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Untitled Document
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This
Terms and Conditions of Hosting Agreement (the "Agreement") controls
your (referred to as "Customer," "you," or "your") use of datah.com
web site hosting and related services. Any or all of these services,
including the software that may be provisioned to you by datah.com as
part of your use of the services whether datah.com proprietary software
or third party software (collectively "datah.com software"), are referred
to as the "datah.com Services" or "the Services." In this agreement
you and datah.com may be collectively referred to as "the parties."
Please
read this Agreement in its entirety. By downloading datah.com software
or using the Services or software, you agree to be bound by this Agreement
and other user policies and agreements datah.com may establish from
time to time. If you do not wish to be bound by this Agreement and the
other datah.com policies, please do sign this Agreement or, if accepting
on-line, do not click on "I Agree" or otherwise manifest your assent.
This
Agreement is effective as of the Customer account creation date (the
"Effective Date") between the Customer and datah.com. datah.com agrees
to provide hosting services and Customer agrees to accept and utilize
datah.com's service according to the terms of this Agreement and the
Order Form (if applicable) which has been executed by the parties and
attached hereto.
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| 1. |
Service.
You must be at least eighteen (18) years of age to subscribe to datah.com's
Service. Customer is responsible for all use of Customer's account and
maintaining the confidentiality of Customer's password(s). datah.com will
suspend access or change access to Customer's account upon notification
by Customer that his or her password has been lost, stolen or otherwise
compromised. Customer may not transfer or give out its password to third
parties, and Customer shall remain liable for all charges incurred for
use of the Services. datah.com shall not be liable for any usage or charges
prior to datah.com making the necessary account alteration.
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| 2. |
Domain
Registration.
datah.com does not provide registration services. Domains registered though
the datah.com web site are register with Dotster.com and issues which
such domains should be resolved with them.
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| 3. |
Technical
Support.
datah.com will provide technical support consulting services via helpdesk,
electronic mail ("e-mail") and facsimile to assist in verifying the account
features of datah.com's intended functionality of the Customer's server
and hosting Service ("Technical Support"). The account features include
various products produced by third party vendors. The Technical Support
staff can assist with the setup and configuration of the server and third
party products; however, the usability, custom configurations, coding
and troubleshooting fall under the support offerings of the third party
vendor so Technical Support will be unable to assist with the aforementioned
offerings.
Technical Support does not serve as a consultant to correct and rewrite
programming code and scripting-related issues. Only datah.com-created
Services and non-Customer configured Services will be supported to this
extent. No e-mails from datah.com, including Technical Support e-mail,
may be resent, distributed or posted on any media accessible to the
public (including, but not limited to, any Internet site or bulletin
board) by Customer, without datah.com's prior written consent. Technical
Support shall consist only of the consulting services set forth above,
and in no event shall it include any other support functions or Services,
including, but not limited to, maintenance or repair of Customer's hardware
or custom configurations to the server. Technical Support will be provided
only to either Customer or Customer's technical or administrative contact.
If Customer requires technical assistance beyond the conditions set
forth above and datah.com determines that it has the technical resources
for assistance, Customer shall be charged at datah.com's standard hourly
rate. The hourly rate will be applied to Services not designated as
Technical Support, as defined above, or for any Technical Support provided
to someone other than Customer or Customer's technical or administrative
contact. Prior to requesting support services from datah.com, Customer
or Customer's technical contact agrees to ask datah.com's Technical
Support personnel if the requested support services qualify as Technical
Support.
Technical Support hours are 24 hours each day, except on nationally
observed holidays, Christmas Eve, during departmental meetings, or when
no, or limited support hours may be provided, of which Customer will
be notified in advance. Technical Support hours are subject to change.
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| 4. |
Required
Equipment.
Customer shall be solely responsible for the full cost of all required
equipment, software and configuration as well as any additional equipment
Customer wishes to utilize. datah.com shall have no obligation or liability
in connection with any equipment not purchased through datah.com and configured
by datah.com, or for any abuse or misuse of any equipment by any party
other than datah.com. datah.com shall pass through to Customer any warranties
from the manufacturers of equipment purchased through datah.com and installed
at Customer's premises. datah.com shall have no obligation to repair or
maintain any equipment at Customer's premises, and Customer shall be responsible
for seeking warranty and other Services directly from the manufacturer.
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| 5. |
Term.
This Agreement shall be effective on a calendar month-to-calendar month
basis or a specific term length as set forth in an Order Form beginning
on the Effective Date and continuing until terminated as provided herein.
This Agreement may be revoked by datah.com in accordance with the terms
herein at any time prior to the Effective Date.
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| 6. |
Termination
by datah.com / Acceptable Use.
datah.com, in its sole business judgment, may terminate this Agreement
immediately and without prior notice or immediately suspend Customer's
access to the Service upon any breach of this Agreement by Customer, including,
but not limited to, (a) refusal or failure to pay for Service or (b) Customer's
performing activities harmful to datah.com or its other Customers, employees,
vendors, business relationships or other users of the Internet, including
but not limited to, spamming; harassment; falsifying information; defamation;
violating a third party's privacy; infringing a third party's intellectual
property rights; failing to adhere to datah.com's security policies or
standards that may result in network vulnerability; or hacking or other
effort to gain unauthorized access to any server, directory, or account
information, all as determined by datah.com in its sole discretion. datah.com
may also terminate this Agreement without cause at any time upon thirty
(30) days prior Notice.
Unauthorized use of the datah.com Services in connection with the transmission
of unsolicited bulk e-mail ("SPAM"), including the transmission of counterfeit
e-mail, may result in civil and criminal penalties against the sender,
including those provided by the Computer Fraud and Abuse Act (18 U.S.C.
§ 1030 et seq.) datah.com's response to a first spamming offense is
to either terminate the account immediately or advise and educate
the Customer through an e-mail warning and/or phone call, in datah.com's
sole discretion. A minimum $100 (One Hundred U.S. Dollars) per hour
spam handling fee will be charged to Customer's account for all valid
complaints, as determined by the datah.com Abuse Team.
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| 7. |
Termination
by Customer.
Customer may terminate this Agreement if month-to-month upon forty-five
(45) days prior notice and full payment of all subscription fees through
the end of the notice period. Term accounts may only be cancelled by paying
a cancellation fee equal to seventy-five percent (75%) of the remaining
contract balance and by making payment of any outstanding telecommunications
charges related to the establishment, maintenance and cancellation of
Service to the Customer. If datah.com breaches any material term of this
Agreement and such breach continues for ten (10) business days after Customer
has notified datah.com, you may immediately terminate this Agreement.
The foregoing notwithstanding, Customer agrees that payments for domain
registration services are non-refundable. Domain registrations may only
be terminated if Customer notifies datah.com in writing within 72 hours
of the initial domain registration application submission.
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| 8. |
Data.
Customer understands and agrees the Internet is a conglomeration of networks
and servers operated by distinct entities having no business or legal
relationship to datah.com. datah.com has no input whatsoever as to the
content of Internet data accessed via the Service. Customer is solely
responsible for any value or reliance it places on information obtained
via the Internet or the Service. INFORMATION DERIVED AS A RESULT OF
THIS AGREEMENT IS PROVIDED "AS IS" AND AT CUSTOMER'S OWN RISK.
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| 9. |
Illegality/Adult
Content Policy.
datah.com neither sanctions nor permits hosted site content or the transmission
of data that contains illegal or obscene material or fosters or promotes
illegal activity. datah.com reserves the right to immediately suspend
or terminate any site or transmission that violates this policy, without
prior notice. In the event of such termination, Customer agrees that the
unused portion of any fees Customer may have paid for any Services rendered
to Customer by datah.com are an appropriate recompense to datah.com for
the time required to respond to and address issues created by Customer's
illegal or obscene site/content, and Customer agrees not to seek recovery
of those fees. Further, should Customer violate this policy, datah.com
will actively assist and cooperate with law enforcement agencies and government
authorities in collecting and tendering information about Customer, Customer's
site, the illegal or obscene content, and those persons that may have
inappropriately accessed, acquired, or used the illegal or obscene content.
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| 10, |
Limited
Warranty/Security.
datah.com warrants only that it shall, subject to the terms and conditions
of this Agreement, provide Customer the Service. CUSTOMER AGREES THAT
THE SERVICE IS BEING PROVIDED "AS AVAILABLE" AND "AS IS," WITH ALL FAULTS
ACCEPTED. datah.com MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATIVE
TO THIS AGREEMENT AND THE SERVICES DERIVED THEREUNDER AND SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR AGAINST INFRINGEMENT. datah.com FURTHER DISCLAIMS ANY WARRANTY
OR REPRESENTATION AS TO THE INTERNET AND INFORMATION DERIVED THEREFROM.
datah.com DOES NOT WARRANT THAT THE SERVICE OR THE CONTENT WILL BE UNINTERRUPTED,
ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL CONTENT AND ACTIVITY.
IT IS THE CUSTOMER'S SOLE RESPONSIBILITY TO PERFORM ANTI-VIRUS SCANS,
SECURE THE CONTENT OF HOSTED SITES AGAINST HACKERS AND OTHER SECURITY
INTRUSIONS (INCLUDING PROTECTION OF CREDIT CARD OR PERSONAL INFORMATION
BELONGING TO CUSTOMER'S CUSTOMERS), AND OTHERWISE MONITOR WHAT MAY BE
HARMFUL OR OFFENSIVE CONTENT ON YOUR SITES OR RUNNING THROUGH YOUR CONNECTION
TO THE INTERNET. YOU MUST DETERMINE THE SUITABILITY OF THE datah.com SERVICES
FOR THE AFOREMENTIONED TASKS, GIVEN YOUR PARTICULAR USE OF THE INTERNET.
IF THE SERVICES, AS PROVISIONED, DO NOT ENABLE YOU TO FULFILL THESE RESPONSIBILITIES,
IT IS YOUR RESPONSIBILITY TO SECURE PRODUCTS OR SERVICES, AT YOUR EXPENSE,
THAT PERMIT YOU TO MEET THESE SECURITY OBLIGATIONS.
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| 11. |
Limitation
of Liability.
Each party specifically agrees that, in no event, shall either party's
liability as a result of this Agreement and the provision of Service hereunder,
exceed Customer's monthly fee for any single month during which any claim
of liability arose or the amount paid for any term Agreement. Neither
party shall have liability whatsoever for any indirect, special, incidental,
consequential or punitive damages of any kind, including but not limited
to, lost revenue and lost profit.
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| 12. |
Compliance
and Indemnification.
Customer agrees to use the Service in compliance with all applicable laws,
and to host files or content, if at all, only with the consent of the
copyright, trademark, domain name, or patent owner. Customer shall be
charged for all costs incurred by datah.com, including reasonable attorney
fees, for any claim, loss, or damage arising out of Customer's use or
misuse of the Internet or the Services.
Customer specifically agrees to defend, indemnify, and hold harmless
datah.com, its officers, and employees from any claim, loss, or damage,
including costs and reasonable attorney fees, arising out of any act
or omission of Customer under this Agreement or its use of the Service.
This specifically includes any liability to which datah.com may be exposed
arising out of Customer's having root or password access to any domain
name or other server, and Customer hereby releases and holds datah.com
harmless from and against any such liability or damage.
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| 13. |
Personal
Files/E-Mail Inbox.
datah.com is not responsible for back ups of Customer's personal
files or other information. datah.com reserves the right to delete Customer
information and files upon termination of the Service. Any IP addresses
assigned to Customer are considered loaned by datah.com and will revert
back to datah.com after cessation of the Service. E-mail inboxes have
size limits set by datah.com. Once that size limit is reached or exceeded,
Customer will receive notification, and no more e-mail will be delivered
to that inbox until the size of the inbox is reduced by Customer to below
the limit for that account.
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| 14. |
Privacy.
Privacy issues are governed by datah.com's Privacy Policy, and that document
should be consulted for any questions you may have about how datah.com
uses your Customer information. You are required to develop and post a
privacy policy on your web sites to the extent you gather any personal
information from your customers or from visitors to your site.
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| 15. |
Notice.
Notice to datah.com shall be in writing and delivered by hand, e-mail,
facsimile, or, if sent by certified mail, return receipt requested, or
a nationally recognized overnight delivery service that keep records of
deliveries and attempted deliveries (such as FedEx). It is imperative
that datah.com be able to contact Customer at all times. Customer must
promptly advise datah.com of any changes to his, her or its contact information,
including mailing and e-mail addresses and phone number. Failure to do
so constitutes grounds for immediate termination; moreover, any notices
from datah.com to Customer sent to Customer's last known e-mail address
as provided by Customer to datah.com shall be deemed effective even if
Customer has failed to provide updated information to datah.com.
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| 16. |
Payment/Taxes.
Customer shall pay datah.com for all charges listed on datah.com's invoice,
including all shipping and handling charges and other charges incidental
to the provisioning of the Services. Unless otherwise stated on the face
hereof, all payments shall be due upon receipt of invoice. On any amounts
not paid when due, Subscriber agrees to pay interest at the rate of 1.5%
per month (18% per year) or, if such rate is in excess of the rate allowed
by law, then Subscriber agrees to pay the highest rate allowed by law.
In addition, Subscriber agrees to pay all costs of collection, including
costs of litigation and reasonable attorneys' fees. Subscriber agrees
to execute financing statements and other instruments at datah.com's request.
A $20.00 (Twenty U.S. Dollars) collection fee will be charged for all
dishonored checks. Any tax liability arising from Customer's use of the
Service (other than taxes on datah.com income) will be Customer's responsibility.
Customer will pay all sales and use taxes relating to the Service, as
well as all duties or levies on Products and Services.
(a) Payment Terms. Unless otherwise subscribed or agreed, payment of
the selected Service is due monthly on the first day of each calendar
month for the Service to be rendered during the upcoming month. datah.com
reserves the right to adjust its fees for Service hereunder at any time
in the event datah.com experiences a rate increase from its telecommunications
supplier. However, if Customer has signed a term agreement, datah.com's
pricing will remain constant for the agreed-to term.
datah.com is not responsible for the pricing of any phone company service
fees whether billed directly to Customer by the phone company or through
datah.com on behalf of the phone company. AUTHORIZED CHARGES TO CREDIT
CARDS SHALL BE MADE IN ADVANCE, ON OR ABOUT THE ANNIVERSARY DATE OF
THE SERVICE FOR THE TERM OF THIS AGREEMENT UNTIL TERMINATED AS PROVIDED
HEREIN. A fee of $15 (Fifteen U.S. Dollars) will be assessed for the
following reasons: (1) late payment, (2) payment with insufficient funds,
(3) denied or invalid credit card number, or (4) restart of Service
terminated for non-payment. Payment is late after the fifth (5th) calendar
day of the month. datah.com may change any fee, rate, or plan upon thirty
(30) days' notice. Refunds, if any, from termination or cancellation
of term or pre-paid accounts are only available as if the Customer were
a month-to-month Customer, and will not be based on the discount the
Customer may have received for prepaying the account.
(b) Payment Method. CUSTOMER HEREBY AUTHORIZES CHARGES TO BE MADE IN
ADVANCE TO THE IDENTIFIED CREDIT CARD EACH MONTH FOR THE DURATION OF
THIS AGREEMENT IN THE AMOUNT OF THE SELECTED SERVICE SET FORTH BELOW
OR AS CHANGED BY datah.com AFTER NOTICE TO CUSTOMER. Payment may be
made by check or purchase order only by key accounts and only upon prior
authorization by datah.com. Customer additionally authorizes periodic
verification of credit worthiness. datah.com, in its sole discretion
and judgment, may discontinue credit at any time without notice.
(c) Security for Indebtedness. In the event that Customer fails to pay
datah.com all amounts owed datah.com under this Agreement when due,
Customer agrees that, upon delivery of notice to Customer via facsimile,
e-mail or other method approved hereby, datah.com may (i) restrict Customer's
physical access to any Customer equipment or data, and/or (ii) take
possession of any Customer equipment or data and store it, at Customer's
expense, until taken in full or partial satisfaction of any lien or
judgment, all without being liable to prosecution or for damages.
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| 17. |
Force
Majeure.
datah.com shall not be liable for any delay in performance directly or
indirectly caused by or resulting from acts of God, or any third party
telecommunications or Internet connectivity providers, fire, flood, accident,
riot, war, government intervention, embargoes, strikes, labor difficulties,
equipment failure, late delivery by suppliers or other difficulties which
are beyond the reasonable control of datah.com.
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| 18. |
Waiver;
Severability.
No waiver by either party of any breach by the other party of any provision
of this Agreement shall be deemed or construed to be a waiver of any succeeding
breach of such provision or as a waiver of the provision itself. If any
provision of this Agreement is stricken as unenforceable, the rest of
the Agreement shall remain in full force and effect.
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| 19. |
Successors
and Assigns.
This Agreement is not assignable or delegable in whole or in part by Customer
without the prior express written consent of datah.com. This Agreement
shall be binding upon the heirs and successors of the parties hereto,
the assigns of datah.com, and permitted assigns of Customer. This Agreement
is assignable by datah.com provided datah.com gives Customer written notice
of such an assignment and the assigning party(ies) is/are capable of performing
all of datah.com's obligations hereunder.
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| 20. |
No
Resale.
The Service provided hereunder is limited to Customer and may not be resold
in any manner whatsoever unless Customer selects a reseller plan and datah.com
provides written acceptance of Customer's selection of a reseller plan.
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| 21. |
Modification
or Amendment to Agreement.
This Agreement may be amended or modified from time to time upon Notice
to Customer in datah.com's sole discretion. This Agreement shall not be
supplemented or modified by any course of dealing or other trade usage.
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| 22. |
Entire
Agreement.
These terms and conditions constitute the entire Agreement with regard
to the subject matter hereof and expressly supersede and replace any prior
or contemporaneous agreements, written or oral, relating to this Agreement.
This Agreement may be amended by datah.com at any time without notice,
so please check back frequently to review changes. Any changes or amendments
to this Agreement shall be set forth at www.datah.com. This Agreement
may not be amended by Customer unless the amendment is approved by both
parties in writing. Any questions about this Agreement should be directed
to legal@datah.com.
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