1 WEBSITE HOSTING SERVICES AGREEMENT Effective Date: 1/1/2015 1) Scope of Services. Company will provide Client a shared or dedicated virtual machine, an Internet address for storage and access to Content, User Content, and the Website ( Hosting Services ) in accordance with the terms and conditions of this Agreement and pursuant to the Company s master terms and conditions which can be accessed through the link in Section 3 of this Agreement. 2) Price & Payment Schedule. Client will pay Company an annual fee of $ for the initial one year (1) period ( Term ) prior to Company providing Hosting Services. After the initial Term, the Agreement will automatically renew for successive one-year (1) terms (each a Renewal Term ) unless either party provides the other with at least sixty days (60) written notice of its intent to not renew this Hosting Services Agreement. Company will invoice Client for the Hosting Services prior to the start of each Term or Renewal Term. Company reserves the right to automatically bill Client s credit card or billing information on file if such information has been provided. Payment for amounts owed shall be due within fifteen days (15) after the date of the invoice. Any invoice that is outstanding for 15 days and is not paid in full will result in a $50 late fee and/or an account suspension until account balance has been paid in full. The $50 late fee is shall be in addition to any amounts owed for Hosting Services. If Client s account is suspended, Company will not restore access until Company has received full payment for all amounts owed. Company reserves the right to change the annual fee charged for Hosting Services at any time upon thirty days (30 prior written notice. 3) Terms and Conditions. A complete list of the terms and conditions that will govern and control this Agreement and the relationship between the parties can be found on the Company s website at the following link, INSERT WEBSITE LINK. These terms and conditions are incorporated by reference to this Agreement. Company reserves the right to update these terms and condition from time to time without providing prior written notice. The Company encourages the Client to review the terms and conditions periodically so that it is aware of any changes that are made. 4) Hosting Services Account Setup. Company will setup Client s website hosting account after it has received payment and has received confirmation clearing the Client s order of any possible fraudulent activity. Client must provide Company with an address that is not at the domain it is signing up under. It shall be Client s sole responsibility to ensure the address on file is current or up to date at all times. If Client has a domain name registered with Company, it shall be Client s sole responsibility to ensure that the contact information for such domain account and the actual domain name(s) is correct and up-to-date. Company shall not be responsible for a lapsed registration due to outdated Client
2 contact information. Providing false contact information of any kind may result in the termination of Client s account. In dedicated server purchases or high-risk transactions, Client shall be required to provide government issued identification and possibly a scan of the credit card used for the purchase. Failure to meet these requirements may result in a termination of this Agreement. 5) Account Transfer. Company will provide Client data transfer services at an hourly rate of $ per hour, pursuant to a written addendum signed by the parties authorizing the performance of such services. While Company will make reasonable efforts to perform such date transfer services, Client understands and agrees that Company makes no guarantees regarding the time required to complete an account transfer. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult if not impossible for Company to migrate some or all of Client s account data. 6) Service Level Guarantee If Client s shared server does not meet the 99.9% uptime level, it may receive months of credit on its account. Approval of such credit shall be at Company s discretion and shall be determined based on the cause of such performance issues. Third party monitoring service reports shall not be used for justification. For purposes of this Section 6, server uptime shall be defined as the reported uptime from the operating system and the Apache Web Server, which may differ from the uptime reported by other individual services. Client will submit a written request for credit and must provide justification or documentation in support of such request. Uptime guarantees shall be available only on accounts where Hosting Service is provided on a shared server. 7) Backups and Data Loss. Client s use of Hosting Services under this Agreement is done at its sole risk, and unless separately contracted for, Company will not provide any data back up services. Client shall be solely responsible for backing up any and all of its files or data. 8) Client Content. Client acknowledges and agrees that it shall be responsible for all content provided to the Company pursuant to the Hosting Services or otherwise included in the Website ( Client Content ). Company shall not be held responsible in any way for any copyright infringement or violation, or the violation of any other person s or entity s rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to the Client Content. Client acknowledges and agrees that Company may elect at its sole discretion to monitor the Client Content. Company will have the right, but not the obligation, to remove Client Content that it deems, in its sole discretion, harmful, offensive, in violation of any provision of this Agreement or in breach of any law. Client agrees to indemnify and hold harmless Company from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such Client Content provided to Company by Client.
3 9) Authorized Use Only. Company s services, including all related equipment, networks and network devices is provided only for authorized customer use. Company may monitor its systems for all lawful purposes, including ensuring that all use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of Company s system(s) by Client under this Agreement constitutes consent to monitoring for these purposes. Any account found connecting to a third party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of Client s direct control must be with the expressed written consent from the third party. Company may, at its sole discretion, request and require documentation to prove access to a third party network or system is authorized. 10) Spam Policy. Company has adopted a zero tolerance policy regarding the sending of unsolicited , bulk ing, and spam. Safe Lists and purchased lists shall be treated as spam. A user who sends out spam will have their account terminated with or without notice. Company will not host Sites advertised via SPAM on its servers. This includes but is not limited to SPAM sent via fax, phone, , instant messaging, or UseNet/newsgroups. Company will not host an organization or entity that is listed in the ROKSO on its servers. Any account that results in Company s IP space being blacklisted shall be immediately suspended or terminated. Company reserves the right to require changes or to disable as necessary any web site, account, database, or other component that does not comply with its established policies, or to make any such modifications in an emergency at its sole discretion to ensure compliance. Company reserves the right, at its sole discretion to charge the holder of an account used to send any unsolicited a clean up fee or any charges incurred by Company for blacklist removal. 11) Client Confidentiality. Not withstanding the general confidentiality provisions that can be found in Section 10 of the Company s master terms and conditions, Insert Company Link, Company will not disclose to any third party or use, except in connection with the performance of Hosting Services hereunder, any confidential information of the Client s business ( Confidential Information ) learned by Company in the course of providing said Hosting Services. Confidential Information will include but is not limited to: (i) Client s plans for the Website; (ii) Specifications of the Client s Website and any future development plans; (iii) Concepts relating to Client s Website not disclosed from the operation of the Website; (iv) Client trade secrets; and (v) Information derived from providing Hosting Services when Website is in operation, including but not limited to: a) Identities, contact information and credit card information of Client s users (if applicable) b) Confidential information of the Website s use, such as number of users, unique visitors and unique visits (if applicable) Unless such disclosure is required based on this Agreement.
4 12) Client Representations, Warranties and Indemnifications. Client Represents and warrants to Company the following: a) It has the right and authorization to enter into this Agreement and fully perform all of its obligations hereunder; b) All Client content provided to Company related to this Agreement shall be wholly original to the Client or Client has acquired the necessary licensing or ownership rights from all third parties to contribute such content and include it in the Website; and Client content will not violate any laws of any country and will not infringe any other party s copyright, patent, trademark or other intellectual property right. c) Client will not, nor will it allow, authorize or assist any third party to, use its Website for any illegal purpose. 13) Client Security. Company shall be responsible for ensuring that scripts/programs installed under its account are up to date and secure and that permissions of directories are set properly, regardless of installation method. Company advises and recommends that Client, whenever possible, sets permissions to be as restrictive as possible. Client and its users are ultimately responsible for all actions taken under the account. This includes the breaching of credentials such as user name and password. Client warrants and covenants that it will use a secure password. Company retains the right at its sole discretion to suspend Client s account if it deems the password and security measures to be weak and may demand that Client uses a more secure password. Company may conduct audits to ensure that scripts/ programs are up to date and to prevent weak passwords from being used. If an audit is performed, and Client s scripts/programs are found to be out of date or if the password is found to be weak, Company will notify Client and provide it with a reasonable period of time to correct such issues. 14) HIPAA Disclaimer. Client understands that Company is not HIPAA compliant. Client understands and agrees that it shall be solely responsible for complying with any and all applicable federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Client understands and acknowledges that the Hosting Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Company does not control or monitor the information or data you store on, or transmit through, our server. Company specifically disclaims any warranty or representation that the Hosting Services, as offered, comply with the federal Health Insurance Portability and Accountability Act ( HIPAA ). Clients requiring secure storage of protected health information under HIPAA are expressly prohibited from using this Hosting Service for such purposes. Storing and permitting access to protected health information, as defined under HIPAA is a material violation of this Terms of Service, and grounds for immediate account termination. Client agrees that Company is not a subcontractor or agent of Client as it relates to HIPAA. 15) Bandwidth Usage. Company will allocate Client a specified monthly bandwidth allowance for its website, depending on the Hosting Services package you purchase. If
5 Client s website utilizes more than the allocated bandwidth, Company reserves the right to do any or all of the following: (i) suspend Client s account until the start of the next allocation; (ii) suspend Client s account until it purchases more bandwidth at an additional fee; (iii) suspend Client s account until it upgrades to a higher level Hosting Services package; (iv) terminate Client s account; or (v) charge Client and overage fee. Unused bandwidth in a given month cannot be carried over. 16) Termination. Other than as described in Section 2 of this Agreement, either party may terminate this Agreement in the event the other party is in material breach of any provision of this Agreement upon twenty (20) business days prior written notice unless the party receiving notice corrects the default within ten business (10) days. That notwithstanding, the Company reserves the right to immediately terminate this Agreement and cease to provide Hosting Services in the event that in its sole discretion, it determines that: a) The Client is using, allowing, authorizing or assisting the Website to be used for illegal purposes; b) Client s Content is in breach of any law or any third party s rights, including but not limited to any copyright, trademark, or other property right of any person or entity; or c) Client is or has downloaded or installed third party software to its Website without the express written authorization of Company. I, the undersigned, hereby represent and warrant that I am duly authorized to execute this Hosting Services Contract on behalf of the party for whom I am signing and hereby agree to the terms, conditions and stipulations of this agreement on behalf of the Client I am authorized to represent. AGREED TO: Client (Sign) By Date (Print) Name: Title: Janik Enterprises, LLC dba Fringe Digital Marketing Agency By Date It's Authorized Representative
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