This Website and Hosting Service Agreement hereafter "Agreement" is by and between Goldfish Solutions hereafter "Host" and you, your heirs, agents, successors herafter "User", and is made effective as of the date of electronic execution. This Agreement as well as any additional Host policies, together with all modifications thereto, constitute the complete and exclusive agreement between Host and User and will supersede and govern all prior proposals, agreements, or other communications.
- Host is engaged in the business of providing Internet web site hosting and related services;
- User desires to retain Host to perform the services provided for in this agreement.
Host and User agree as follows:
1. Scope of Services
Host agrees to provide User with services for hosting of a website on the Internet. Host shall provide the Hosting Services so that the Website is accessible to third parties via the World Wide Web portion of the Internet as specified in this Agreement. Except as expressly provided in this Agreement, User agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any other services or tasks not specifically set forth in this agreement. To the extent that User wishes to receive from Host, and Host wishes to provide to User, services other than the Hosting Services such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties, and the Services Addendum shall be incorporated into, and become a part of this Agreement.
2. Price and Payment
User will pay Host for Hosting Services according to the terms set forth in this agreement. User will pay (a) hosting fees in advance, (b) fees for other goods or services as invoiced, and (c) any security deposit as set forth in any attachment to this agreement. Host may change the prices charged for the services upon thirty (30) days written notice to User, but such increases shall not exceed ten percent (10%) of the rate currently being charged at that time. Please refer to Goldfish Solutions Web Hosting Plans for pricing information.
3. Term and Termination
Hosting Services will commence on the Effective Date of this Agreement and will extend for a period of one (1) year and will automatically renew from year to year thereafter, unless terminated as provided herein. User may terminate this Agreement without cause upon at least thirty (30) days written notice to Host. Host may terminate this Agreement without cause upon at least thirty (30) days written notice to User. Either party may terminate this agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party's right to exercise any other remedies for breach.
If User's account is suspended due to lack of payment, User will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Services.
4. Customer Service
Host will provide to User reasonable amounts of consultation via telephone and/or electronic mail in the use of the system, but will not assist with any services that are not maintained or controlled by Host.
5. User's Warranties and Obligations
User is responsible for providing all equipment and/or software necessary to access the hardware and systems provided by Host. User agrees to adhere to Host's Acceptable Use Policy, a copy of which is attached hereto. The Acceptable Use Policy may be modified from time to time in Host's sole discretion. User's continued use of the Services after the effective date of such modified Acceptable Use Policy will constitute User's acceptance of the modified terms. Failure by User to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this agreement.
User hereby warrants to Host, and agrees that during the term of this Agreement it will ensure that: (a) User is the owner or valid licensee of all data and/or content it will upload in conjunction with the Services, and that User has secured all necessary licenses, consents, permissions, waivers and releases for the use of the content and each element thereof, including but not limited to, all trademarks, logos, names and likenesses contained therein, without any obligation by Host to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) User's use, publication and display of the 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; (c) User will comply with all applicable laws, rules and regulations regarding the content and will use the services only for lawful purposes; (d) User has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.
User will cooperate fully with Host in connection with Host's performance of the Services. User will immediately notify Host of any change in User's mailing address, telephone, e-mail or other contact information.
6. Ownership of Intellectual Property
User hereby grants to Host a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) 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 Content; and (b) make archival or back-up copies of the Content. Except for the rights expressly granted herein, Host does not acquire any right, title or interest in or to the Content, all of which will remain solely with User.
Any feedback, data, answers, questions, comments, suggestions, ideas or the like that User sends to Host relating to the Services will be treated as being non-confidential and non-proprietary. Host may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose.
Host's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Host. User will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Host. Host will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Host to User. Host may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
Host hereby grants to User a non-exclusive, non-transferable, royalty-free license, for the term of this Agreement, to use the provided technology solely for the purpose of accessing and using the Services. User may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from Host to User any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with Host. User will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology.
7. Warranty and Disclaimer
Host makes no warranties or representations of any kind for the services being offered. The service is provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title, non- infringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by Host or its agents or employees shall create a warranty. Host 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 will Host be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from User’s use of or inability to use the service, or for third parties' use of the service to access User’s Web space, or to access the Internet or any part thereof, or User’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 User is dissatisfied with Host’s service or any of its terms, conditions, rules, policies, guidelines, or practices, User’s sole and exclusive remedy is to discontinue using the service.
User must report any material deficiencies in the Services to Host in writing within thirty (30) days of User's discovery of the deficiency. User's exclusive remedy for the breach of the above warranty will be the re-performance of the defective services within a commercially reasonable time, or request for a credit for the defective services.
User understands that by placing information on Host servers that such information becomes available to all Internet users and that Host has no way of limiting or restricting access to such information or protecting such information from copyright infringement. User assumes total responsibility and risk for use of Host servers and the Internet. It is solely User’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 Host or on the Internet generally.
THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES.
8. Limitation of Liability
Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the Hosting Services, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages.
9. Indemnification of Host
User will indemnify and hold harmless Host against any claims incurred by Host arising out of or in conjunction with User's breach of this Agreement, as well as all reasonable costs, expenses and attorneys' fees incurred therein. Host's total liability under this Agreement with respect to the Services, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by User to Host during the six (6) month period prior to the date the claim arises.
10. Confidential Information
All information relating to User that is known to be confidential or proprietary must be clearly marked as such, will be held in confidence by Host and will not be disclosed or used by Host except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.
All information relating to Host that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by User and will not be disclosed or used by User except to the extent that such disclosure or use is reasonably necessary to the performance of User's duties and obligations under this Agreement.
These obligations of confidentiality will extend for a period of six (6) months after the termination of this agreement. These obligation will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
11. Relation of Parties
The performance by Host of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Host and User, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
12. Non-assignment
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will be for the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
13. Arbitration
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment of any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
14. Attorneys' Fees
If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs.
15. Severability
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
16. Force Majeure
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control.
17. No Waiver
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. Only a written instrument executed by authorized representatives of the parties hereto may modify this Agreement.
18. User Conduct
Host services may only be used for lawful purposes. Any use of these services, which violates any local, state, federal, or international laws, which may apply to Host, your local jurisdiction, or any jurisdiction that you or your site may be subject to is strictly prohibited. While using the service, User may not: (a) Restrict or inhibit any other user from using and enjoying the Internet; (b) Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws; c. Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component; d. Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material)
19. Refusal Or Discontinuance of Service
Host reserves the right to refuse or discontinue service to anyone at Host’s sole discretion. Host may deny User access to all or part of the service without notice if User engages in any conduct or activities that Host in its sole discretion believes violates any of the terms and conditions in this agreement. Host shall have no responsibility to notify any third- party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. User agrees that Host has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. Host reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement.
20. Electronic Communications Privacy Act Notice
Host reserves the right to monitor any and all communications through or with our facilities. User agrees that Host is not considered a "secure communications medium" for the purposes of the ECPA, and that no expectation of privacy is created.
22. Identification Information
User certifies as the person legally responsible for use of this account, they are at least 18 years of age. User agrees to supply Host with a current and truthful name, postal address and telephone number for Host’s records, and User has a continued obligation to keep this information current. User also agrees they are an authorized user of any credit card that is supplied to Host and agrees that Host has an obligation to fully investigate any possibly fraudulent credit card use.
23. No Interference with Operating System
User 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 User is authorized, and impairing the availability, reliability, or quality of service for other customers. User further agrees not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. User agrees to follow the Acceptable Use Policy of any network or service it connects to.
User agrees to adhere to system policies as stated by Host, 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 Host. User agrees to abide by any and all future Host policy decisions.
24. Security
User agrees that the security of User account is solely the Users own responsibility. User further agrees that if it is believed the security of the account has been compromised in any way, User will notify Host immediately. User shall be held fully responsible for any misuse or compromise to their account for which Host is not properly notified. User agrees that if any security violations are believed to have occurred in association with their account, Host has the right to suspend access to the account pending an investigation and resolution. User also agrees that Host has the right to cooperate in any government or legal investigation regarding any aspect of their services, including services sold to User. Any use of our system to engage in software piracy or other violations of law will result in account suspension and be immediately reported to the appropriate authorities.
25. Backup of Data
Any file or data backup services provided by the Host is done so only as a courtesy to the User. Use of the service is at the User’s sole risk. Host is not responsible for files and data residing on the account. User agrees to take full responsibility for files and data transferred and to maintain all appropriate back-up of files and data stored on Host servers.
26. Transmittal of Materials
User 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 Host or any other service with reference to services obtained through Host, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as "spamming" is strictly prohibited and may cause services to be terminated immediately and without warning and User will be held fully responsible for any damages resulting from any such conduct.
27. Prior Agreements
This agreement supersedes any written, electronic, or oral communication User may have had with Host or any agent or representative thereof, and constitutes the complete and total agreement between the parties.
28. Entire Agreement
This Agreement together with any attachments referred to herein constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
29. Agreement
The act of User providing Host any payment from a Host provided invoice and Host accepting payment is acknowledgement of this contract. Payment is defined as the act of the User providing a monetary transaction to the Host and the Host receiving the transaction. This action serves as the authorization and binding compliance between Host, User and this contract. In addition, a signature provided by the User will also bind this contract.