies to your use of web pages only (html, php, etc.), not for storage of movies, pictures or MP3 files. Specifically:
With regard to data traffic on Hosting Services, a Fair Use policy will apply. If the contents of your Space regularly generate more server traffic than is deemed acceptable by Provider, to the detriment of other Provider customers, Provider shall issue a warning by email to you, at the address you provided to Provider, in which Provider requests that you remove the contents or upgrade to a more suitable package. Excessive traffic may be caused by abnormally high traffic on your web pages or by powerful software solutions which you have installed on the Space. Our warning will also contain the terms and conditions for the appropriate solution which is capable of handling your prevailing level of traffic. If you do not comply with this warning within 5 business days, Provider reserves the right to terminate this Hosting Service Agreement.
2.9. Unused bandwidth may not be carried over from month-to-month.
2.10. We act in good faith to back up data stored on your account once per week. These backups are intended for internal use only and are not related to any Back Up Services we may offer. It is your responsibility to back up data of your website and content, email messages, SQL databases and anything else you may store on the Space we provide you. We may determine that certain file extensions are not suitable for backup. Such file types include but are not limited to: iso; ace; arj; avi; bak; bin; bz; bz2; cab; car; cbr; ccd; cdr; cue; drw; exe; flv; gz; gzip; img; iso; jar; jmy; lbs; md; mid; midi; mov; mp2; mp3; mp4; mpa; mpeg; mpg; nrg; pae; pak; psb; psd; r00; r01; r02; r03; ram; rar; rm; rmf; sea; sub; tar; tar.gz; tgz; vob; wad; wav; wave; wma; wmv; zip. It is your obligation to verify whether particular files will be backed up.
Back Up Services are provided as is and are subject to all warranty disclaimers and limitations of liability set out herein. By purchasing services from us, including Back Up Services, you agree that you will maintain your own set of backups independent of those we maintain. If we provide data to you from a back up, it will be provided as raw data, and you may be required to reformat that data so that it reflects a prior configuration or use. Our only obligation is to restore your Space or Server to its operating condition. It is your obligation to restore your website.
2.11. We provide certain services designed to filter unwanted email. You acknowledge that use of the Services will likely result in the capture of some legitimate email and the failure to capture some unwanted email that may contain spam, phishing scams and email infected with viruses. We recommend that you implement additional levels of protection. Email that is captured by our filtering system is not subject to our SLA.
3.1. Each Order for Services by you shall be deemed to be an offer by you to buy the Services from Provider subject to this Hosting Service Agreement. No Order shall be deemed to be accepted by Provider until we provision your account. The date on which we provide notice to you that the account is provisioned is the Effective Date. The Initial Term of the Services is set out on your Order (Initial Term). Upon the expiration of the Initial Term, the Term shall renew for additional one year periods, unless you choose to renew for a different period or unless terminated as set out in paragraph 6.
3.2. You must be over the age of 18 at the time you place your Order.
3.3. All Orders will be reviewed by us to determine if they meet our financial, security and other reasonable criteria (Fraud Screen). You may not receive notice that your Order has been rejected because it fails to pass our Fraud Screen. We are unable to provide additional information about the reasons a particular Order fails to pass the Fraud Screen.
3.4. Provider is under no obligation to deliver any Services in addition to those identified in the Order.
3.5. You shall provide to Provider, at your cost, any information, resources or facilities reasonably requested by Provider for the delivery of the Services and, where necessary, ensure that your employees, contractors and other suppliers cooperate fully and promptly with Provider.
3.6. Any instructions supplied by you to Provider must be complete, accurate and clearly legible. Provider reserves the right to charge for any costs and any additional work incurred by Provider due to any failure by you to comply with this provision and shall not be liable for any errors caused by such failure.
4. OWNERSHIP OF YOUR ACCOUNT
4.1. Your contact information is set out in the 'My Details' section of Nash Dev Central.
4.2. If you, on behalf of another person or entity, create an account, you warrant that you will administer the account in good faith, and indemnify us against all losses and liabilities sustained by us should you administer the account in ways that are adverse to End User and result in any claim against us.
4.3. For avoidance of doubt, the individual or entity set out in the 'My Details' section of Nash Dev Central is considered by us to be the owner of the account and all associated services except Third party services purchased through Provider that are subject to additional terms and conditions. The individual or entity paying for the Services is not considered to be the owner. It is your obligation to ensure that you correctly indicate ownership of your account. If there is a dispute about ownership, the account will be locked until the parties to the dispute agree on a resolution, or until the matter is resolved judicially.
5.1. You are responsible for the Fees set out on the Order. All Fees are in United States Dollars.
5.2. Invoices are due immediately upon receipt. Fees must be paid without deduction or set-off. Unpaid invoices shall accrue interest at a rate of 1.5%, and Provider reserves the right to suspend the Services until payment is made. Time for payment is of the essence.
5.3. All fees listed on our website are net of applicable taxes. You are responsible for all taxes and fees levied on the Service.
5.4. Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Should the Service be suspended, for any reason, Fees will continue to accrue. Set up and domain name registration charges are not refundable for any reason.
5.4.1. We often offer special promotions (Special Promotions). These promotions have specific terms, and generally do not apply to current customers. They do not apply to Renewal Terms except when expressly stated in the special promotion terms. If you Terminate the Services to which a Special Promotion was applied, the discount, or other benefit provided by the Special Promotion will be removed, and your account will be rebilled as if it had been set up without the Special Promotion. If this results in additional Fees, you will be charged for those Fees.
5.5. Hosting services are provided on the basis of the Initial Term specified on your Order. Any termination or cancellation will be subject to the payment of any outstanding charges. Fees for any Renewal Term will be set out in our written acceptance of the renewal on the respective due date for your account as described in paragraph 5.6 below.
5.6. Your credit card is automatically charged for Renewal Terms:
upon expiration of your Initial term for Shared Hosting services with a term shorter than 3 months;
5 days prior to expiration of your current Term for Active Semi Dedicated Hosting, VPS Hosting, Cloud Hosting and Dedicated Server services with a Term
equal to 1 month;
15 days prior to the expiration of your current Term for all other accounts and Services.
In case an automatic renewal charge fails and you fail to renew or cancel the service, we will make additional attempts to charge your card(s). We will attempt to charge the first current card on file. Should the first available current card fail, we will retry using other current cards on file in the order listed in the 'My Details' section of Nash Dev Central.
5.7. We are not responsible for your data or domain name if Service is terminated because of credit card expiration.
5.8. We will charge you a $1.00 service fee each time your credit card is declined.
5.9. If the IP address we provide to you is blocked because of SPAM originating from the Services, you will be charged a $100 block removal fee for each affected block, and $100 an hour, in hourly increments, for each hour we spend attempting to resolve this problem.
5.10. We are pleased to provide you with a statement of account in the 'My Orders' section of Nash Dev Central. This statement is based on our records and, to ensure accounting consistency, we cannot alter the information in our records.
5.11. If you believe there is an error on your bill, you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. Your dispute must include sufficient facts for us to investigate your claims and be received by us not later than 5 days after the Invoice Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet the Dispute Deadline. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute on your next bill. If you contact your credit card company, prior to notifying us of the dispute, and initiate a "chargeback" based on this dispute, and your charge back claim is past the Dispute Deadline, you will be charged a $50 investigation fee and a $50 reactivation fee. This fee compensates us for the investigation your credit card issuer requires us to conduct in order to demonstrate our right to payment. All your services may be suspended during bill disputes. To reactivate your services, you must pay the Fees due.
5.12. Money Back Guarantee
5.12.1. Our money back guarantee provides you with peace of mind that our Services will meet the expectations set out in this paragraph. We will refund all prepaid Fees if you notify us in writing, as described in paragraph 6, within thirty days of the Effective Date, that you wish to terminate the Services.
The following conditions apply to the Money Back Guarantee:
(a) It applies only to individual Services in an Order. It does not apply to previously ordered Services;
(b) Set Up Fees are not refundable, and may be charged if we waive them initially as part of a Special Offer;
(c) Only our Hosting Services are covered. If you purchase services other than Hosting, or Third Party Services through us, or if they are incorporated into
the Services, the Money Back Guarantee does not apply;
(d) The Money Back Guarantee does not apply to Renewal fees;
(e) The Money Back Guarantee is your sole and exclusive remedy should our Services fail to meet the expectations set out in this paragraph.
5.13. Provider Virtual Wallet
We may allow you to use part of a pre-paid amount as account credits added to your Virtual Wallet of Nash Dev Central. Wallet amounts may only be used for future purchases and/or renewals of Provider services. Unless otherwise specified, Wallet amounts will expire if unused for more than 12 months. Different expiration terms and purchase limitations may apply to some wallet returns. Wallet amounts cannot be refunded.
5.14. Our SLA sets out your rights for disruption of the Service. Should the Service be disrupted, you may request a Credit through your account at Nash Dev Central, or by calling our customer service representatives via skype (always!) or telephone (only if available!). This Credit is our only obligation, and your only remedy, in the case of a disruption to the Service. If you are past due on any Fees, we are not required to provide the Credit to you. You must request a Credit within 3 days of the event covered by the SLA. You will receive only one Credit per disruption. For example, should the disruption qualify for both an Uptime Credit and an Infrastructure Credit, you will receive only one Credit. Credits may not be aggregated, are limited to one month's Fees, and may not be carried over from month-to-month.
5.15. If you do not re-register your domain name(s), Provider may choose to register the domain name. At that time the title in, and ownership of, this domain name will vest in Provider. Provider may sell this domain name without restriction as if the full legal and beneficial owner. Unpaid domain names may become the property of Provider.
6. TERMINATION & CANCELLATION
6.1. Termination by Either Party
6.1.1. Either party may terminate this Hosting Service Agreement upon written notice to the other if one party materially breaches any of these terms and the breaching party fails to correct the breach within ten days following the party's written notice, or immediately if the breach is incapable of cure.
6.2. Termination by Provider
6.2.1. Provider may terminate this Hosting Service Agreement (i) if you fail to pay any sums due to Provider as they fall due; (ii) if, in Provider's reasonable opinion, you do not have sufficient technical expertise to use the Service without excessive ongoing technical support; (iii) if we determine in good faith that this service has become impractical or unfeasible for any technical, legal, regulatory or other reason; or (iv) you violate this Hosting Service Agreement or any agreement incorporated by reference.
6.2.2. We may terminate a particular Order, or aspect of the Services, if a Third Party ceases to make components of them available to us, or if providing them to you becomes cost prohibitive.
6.3. Termination by you
6.3.1. You may terminate the Services through Nash Dev Central via a posted ticket to help desk. This is the only way to effectively terminate the Services. We will send you an email confirmation to acknowledge your completion of the Termination Request (Termination Confirmation). If you do not complete all steps of the Termination Request, or if you fail to post a ticket to help desk to terminate the Services, the Services will not be Terminated, and Fees will still be charged. You must follow this procedure in order to Terminate each Service.
6.3.2. Once you complete a Termination Request, it will take us upto five calendar months to process the Termination and issue a refund, if you are entitled to it. You are responsible for any Fees that accrue during this five-month period. Refunds are issued through the same payment method that was originally used to purchase the Services. Provider is not responsible for delays to refunds caused by processing institutions or expiration of the original payment method.
6.4. You may request Termination of hosting services at any time. Depending on the life stage of your service different cancellation fees may apply. In order to avoid renewal charges and late cancellation fees, termination must be requested at least 20 days prior to expiration of your current Term.
6.5. You acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to (i) the UDRP; (ii) any ICANN adopted policy; (iii) any registrar (including Provider) or registry administrator procedures; or (iv) any other ccTLD registry administrator procedures.
6.6. On termination of the Hosting Service Agreement, Provider shall be entitled immediately to block your Space and to remove all data located on it. Provider will hold such data for Hosting accounts for a period of seven days and allow you to collect it at our hourly rate of $75 per hour, failing which Provider shall be entitled to delete all such data. Provider shall further be entitled to post a notice stating that your account has been suspended. IP space and Back Up tapes are recycled. It is your obligation to ensure that you arrange to transfer anything you need from the Services prior to cancellation. We have no obligation to forward e-mail following Termination.
7. TECHNICAL SUPPORT
Our technical support is provided via Nash Dev Central help desk set out on our website. Your initial request for technical support must originate here. Technical support is provided on an as is as available basis. If your request for technical support exceeds that of similarly situated customers, or is based on your lack of sophistication, we may charge you our standard hourly rate of $75 per hour for support. We will inform you, and receive your consent, prior to charging you for technical support. If you request technical support, you agree that we may have full access to your equipment, account, and any and all items accessible to us based on your request. While we will use reasonable efforts to provide technical support to you, all support is provided as is, and is subject to the disclaimers of warranties and limitation of liability set out herein. We retain the right to refuse to provide technical support to you if your use of technical support exceeds that of similarly situated customers, or if you are verbally abusive and belligerent to our employees or contractors.
It is your obligation to perform and store a back up of your data and files from the hosting account prior to requesting technical support and agreeing to any technical interference or operation provided by Provider. In the event that you are not satisfied with the outcome of any technical action, it shall be your obligation to restore your files and data from your own back up.
8. INTELLECTUAL PROPERTY RIGHTS AND OTHER CONSENTS
8.1. Provider retains ownership of all intellectual property rights in the Services. Provider grants to you a limited license to the Services to access and use them. All trademarks, product names and company names or logos used by Provider are Provider property or the property of their respective owners. No permission is given by Provider to you or an affiliate to use any such trademarks, product names, company names, logos or titles, and you acknowledge that such use is an infringement of the owner's rights.
8.2. If we have not provided a license for you to use software as part of the Services, you agree to procure appropriate licenses to use all "Required Licenses." "Required Licenses" means any licenses, consents or approvals required to use software, hardware and other items installed on the Equipment, or whose use is acilitated by the Service. You agree to provide us with copies of the Required Licenses promptly following our written request.
8.3. You are solely responsible for obtaining all intellectual property rights in the intellectual property of others, including but not limited to clearances and/or other consents and authorizations necessary to use the names, marks or other materials which are used by you in, or transmitted via the Services (Objects). On becoming aware of any dispute between you and any other individual or organization regarding the Objects, Provider reserves the right, at its sole discretion and without notice or liability to you, to cease any further use of such Objects including, without limitation, deleting or suspending them from its computer systems and/or to make appropriate representations or provide information to any relevant authority or interested party.
8.4. Unless otherwise set out in this Hosting Service Agreement, you own all right, title and interest to the information you place on our servers pursuant to the Services. If you submit feedback to us in the form of help tickets or in another similar fashion, we shall have the right to use that information to improve our business processes. You have no right to any intellectual property that is based on an improvement to our business based on this feedback information.
9. REPRESENTATIONS AND WARRANTIES
9.1. You represent and warrant that (i) you have the experience and knowledge necessary to use the Service; (ii) you and your End Users understand and appreciate the risks inherent to you, your business and your person that come from accessing the Internet; (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service necessary to take advantage of the Service; (iv) you will not violate any applicable laws and/or regulations in your use of the Services; (v) you own all intellectual property rights in, or have a license to use, any information you provide to us necessary for us to perform the Services, or to any information transmitted by us through the Services; (vi) you will make back-up copies of all information in a location independent of ours, and will not use our Back Up Services as your sole back up; and (vi) you will pass through the terms of this Hosting Service Agreement, and any agreements incorporated by reference, to your End Users.
9.2. WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) ARE PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.
10. LIMITATION OF LIABILITY
10.1. YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS HOSTING SERVICE AGREEMENT OR UNDER ANY OTHER DOCUMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE 3 MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU AGREE THAT IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
11.1. We shall indemnify and hold you harmless from, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Service infringes any issued U.S. patent or registered copyright. This indemnification provision is expressly limited to aspects of the Service which are fully owned by us. It does not extend to products or services provided by third parties even if incorporated into the Service. This paragraph will be conditioned on your notifying us promptly in writing of the claim and giving us full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (i) procure for you the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this Hosting Service Agreement with regard to such Service and refund to you the price originally paid by you to us for the Service, or the Fee actually received by us from you for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based. This shall be your only remedy, and our only obligation to you, should a third party allege that the Service infringes any issued U.S. patent or registered copyright.
11.2. You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, third party service providers 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) your use of the Service; (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this Hosting Service Agreement; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Hosting Service Agreement. For the purpose of this paragraph only, the term "you" as set out in subparagraphs (i) through (iv) includes you, End Users, visitors to your website, and users of your products or services, the use of which is facilitated by us.
12. CERTAIN INFORMATION
12.1. Both you and Provider undertake not to disclose to a third party any confidential information which you or Provider receive relating to the contents or performance of this Hosting Service Agreement, unless necessary for a party to perform their obligations under this Hosting Service Agreement, the Services or the other's business in general, and shall procure that each of its directors and employees shall not do so, except with the prior consent in writing of the other, as required by law, or to the extent to which that information is publicly available or already known to the receiving party at the date of receipt, other than through any unauthorized disclosure by any person.
12.2. Without prejudice to Paragraph 12.1., Provider shall be entitled to mention your name as a client of Provider and the name(s) of products which Provider provides to you without your prior consent.
12.3. If a law or regulation compels disclosure of information we have about you, we are required to respond. Unless notifying you is prohibited by the law, or a reasonable interpretation of that law, we will use reasonable efforts to contact the account owner as set out in our records. We are not required to respond to demands by you that we provide information about your account as part of your litigation. If we agree to do so, we will charge you an administrative fee of $285 per hour, charged in one-hour increments, for each hour we spend responding to your request. You will also be charged the fees we are charged by our attorneys in responding to your request.
13.1. Any notice to be given by either party to the other may be sent by Nash Dev Central help desk ticket or skype. Notices of Nash Dev Central help desk tickets opened on behalf of NashBrooklyn-Hosting are sent to the customer by email and shall be deemed received upon confirmation of receipt.
13.2. You are required to provide notices to us about the Services through Nash Dev Central help desk. We will provide notices to you using the information you provide to us in Nash Dev Central help desk. We have no responsibility for misdirected notices based on your failure to provide correct information.
13.3. Termination notices must be provided to us as set out in paragraph 6.
14. RESOLUTION OF DISPUTES AND CHOICE OF LAW
14.1. Any dispute, controversy or claim arising under this Hosting Service Agreement shall be resolved in accordance with the procedures set forth in this Section.
14.2. In the event of a dispute between the Parties relating to this Hosting Service Agreement, each of the parties shall appoint a designated representative who has authority to settle the dispute and who is at the "C" level or above. This appointment will take place no later than five business days after the initial request for dispute resolution. The designated representatives shall meet as often as they reasonably deem necessary in order to discuss the dispute and negotiate in good faith in an effort to resolve the dispute. The specific format for such discussions will be left to the discretion of the designated representatives; however, all reasonable requests for relevant information made by one party to the other shall be honored. If the parties are unable to resolve issues related to a dispute within thirty days after a party's request is made, the dispute shall be submitted for arbitration. The arbitration shall take place in Houston, Texas, pursuant to the commercial arbitration rules of the American Arbitration Association. The dispute shall be heard by a single arbitrator who has experience in the field of web hosting. The arbitrator shall not be entitled to award punitive damages or attorney's fees.
14.3. If the procedures set out in the previous paragraph fail, the parties agree that all disputes shall be brought before the U.S. District Court for the District of Columbia (District Court). If the District Court may not consider the dispute, all disputes shall be brought before the Superior Court of the District of Columbia located in Washington, D.C. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this Hosting Service Agreement or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this Hosting Service Agreement shall be governed by the substantive law of the District of Columbia, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
"End User" is the individual or entity who uses, or to whom you provide your services;
"Fees" means the charges to be paid by you for the provision of the Services as set out in any Order or (if not set out) those set out on Provider's website;
"ICANN" means the Internet Corporation for Assigned Names and Numbers;
"Materials" means any information, reports, documents, software or other materials created by Provider as part of the Services, including all methodologies, know-how and processes used to do so;
"Objects" means any names, marks or materials and any other information, documents or software which you supply to Provider under this Hosting Service Agreement;
"Order" means the order form, including electronic and online forms, or letter signed by you requesting Services;
"Server" means the computer server equipment operated by Provider in connection with the provision of the Services;
"Service" or "Services" means any and all services provided by Provider under this Hosting Service Agreement including, without limitation, domain name registration services, domain name portfolio management services, domain name searching, monitoring and recovery services, space hosting, web, email and usenet searching and monitoring services and professional services, and any other services requested by you which may be provided from time to time as set out on the portion of our website describing the individual Service (Product Pages);
"NashBrooklyn-Hosting" means NashBrooklyn.com, P.O.Box 14301, Van Nuys, CA 91409 USA.
"Space" means the area on the Server allocated to you by Provider for use by you as a site on the Internet;
"Standard Price List" means the list(s) of the standard prices for Provider group company products which are set out on the respective Product Page;
"Term" means the prepaid period during which you receive Services from Provider;
"Hosting Service Agreement" means this Hosting Service Agreement, including all documents incorporated by reference;
"Nash Dev Central help desk" means the part of the Provider website from which you can manage your services and to which you are given login credentials at the
start of your Initial Term; and
"You" and "your" mean the person, firm or company who purchases Services from Provider.
16.1. If any provision of this Hosting Service Agreement or part thereof shall be void for whatever reason, the offending words shall be deemed deleted, and the remaining provisions shall continue in full force and effect.
16.2. Your rights and obligations under this Hosting Service Agreement are personal to you, and you shall not: assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.
16.3. Provider reserves the right to sub-contract any of the work required to fulfill the Services and to assign this Hosting Service Agreement.
16.4. Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event later than 10 days from the beginning of the event.
16.5. Any delay or forbearance by either party in enforcing any provisions of this Hosting Service Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.
16.6. Paragraph headings have been included in this Hosting Service Agreement for convenience only and shall not be considered part of, or be used in interpreting, this Hosting Service Agreement.
16.7. This Hosting Service Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
16.8 SURVIVAL. Paragraphs 2.5, 2.10, 5.12, 9.2, 10, 11, 12.1, 13, 14, 15, 16.1, 16.8, Section F: 1.9, 1.11 and 2; shall survive the termination of this Hosting Service Agreement.
Section A - Hosting Accounts
This Section incorporates by reference the Product Page entitled 'Hosting Accounts'. You may be bound by additional terms and conditions imposed by our licensors. These terms and conditions are also incorporated by reference. We are happy to provide you with these additional terms and conditions on request.
1. Index and Parking Pages
When your Order is accepted, we will place an index page to which your domain points (Index Page). You may disable this Index Page at any time.
If you terminate the Services, your domain will be pointed to a suspension page. This page may contain advertising. We shall retain all revenue associated with this advertising.
Shared Accounts are for one user only. You may not resell or lease your Space or portions of your Space.
3. Parked Domains
You may choose to have more than one domain name point to your Website (Parked Domain). The parked Domain service is free with your purchase of Provider Hosting services. You may have as many parked domains as set out on the respective hosting service Product Page. Parked domain names are not intended to be used for any kind of URL masking methods. Any such use consitutes violation of this Hosting Service Agreement.
4. Add-on Domain Slot
You may choose to have more than one domain name point to your Hosting Account (Add-on Domain Slot). Add-on Domain Slots are not included in your Hosting Fees and can be ordered at additional expense. Add-on Slot services are purchased for a period of one year and are automatically renewed 15 days prior to the expiration of their current Term. Fees are payable immediately and are non-refundable.
The Add-on Domain Slot may not (i) be eligible for a free domain; (ii) participate in transfer promotions; (iii) have a separate control panel available; (iv) host parked domain slots; or (ii) be transferred without the transfer of all of your Services. By purchasing Add-on Slot services you agree that each Website you host on an Add-on Slot shares your account resources and is subject to the Fair Use terms and conditions as set out in paragraph 5 herein.
5. You agree that we have the sole right to decide what constitutes a violation of the Hosting Service Agreement and what is the appropriate severity of any corrective action to be applied. Failure on your part to maintain your account in full compliance with the Hosting Service Agreement may result in warning, resource usage limitations, suspension or immediate account termination with no refund upon our reasonable discretion. You understand and agree that in the event of violation of the Fair Use for your account, we may grant you a certain period of time to rectify the issue. If you take no action during this period, the decision becomes binding and final and we will be free to apply corrective actions at our sole discretion. You acknowledge that we can immediately suspend and/or terminate each account that violates the Fair Use Hosting Service Agreement and will not be responsible for any data loss resulting from such termination of services.
Section B - Service Level Agreement
This Service Level Agreement (SLA) is part of your contract with us. It sets out our rights and responsibilities for our failure to meet the criteria herein.
We guarantee network uptime 99.9% of the time during a 12-month period. Scheduled maintenance, software, hardware failure, Force Majeure and Third Party Services are excluded. Our calculation of network availability is based on our internal records. We do not accept Third Party reports as evidence that you are entitled to a credit under this SLA. Should we incur a network outage, we will credit your fee for an SLA event. Credit will be applied toward your next invoice. SLA credits will not exceed 1 month's Fees during each 12-month period.
In order to take advantage of our SLA, you must notify us as set out in the Hosting Service Agreement and not be in breach of its terms. In order to receive a SLA credit, you must have been a customer, in good standing, for at least twelve months. All requests must be posted via tickets through Nash Dev Central help desk, within 3 days of the event for which you seek credit. This SLA is your sole and exclusive remedy for downtime, or any network, software, hardware or Equipment failure. Upon the occurrence of a Force Majeure Event, this SLA is suspended.
Section C - Private SSL Certificates
We are pleased to offer private SSL certificates to you, through Tucows and Global Sign, if set out on your Order (Private SSL Certificates). ITo use the Private SSL Certificates, you must be a current customer and:
1. Place the corresponding SSL certificate order, for services that do not include an SSL certificate.
2. Agree to the terms and conditions set by the respective Private SSL providers at their websites:
3. Have a dedicated IP address.
4. Agree that Provider shall represent you before the SSL providers for the purpose of approving SSL certificate orders or renewals on your behalf. This may involve logging into the email account you have provided for SSL verification purposes and approving the SSL certificate.
5. Agree that if you do not complete the SSL confirmation process up to 5 business days after your initial SSL activation request, your SSL activation request will be canceled and no refund will be due.
6. Promotional SSL certificates
SSL certificates may be provided for free as part of a special promotion for a Term set out on your order (the Promotional Term). Such certificates are available for free use only as long as the SSL is installed under an IP address of the Provider network. If you attempt to transfer away an SSL during its Promotional Term, the discount or other benefit provided by the special promotion will be removed, and your account will be re-billed as if it had been set up without the special promotion. If this results in additional fees, you will be charged for those fees.
Section D - Back Up Services
We provide Back Up Services on a reasonable efforts basis. Back Up Services are provided as is and are subject to all warranty disclaimers and limitations of liability set out herein.
1. Back Up Creation
We are pleased to provide you with a one-time backup of your data. We shall back up all data on your account as set out on your Order. Back Up Creation services are not included in your Hosting Fees and can be ordered at additional expense. Backup Creation fees are payable immediately, are one-time and are non-refundable.
You agree to make no changes to the data on your account during the time needed to create the backup. Provider may refuse to create a backup of your data, if in our reasonable opinion such backup will result in security risk or will alter the performance of our Server to the detriment of other customers. In such cases we may offer you alternative backup services. If such an alternative backup solution does not suit your needs, you shall be entitled to a full refund of the backup creation fees.
2. Back Up Script
2.1. We are pleased to provide you with a backup script for your account data. Back Up Script services are not included in your Hosting Fees and can be ordered at additional expense. Backup Script fees are payable immediately, are one-time and are non-refundable.
The script shall be installed on your account one business day after we receive your payment. The script shall start executing at the time of installation and will back up all data on your account as set out in your Order for Back Up Script services.
Any use of the backup script is at your own risk. We do not guarantee that any script we provide shall work continuously and flawlessly. Provider cannot be and will not be liable for any damage, loss of data, loss of use or other loss occurring because of malfunctioning of the backup script. You agree to notify us through your 'My Details' section of Nash Dev Central in case of script malfunction and will allow us reasonable time to resolve any issues with the script. You are responsible for any changes you make to the back up script after we install it on your account.
2.2. You can keep a limited number of backup copies on your account depending on the type of Back Up Script you purchase. The total size of backup files stored on your account should not exceed that set out in Section A, paragraph 5 of this Hosting Service Agreement. You agree to keep backup copies at the location where they are initially placed by the script.
3. Back Up Restore
We are pleased to provide you with Back Up Restore services. Such services are not included in your Hosting Fees and can be ordered at additional expense. Backup Script fees are payable immediately, are one-time and are non-refundable.
3.1. Restore from Provider backups
Provider acts in good faith to back up data on your account once a week. Such backup copies are intended for internal use only Data restore from Provider copies is provided on an as is as available basis.
If the backup copy is older than 7 days, you will be able choose between a restore of the available backup copy and a full refund of your back up restore fee. If we do not have a back up copy of your data, we shall refund your fees for the backup restore service.
3.2. Restore from custom Back Up file
Provider shall attempt to restore your data from a custom backup file as set out on your order for Back Up restore services. We may refuse to restore your data, if in our reasonable opinion such restore will result in security risk or will alter the performance of our Server to the detriment of other customers.
Section E - Acceptable Use Policy
You should use all services provided by Provider for lawful purposes only. You agree to maintain your website in full compliance with this Hosting Service Agreement. If any part of your account is found to violate the Acceptable Use Policy below, Provider may take immediate corrective actions including immediate suspension or deletion, from your account without prior warning. Abuse of the acceptable use policy below may result in a warning, suspension or possible account termination with no refund.
By using any service provided by Provider:
You agree that you will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government.
You agree not to transmit any unsolicited commercial or bulk email. You will not engage in any activity known or considered to be spamming or Mail Bombing.
You agree not to make any inappropriate communication to any Newsgroup, Mailing List, Chat Facility, or another Internet Forum.
You agree not to make, attempt or allow any unauthorized access to Provider website, servers, your own hosting account or the account of any other
Customer of Provider.
You agree not to allow any remote code execution of malicious software through the hosting account provided by Provider.
You agree not to cause denial of service attacks, port scans or other endangering and invasive procedures against Provider servers and facilities or the servers and facilities of other network hosts or Internet users.
You agree not to forge the signature or other identifying mark or code of any other person or engage in any activity (including "spoofing") to attempt to deceive other persons regarding the true identity of the User (excluding the use of anonymous remailers or Internet nicknames)
You agree that you will not use the account provided by Provider for storing any data if it is copyrighted and you are not the owner of the copyright. This includes but is not limited to copyrighted music files, copyrighted video files, copyrighted software, etc.
You agree that you will not use Provider services to host any website, other content, links or advertisements of websites that:
- infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party information;
- profess hatred for particular social, ethnical, religious or other group;
- contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs that may damage the operation of a computer or a person's property;
- contain Illegal or Hacking/Phreaking Software (Warez) - Any software that is copyrighted and not freely available for distribution without cost. This includes, but is not limited to ROMs, ROM Emulators and Mpeg Layer 3 files (MP3);
- contain any kind of proxy server or other traffic relaying programs;
- promote Money Making Schemes, Multi-level Marketing or similar activities;
- contain Torrent trackers, Torrent Portals or similar software;
- are with adult content, pornographic, obscene, unlawfully harassing, or connected with child abuse or sex-related merchandising;
- are violent or encouraging violence.
Examples of semi-unacceptable materials on all Provider servers, that might get your hosting account susspended indefinitely, include:
IRC Bots, Proxy Scripts, Warez, image, filedump, mirror, or banner-ad services (similar to rapidshare, photobucket, or commercial banner ad rotation), topsites, commercial audio streaming, Escrow, High-Yield Interest Programs (HYIP) or related sites, Investment sites, sale of any controlled substances without providing proof of appropriate permit(s) in advance, AutoSurf sites, Bank Debentures, Bank Debenture Trading Programs, Prime Banks Programs, lottery sites, muds / rpg's, hate sites, hacking focused sites/archives/programs, or sites promoting illegal activities, IP Scanners, Brute Force Programs, Mail Bombers and Spam Scripts. Forum sites and or any other websites that distribute or link to warez content are strictly prohibited as well.
Provider reserves the right to refuse service to anyone upon Provider's discretion. Any material that in Provider's judgment, is either obscene or threatening is strictly prohibited and will be removed from its servers immediately with or without prior notice and may lead to possible warning, suspension or immediate account termination with no refund.
You are responsible not to engage in or to instigate actions that cause harm to Provider or other Provider's customers. You are also responsible to ensure that none of the hosting accounts in your package will be used to, engage in or to instigate actions that cause harm to Provider or other Provider's customers. Such actions include, but are not limited to, actions resulting in blacklisting any of Provider IPs by the any online spam database, actions resulting in DOS attacks for any of the Provider servers, etc. Failure by You or your customer(s), to comply with the policy above may result in warning, suspension or possible hosting account termination and you package cancellation with no refund. Provider has the right to decide in good faith which actions cause harm as well as the size of the penalty fee or the severity of any other corrective action to be applied.
You are solely responsible for ensuring that all programs and scripts installed under your account are secure and the permissions of the directories and files are properly set. Provider recommends setting the permissions on all directories and files as restrictive as possible. You are solely responsible for all actions and activity taken under your account, including the compromise of login credentials. Both your username and password are required to be secure. Provider reserves the right to carry out regular audits of login credentials in respect of security level. In case your credentials are found not to be secure enough, You will either be notified and granted the respective time frame to change them, or Provider will change the login credentials and provide them to You. Note that your hosting account may be suspended until You agree to update your password with a more secure one.
You are solely responsible for the quality and performance of the content of all your hosting accounts. You are also responsible to ensure that all aspects of your hosting accounts are compatible with Provider server's hardware and software. The specifications of the hardware and software are described in the Control panel for each account. It is Your responsibility to keep your content and your customers' content compatible at all times. Provider cannot and will not be responsible for any malfunctioning or any damages to the content of any hosting account in your Package, caused by failure of the You to keep the content of this account compatible with the hardware and software used by Provider.
You acknowledge that Provider cannot and shall not provide legal advice referring to the contents of your website and account performance. All information, articles, tutorials and tech support advice are provided in good faith and do not constitute official requirements, regulations or statements. You shall be solely responsible for checking whether the content of his/her account complies with any specific legal act or provision and for complying with them by consulting a competent legal advisor. Provider shall not be held liable in the event that any part of the Your website, account content or performance disregards or infringes any law or legal regulation.
You agree that Provider has the sole right to decide what constitutes a violation of the acceptable policy use described above as well as what is the appropriate severity of any corrective action to be applied. In the event that a violation of our acceptable use policy is found, Provider will take corrective action upon our own discretion and will notify You. Provider cannot and shall not be held liable for any loss or damage arising from Provider's measures against actions causing harm to Provider or any other third party.
You understand and agree that in case of re-activating of your account suspended for violation of acceptable use policy, a re-activation fee of $50.00 will be applied.
Provider has the right to terminate each and any hosting account that has been suspended for any reason for more than 7 calendar days after the suspension date, unless You have taken corrective measures to remove the initial suspension threat or violation. Any backup copies of the hosting account will be permanently deleted upon termination and no refund will be due. Provider will not be liable for any loss or damages in such cases.
Section F - Copyrights Violation and DMCA
Provider fully complies with the Digital Millennium Copyright Act (also known as DMCA) to protect the rights of copyrights owners. If you think that a website hosted on any of our servers contains materials that rightfully belong to you or an entity you represent, you may contact the Company and invoke the protections provided by the DMCA act.
How to post a DMCA complaint?
The Complaining party is required to deliver the following information to Provider:
1. Identification of the copyrighted work(s) claimed to have been infringed;
2. Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and information reasonably sufficient to permit us to locate the material (please provide us the URLs from our Customer's website where the infringing material is located);
3. Information reasonably sufficient to allow us to contact the complaining party such as email, telephone, fax, etc.
4. The following statements printed, signed manually and sent (you may scan and attach the statement to an email):
"I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law."
"Under the penalty of perjury I state that the information contained in my complaint is accurate and I am authorized to act on behalf of the owner of the copyright I claim is infringed."
5. A physical, faxed, or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
PLEASE BE ADVISED THAT IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES AND CRIMINAL PENALTIES.
Please note that after we receive your formal complaint, the Company is required to inform the Respondent of your complaint. If our customer does not remove the infringing material, we disable access to that material.
The customer has the right to submit a counter-notification in case they disagree with the claim. In such case, the complaining party is provided with 10 days to file a lawsuit against Provider's customer and provide a proof of filing. If no such proof is submitted or a restraining order is not granted, Provider will reinstate access to the material.
How to serve a counter-notification?
In case of a copyright complaint filed against a customer of Provider, the customer may voluntarily remove the material or may submit a counter-notification indicating that the case will be resolved in court. The counter-notification must include all of the following:
1.Identification of the material that has been removed or to which access has been disabled and its location.
2.Your full legal name, and/or that of the entity claiming to have legitimate access to the content, address, and telephone number;
3.The following statements printed, signed and sent (you may scan and attach them to an email):
"I have a good faith belief that the material was removed or disabled in error or misidentification and I believe it is not infringing upon anyone?s copyrights. I understand that I am declaring the above under penalty of perjury, meaning that if I am not telling the truth I may be committing a crime."
"I consent to be served by the person, who gave notice to my Service Provider, or his agent. I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located, or if my address is outside of the United States, for any judicial district in which the Service Provider may be found."
4.A physical signature of the alleged infringer.
Whom to contact about DMCA issues?
As required by the Digital Millennium Copyright Act of 1998 (17 U.S.C. 512 (c), all notifications of copyright infringement regarding websites hosted by Provider should be sent ONLY to its designated agent.
A: NashBrooklyn.com, P.O.Box 14301, Van Nuys, CA 91409 USA.
ANY INQUIRIES OTHER THAN THESE RELATED TO THE DMCA WILL BE DELETED.
Further information regarding DMCA can be found at: http://www.copyright.gov/legislation/dmca.pdf
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