Every client (hereafter referred to in this document as “Client”) that signs up for hosting with Full Spectrum Internet & E-Commerce Services (referred to in this document as “Host”) is bound by the terms of this WEB SITE HOSTING AGREEMENT. By signing up for hosting with Full Spectrum Internet & E-Commerce Services, you ("Client") are agreeing to the following terms. Host and Client are collectively referred to as the “parties”.
1. Services
a. Services. Host agrees to perform and provide to Client, services consisting of non-exclusive electronic access to a digital information processing, transmission and storage system (“Server”) to store Client's web site (“Site”) and make the Site available on and via the global computer communications network (“Internet”) as specified herein and in Exhibit A (“Hosting Services”) and to provide Client with additional services as set forth at Exhibit B (“Additional Services”). The Hosting Services and any Additional Services are collectively referred to as the "Services." Client agrees that the Services shall not include any web site development services, authorship or creation with respect to the Site.
b. Availability of Services. Subject to the terms and conditions of this Agreement, Host shall attempt to provide the Services for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. Client agrees that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Host may undertake from time to time; or (iii) causes beyond the control of Host or which are not reasonably foreseeable by Host, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. Client agrees that Host has no control of availability of Services on a continuous or uninterrupted basis.
c. Host Materials. In connection with performance of the Services and at the sole discretion of Host with no obligation, Host may provide to Client certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Host or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to Client, and other know-how, methodologies, equipment, and processes used by Host to provide the Services to Client (“Host Materials”).
d. Client Content. Client shall be solely responsible for providing, updating, uploading and maintaining the Site and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the Site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, metatags, domain names, software and text (“Client Content”). The Client Content shall also include any registered domain names provided by Client or registered on behalf of Client in connection with the Services.
2. Licenses and Proprietary Rights
a. License of Client Content. Client grants to Host, and Host accepts from Client, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet the Client Content in connection with Host's performance or enforcement of this Agreement.
b. License of Host Materials. In consideration of Client's payment of all compensation to Host pursuant to Section 4 and Exhibit C, Host grants to Client, and Client accepts from Host, a limited, non-transferable, non-exclusive license, for the term of this Agreement, to copy and use the Host Materials, solely in connection with the Site and for Client's internal business purposes.
c. Host Proprietary Rights. Host shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Host Materials and all legally protectable elements, derivative works, modifications and enhancements thereto, whether or not developed in conjunction with Client, and whether or not developed by Host, Client or any contractor, subcontractor or agent for Host or Client. To the extent that ownership of the Host Materials do not automatically vest in Host by virtue of this Agreement or otherwise, Client agrees to transfer and assign to Host all right, title and interest in the Host Materials and protectable elements or derivative works thereof. Upon any termination or expiration of this Agreement, Client shall return all Host Materials to Host and erase and remove all copies of all Host Materials from any computer equipment and media in Client's possession, custody or control.
3. Site and Services Terms and Limitations
a. Storage and Security. At all times, Client shall bear full risk of loss and damage to the Site and all Client Content. Client shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Client Content; (ii) maintain independent archival and backup copies of the Site and all Client Content; (iii) ensure the security, confidentiality and integrity of all Client Content transmitted through or stored on the Server; and (iv) ensure the confidentiality of Client's password. The Server, Host and Services are not an archive and Host shall have no liability to Client or any other person for loss, damage or destruction of any Client Content. If Client's password is lost, stolen or otherwise compromised, Client shall promptly notify Host, whereupon Host shall suspend access to the Services by use of such password and issue a replacement password to Client's authorized representative.
b. Acceptable Use Policy. Client is solely responsible for all acts, omissions and use under and charges incurred with Client's account or password or in connection with the Site or any Client Content displayed, linked, transmitted through or stored on the Server. Client agrees not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which Client does not have authorization to access or at a level exceeding Client's authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; or (viii) engage in any other activity deemed by Host to be in conflict with the spirit or intent of this Agreement or any Host policy.
c. Rights of Host. Client agrees that Host may, in its sole discretion, remove or disable access to all or any portion of the Site or Client Content stored on the Server at any time and for any reason. Host has no obligation to monitor the Site or any Client Content, but reserves the right in its sole discretion to do so.
4. Payment Terms
a. Payment. Client shall pay Host for the Services and license hereunder at Section 2(b) the amounts set forth at Exhibit C, and at such times provided by the payment schedule specified therein. Host expressly reserves the right to change its rates charged hereunder for the Services at any time, upon thirty (30) days notice to Client. In the event that Client exceeds the scope of the Services as set forth at Exhibits A or B (for example, available bandwidth, CPU or disk utilization space), Client shall pay Host for such additional services not within the scope of the Services as specified at Exhibits A or B at Host's then current rates.
b. Taxes. Client shall pay all taxes, duties and levies of any governmental authority, exclusive of taxes on Host's net income. If Client claims exemption from any taxes resulting from this Agreement, Client shall provide Host with documentation required by the taxing authority to support an exemption.
c. Invoices. Client agrees that amounts of any unpaid invoice shall accrue interest at one and one half percent (1.5%) per month. Client shall pay all costs of collection, including reasonable attorney's fees and costs, in the event any invoice requires collection efforts.
5. Warranties and Disclaimer
a. Host Warranties. Host warrants to Client that: (i) Host has the right and authority to enter into and perform its obligations under this Agreement; (ii) Host shall perform the Services in a commercially reasonable manner; and (iii) that the Services, throughout the term of this Agreement shall conform substantially to the specifications as set forth at Exhibit A. Client's sole remedy in the event of any breach of this warranty will be for Host to take reasonable commercial efforts for thirty (30) days to cause the Services to conform substantially to the specifications as set forth at Exhibit A.
b. Client Warranties. Client represents and warrants to Host that: (i) Client has the power and authority to enter into and perform its obligations under this Agreement; (ii) Client Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) Client owns the Client Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the Client Content on and within the Site.
c. Disclaimer of Warranty. EXCEPT AS EXPRESSLY STATED AT SECTION 5(a), HOST MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING ANY SUBJECT MATTER OF THIS AGREEMENT.
6. Limitation of Liability
EXCLUSIVE OF LIABILITY UNDER SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL HOST BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HOST?S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO HOST HEREUNDER FOR THE ONE (1) YEAR PERIOD PRIOR TO ANY ACT OR OMISSION GIVING RISE TO ANY POTENTIAL LIABILITY.
7. Indemnification
a. By Client. Client agrees to indemnify, hold harmless and defend Host and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney's fees and costs, arising from or relating to: (i) Client's breach of this Agreement; (ii) any negligence or willful misconduct of Client; (iii) any allegation that the Site or Client Content infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets; or (iv) any action or conduct of Host undertaken pursuant to this Agreement. Client agrees that Host shall have the right to participate in the defense of any such claim through counsel of its own choosing.
b. By Host. Host agrees to indemnify, hold harmless and defend Client and its directors, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorney's fees and costs, arising from or relating to any allegation that the Host Materials infringe a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets.
8. Term and Termination
a. Term. The term of this Agreement shall commence on the Effective Date and shall continue thereafter for one (1) year, unless sooner terminated by either party. This Agreement shall renew automatically for successive one (1) year terms unless terminated by either party with thirty (30) days of the expiration of the prior term.
b. Termination. This Agreement may be terminated: (i) by Client upon thirty (30) days written notice to Host; (ii) by Host, immediately upon notice to Client; or (iii) by a written agreement executed by the parties. Notwithstanding the foregoing, Host reserves the right, in its sole discretion and without notice, at any time and for any reason, to suspend Client's access to or use of the Server, Services or any portion thereof.
c. Rights Upon Termination. In the event this Agreement is terminated for any reason, Client shall pay Host, on a pro rata basis, for all Services provided to Client up to the date of termination.
9. General
a. Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Assignment. Client may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void and/or a material breach of this Agreement.
c. Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
d. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
e. Notice. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by call back. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party.
f. Amendment. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
g. Law. This Agreement shall be governed in all respects by the laws of the State of Washington without regard to its conflict of laws provisions.
h. Survival. The definitions of this Agreement and the respective rights and obligations of the parties under Sections 1(d), 2(a), 2(c), 3, 4, 5(b), 5(c), 6, 7, 8(c) and 9 shall survive any termination or expiration of this Agreement.
i. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
j. Entire Agreement. This Agreement, together with Exhibits A, B and C, which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
Exhibit A
Hosting Services
Client receives 120MB of hard drive space. Each client receives up to 4 GB of transfer every calendar month. Hosting includes up to 25 POP e-mail accounts, webmail, statistic reports, PHP, MySQL, CGI, and ASP.
Exhibit B
Additional Services
None included with this agreement unless specified by a separate written documentation.
Exhibit C
Payment Terms & Schedule
All hosting accounts come with a 30-day money-back guarantee unless Client violates the “Acceptable Use Policy” as described in 3b of this Agreement. If the “Acceptable Use Policy” is violated, no money-back guarantee is provided.
Hosting is $60 a year if paid annually, $18 a quarter (three months) if paid quarterly or $7 a month if paid monthly. There is no set up fee. If Client pays annually and discontinues service after 30 days but before the one year period has expired, Client is not eligible for a refund of any part of the $60 annual hosting fee. Host reserves the right to increase or decrease pricing without advance notice to client, however any price change does not effect the current annual term of this agreement. Price changes would go into effect when the client renews this contract for an additonal year under the new pricing structure.