 |
This User
Agreement ("Agreement") is an
agreement between AdvaHost, INC.
("AdvaHost"), a Pennsylvania
corporation, and the party set forth
in the related order form
("Customer" or "you") incorporated
herein by reference (together with
any subsequent order forms submitted
by Customer, the "Order Form"), and
applies to the purchase of all
services ordered by Customer on the
Order Form (collectively, the
"Services").
PLEASE READ THIS AGREEMENT
CAREFULLY.
- Acceptable Use Policy. Under
this Agreement, Customer shall
comply with AdvaHost's then
current Acceptable Use Policy ("AUP"),
as amended, modified or updated
from time to time by AdvaHost,
which currently can be viewed
under the Legal Details section
of this web site, and which is
incorporated in this Agreement
by reference. Customer hereby
acknowledges that it has
reviewed the AUP and that the
terms of the AUP are
incorporated herein by
reference. In the event of any
inconsistencies between this
Agreement and the AUP, the terms
of the AUP shall govern.
AdvaHost does not intend to
systematically monitor the
content that 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,
AdvaHost 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 AUP.
In the event AdvaHost takes
corrective action due to a
violation of the AUP, AdvaHost
shall not refund to Customer any
fees paid in advance of such
corrective action. Customer
hereby agrees that AdvaHost
shall have no liability to
Customer or any of Customer's
customers due to any corrective
action that AdvaHost may take
(including, without limitation,
disconnection of Services).
- 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.
ADDITIONALLY AFTER THE
INITIAL TERM, YOU
ACKNOWLEDGE, AGREE AND
AUTHORIZE AdvaHost TO
AUTOMATICALLY BILL AND/OR
CHARGE ON YOUR CREDIT CARD
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
- by either party by
giving the other party
thirty (30) days prior
written notice subject
to a $50.00 early
cancellation fee payable
by Customer,
- by AdvaHost in the
event of nonpayment by
Customer,
- by AdvaHost, at any
time, without notice,
if, in AdvaHost's sole
and absolute discretion
and/or judgment,
Customer is in violation
of any term or condition
of the this Agreement
and related agreements,
AUP, or Customer's use
of the Services disrupts
or, in AdvaHost's sole
and absolute discretion
and/or judgment, could
disrupt, AdvaHost's
business operations
and/or
- by AdvaHost in
accordance with Sections
1, 9, and 10 of this
Agreement.
- If you cancel this
Agreement, upon proper
notice to AdvaHost, prior to
the end of the Initial Term
or any Term thereafter,
- you shall be
obligated to pay all
fees and charges accrued
prior to the
effectiveness of such
cancellation;
- AdvaHost may refund
to you all pre-paid fees
for basic hosting
services 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, provided
that, you are not in
breach of any terms and
conditions of this AUP,
User Agreement, Spamming
Policy or Domain Policy;
and/or
- 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. Any
cancellation request
shall be effective
thirty (30) days after
receipt by AdvaHost,
unless a later date is
specified in such
request.
- AdvaHost may terminate
this Agreement, without
penalty,
- if the Services are
prohibited by applicable
law, or become
impractical or
unfeasible for any
technical, legal or
regulatory reason, by
giving Customer as much
prior notice as
reasonably practicable;
or
- immediately, if
AdvaHost determines in
good faith that
Customer's use of the
Customer the Services,
the Web site or the
Customer Content
violates any AdvaHost
term or condition,
including this AUP, User
Agreement, Spamming
Policy, or Domain
Policy. If AdvaHost
cancels this Agreement
prior to the end of the
Term for your breach of
this Agreement and
related agreements,
including the AUP, User
Agreement, Spamming
Policy, or Domain Policy
or Customer's use of the
Services disrupts our
network, AdvaHost shall
not refund to you any
fees paid in advance of
such cancellation and
you shall be obligated
to pay all fees and
charges accrued prior to
the effectiveness of
such cancellation;
further, you shall be
obligated to pay 100% of
all charges for all
Services for each month
remaining in the Term
and AdvaHost shall have
the right to charge you
an administrative fee of
$50.00.
- Upon termination of this
Agreement for any cause or
reason whatsoever, neither
party shall have any further
rights or obligations under
this Agreement, except as
expressly set forth herein.
The provisions of Sections
2(e), 3, 4, 8, 10, 11, 13
and 15 of this Agreement
shall survive the expiration
or termination of this
Agreement for any cause or
reason whatsoever, and,
notwithstanding the
expiration or termination of
this Agreement, the parties
shall each remain liable to
the other for any
indebtedness or other
liability theretofore
arising under this
Agreement. Termination of
this Agreement and retention
of pre-paid fees and charges
shall be in addition to, and
not be in lieu of, any other
legal or equitable rights or
remedies to which AdvaHost
may be entitled.
- Customer's Responsibilities.
- Customer is solely
responsible for the quality,
performance and all other
aspects of the Customer
Content and the goods or
services provided through
the Customer Web site.
- Customer will cooperate
fully with AdvaHost in
connection with AdvaHost's
performance of the Services.
Customer must provide any
equipment or software that
may be necessary for
Customer to use the
Services. Delays in
Customer's performance of
its obligations under this
Agreement will extend the
time for AdvaHost's
performance of its
obligations that depend on
Customer's performance on a
day for day basis. Customer
will notify AdvaHost of any
change in Customer's mailing
address, telephone, e-mail
or other contact
information.
- Customer assumes full
responsibility for providing
end users with any required
disclosure or explanation of
the various features of the
Customer Web site and any
goods or services described
therein, as well as any
rules, terms or conditions
of use.
- Because the Services
permit Customer to
electronically transmit or
upload content directly to
the Customer Web site,
Customer shall be fully
responsible for uploading
all content to the Customer
Web site and supplementing,
modifying and updating the
Customer Web site, including
all back-ups. Customer is
also responsible for
ensuring that the Customer
Content and all aspects of
the Customer Web site are
compatible with the hardware
and software used by
AdvaHost to provide the
Services, as the same may be
changed by AdvaHost from
time to time. Specifications
for the hardware and
software used by AdvaHost to
provide the Services will be
available on AdvaHost's Web
site. Customer shall
periodically access
AdvaHost's Web site to
determine if AdvaHost has
made any changes thereto.
AdvaHost shall not be
responsible for any damages
to the Customer Content, the
Customer Web site or other
damages or any malfunctions
or service interruptions
caused by any failure of the
Customer Content or any
aspect of the Customer Web
site to be compatible with
the hardware and software
used by AdvaHost to provide
the Services.
- Customer is solely
responsible for making
back-up copies of the
Customer Web site and
Customer Content.
- Customer's Representations
and Warranties.
- Customer hereby
represents and warrants to
AdvaHost, and agrees that
during the Initial Term and
any Term thereafter Customer
will ensure that:
- Customer is the
owner or valid licensee
of the Customer Content
and each element
thereof, and Customer
has secured all
necessary licenses,
consents, permissions,
waivers and releases for
the use of the Customer
Content and each element
thereof, including
without limitation, all
trademarks, logos, names
and likenesses contained
therein, without any
obligation by AdvaHost
to pay any fees,
residuals, guild
payments or other
compensation of any kind
to any Person;
- Customer's use,
publication and display
of the Customer Content
will not infringe any
copyright, patent,
trademark, trade secret
or other proprietary or
intellectual property
right of any person, or
constitute a defamation,
invasion of privacy or
violation of any right
of publicity or any
other right of any
person, including,
without limitation, any
contractual, statutory
or common law right or
any "moral right" or
similar right however
denominated;
- Customer will comply
with all applicable
laws, rules and
regulations regarding
the Customer Content and
the Customer Web site
and will use the
Customer Web site only
for lawful purposes;
- Customer has used
its best efforts to
ensure that the Customer
Content is and will at
all times remain free of
all computer viruses,
worms, Trojan horses and
other malicious code;
and
- 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
- the accuracy and
appropriateness of the
Customer Content and
content and material
appearing in its store
or on its products,
- 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
- 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 grants AdvaHost
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.
- License to AdvaHost.
Customer hereby grants to
AdvaHost a non-exclusive,
royalty-free, worldwide right
and license during the Initial
Term and any Term thereafter to
do the following to the extent
necessary in the performance of
Services under the Order:
- digitize, convert,
install, upload, select,
order, arrange, compile,
combine, synchronize, use,
reproduce, store, process,
retrieve, transmit,
distribute, publish,
publicly display, publicly
perform and hyperlink the
Customer Content; and
- make archival or back-up
copies of the Customer
Content and the Customer Web
site.
- Except for the rights
expressly granted above,
AdvaHost is not acquiring
any right, title or interest
in or to the Customer
Content, all of which shall
remain solely with Customer.
- Billing and Payment.
- Customer will pay to
AdvaHost the service fees
for the Services in the
manner set forth in the
Order Form.
- AdvaHost may increase
the Service Fees (i) in the
manner permitted in the
service description and (ii)
at any time on or after
expiration of the Initial
Term by providing ten (10)
days prior written notice
thereof to Customer.
- The Service Fees do not
include any applicable
sales, use, revenue, excise
or other taxes imposed by
any taxing authority with
respect to the Services or
any software provided
hereunder (excluding any tax
on AdvaHost's net income).
All such taxes will be added
to AdvaHost's invoices for
the fees as separate charges
to be paid by Customer. All
fees are fully earned when
due and non-refundable when
paid.
- Unless otherwise
specified, all fees and
related charges shall be due
and payable within thirty
(30) days after the date of
the invoice. If any invoice
is not paid within seven (7)
days after the date of the
invoice, AdvaHost may charge
Customer a late fee of
$15.00 for such invoice; in
addition any amounts payable
to AdvaHost not paid when
due will bear interest at
the rate of one and one half
percent (1.5%) per month or
the maximum rate permitted
by applicable law, whichever
is less.
- If AdvaHost collects any
payment due at law or
through an attorney at law
or under advice therefrom or
through a collection agency,
or if AdvaHost prevails in
any action to which the
Customer and AdvaHost are
parties, Customer will pay
all costs of collection,
arbitration and litigation,
including, without
limitation, all court costs
and AdvaHost's reasonable
attorneys' fees.
- If any check is returned
for insufficient funds
AdvaHost may impose a
processing charge of $25.00.
- In the event that any
amount due to AdvaHost
remains unpaid seven (7)
days after such payment is
due, AdvaHost, in its sole
discretion, may immediately
terminate this Agreement,
and/or withhold or suspend
Services.
- There may be a $50.00
charge to reinstate accounts
that have been suspended or
terminated.
- Wire transfers will be
assessed a $30.00 charge.
- Customer acknowledges
and agrees that AdvaHost may
pre-charge Customer's fees
for the Services to its
credit card supplied by
Customer during registration
for the Initial Term.
- YOU ACKNOWLEDGE, AGREE
AND AUTHORIZE AdvaHost TO
AUTOMATICALLY BILL AND/OR
CHARGE ON YOUR CREDIT CARD
FOR SUCCESSIVE TERMS OF
EQUAL LENGTH AS THE INITIAL
TERM, UNLESS TERMINATED OR
CANCELLED BY EITHER PARTY AS
PROVIDED IN SECTION 2.
- AdvaHost as Reseller or
Licensor. AdvaHost 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-AdvaHost
Product"). AdvaHost shall not be
responsible for any changes in
the Services that cause the
Non-AdvaHost Product to become
obsolete, require modification
or alteration, or otherwise
affect the performance of the
Services. Any malfunction or
manufacturer's defects of
Non-AdvaHost Product either
sold, licensed or provided by
AdvaHost to Customer or
purchased directly by Customer
used in connection with the
Services will not be deemed a
breach of AdvaHost's obligations
under this Agreement. Any rights
or remedies Customer may have
regarding the ownership,
licensing, performance or
compliance of Non-AdvaHost
Product are limited to those
rights extended to Customer by
the manufacturer of such
Non-AdvaHost Product. Customer
is entitled to use any
Non-AdvaHost Product supplied by
AdvaHost 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 AdvaHost to
Customer through any
Non-AdvaHost 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-AdvaHost Product, or any
technical data derived therefrom,
in violation of any applicable
United States or foreign law.
- Internet Protocol (IP)
Address Ownership. If AdvaHost
assigns Customer an Internet
Protocol ("IP") address for
Customer's use, the right to use
that IP address shall belong
only to AdvaHost, and Customer
shall have no right to use that
IP address except as permitted
by AdvaHost in its sole and
absolute discretion in
connection with the Services,
during the term of this
Agreement. AdvaHost shall
maintain and control ownership
of all Internet Protocol numbers
and addresses that may be
assigned to Customer by
AdvaHost, and AdvaHost reserves
the right to change or remove
any and all such Internet
Protocol numbers and addresses,
in its sole and absolute
discretion.
- Caching. Customer expressly
- grants to AdvaHost a
license to cache the
entirety of the Customer
Content and Customer's web
site, including content
supplied by third parties,
hosted by AdvaHost under
this Agreement and
- agrees that such caching
is not an infringement of
any of Customer's
intellectual property rights
or any third party's
intellectual property
rights.
- CPU Usage. Customer agrees
that Customer shall not use
excessive amounts of CPU
processing on any of AdvaHost's
servers. Any violation of this
policy may result in corrective
action by AdvaHost, including
assessment of additional
charges, disconnection or
discontinuance of any and all
Services, or termination of this
Agreement, which actions may be
taken in AdvaHost's sole and
absolute discretion. If AdvaHost
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.
- 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"). AdvaHost
will monitor Customer's
bandwidth and disk usage.
AdvaHost 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
AdvaHost's sole and absolute
discretion. If AdvaHost 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.
- Property Rights.
- AdvaHost hereby grants
to Customer a limited,
non-exclusive,
non-transferable,
royalty-free license,
exercisable solely during
the term of this Agreement,
to use AdvaHost technology,
products and services solely
for the purpose of accessing
and using the Services.
Customer may not use
AdvaHost's technology for
any purpose other than
accessing and using the
Services. Except for the
rights expressly granted
above, this Agreement does
not transfer from AdvaHost
to Customer any AdvaHost
technology, and all rights,
titles and interests in and
to any AdvaHost technology
shall remain solely with
AdvaHost. Customer shall
not, directly or indirectly,
reverse engineer, decompile,
disassemble or otherwise
attempt to derive source
code or other trade secrets
from any of the AdvaHost.
- AdvaHost owns all right,
title and interest in and to
the Services and AdvaHost'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
| | |