8. Limitation of Damages
9. Suspension of Services/Termination
10. Request for Customer Information
11. Back Up Copy
12. Changes to YPHOST.COM's Network
13. Notices
14. Force Majeure
15. Governing Law/Disputes
16. Miscellaneous
17. Acceptable Usage of Resources
1. Services.
Subject to the terms of this Agreement, and contingent on Customer's
satisfaction of
YPHOST.COM credit approval requirements,
YPHOST.COM agrees to provide the web hosting services described in the Order
for the fees stated in the Order.
2. Term.
The initial service term of the Agreement shall begin on the date that
YPHOST.COM generates an e-mail message to Customer announcing the activation
of the Customer's account (the "Service Commencement Date") and shall continue
for the number of months stated in the Order (the "Initial Term"). Upon
expiration of the Initial Term, this Agreement shall automatically renew with
same length as the Initial Term (each a "Renewal Term") unless
YPHOST.COM or Customer provides the other with written notice of non-renewal
at least thirty (30) days prior to the expiration of the Initial Term or
then-current Renewal Term, as applicable. The Initial Term and any Renewal Term
may be referred to collectively in this Agreement as the "Term."
3. Payments.
(a) Fees. Fees are payable in advance on the first day of each billing cycle.
Customer's billing cycle shall be monthly, quarterly, or annually as indicated
on the Order, beginning on the Service Commencement Date.
YPHOST.COM may require payment for the first billing cycle before beginning
service. If the Order provides for credit/debit card billing, Customer
authorizes
YPHOST.COM to bill subsequent fees to the credit/debit card on or after the
first day of each successive billing cycle during the Term of this Agreement;
otherwise
YPHOST.COM will invoice Customer via electronic mail to the Primary Customer
Contact listed on the Order.
Payments must be made in United States dollars. Customer is responsible for
providing
YPHOST.COM with changes to billing information (such as credit card
expiration, change in billing address).
YPHOST.COM may suspend the service without notice if payment for the service
is overdue. Fees not disputed within sixty (60) days of due date are
conclusively deemed accurate.
(b) Early Termination.
Customer acknowledges that the amount of the fee for the service is based on
Customer's agreement to pay the fee for the entire Initial Term, or Renewal
Term, as applicable. In the event
YPHOST.COM terminates the Agreement for Customer's breach of the Agreement
in accordance with Section 9 (Termination), or Customer terminates the service
other than in accordance with Section 9 (Termination) for YPHOST.COM's breach,
the unpaid fees for each billing cycle remaining in the Initial Term or
then-current Renewal Term, as applicable, are due on the business day following
termination of the Agreement.
4. Compliance with all Laws
Customer agrees to use the service in a manner consistent with any and all
applicable laws and regulations of the United States of America , the
Commonwealth of Virginia , and Lebanon. Reproduction or transmission of any
material in violation of any local, state, U.S. , or international law or
regulation is prohibited. The Customer agrees that any material to be reproduced
or transmitted on
YPHOST.COM's service through Customer 's account(s) does not violate or
infringe any copyright, trademark, patent, statutory, common law or proprietary
rights.
5. Customer Information.
Customer represents and warrants to
YPHOST.COM that the information he, she or it has provided and will provide
to
YPHOST.COM for purposes of establishing and maintaining the service is
accurate. If Customer is an individual, Customer represents and warrants to
YPHOST.COM that he or she is at least 18 years of age.
YPHOST.COM may rely on the instructions of the person listed as the Primary
Customer Contact on the Order with regard to Customer's account until Customer
has provided a written notice changing the Primary Customer Contract.
6 Indemnification.
Customer agrees to indemnify and hold harmless
YPHOST.COM, YPHOST.COM's affiliates, and each of their respective officers,
directors, agents, and employees from and against any and all claims, demands,
liabilities, obligations, losses, damages, penalties, fines, punitive damages,
amounts in interest, expenses and disbursements of any kind and nature
whatsoever (including reasonable attorneys fees) brought by a third party under
any theory of legal liability arising out of or related to the actual or alleged
use of Customer's services in violation of applicable law or the TOS by
Customer or any person using Customer's log on information, regardless of
whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties.
YPHOST.COM DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY
APPLICABLE LAW
YPHOST.COM DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS"
BASIS.
8. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY
KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE
DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN
ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM
AGGREGATE LIABILITY OF
YPHOST.COM AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY
OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT)
SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR
THREE MONTHS OF SERVICE.
9. Suspension/Termination.
(a) Suspension of Service.
Customer agrees that
YPHOST.COM may suspend services to Customer without notice and without
liability if: (i)
YPHOST.COM reasonably believes that the services are being used in violation
of the TOS; (ii) Customer fails to cooperate with any reasonable investigation
of any suspected violation of the TOS; (iii) Customer threatens, insults or or disrupts
YPHOST.COM employees, third party employees or customers; (iv)
YPHOST.COM reasonably believes that the suspension of service is necessary
to protect its network or its other customers, or (v) as requested by a law
enforcement or regulatory agency. Customer shall pay YPHOST.COM's reasonable
reinstatement fee if service is reinstituted following a suspension of service
under this subsection.
(b) Termination.
The Agreement may be terminated by Customer prior to the expiration of the
Initial Term or any Renewal Term without further notice and without liability if
YPHOST.COM fails in a material way to provide the service in accordance with
the terms of the Agreement and does not cure the failure within ten (10) days of
Customer's written notice describing the failure in reasonable detail. The
Agreement may be terminated by
YPHOST.COM prior to the expiration of the Initial Term or any Renewal Term
without further notice and without liability as follows: (i) upon ten (10) days
notice if Customer is overdue on the payment of any amount due under the
Agreement; (ii) Customer materially violates any other provision of the
Agreement, including the TOS, and fails to cure the violation within thirty (30)
days of a written notice from
YPHOST.COM describing the violation in reasonable detail; (iii) upon one (1)
days notice if Customer's Service is used in violation of a material term of the
TOS more than once, or (iv) upon one (1) days notice if Customer violates
Section 5 (Customer Information) of this Agreement. Either party may terminate
this agreement upon ten (10) days advance notice if the other party admits
insolvency, makes an assignment for the benefit of its creditors, files for
bankruptcy or similar protection, is unable to pay debts as they become due, has
a trustee or receiver appointed over all or a substantial portion of its assets,
or enters into an agreement for the extension or readjustment of all or
substantially all of its obligations.
10. Requests for Customer Information.
Customer agrees that
YPHOST.COM may, without notice to Customer, (i) report to the appropriate
authorities any conduct by Customer or any of Customer's customers or end users
that
YPHOST.COM believes violates applicable law, and (ii) provide any
information that it has about Customer or any of its customers or end users in
response to a formal or informal request from a law enforcement or regulatory
agency or in response to a formal request in a civil action that on its face
meets the requirements for such a request.
11. Back Up Copy.
Customer agrees to maintain a current copy of all content hosted by
YPHOST.COM notwithstanding any agreement by
YPHOST.COM to provide back up services.
12. Changes to YPHOST.COM's Network.
Upgrades and other changes in YPHOST.COM's network, including, but not limited
to changes in its software, hardware, and service providers, may affect the
display or operation of Customer's hosted content and/or applications.
YPHOST.COM reserves the right to change its network in its commercially
reasonable discretion, and
YPHOST.COM shall not be liable for any resulting harm to Customer.
13. Notices.
Notices to
YPHOST.COM under the Agreement shall be given via electronic mail to the
e-mail address posted for customer support. Notices to Customer shall be given
via electronic mail to the individual listed as the Primary Customer Contact on
the Order. Notices are deemed received on the day transmitted, or if that day is
not a business day, on the first business day following the day delivered.
Customer may change his, her or its notice address by a notice given in
accordance with this Section.
14. Force Majeure
YPHOST.COM shall not be in default of any obligation under the Agreement if
the failure to perform the obligation is due to any event beyond YPHOST.COM's
control, including, without limitation, significant failure of a portion of the
power grid, significant failure of the Internet, natural disaster, war, riot,
insurrection, epidemic, strikes or other organized labor action, terrorist
activity, or other events of a magnitude or type for which precautions are not
generally taken in the industry.
15. Governing Law/Disputes.
The Agreement shall be governed by the laws of the State of North Carolina ,
exclusive of its choice of law principles, and the laws of the United States of
America , as applicable. The Agreement shall not be governed by the United
Nations Convention on the International Sale of Goods.
16. Miscellaneous.
Each party acknowledges and agrees that the other party retains exclusive
ownership and rights in its trademarks, service marks, trade secrets,
inventions, copyrights, and other intellectual property. Neither party may use
the other party's name or trade mark without the other party's prior written
consent. The parties intend for their relationship to be that of independent
contractors and not a partnership, joint venture, or employer/employee. Neither
party will represent itself to be agent of the other. Each party acknowledges
that it has no power or authority to bind the other on any agreement and that it
will not represent to any person that it has such power or authority. This
Agreement may be amended only by a formal written agreement signed by both
parties. The terms on Customer's purchase order or other business forms are not
binding on
YPHOST.COM unless they are expressly incorporated into a formal written
agreement signed by both parties. A party's failure or delay in enforcing any
provision of the Agreement will not be deemed a waiver of that party's rights
with respect to that provision or any other provision of the Agreement. A
party's waiver of any of its right under the Agreement is not a waiver of any of
its other rights with respect to a prior, contemporaneous or future occurrence,
whether similar in nature or not. The captions in the Agreement are not part of
the Agreement, but are for the convenience of the parties. The following
provisions will survive expiration or termination of the Agreement: Fees,
indemnity obligations, provisions limiting liability and disclaiming warranties,
provisions regarding ownership of intellectual property, these miscellaneous
provisions, and other provisions that by their nature are intended to survive
termination of the Agreement. There are no third party beneficiaries to the
Agreement. Neither insurers nor the customers of resellers are third party
beneficiaries to the Agreement. Customer may not transfer the Agreement without
YPHOST.COM's prior written consent. YPHOST.COM's approval for assignment is
contingent on the assignee meeting YPHOST.COM's credit approval criteria.
YPHOST.COM may assign the Agreement in whole or in part.
17. Unacceptable usage of resources
The following types of conduct are grounds for immediate suspension of service
pending investigation by
YPHOST.COM and may result in termination (with or without a refund) of the
account(s) the investigation determines to have originated or transmitted these
types of traffic. In addition,
YPHOST.COM reserves the right, where feasible, to implement technical
mechanisms which block multiple postings by a Customer as described in (a) and
(b) below before such postings are forwarded:
(a) Posting a single article or substantially similar articles to an excessive
number of newsgroups (i.e., more than 20) or continued posting of articles which
are off-topic, according to the newsgroup charter, or which provoke complaints
from the regular readers of the newsgroup for being inappropriate, including
articles used for marketing or promoting a site which resides on the
YPHOST.COM network (Inappropriate Postings).
(b) Sending Unsolicited Business Emails (Spam) from
YPHOST.COM's Network. Spam is defined as 20 or more unsolicited messages
sent simultaneously.
(c) Engaging in either Inappropriate Postings (a) or Spam (b) from a provider
other than
YPHOST.COM for the express purpose of marketing a site which resides on the
YPHOST.COM network, or promoting a site on
YPHOST.COM's network through Spam from a non-related network. These tactics
are defined as Spamvertisement.
(d) Continued harassment of other individuals on the Internet after being asked
to stop by those individuals and/or by
YPHOST.COM.
(e) Mail bombing, i.e., sending large volumes of unsolicited E-Mail to
individuals or to individual business accounts.
(f) Impersonating another user or otherwise falsifying one's user name in
E-Mail, Usenet postings, on Internet Relay Chat (IRC), or with any other
Internet service. (This does not preclude the use of nicknames in IRC or the use
of anonymous remailer services.)
(g) Privacy violations: Attempts, whether successful or not, to gain access to
any other system or users' private data without express consent of the user.
(h) Use of IRC bots or clonebots on
YPHOST.COM, whether on IRC servers controlled by
YPHOST.COM or by other parties. An IRC bot is a program which runs and is
connected to an IRC server 24 hours a day, automatically performing certain
actions.
(i) Network unfriendly activity: Attempts to interfere with the regular workings
of
YPHOST.COM's systems or network connections or which adversely affect the
ability of other people or systems to use
YPHOST.COM services or the Internet, including, but not limited to:
1. any unauthorized attempts by a user to gain root access or access to any
account not belonging to that user on this or any other
YPHOST.COM system;
2. any use of this or any other
YPHOST.COM system as a staging ground to disable other systems.
(j) Physical server overusage: Usage of resources in a manner that will cause
performance issues of servers, networking components or any other physical
system used by
YPHOST.COM to provide it's services.
This Agreement together with the Order constitutes the complete and exclusive
agreement between the parties regarding its subject matter and supercedes and
replace any prior understanding or communication, written or oral.
We know how much of a hassle it is when you change hosts and we want to help. We
operate on the idea that the less headaches you have the better for all of us.
So that's why we are offering our new customers a free transfer from their old
webhost to us free of charge.
To do this you will just have to provide us with your Cpanel login details and
we'll do all the dirty work for you.
Note: This promotional offer applies to new customers (less than 30 days old
account) who were hosted on a cpanel system. Transfers that don't meet the above
requirements will be subjected to a 10$ per transfer fee.
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