24Host7.com Web Hosting Agreement
This WEB HOSTING AGREEMENT (the “Agreement”) is a contract between DivyWeb LLC, an Arizona limited liability company and its dba(s) (“DivyWeb LLC”) and you, the entity or individual using DivyWeb LLC’S website or its web hosting services (the “Customer,” “You” or “Your”). This Agreement sets forth the provisions, terms and conditions applicable to your purchase and use, in any way, of DivyWeb LLC’S web hosting and other Internet-related services (collectively, the “Services”) available at www.24HOST7.com (this “Site”).
PLEASE READ THESE PROVISIONS, TERMS AND CONDITIONS IN THEIR ENTIRETY BEFORE USING THIS SITE OR ANY OF THE SERVICES. BY USING THIS SITE OR ANY OF THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS ENTIRE AGREEMENT AND AGREE TO BE BOUND BY AND ABIDE BY ALL TERMS, CONDITIONS, PROVISIONS AND RULES CONTAINED HEREIN (AS SAME MAY BE AMENDED FROM TIME TO TIME). THIS AGREEMENT SHALL BE BINDING ON YOU, THE CUSTOMER, INCLUDING, WITHOUT LIMITATION, ALL OF YOUR EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS AND AGENTS. DivyWeb LLC RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO CHANGE OR MODIFY THIS AGREEMENT AT ANYTIME WITHOUT PRIOR NOTICE TO THE CUSTOMER. ANY SUCH CHANGE OR MODIFICATION SHALL BECOME EFFECTIVE.
UPON POSTING ON THE SITE, WHICH YOU HEREBY AGREE TO REGULARLY AND ROUTINELY REVIEW FOR UPDATES, CHANGES AND/OR CHANGES APPLICABLE TO THE SERVICES. YOUR CONTINUED USE OF THE SITE AND/OR THE SERVICES AFTER ANY SUCH CHANGE OR MODIFICATION BECOMES EFFECTIVE WILL CONSTITUTE YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY AND ABIDE BY ALL SAID CHANGES AND MODIFICATIONS.
IF YOU DO NOT AGREE TO ALL TERMS CONTAINED IN THIS AGREEMENT, INCLUDING ANY AND ALL CHANGES OR MODIFICATIONS HERETO, DO NOT USE OR CONTINUE TO USE THIS SITE OR THE SERVICES.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the following:
1. PURPOSE OF AGREEMENT. DivyWeb LLC agrees to provide to the Customer, and the Customer agrees to receive from DivyWeb LLC, use of the Site and/or the Services, subject to Customer.s full compliance with all terms, conditions and provisions of this Agreement.
2. TERM AND TERMINATION. The term of this agreement shall be for a minimum of one (1) year (the “Minimum Term”) and a maximum of three (3) years (the “Maximum Term”) from the date on which Customer agrees to be bound hereby (the “Effective Date”), unless otherwise agreed to, in writing, by the parties. The term of this Agreement shall renew automatically every year thereafter, unless either party provides written notice to the other party of its intent not to renew this Agreement at least 30 days prior to the expiration of the term then in effect. In the event Customer desires to terminate this Agreement before the expiration of the contract term, Customer must provide 30-days advance written notice to DivyWeb LLC of its intent to terminate this Agreement, and pay to DivyWeb LLC all amounts due and owing under this Agreement. DivyWeb LLC reserves the right, in its sole and absolute discretion, to immediately terminate this Agreement, without advance notice, if Customer materially breaches any provision of this Agreement. In no event will Customer be entitled to receive a refund of prepaid Service Fees, unless otherwise agreed to, in writing, by DivyWeb LLC.
3. NO LIABILITY UPON TERMINATION. Upon termination of this Agreement, whether by expiration or as otherwise permitted in this Agreement, DivyWeb LLC will not be liable to Customer in any way for reimbursement, compensation or alleged damages on account of, but not limited to, lost profits or sales (whether actual or anticipated), loss of goodwill, losses arising from investments, leases or commitments related to Customer’s business, nor for any other reason or circumstance arising from said termination.
4. PRICING AND PAYMENT TERMS. Upon accepting this Agreement, Customer agrees to pay to DivyWeb LLC a one-time set-up fee of $0 for costs and expenses incurred in setting up the Services. In addition thereto, Customer agrees to prepay DivyWeb LLC for its provision of the Services (the “Service Fees”) according to the payment plan selected by the Customer, which plan will be selected at the time this Agreement is accepted.
Customer acknowledges and agrees that its full and timely payment of all fees is a condition to DivyWeb LLC’S performance under this Agreement. Invoices will be sent to Customer via mail and/or e-mail at the addresses set forth herein in accordance with Customer’s selected payment plan. All Invoices shall be due upon receipt, and will be considered late if payment is not received within ten (10) days of the due date. Payments received late will be subject to a late fee in the amount of ten percent (10%) per day for each day between the due date and the date on which payment is received. DivyWeb LLC will impose a $25.00 charge for any check that is returned for any reason by a financial institution. DivyWeb LLC reserves the right to charge the Customer any sales, use, excise, and gross receipts, or any other tax or fees now or imposed, directly or indirectly, by any governmental authority or agency with respect to the Services. Customer must notify DivyWeb LLC in writing of any disputed charges within 14 days of the date of the billing for such charges. If the Customer does not notify DivyWeb LLC within that time period, the Customer has waived any right to dispute such amounts, either directly or indirectly or as a set-off, or defense in any action or efforts to collect amounts due to DivyWeb LLC.
DivyWeb LLC reserves the right to suspend, interrupt, or terminate Services on any account that is past due by more than thirty (30) calendar days, by disabling ssh/ftp access and/or disabling the connection to the server. In the event of disconnection, the Customer must pay DivyWeb LLC a reconnection fee of $50.00 as a condition of reactivation of the Services, in addition to full payment of the balance due on the account. Reactivation of services will only be performed during DivyWeb LLC regular business hours (Monday through Friday, 9:00 a.m. – 6:00 p.m. Mountain Standard Time). DivyWeb LLC may send all accounts that have not been paid in full to a collection agency. The Customer is responsible for paying all costs of collection, including, but not limited to, reasonable attorney.s fees and, where lawful, collection agency fees. All accounting issues should be addressed to DivyWeb LLC at firstname.lastname@example.org .
5. SERVICE INTERRUPTIONS. DivyWeb LLC shall not be liable for any failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of any governmental body, war, terrorism, insurrection, sabotage, embargo, fire, flood, blackout, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services. Customer hereby acknowledges that from time to time, DivyWeb LLC may need to conduct routine tests, maintenance, upgrades or repair of its System, which may require an interruption of the Services. In all such circumstances, DivyWeb LLC shall exercise commercially reasonable effort to give the Customer prior notice thereof; however, Customer acknowledges that there may be instances where it is not practicable or impossible for DivyWeb LLC to give advance notice of the disruption or interruption in Services; and, therefore, Customer agrees that DivyWeb LLC shall not be responsible or liable for any alleged damages related thereto or arising therefrom.
99% UPTIME GUARANTEE: Should DivyWeb LLC’s server uptime be less than 712 hours for any one given month (based on a 30 day month totaling 720 hours, in which the month shall always commence on the 1st day of the calendar month) in which the server uptime will be monitored by DivyWeb LLC; the Customer shall have the option to notify DivyWeb LLC in writing to DivyWeb LLC’s notification address detailing the service interruptions totaling in excess of eight (8) hours for a given one month period as described above. If the server outage time frame can be verified by DivyWeb LLC’s server technicians than the Customer delivering the notification shall receive a free month of service. DivyWeb LLC will add the extra month of service to the Customer’s account at NO COST. There is a maximum limit of four (4) free months per calendar year through the 99% uptime guarantee. A Calendar year commences on January 1st and ends on December 31st. The 99% Uptime Guarantee is void should service interruptions be caused by acts of God, acts of any governmental body, war, terrorism, insurrection, sabotage, embargo, fire, flood, blackout, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
6. CUSTOMER CONTENT AND RESPONSIBILITIES. The Customer is solely responsible for all of its web site content including, without limitation, any postings, files, intellectual property, data or transmissions using the Services (collectively, the “Customer Content”), including any other use of the Services by the Customer, or by any person or entity the Customer permits to access the Services (a “User”). The Customer acknowledges and agrees that in the provision of the Services hereunder, DivyWeb LLC has absolutely no responsibility, either directly or indirectly, for the Customer Content, and DivyWeb LLC accepts no responsibility for the Customer Content on or passing through its system. The Customer represents, warrants and covenants to DivyWeb LLC that neither Customer nor any User will use the Services for unlawful purposes (including, without limitation, infringement of copyright or trademark, misappropriation of trade secrets, wire fraud, invasion of privacy, illegal pornography, obscenity, defamation, illegal gambling, illegal transportation or sale of tobacco, controlled substances or firearms), or to interfere with, or disrupt, other network users, network services, or network equipment. Disruptions include, without limitation, distribution of unsolicited advertising or chain letters, repeated harassment of other network users, wrongly impersonating another user, falsifying one’s network identity for improper or illegal purposes, sending unsolicited mass e-mailings, propagation of computer viruses, using the network to make unauthorized entry to any other machine accessible location, via the network, and distributing of tools designed for compromising security (i.e. including, but not limited to, password guessing programs, cracking tools or network probing tools). DivyWeb LLC may suspend or terminate the Services immediately, without prior notice to the Customer, if DivyWeb LLC believes, in good faith, that the Customer or a User is utilizing the Services for any such illegal or disruptive purpose. The Customer agrees that it has the duty to and hereby acknowledges that Customer shall and will indemnify, defend, protect and hold DivyWeb LLC, including, without limitation, its members, officers, employees, agents and attorneys (collectively, the “Indemnified Parties”) harmless from and against any and all expenses, losses, costs, deficiencies, claims, liabilities, damages and punitive damages, including, without limitation, reasonable attorney and paralegal fees and expenses incurred or suffered by any of the Indemnified Parties arising out of, relating to, or resulting from the use or publication of any and all Customer Content in connection with the Services, or from any other breach of this Agreement by the Customer. In the event any such action shall be brought against an Indemnified Party and such Indemnified Party shall notify the Customer of the commencement thereof, the Customer shall assume the defense thereof, with counsel approved by such Indemnified Party, until the full and final resolution of said dispute, including the full and final settlement, payment and/or satisfaction of any and all costs, expenses, legal fees liabilities or damages arising therefrom.
To maintain the quality of our Services and to protect against unlawful infringement of copyrighted works, DivyWeb LLC prohibits the use of heavy bandwidth intensive web sites including, but not limited to, file-sharing programs, game servers, shared hosting of video and music files, dedicated servers and server co-location customers. Usage of any such web site shall only be allowed if DivyWeb LLC gives its prior written consent, which consent may be withheld in its sole and absolute discretion.
7. MAINTENANCE AND SUPPORT. DivyWeb LLC shall provide the Customer with basic maintenance and support for the Services including e-mail services through Horde, 24 hour notifications of downtime, 48 hour notification of maintenance to the server.
Exclusions. Maintenance and support services shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than DivyWeb LLC or its authorized representatives; or (b) programs or hardware supplied by the Customer.
Passwords. Each DivyWeb LLC Customer is responsible for his or her passwords. Generally, secure passwords are between 6 and 8 characters long, contain letters of mixed case and non-letter characters, and cannot be found in whole or part, in normal or reverse order, in any dictionary of words or names in any language. The Customer is responsible for changing his or her password regularly.
8. CONFIDENTIAL INFORMATION. Each party to this Agreement acknowledges that it or its employees may be exposed to or acquire information in connection with this Agreement which is proprietary or confidential to the other party, or to third parties to whom such party has a duty of confidentiality. Confidential Information shall mean all information identified as being confidential by a party (the “Disclosing Party”) to the party receiving such information (the “Receiving Party”), provided such notice is given in writing. If any confidential information is disclosed verbally, written notice of the confidentiality thereof must be given within fifteen (15) days for such information to be deemed confidential. Confidential Information shall remain the sole property of the Disclosing Party. Except for the specific rights granted by this Agreement, the Receiving Party shall not use any Confidential Information of Disclosing Party for its own benefit or for the benefit of others.
Except as set forth below, each party agrees to hold the Confidential Information of the other party in confidence and not to disclose such information to third parties or to use such information for any purpose whatsoever and to require each of its employees who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential. Notwithstanding the above: (A) neither party is prohibited from (i) under confidence, using or disclosing Confidential Information to third parties as required to perform its obligations under this Agreement, (ii) using or disclosing such Information externally in an aggregate or statistical composite form (provided that such Confidential Information is combined with other similar information and does not specifically identify the Confidential Information as specific to Customer), or (iii) in confidence, using or disclosing such Confidential Information internally or to any of its affiliated entities, or accountants, auditors or attorneys, or to investors or potential investors or other financing sources and their advisors; and (B) Confidential Information shall not include (i) information that is now or subsequently becomes publicly available without breach of this Agreement by the receiving party, (ii) information made available to either party from other sources without any obligation of confidentiality, (iii) information that is already in either party’s possession not subject to an obligation of confidentiality, (iv) information that is independently developed by either party without reference to any confidential information, and (v) information that is required to be disclosed pursuant to any law or any rule or regulation of a governmental agency or any order of a court or governmental agency, provided that the receiving party shall first notify the disclosing party of such disclosure requirement or order and uses reasonable efforts to obtain confidential treatment or a protective order.
Upon termination of this Agreement, the receiving party will at its option return to the disclosing party or destroy all Confidential Information of the disclosing party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof, except that the receiving party may retain one copy of all such Confidential Information solely for archival legal purposes. Notwithstanding the foregoing, the Customer consents to DivyWeb LLC’s disclosure of account information to credit reporting agencies, credit bureaus, private credit reporting associations, or to other providers of communications services.
9. LIMITATION OF LIABILITY. DivyWeb LLC’s liability to the Customer, whether directly or as a third party defendant, in any action or proceeding for any claim or liability arising out of or relating to this Agreement, or the provision of any Services (including, without limitation, web hosting, maintenance and support), shall be limited to the amount of fees paid by the Customer to DivyWeb LLC under this Agreement within one year preceding the date the Customer contends its claim arose. In no event shall DivyWeb LLC or any of its members, managers, officers or employees be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, regardless of the alleged cause and regardless of the theory of liability. This limitation will apply even if DivyWeb LLC has been advised of, or is aware of, the possibility of such damages.
10. DISCLAIMER OF WARRANTIES. DivyWeb LLC specifically disclaims all implied warranties, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Except as otherwise provided in this Agreement, any written materials by DivyWeb LLC, or information on DivyWeb LLC’s company web site, shall be for informational purposes only and, whether delivered or disseminated before or after the date of this Agreement, shall not create any express or implied warranties, guaranty of performance, or contractual obligations.
11. GOVERNING LAW AND CONSENT TO JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of laws provisions. Each party hereto irrevocably submits to the exclusive jurisdiction of the Courts in the State of Arizona or in the United States District Court for the District of Arizona with respect to any suit, action or proceeding arising out of or relating to this Agreement. Each party hereto waives any right it may have to assert the doctrine of forum non conveniens or to object to venue to the extent any proceeding is brought in accordance with this provision. Nothing in this paragraph shall affect or limit any right to serve process in any manner permitted by law or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
ii. Notices. Any notice hereunder shall be in writing and shall be given by registered or express mail, by reliable courier addressed to the addresses listed below, or by facsimile. Notice shall be deemed given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid. Either party may change its address for notice by means of written notice given to the other party.
Notices to DivyWeb LLC shall be sent to the following address:
ATTN: Administrative Department
5355 E High St Unit 330
Phoenix, AZ 85054
Notices to Customer shall be sent to your e-mail address via your DivyWeb LLC Account.
iii. Assignment. The Customer may not assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be void and a default of this Agreement.
iv. Advertising. DivyWeb LLC may include the Customer’s name and contact information in directories of DivyWeb LLC service subscribers for the purpose of promoting the use of the Services by the Customer generally. DivyWeb LLC will not use the Customer’s name or other identifying information in any other advertising or promotional materials, without the prior written consent of the Customer, which may not be unreasonably withheld.
v. Indemnification. The Customer shall defend, indemnify, and hold harmless DivyWeb LLC from and against all liabilities, judgments, claims, damages, settlements, expenses and costs (including reasonable attorneys fees and litigation expenses) arising out of or relating to any breach of this Agreement by the Customer. The Customer and DivyWeb LLC will promptly notify each other upon receipt of any third party claim or legal action arising out of or relating to this Agreement or Agreement.
vi. Entire Agreement and Waiver. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and neither this Agreement nor any term or provision herein may be amended or waived except by a written instrument signed, in the case of an amendment, by each party and, in the case of a waiver, by the party against whom the waiver is sought to be effective.
vii. Release of Information. DivyWeb LLC reserves the right to release the contact information of the Customer(s) involved in violations of system security to system administrators at other sites, in order to assist them in resolving security incidents. DivyWeb LLC will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
IN WITNESS WHEREOF AND BY OPTING TO CONTINUE WITH YOUR APPROVAL, the parties hereto have duly executed this Agreement as of the date first above written or as agreed on the Internet.
ACCEPTABLE USE POLICY
DivyWeb LLC Acceptable Use Policy has been developed with the following objectives:
Preserve the privacy and security of individual users.
Preserve the value of Internet resources as a conduit for free expression.
Encourage the responsible use of net resources and discourage practices which degrade the usability of network resources and thus the value of Internet services.
Ensure security, reliability and privacy of DivyWeb LLC’s systems and network, and the networks and systems of others.
Avoid situations that may cause DivyWeb LLC to incur civil liability.
We respect our Customers to use the Internet with courtesy and responsibility and to be familiar with and to practice good Internet etiquette. By adhering to the following policies, our Customers are protecting the rights and privileges of all Internet users.
VIOLATION OF ANY OF THE FOLLOWING POLICIES IS STRICTLY PROHIBITED AND WILL RESULT IN IMMEDIATE TERMINATION OF ALL ACCOUNTS AND MAY INCUR FINANCIAL PENALTIES TO THE VIOLATOR. SYSTEM AND NETWORK USAGE AND SECURITY
1. Customers may not attempt to circumvent user authentication or security of any host, network, or account (“cracking”). This includes, but is not limited to, accessing data not intended for the Customer, password sniffing, security hole scanning, IP spoofing, logging into a server or account the Customer is not expressly authorized to access, or probing the security of other networks.
2. Customers may not attempt to interfere with service to any user, host, or network (“denial of service attacks”). This includes, but is not limited to, “flooding” of networks, deliberate attempts to overload a service, and attempts to “crash” a host.
3. Customers may not use any kind of program/script/command, or send messages of any kind, designed to interfere with a user’s terminal session, via any means, locally or by the Internet.
4. Customers must safeguard their account passwords to prevent unauthorized access to their account.
5. Users who violate systems or network security may incur criminal or civil liability. DivyWeb LLC will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.