These terms of service (TOS) are entered into between Hosting.com, Inc., d/b/a HostMySite (HostMySite, we, us, or our) and you (Customer, you, or your). We agree to be bound by this TOS when you, or your agent, click "I agree." The date you agree to this TOS is the "Effective Date". The entity set out in our records is considered by us to be our customer. If you are reselling the Service, or are an End User of a reseller, it is your obligation to ensure that our records accurately reflect ownership and control of the Service. This TOS contains provisions that you are required to apply to your customers (End Users). It is your responsibility to ensure that these provisions, or those no less protective of our interests, are included in contracts and other agreements with your End Users. You are responsible for your End Users under this TOS. If you intend to resell the Services, you must also sign our Reseller Agreement.
This TOS may be amended by us. Except in an emergency, we agree to provide you with thirty days notice prior to the effective date of any amendment. Notice will be provided to you though your control panel. If the amendment materially affects your ability to use the Services, you may terminate this TOS by providing us with written notice prior to the effective date of the amended TOS, or, if we have amended the TOS in an emergency, within thirty days from the date of our amendment.
1. Our other agreements are incorporated into the TOS
This TOS incorporates our Acceptable Use Policy (AUP) (available at: http://www.hostmysite.com/aup) and Privacy Policy (available at: http://www.hostmysite.com/privacypolicy) and Domain Name Agreement (available at: http://www.hostmysite.com/domains/agreement.shtml). To the extent that these agreements conflict, this TOS shall prevail, followed by the AUP and Privacy Policy and Doman Name Agreement. In certain cases, you may purchase services from us using another agreement which is also incorporated into this TOS. If that agreement conflicts with this TOS, the terms of that agreement will prevail over the TOS, but only to the extent that the agreements conflict. After that, the agreements will have the precedence set out above.
2. Services we provide to you
The features and details of the services governed by this TOS are described on the product description pages set out at "HostMySite.com" as of the Effective Date (Product Description Page). Should the Product Description Page change subsequent to the Effective Date, HostMySite has no obligation to modify the Service to reflect such a change. The specific services chosen by you are referred to together as the "Service." All of the services are Shared Services and are not exclusive for your use. You agree to use the Services in a way that respects the right of our other users to use the Services, and not to act in a way that unreasonably interferes with our ability to provide the Services to other users.
Certain aspects of the Service may be provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the products provided by them and incorporated into the Service. If a third party makes a change to its products, you may not terminate this TOS based on such a change, even if it materially affects the Service.
The support we provide Customers is set out on our "Scope of Support" page. This page sets out our only obligations to provide technical and other support for your use of the Services. You acknowledge and agree that you have read this page, and agree that our support is set out in it, and any limitations on support.
3. Contact Information
You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. We have no responsibility, or liability, for interruptions in the Service, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information or your failure to monitor the email address you provided to us, including failing to monitor your SPAM filter.
4. Term
This TOS will continue for the term set out on the Product Description Page (Initial Term). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (Renewal Term). If the Product Description Page does not contain an Initial Term, the Initial Term shall be one month.
5. Payment
You are responsible for the fees and charges set out on the Product Description Page (Fees). You may be charged seven days prior to the date set out on the Product Description Page (Due Date).
Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date. It is your responsibility to ensure that we receive payment of the Fees. You must pay the Fees without set off or deduction. Should the Service be suspended, for any reason, Fees will continue to accrue. If the Fees are not paid by your financial institution on the Due Date, your account will be considered delinquent. To reinstate your account, you will be required to pay, depending on the reason for the delinquency: (i) a returned check fee in the amount of $50; (ii) interest in the amount of 2.0% per month, or the maximum amount allowed by law; (iii) collection charges; (iv) any fees levied on us by our financial institution; and/or (v) an investigation fee of $200.
You may choose to purchase products and services that are not included in the Service but which are offered for sale by other parties through HostMySite (Third Party Services). Third Party Services may be billed separately from the Service. Fees for the Third Party Services may not be billed on the month on which they are delivered. You agree to pay for these Third Party Services regardless of the length of time elapsed between their delivery date and the date on which you are charged.
6. Bill disputes
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 at least five days prior to the Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet Dispute Deadline. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute the next time Fees are due. If you contact your credit card company, prior to notifying us of the dispute, and initiate a "charge back" based on this dispute, and your charge back claim is past the Dispute Deadline, you will be charged a $200 investigation fee. This fee compensates us for the investigation your credit card issuer requires us to conduct in order to demonstrate our right to payment.
7. Termination
7.1. Money Back Guarantee
The Service carries an unconditional 30 day satisfaction guarantee (Guarantee). To cancel the Service covered by the Guarantee, and receive a refund, you must contact us within 30 calendar days following the Effective Date for the Service covered by the Guarantee. If you wish to retain your domain name, the cost of your domain name will be deducted from your refund at our regular, non-discounted, price. If you paid us by credit card we will credit the card on file, otherwise we will send you a check. The Guarantee only applies to an individual Service for 30 calendar days following the Effective Date. If you purchase more than one Service from us, the Guarantee only applies to the Service that falls within this 30 day period. Set up and domain name registration charges are not refundable for any reason and are excluded from our Guarantee.
7.2. Termination prior to renewal
Either party may choose not to renew this TOS by providing written notice to the other no later than ten days before the expiration of the Initial Term or Renewal Term for the particular Service that the party does not want to renew. If you terminate this TOS prior to its expiration, you will not receive a refund of any prepaid Fees.
7.3. Termination for material breach
One party may terminate this TOS upon the occurrence of a material breach, if this breach has not been cured by the other party within thirty days of their receipt of written notice of the breach. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action. A decision to cease offering Third Party Services will not be a material breach.
7.4. Termination for your violation of our policies
We reserve the right to immediately suspend the Service and/or terminate this TOS: (i) for a violation of any of our policies, including those incorporated by reference or those of Third Party Service providers; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights, nor will you receive a refund of any Fees.
7.5. Disposition of data upon suspension or termination.
When your account is suspended or terminated, the data and other technology resident on HostMySite's servers may be deleted. It is your obligation, regardless of whether you believe a suspension or termination is authorized under this TOS, to secure this data and ensure that it remains available to you. HostMySite has no obligation to preserve data after a suspension or termination.
8. Use of the Services
Your use of the Services must be reasonable. You may not place excessive burdens on our CPUs, servers or other resources. You agree that we may place restrictions on your use of the Service, and charge you excess bandwidth fees, to the extent that they exceed the use of the Service by similarly situated customers. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Service.
You agree to cooperate with us to facilitate your use of the Service. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is "server ready" and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Service.
Upon termination or expiration, your account will be closed. We have no responsibility to forward email or other communications for you once your account is closed. We also have no responsibility to preserve or secure your data. You are encouraged to keep the Service active during a transition period should you seek to forward your email or other communications, or to move your data to another provider.
9. Licenses and Intellectual Property
9.1. License from HostMySite to you
HostMySite grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by HostMySite solely to access and use the Service. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in HostMySite's technology shall remain with HostMySite or HostMySite's licensors. You are not permitted to circumvent any devices designed to protect HostMySite's, or its licensor's, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
The Services may not be used by the U.S. Government, or any state, local, county, parish, or foreign governmental entity, of any type without prior written permission from us.
9.2. Licenses from you to HostMySite
We may use information you provide to us for technical support, implementation, operation or administration of the Service (Operational Information). Operational Information, as well as aggregate information gleaned from the operation of our business in general, will be used to improve, or create, new products and services. We shall be the exclusive owners of the resulting intellectual property. You waive any rights you may have in this intellectual property, and assign all right, title and interest in it to us and agree to cooperate with us to secure our rights.
10. Representations and Warranties
10.1. Reciprocal
We each warrant to the other that: (i) we have the power, authority and legal right to enter into this TOS; and (ii) we have the power, authority and legal right to perform our obligations under this TOS and all incorporated provisions.
10.2. Your Representations and Warranty
You represent and warrant to HostMySite that: (i) you have the experience and knowledge necessary to use the Service; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the internet; (iii) you will provide us with material that may be implemented by us to provide the Service without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service; (v) that in entering into this TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (vi) that you will make back up copies of your data even if you purchase "back up" services from HostMySite; (vii) that you will pass through applicable terms of this TOS, our AUP and Privacy Policy to End Users; (viii) that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to HostMySite, or which may be accessed or transmitted using the Service and that, at our request, you will provide us evidence of such ownership or license; and (ix) that to the extent you do business with other parties using the Service, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
11. Disclaimers
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 10.1, HOSTMYSITE HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. HOSTMYSITE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. HOSTMYSITE IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR AN END USER VIA THE SERVICE PROVIDED BY US. HOSTMYSITE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY HOSTMYSITE. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO HOSTMYSITE SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM HOSTMYSITE, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW HOSTMYSITE TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
12. Limitation of Liability
You agree that HostMySite has no liability, whatsoever, for: (i) content that you or an End User access from the internet; or (ii) for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our network.
IN NO EVENT WILL HOSTMYSITE'S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY HOSTMYSITE FROM YOU FOR THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM HOSTMYSITE SHALL BE INTERPRETED TO INCLUDE HOSTMYSITE'S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO YOU THROUGH HOSTMYSITE.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD HOSTMYSITE OR ITS 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 LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS 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 HOSTMYSITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS HOSTMYSITE'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
13. Indemnification
You agree to indemnify, defend and hold harmless HostMySite and its 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 attorneys' 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 HostMySite's policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; (iv) any acts or omissions by you; (v) any material supplied by you infringing or allegedly infringing on the proprietary rights of a third party; and/or (vi) infringement related to products sold using the Services. The terms of this paragraph shall survive any termination of this TOS. For the purpose of this paragraph only, the term "you" as set out in subparagraphs (i) through (vi) include you, End Users, visitors to your website, and users of your products or services, the use of which is facilitated by us.
HostMySite shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its 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. This indemnification provision is expressly limited to aspects of the Service which are fully owned by HostMySite. It does not extend to products or services provided by third parties even if incorporated into the Service. If set out in its agreements with third-party suppliers, HostMySite shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying HostMySite promptly in writing of the claim and giving HostMySite 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 HostMySite's opinion is likely to occur, you agree to permit HostMySite, at its 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 HostMySite's obligations (and your rights) under this TOS with regard to such Service and refund to you the price originally paid by you to HostMySite for the Service, or the Fee actually received by HostMySite from you for the three-month period immediately preceding the occurrence of the event on which the indemnification claim is based. We will not indemnify you for claims made based on changes that you have made to the Services or software you have added to them, or if you continue to use the Services after we have asked you to stop doing so.
14.
If the parties have not signed a non-disclosure agreement, then this paragraph will apply. Information that is disclosed by one party to the other party, and that is marked "confidential," or which under the circumstances ought reasonably to be treated as confidential information (including this Agreement), will be treated as confidential by the receiving party. The receiving party will not disclose to a third party such information, or use such information other than for the purposes for which it was provided, without the written consent of the other party; this limitation will apply for a period of three years after disclosure of such confidential information. The foregoing limitations do not apply to the extent such information: (a) is or subsequently becomes publicly available other than through a breach of these limitations; (b) is already known to the receiving party at the time of disclosure; (c) is developed by the receiving party independent of such information; or (d) is rightfully received from a third party without restrictions on disclosure or use.
15. General Provisions
15.1. Notices
Notices will be sent to you at the address you provide to us. Notices to you may be provided by email. It is your obligation to ensure that we have the most current address for you in our records.
Please refer to our website, hostmysite.com, for contact information for most issues, including technical support and billing. Notices regarding this TOS and other HostMySite policies should be directed to:
HOSTING General Counsel
Attention: HostMySite Legal Notices
900 S. Broadway
Denver, CO. 80209
Facsimile: 720-389-3846
Email: legal@hostmysite.com
15.2. Force Majeure
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 less than ten days from the beginning of the event.
15.3. Choice of Law, Jurisdiction and Venue
The parties agree that all disputes shall be brought before U.S. District Court for the District of Delaware located in Wilmington Delaware (District Court). If the District Court may not consider the dispute, all disputes shall be brought before the Delaware Superior Court, or the Delaware Court of Common Pleas, each located in Wilmington Delaware. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this TOS 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 Agreement shall be governed by the substantive law of the State of Delaware, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
15.4. No Waiver
No waiver of rights under this TOS, or any HostMySite policy, or agreement between you and HostMySite shall constitute a subsequent waiver of this or any other right under this TOS.
15.5. Assignment
This TOS may be assigned by HostMySite. It may not be assigned by you. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
15.6. Severability
In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this TOS shall remain in full force and effect.
15.7. No Agency
This TOS 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.
15.8. Survival
The following paragraphs shall survive the expiration or termination of this TOS: 1, 6, 11, 12, 13, 14, 15.1, 15.3, 15.8.
