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