Revised – May 26 2011
Terms and Conditions
1.1 “Bandwidth” means all metered or measured inbound and outbound traffic.
1.2 “Content” means the electronic data, software, programs, or information of various types made available to End Users by CUSTOMER from HOSTIRIAN.
1.3 “Data Center” means the HOSTIRIAN facility in which the services are located.
1.4 “End User” means any person enabled through a data connection over the Internet to access, use, purchase, download, or otherwise interact with the Content that is located or distributed by Customer from Hostirian services.
1.5 “HOSTIRIAN Equipment” means all equipment owned by HOSTIRIAN to provide the Services from its Data Centers.
1.6 “Hosting Specifications” means the amount of bandwidth, disk space, memory, connectivity, service level, support level, and server type.
1.7 “Network” means the TCP/IP based data communications network (including all hardware, software, telecommunications facilities and equipment) owned and operated by HOSTIRIAN and through which End Users may access CUSTOMER’s content via the Internet.
1.8 “Services” means the HOSTIRIAN hosting services.
1.9 “TOS” means Terms of Service.
1.10 “Abuse Complaints” means any abuse complaint by an individual about separate incidents. (Abuse would include Unsolicited Email, Copyright infringement, Digital Rights Infringement, Unauthorized Access Attempts, Unauthorized Port Scans along with any other activity that could be considered abusive to Hostirian’s network.)
Maintenance and Support
2.1 Maintenance. HOSTIRIAN will, at its own expense, provide all routine maintenance for all of the HOSTIRIAN Equipment.
2.2 Support. HOSTIRIAN will provide a staffed Call Center to receive inquiries from CUSTOMER regarding potential network outages, power outages, and other general issues related to the Services being provided. Any additional support requested by CUSTOMER will be provided only in accordance with HOSTIRIAN’s then-existing terms and conditions and for such additional charges as the parties mutually agree upon in advance.
Offsite Backup Media Storage Services
3.1 Offsite Backup Media Storage and Tape Rotation. HOSTIRIAN will not provide or guarantee any data back-up or data storage of CUSTOMER Content, unless specified. CUSTOMER is solely responsible for providing any data storage, data back-up and archival history with respect to its Content.
Service Level Agreement
4.1 Uptime Guarantee. HOSTIRIAN 's Service Level Agreement ("SLA”) is that the hosting service will be available 100% of the time. HOSTIRIAN will issue service credits (see paragraph 4.3 below) based on the cumulative duration of Outages within a calendar month. An “Outage” is defined as any period of at least one minute during which the Content is inaccessible by End Users for reasons other than Excluded Events.
4.2 Excluded Events. Excluded Events are defined as any event that adversely effects the hosting service and causes any outage or unavailability resulting from (a) scheduled maintenance, (b) the failure or malfunction of equipment, applications, networks, or systems not owned or controlled by HOSTIRIAN, (c) an external Internet Service Provider or an Internet exchange point, (d) the acts or omissions of CUSTOMER, its employees, customers, contractors, or agents, (e) suspension of service pursuant to an agreement, (f) the unavailability of required CUSTOMER personnel including unavailability as a result of failure to provide HOSTIRIAN with accurate and current contact information, or (g) riots, acts of God, terrorism, civil disorder, governmental action, natural cataclysm or other occurrences beyond the reasonable control of HOSTIRIAN.
4.3 Service Credits. If HOSTIRIAN determines that there has been an Outage during any calendar month, HOSTIRIAN, upon the CUSTOMER’s request, will credit the CUSTOMER’s monthly invoice based on the cumulative duration of Outages within the calendar month. The credit will be calculated as follows: 1 minute – 60 minutes = 1/30th of MRC (monthly recurring charge); each hour in excess of one hour = 1/30th of MRC. However, total credits issued in any calendar month shall be limited to twenty-five percent (25%) of the invoice amount. To receive the credit(s), CUSTOMER must contact HOSTIRIAN in writing within thirty (30) days of the end of the month for which credit is requested.
Network Usage Restrictions
5.1 General Restrictions. Any Content that violates any laws or regulations of local, state or federal governments or agencies thereof, or any international treaties, is prohibited. Further, actions such as, but not limited to, misuse of copyrighted materials, misappropriation of trade and other distinguishing marks, and use of the Network or the Content for defamatory, threatening or obscene purposes is prohibited. HOSTIRIAN shall determine, in its sole discretion, whether any of the foregoing violations has occurred and, in the event of its determination that a violation has occurred, HOSTIRIAN may then elect to either suspend or terminate all Services early.
6.1 Basic Set-Up and Installation. CUSTOMER agrees to provide HOSTIRIAN with such information as HOSTIRIAN determines is reasonably necessary from time-to-time in order for HOSTIRIAN to provide its Services.
6.2 End Users. CUSTOMER shall be solely responsible for providing customer services, technical support, pricing and service plans, billing and collections, and any and all other services to its End Users, and HOSTIRIAN shall have no obligations whatsoever to those End Users.
6.3 Backups. CUSTOMER is solely responsible for providing any data storage, data back-up and archival history with respect to its Content.
6.4 Software Licenses. CUSTOMER maintains ownership of the licenses for all software used by it in connection with the provision of its Content. CUSTOMER is responsible for licensing of CUSTOMER-provided software products and CUSTOMER must promptly provide HOSTIRIAN with a copy of the executed license in the case of an audit.
6.5 No Interference. CUSTOMER agrees not to interfere with operation of the HOSTIRIAN Equipment and Network and agrees that HOSTIRIAN has the right to monitor any and all Content and communications through or within its Data Centers. CUSTOMER acknowledges that the Network is not considered a secure communications medium for the purposes of the Electronics Communications Privacy Act.
Fees and Charges
7.1 Fees. In consideration of the undertakings of HOSTIRIAN as provided herein, CUSTOMER shall pay HOSTIRIAN all fees and charges set forth on an agreement.
7.2 Invoices. HOSTIRIAN shall invoice CUSTOMER for fees and charges due hereunder at least monthly in advance. CUSTOMER shall pay HOSTIRIAN each invoiced amount within thirty (30) days of receipt of such invoice. All amounts due to HOSTIRIAN, but not timely paid shall bear interest from the past-due date at the rate of two percent (2%) per month. In the event said two percent (2%) rate is higher than the rate permitted by law, then interest shall accrue on past due amounts at the highest rate permitted by law. HOSTIRIAN’s right to receive such interest shall not limit any of its other remedies available at law or equity. HOSTIRIAN may suspend or terminate Services immediately if CUSTOMER is late in making any payment due; provided, however, that CUSTOMER shall have five (5) business days in which to cure such nonpayment after receipt of written notice from HOSTIRIAN. In the event of any early termination for nonpayment, CUSTOMER shall remain liable for all outstanding invoiced amounts, amounts payable for Services provided through the date of termination, and the Early Termination Fee described in this TOS.
7.3 Taxes. All fees and charges payable by CUSTOMER are exclusive of all taxes (other than income or franchise taxes payable by HOSTIRIAN) and regulatory charges, if any, applicable to the licensing or the provision of the Services. CUSTOMER shall be responsible for all such taxes and regulatory charges, if any.
7.4 Fee Increases: Hostirian may increase its fees for services by giving notice to Customer of the new fees of at least forty five (45) days and if Customer does not give a notice of cancellation the Customer shall be deemed to have accepted the new fee.
7.5 Service Violation Fees. Customers who violate the Terms of Service or Acceptable Use Policy may be, at the sole discretion of Hostirian, subject to an administrative fee of up to $50 per incident. This fee shall be levied within 30 days of the actual violation.
7.6 Additional Administrative Fees. Customers that have their assigned Hostirian IP addresses placed on SPAM blacklists, or that cause other IP addresses within the Hostirian network to become blacklisted, may be assessed a $50 per blacklisted IP administrative fee. Any abuse complaint received by Hostirian in connection with services provided to or by Customer shall be administratively processed by Hostirian and a copy provided to (or notification of if complaint was not received in electronic form) Customer for appropriate handling. Customer is expected to take all necessary action to resolve the abuse complaint within 24 hours of notification. At the sole discretion of Hostirian, an administrative fee of up to $10 per processed complaint may be assessed.
Acceptable Use Policy (“AUP”)
8.1 Offensive Content: You may not publish or transmit via Hostirian’s service any content that Hostirian reasonably believes:
(a) constitutes child pornography;
(b) is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
(c) is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
(d) is defamatory or violates a person’s privacy;
(e) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement;
(f) improperly exposes trade secrets or other confidential or proprietary information of another person;
(g) is intended to assist others in defeating technical copyright protections;
(h) clearly infringes on another person’s trade or service mark, patent, or other property right;
(i) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
(j) is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Hostirian; or
(k) is otherwise malicious, fraudulent, or may result in retaliation against Hostirian by offended viewers.
8.2 Content: Content “published or transmitted” via Hostirian’s service includes, but is not limited to, web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission that relies on any Internet service provided by Hostirian.
8.3 Security: You must take reasonable security precautions. You are responsible for the confidentiality of your passwords, as well as maintaining up-to-date security patches.
8.4 Bulk E-Mail: You must obtain Hostirian’s advance approval before sending any bulk e-mail, which will be given on a case-by-case basis and will not be given unless you are able to demonstrate all of the following to Hostirian’s reasonable satisfaction:
(a) Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
(b) The content of the e-mail sent must be directly related to sites and services you provide from the Hostirian network;
(c) Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
(d) You retain evidence of the recipient’s consent in a form that may be promptly produced on request, and you honor recipient’s and Hostirian’s requests to produce consent evidence within 72 hours of receipt of the request.
(e) The body of the e-mail must describe how the e-mail address was obtained, for example, “You opted in to receive this e-mail promotion from our Web site or from one of our partner sites,” and information on how to request evidence of the consent, for example, “If you would like to learn more about how we received your e-mail address please <click here>." which then links to an evidentiary page.
(f) You have procedures in place that allow a recipient to easily revoke their consent – such as a link in the body of the e-mail. Revocations of consent are honored within 72 hours, and you notify recipients that their revocation of their consent will be honored in 72 hours;
(g) You must post an 'firstname.lastname@example.org' e-mail address on the first page of any Web site associated with the e-mail, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
(i) You have the means to track anonymous complaints;
(j) You may not obscure the source of your e-mail in any manner. Your e-mail must include the recipients e-mail address in the body of the message or in the “TO” line of the e-mail; and
(k) You otherwise comply with the CAN SPAM Act and other applicable laws.
8.5 Message policies: These policies apply to messages sent using your Hostirian service, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via your Hostirian service. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. Hostirian may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time.
8.6 Unsolicited E-Mail: You may not send any unsolicited e-mail, either in bulk or individually, to any person who has indicated that they do not wish to receive it. You must comply with the rules of any other network you access or participate in using your Hostirian services.
9.1 Indemnification. CUSTOMER agrees to defend, indemnify and hold harmless HOSTIRIAN, its parent, affiliates, related companies, successors and assigns, as well as the managers, directors, officers, employees, agents, lessors, and subcontractors, if any, of each of said indemnified parties, against any and all allegations, claims, expenses (including reasonable attorneys’ fees), liability or suits threatened, made or brought in relation to or arising from (i) CUSTOMER’s design, creation, provision, distribution or use of information and technologies in their Content, including, but not limited to, any related copyrights, trade secrets, trade names, patents, or other intellectual property rights, or (ii) CUSTOMER’s defamation, harassment, or alleged violation of any laws, rules, regulations, Internet or other community policies, practices or standards, or international treaties in effect in any country or jurisdiction in which the Content can be viewed or retrieved.
Limited Warranty and Limitation of Liability
10.1 Warranty. HOSTIRIAN makes no warranties in connection with its Network, whether written or oral, statutory, express or implied, including without limitation the warrant of merchantability and the warranty of fitness for a particular purpose or use. CUSTOMER acknowledges that HOSTIRIAN did not select or disseminate CUSTOMER’s Content and that CUSTOMER has made the selection of its own Content based solely upon its own judgment.
10.2 Limitation of Liability and Damages. Notwithstanding anything contained in this TOS to the contrary, neither party shall be liable for any special or consequential damages (including lost profits) of the other or any third party, even if it has been advised of the possibility of such damages occurring. HOSTIRIAN’s liability under this TOS shall not exceed the aggregate amount of all fees paid by CUSTOMER during the twelve (12) months preceding the date of the event or series of events giving rise to a claim. No action or proceeding may be commenced more than two (2) years after the event giving rise to such claim.
Term and Termination
11.1 Term. The Term of any Agreement shall commence on the Start Date and continue until the earlier of such Agreement being terminated by a party in accordance with the terms hereof or until the expiration of the Term. Unless terminated by either party, all Agreements will automatically renew after the initial Term on a month-to-month basis, subject to payment of HOSTIRIAN’S then applicable rates for such Services.
11.2 Termination. A party may terminate an Agreement upon a material breach of any term or condition hereof by the other party, provided that the breaching party is given advance written notice of the material breach but fails to cure the material breach within ten (10) business days of such notice (except with respect to CUSTOMER’S failure to pay any amount properly due, in which case the time period in which to cure a nonpayment breach is five (5) business days from receipt of notice of nonpayment).
11.3 Abuse Complaint Termination: Should Hostirian receive ten “Abuse Complaints” in one day or twenty “Abuse Complaints” in one week, customer will be subject to Immediate Breach and Early Termination Fee.
11.4 Customer Breach and Early Termination Fee. CUSTOMER acknowledges that HOSTIRIAN is providing the Services in expectation of CUSTOMER accepting and paying for Services through the end of the Term. In the event of any breach by CUSTOMER following the Start Date and prior to expiration of the Term, and CUSTOMER’S failure to cure such breach within the time provided for in other provisions of their Agreement, HOSTIRIAN may terminate all Services and CUSTOMER agrees to pay immediately, as an Early Termination Fee, 75% of the monthly recurring fees which would have been payable for the remaining period of the Term. Such Early Termination Fee shall be in addition to any other rights and remedies which may be available to HOSTIRIAN upon breach of their Agreement by CUSTOMER.
12.1 Assignment. CUSTOMER shall not sell, transfer, or assign their Agreement, except to entities completely controlling or controlled by it, or to entities acquiring all or substantially all of its assets, without the prior written consent of HOSTIRIAN which consent shall not be unreasonably withheld. HOSTIRIAN may transfer and assign an Agreement at any time upon not less than ten (10) days prior written notice to CUSTOMER.
12.2 Waiver. No party shall, by mere lapse of time, without giving notice thereof, be deemed to have waived any right or remedy arising hereunder or in connection with any breach or illegality involving any other party. The waiver by a party of any such right or remedy shall not be construed as a waiver of any other right or remedy or as a continuing waiver with respect to any similar, ongoing, or repeated circumstances.
12.3 Governing Law and Jurisdiction. This TOS shall be governed by and construed in accordance with the laws of the State of Missouri. The exclusive forums for any disputes shall be state and federal courts located in St. Louis, Missouri and the parties hereby submit themselves and their property to the personal jurisdiction and venue thereof.
12.4 Severability. If any of the provisions of this TOS are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted, and the validity of the remaining provisions shall not be affected thereby. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.
12.5 Notices. All notices, requests, demands or other communications and deliveries required or authorized by this TOS shall be in writing and shall be given by sending the same by certified mail, return receipt requested, personal delivery, or facsimile to the other party at the address or facsimile number appearing below. Notices shall be deemed given when delivered or transmitted with confirmation or three (3) business days after deposited with the postal service or otherwise dispatched.
If to HOSTIRIAN: Hostirian
11756 Borman Drive, First Floor
St. Louis, Missouri 63146
Telephone No.: 314-692-3500
Fax No.: 314-692-3543
Attn: Chief Operating Officer
12.6 Remedies. The rights and remedies of the parties specified under this TOS are not exclusive but are cumulative and are in addition to all other rights and remedies allowed at law or in equity.
12.7 Headings. Article, section and paragraph headings are for convenience only and shall not be construed as part of this TOS.
12.8 Attorneys’ Fees. If any party is required to engage in any proceedings, legal or otherwise, to enforce its rights under this TOS, the prevailing party shall be entitled to recover from the other, in addition to any other sums due, its reasonable attorney’s fees and costs.
12.9 Force Majeure. HOSTIRIAN shall not be liable to CUSTOMER by reason of any failure or delay in the performance of its obligations due to riots, acts of God, terrorism, civil disorder, governmental action, natural cataclysm or other occurrences beyond its reasonable control, provided that it addresses the matter with reasonable due diligence and speed.
12.10 Compliance with Laws. Each party agrees to comply with all applicable laws, rules and regulations in connection with its activities under this TOS.
12.11 Facsimile Signatures. In the event copies of an Agreement bearing facsimile signatures are exchanged between the parties, such copies shall be binding and enforceable to the same extent as original documents bearing original signatures.
12.12 No Joint Venture. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between HOSTIRIAN and CUSTOMER. No party shall have the right to obligate or bind another party in any manner to any third party.
12.13 Transferees, Successors, and Assigns. This TOS shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
12.14 TOS, Amendment. This TOS, including all Schedules hereto and all executed addendums, if any, shall constitute the complete and exclusive statement of the agreement between the parties and shall supersede all oral or written proposals, prior agreements and other prior communications between the parties concerning the subject matter hereof. No addendum, amendment, waiver or modification of this TOS shall be binding unless it is in writing and signed by an authorized representative of each party.