General Hosting Terms of Service
THIS AGREEMENT (“Agreement”) is entered into on the date of your first web hosting invoice from PM Advertising. (“Host”), with its principal place of business located at 4383 Old Harrdsburg Rd Ste. 115 Lexington, KY 40356 and the Customer (“User”), with its principal place of business located at the address specified within our accounting system and shall be effective as of the first hosting invoice date (the “Effective Date”).
WHEREAS, Host is engaged in the business of providing Internet web site hosting and related services; WHEREAS, User desires to retain Host to perform the services provided for in this agreement.
NOW, THEREFORE, Host and User agree as follows:
- Scope of Services
Host will provide the services set forth in Exhibit A (the “Services”). Hosting services will be provided according to the terms described in Exhibit B (“Service Level Agreement”).
- Price and Payment
User will pay Host for Hosting Services according to the terms set forth in Exhibit A. 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 at any time though increases shall not exceed ten percent (10%) of the rate currently being charged at that time.
- Term and Termination
- Hosting Services will commence on the Effective Date of this Agreement and will extend for a period of 1 month and will automatically renew from month-to-month thereafter, unless earlier 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 sixty (60) 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.
- Accounts that are thirty (30) days past due will be automatically suspended. All past due and unpaid balances are subject to collection. In the event of collection, you will be liable for costs of collection including attorney’s fees, court costs, and collection agency fees. 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. Accounts that remain unpaid for a period of (120) days will be deleted from host servers.
- Important Notice
Domain name registrations and Web hosting accounts are handled by separate entities. In the event you need to cancel, you must specify whether you would like to cancel your domain name only, your Web hosting plan only, or both your domain and hosting accounts. The cancellation or expiration of your domain name does not automatically terminate your hosting account (or vice versa). Your hosting account billing term automatically renews upon its completion, unless you notify PM Advertising that you would like to cancel your account. Domain name renewals are the responsibility of the registered billing contact listed with the domain registrar. Accurate contact information for Registrant, Administrative, Billing and Technical contacts are the responsibility of the registrant. PM Advertising will not be held liable for domain name loss.
- Customer Service
Host will provide to User reasonable amounts of consultation via telephone and/or electronic mail in the use of hosting services, but will not assist with any services that are not maintained or controlled by Host including domain name registration services not affiliated with host. Technical issues with software authored by a third party will not be supported without charge.
- 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 and marked as “Exhibit C” and is available online at yourdomain.com. 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 (the “Content”), and that User has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Content and each element thereof, including without limitation, 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. PM Advertising is not responsible for websites infected with malware nor will be held liable for damages resulting from malicious attacks. PM Advertising is not responsible to maintain software installed on servers unless contracted to do so.
- 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.
- 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 confidential and proprietary. Host may not use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any 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.
- Warranty and Disclaimer
Host warrants the Services will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. User must report any material deficiencies in the Services to Host in writing within ninety (90) 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 any service credit set forth in any attachments to this agreement. 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.
- 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.
- Indemnification of Host
User will indemnify and hold Host harmless 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.
- Confidential Information
- All information relating to User that is known to be confidential or proprietary, or which is 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 1 year after the termination of this agreement, but 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.
- 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.
- Employee Solicitation/Hiring
During the period of this Agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor or former subcontractor of the other. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party within six (6) months immediately prior to the alleged violation.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Florida. The arbitration will be held in Florida. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
- 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.
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.
- 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.
- 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. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
- 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.
- EXHIBIT B: SERVICE LEVEL AGREEMENT
This Service Level Agreement (“Agreement”) sets forth the details regarding the level of service and technical support that apply when your account is in good financial standing.
- For purposes of this Agreement, a Unit of Downtime is one period of at least 24 hours during which access to your website is unavailable because of problems with hardware or system software. Downtime does not include (i) problems caused by factors outside of Hosts reasonable control, (ii) problems resulting from any actions or inactions by you or any third party, (iii) problems resulting from your equipment and/or third party equipment not within Hosts sole control, or (iv) network unavailability during scheduled maintenance of our network and/or web servers.
- In any calendar month, we guarantee that Downtime will not exceed 24 hours Units of Downtime excluding, however, regularly scheduled maintenance. Any regularly scheduled maintenance will be performed during the hours of 2 am EST. We work to ensure the functioning of all web servers through continuous monitoring by our staff.
- If Downtime exceeds 24 hours Units of Downtime in any calendar month, we will, upon your written request, credit your account (a “Downtime Credit”) in an amount equal to the pro-rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.
- To receive Downtime Credit, you must request such credit by sending an email to [email protected] within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of your service agreement.
- A member of our technical support help desk staff will be available to assist you with problems and questions regarding the hosting services. We will supply telephone and/or email support to you regarding the hosting services between the hours of 9:00 am and 5:00 pm Mon-Fri. Emergency after-hours assistance is an extra cost.
- You may contact our technical support help desk via email at [email protected] or by telephone at 859-887-1867. We may, from time to time, develop additional methods for you to contact the help desk, and will make information regarding such methods available at our website.
Horse Hosting Terms of Service
All websites, including websites created under this Agreement, created using Horse Hosting are built in PM Advertising’s proprietary content management system (CMS), and any attempt to migrate or otherwise transfer any such website to another hosting provider is a violation of this agreement.
Except for the content provided by you, the websites created within Horse Hosting belong to PM Advertising, and all such websites (including all copies thereof) are subject to copyright, trademark, patent, and other intellectual property laws of the United States and foreign countries. PM Advertising grants you an unrestricted license in the website for the duration of your use of Horse Hosting.
Cancellation of your Horse Hosting agreement for any reason terminates your license to the website thereafter. You agree to prevent any unauthorized copying of the websites created using Horse Hosting. Unless otherwise specifically provided in this Agreement, no right or license under any copyright, trademark, patent, or other intellectual property right or license is granted to you by this Agreement. PM Advertising reserves all rights and protections available to it under state, federal and international intellectual property law, which are not expressly granted to you herein. By uploading content for your website, you grant PM Advertising an unrestricted license (i) to use the content for the purpose of including in your website, and (ii) to display screenshots of any website created using Horse Hosting online, in marketing materials, or in other manner or form as determined by PM Advertising in its sole and absolute discretion. In addition, you represent and warrant to PM Advertising that (a) you have all necessary rights to distribute such content, either because you are the author of the content and have the right to distribute same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the content, and (b) you do not violate the rights of any third party. As used herein, “content” shall include without limitation any text, software, widgets, applications, scripts, source code, API, photographs, illustrations, images, graphics, sounds, music, audio, video and interactive features (and the trademarks, service marks and logos contained therein). You acknowledge and agree that content you upload into Horse Hosting may be immediately available. Content provided may also be cached for up to one year and deleting content from Horse Hosting does not remove cached versions of the content.