HOSTIRIAN HOSTED SERVICES AGREEMENT
This Agreement, (“Agreement”), represents the complete agreement and understanding between Rivercity Internet Group, L.L.C., a Missouri limited liability company d/b/a Hostirian (referred to herein as “HOSTIRIAN”) on the one hand, and the customer, (“CUSTOMER”), on the other, and supersedes any other written or oral agreement. Upon notice published on its Website, Hostirian may modify these terms and conditions, amplify them, and/or modify the prices, as well as discontinue or change services offered.
Under the terms of this agreement, CUSTOMER’S placement of information on HOSTIRIAN’S servers is an acknowledgement that they have read and understand this agreement, and that they agree to be bound by the terms and conditions contained herein. If CUSTOMER does not wish to be bound by these terms and conditions, they should not proceed to place any information of any kind on HOSTIRIAN’S servers, and should notify HOSTIRIAN’S Billing Department at +1.314.216.7142 so that their account can be closed.
WHEREAS, CUSTOMER desires dedicated hosting services from HOSTIRIAN upon the terms and conditions provided herein;
WHEREAS, HOSTIRIAN will provide the dedicated hosting services (the “Services”) including the dedicated servers and the operating systems to provide the Services using HOSTIRIAN facilities, resources, and processes;
NOW, THEREFORE, in consideration of the above premises and the promises and mutual covenants contained herein, the parties hereto, intending to be legally bound, hereby agree as follows:
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’s dedicated servers;
1.3 “Contract Start Date” means the date specified on the order as is executed by an authorized representative of both parties.
1.4 “Data Center” means the HOSTIRIAN facility in which the dedicated servers are located.
1.5 “Dedicated Server” means a single server located in one of HOSTIRIAN’s Data Centers that Customer can use exclusively for its own Content.
1.6 “Effective Date” is the date specified on the order form.
1.7 “End User” means any person enabled through a data connection over the Internet to access, use, purchase, download, or otherwise interact with or create the Content that is located or distributed by Customer from the dedicated server.
1.8 “HOSTIRIAN Equipment” means all dedicated servers and other equipment owned by HOSTIRIAN to provide the Services from the Data Center.
1.9 “Hosting Specifications” means the amount of bandwidth, disk space, memory, connectivity, service level, support level, and server type.
1.10 “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.
1.11 “Services” means the HOSTIRIAN dedicated hosting services as described in this Agreement.
2.1 Equipment Provisioning.
HOSTIRIAN will, at its own expense or in accordance with pricing described on the order form, select, install and set-up the HOSTIRIAN equipment required to provide the Services. The equipment to be utilized to provide the Services shall be selected by HOSTIRIAN, in its sole discretion, unless otherwise stated in the Hosting Specifications set forth on the order form.
2.2 Hosting Services.
HOSTIRIAN will host CUSTOMER’s Content on a Dedicated Server, subject to the terms and conditions herein and the Hosting Specifications and pricing on the order form.
2.3 Optional Services.
HOSTIRIAN will provide, for an additional charge, optional services, including domain name registration and DNS service, software licensing, data backup and storage services. All optional services to be provided, if any, and the charges for the optional services are as described on the order form.
3. Maintenance and Support
HOSTIRIAN will, at its own expense, provide maintenance for all of the HOSTIRIAN equipment, including the Dedicated Server(s), as well as all upgrades, patches, and monitoring.
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 terms and conditions and for such additional charges as the parties mutually agreed upon in advance.
3.3 Right to refuse to handle a Customer request
HOSTIRIAN reserves the right to refuse to handle a Customer request if their conduct or the frequency of their requests is likely to adversely affect the normal operation of the Technical Assistance Service. The Customer agrees to avoid using the Technical Support service in an abusive manner.
4. Offsite Backup Media Storage Services
4.1 Offsite Backup Media Storage
HOSTIRIAN will not guarantee any data back-up or data storage of CUSTOMER Content. CUSTOMER is solely responsible for providing any data storage, data back-up and archival history with respect to its Content.
5. Service Level Agreement
5.1 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 5.3 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.
5.2 Excluded Events.
Excluded Events are defined as any event that adversely affects 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 the 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 control of HOSTIRIAN.
5.3 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 maximum amount of credit to be issued in any given month due to outages is one day for every hour of downtime, up to 25% of the CUSTOMER’S monthly invoice.
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.
5.4 Problem Resolution.
Problems which prevent or severely degrade the use or provision of the Services will be responded to within one hour of notification by Customer and resolved within 48 hours. Problems which significantly impair the use or provision of the Services will be responded to within two hours of notification by Customer and solved within 72 hours. All other problems will be responded to within four hours of notification by Customer and resolved within five days. Failure to meet the resolution times will entitle Customer to a credit of one thirtieth of the monthly invoice.
6. Network Usage Restrictions
6.1 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.
While using the service, CUSTOMER may not:
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 all Services or terminate this Agreement early.
7. Customer Responsibilities
7.1 Identification Information
CUSTOMER agrees that they are the person legally responsible for use of this account and are at least 18 years of age. CUSTOMER agrees to supply HOSTIRIAN with a current and truthful name, postal address and telephone number for our records, and CUSTOMER has a continued obligation to keep this information current. CUSTOMER also agrees that they are an authorized user of any credit card supplied to us and agree that we have an obligation to fully investigate any possible fraudulent credit card use.
7.2 Basic Set-Up and Installation.
CUSTOMER shall register with HOSTIRIAN and shall be responsible for updating all CUSTOMER information when necessary due to CUSTOMER personnel changes. In addition, CUSTOMER agrees to provide HOSTIRIAN with such other information as it determines is reasonably necessary from time-to-time in order for HOSTIRIAN to provide the Services hereunder.
7.3 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 End Users, unless otherwise specified.
CUSTOMER is solely responsible for providing any data storage, data back-up and archival history with respect to its Content.
7.5 No Interference.
CUSTOMER agrees not to maliciously or intentionally interfere with the proper operation of the system, including but not limited to defeating identification procedures, obtaining access beyond that which CUSTOMER is authorized for, and impairing the availability, reliability, or quality of service for other customers. CUSTOMER further agrees not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. CUSTOMER agrees to follow the Acceptable Use Policy of any network or service they connect to. CUSTOMER agrees to adhere to system policies as published online by Hostirian, including restrictions on services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of service at Hostirian. CUSTOMER agrees to abide by any and all future HOSTIRIAN policy decisions.
CUSTOMER agrees that the security of their account is solely their own responsibility. CUSTOMER further agrees that if the security of their account has been compromised in any way, they will notify HOSTIRIAN immediately in writing by registered mail, with return receipt, to HOSTIRIAN, 11756 Borman Drive, St. Louis, Missouri 63146, USA.
CUSTOMER shall be held fully responsible for any misuse or compromise of their account for which HOSTIRIAN is not properly notified. CUSTOMER agrees not to provide or share access to their account to any third party, and that they are responsible for any use of their account by any party to whom such access has been provided. CUSTOMER agrees that certain features of their account (e.g., additional FTP logins) which may be used to provide shared access to their account are not to be used to resell services to third parties, and that CUSTOMER is responsible for the actions of any party which utilizes those features. CUSTOMER agrees that if any security violations are believed to have occurred in association with their account, HOSTIRIAN has the right to suspend access to the account pending an investigation and resolution. CUSTOMER also agrees that HOSTIRIAN has the right to cooperate in any government or legal investigation regarding any aspect of its services, including services sold to CUSTOMER.
7.7 Transmittal of materials
CUSTOMER agrees not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. The use of HOSTIRIAN or any other service with reference to services obtained through HOSTIRIAN, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as “spamming” is strictly prohibited and may cause your services to be terminated immediately and without warning, and CUSTOMER will be held fully responsible for any damages to CUSTOMER, HOSTIRIAN, or any other party or parties resulting from any such conduct.
CUSTOMER 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.
8. Fees and Charges
In consideration of the undertakings of HOSTIRIAN as provided herein, CUSTOMER shall pay HOSTIRIAN all fees and charges set forth on the order form. CUSTOMER agrees that all setup fees are non-refundable once setup is completed. CUSTOMER agrees if paying by credit card, prepayments will be billed and charged automatically, and that HOSTIRIAN may apply the amount due to the provided card at any time.
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 hereunder 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 under this Agreement immediately if CUSTOMER is late in making any payment due hereunder; 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 Agreement.
8.3 Taxes. All fees and charges payable by CUSTOMER under this Agreement 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.
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
10. Limited Warranty and Limitation of Liability
Except as previously stated, 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.
No advice or information given by Hostirian or its agents or employees shall create a warranty. Hostirian provides no warranty that the service will be uninterrupted or error free, or that any information, software or other material accessible on the service is free from viruses or other harmful components.
Under no circumstances shall Hostirian be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the service, or for third parties’ use of the service to access your Webspace, or to access the Internet or any part thereof, or CUSTOMER’S or any third parties’ reliance on or use of information, services, or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
If CUSTOMER is dissatisfied with Hostirian service or any of its terms, conditions, rules, policies, guidelines, or practices, their sole and exclusive remedy is to discontinue using the service. CUSTOMER understands that by placing information on Hostirian’s servers, such information becomes available to all Internet users and that HOSTIRIAN has no way of limiting or restricting access to such information or protecting such information from copyright infringement. CUSTOMER assumes total responsibility and risk for their use of Hostirian’s servers and the Internet. It is solely CUSTOMER’S responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise provided through HOSTIRIAN or on the Internet generally.
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 Agreement 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 Agreement shall not exceed the aggregate amount of all fees paid by CUSTOMER during the twenty-four (24) 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. However, notwithstanding the foregoing, nothing in this section shall apply to any damages arising from the negligence, breach as confidentiality or data security, or willful misconduct of HOSTIRIAN.
11. Term and Termination
The Term of this Agreement shall commence on the Contract Start Date and continue until the earlier of this Agreement being terminated by a party in accordance with the terms hereof.
A party may terminate this 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 Customer Breach and Early Termination Fee.
CUSTOMER acknowledges that HOSTIRIAN is providing the Services in expectation of CUSTOMER accepting and paying for Services provided in accordance with this Agreement, through the end of the Term. In the event of any breach by CUSTOMER following the Contract 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 this Agreement, HOSTIRIAN may terminate all Services invoke any other rights and remedies which may be available to HOSTIRIAN upon breach of the Agreement by CUSTOMER.
CUSTOMER shall not sell, transfer, or assign this 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 this Agreement at any time upon not less than ten (10) days prior written notice to CUSTOMER, if Customer consents, which consent shall not be unreasonably withheld, delayed or denied.
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 Agreement 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. Both parties freely and irrevocably waive their right to trial by jury.
If any of the provisions of this Agreement 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 Agreement 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:
11756 Borman Drive
St. Louis, Missouri 63146
Telephone Number: 800-615-9349 Fax Number: 314-692-3543
Attn: Vice President
If to CUSTOMER: See registration for contact person to receive notice.
The rights and remedies of the parties specified under this Agreement are not exclusive but are cumulative and are in addition to all other rights and remedies allowed at law or in equity.
Article, section and paragraph headings are for convenience only and shall not be construed as part of this Agreement.
12.8 Attorneys’ Fees.
If any party is required to engage in any proceedings, legal or otherwise, to enforce its rights under this Agreement, 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 control, provided that it addresses the matter with 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 Agreement.
12.11 Facsimile Signatures.
In the event copies of this Agreement bearing facsimile signatures are exchanged between the parties, such copies shall be binding and enforceable to the same extent as identical original documents bearing original signatures.
12.12 Survival. In the event of the termination or expiration of this Agreement, the provisions of this Agreement, which by their nature extend beyond the termination or expiration of this Agreement shall remain in effect beyond such termination or expiration until fulfilled.
12.13 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which, when executed, shall be considered an original for all purposes, provided that all counterparts shall, together, constitute one and the same document.
12.14 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.
12.15 Transferees, Successors, and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
12.16 Entire Agreement, Amendment This Agreement 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 Agreement shall be binding unless it is in writing and signed by an authorized representative of each party.
By placing and continuing to maintain or place information on HOSTIRIAN’S servers, CUSTOMER IS stating and acknowledging that they have read the aforementioned terms and conditions and that they understand them.