WEB HOSTING TERMS AND CONDITIONS
BY CONTINUING TO USE OUR SERVICES YOU AGREE TO THE FOLLOWING:
1.1 “Content” means all text, pictures, sound, graphics, video and other data supplied by Customer to Provider pursuant to Sections 2, as such materials may be modified from time to time.
1.2 “Fee” means the fees set forth in the agreement for Website hosting services provided pursuant to Section 2.
1.3 “Domain Name(s)” means the domain name(s) used for the Website.
1.4 “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
1.5 “Website” means the user interface, functionality and Content made available on pages under the Domain Name.
2. Web Hosting.
2.1 Services. Provider shall provide the following web hosting services:
(a) Hosting. Provider shall upload the Content to a web server and make the Website available to the general public by entering the Domain Name(s) in the Domain Name System.
(b) Site Backup. Provider at its expense shall make and keep a complete backup of the Website and keep this backup to be used when needed.
(c) Standards. Provider’s hosting standards shall conform to the following:
(i) Availability of Web Site. The Website shall be publicly available to users a minimum of 98% of the time during any 30 day period; and there will be no period of interruption in public accessibility to the Website that exceeds 4 continuous hours.
(ii) Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Provider, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Customer and/or Provider may immediately terminate this Agreement.
2.2 Customer License. During the period that Provider provides web hosting services pursuant to this Section 2, Customer hereby grants to Provider a non-exclusive, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, publicly perform, publicly display and digitally perform the Content and Work Product only on or in conjunction with the Website. Customer grants no rights other than explicitly granted herein, and Provider shall not exceed the scope of its license.
2.3 Trademarks. Subject to the terms and conditions of this Agreement, each party hereby grants to the other party a limited, non-exclusive, non-sublicenseable, royalty-free, worldwide license to use such party’s trademarks, service marks, trade names, logos or other commercial or product designations (collectively, “Marks”) for the purposes of creating content directories or indexes and for marketing and promoting the Website. The trademark owner may terminate the foregoing license if, in its sole discretion, the licensee’s use of the Marks does not conform to the owner’s standards. Title to and ownership of the owner’s Marks shall remain with the owner. The licensee shall use the Marks exactly in the form provided and in conformance with any trademark usage policies. The licensee shall not form any combination marks with the other party’s Marks. The licensee shall not take any action inconsistent with the owner’s ownership of the Marks and any benefits accruing from use of such Marks shall automatically vest in the owner.
3.1 Fees. Customer agrees to pay the yearly fee in advance, the latest on the day the Website will be available online. When payment has not been received in time, Provider may interrupt the web hosting service until payment and a reconnection fee of $ 30 has been received.
3.2. Satisfaction Guarantee. If Customer is not satisfied with the Services of Provider and notifies Provider within 30 days after the initial payment, a full refund will be made by Provider. The registration fee for a domain name if this was part of the agreement will be deducted from the refund and ownership of the domain name will remain with Provider for the remainder of the registration period.
4. Term And Termination.
4.1 Term. The initial term of this Agreement is twelve (12) months Thereafter, this Agreement shall continue until terminated with at least 30 days written notice.
4.2 Termination for Cause. Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for 60 days following written notice to the breaching party.
4.3 Termination During Website Hosting. If this Agreement should be terminated during the initial term, the Work Product may not be used by Customer to make the Website publicly available.
5. Work Product Warranties. Provider warrants that any Work Product, Provider Tools or Provider-made changes to the Content shall not: (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation and (c) contain any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
6. Customer Covenants. During the period that Provider provides Web hosting services pursuant to Section 2, Customer shall not distribute on the Website any Content that: (a) infringes on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti discrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, child pornographic or indecent.
7. Disclaimer Of Warranties. EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.1 Ownership of Content. As between Provider and Customer, any Content given to Provider by Customer under this Agreement or otherwise, and all User Content, shall at all times remain the property of Customer or its licensor. Provider shall have no rights in such Content or User Content other than the limited right to use such content for the purposes expressly set forth in this Agreement.
9.1 Customer Indemnity. Customer shall defend Provider against any third party claim, action, suit or proceeding alleging any breach of the covenants contained in Section 7. Subject to Section 10.3, Customer shall indemnify Provider for all losses, damages, liabilities and all reasonable expenses and costs incurred by Provider as a result of a final judgment entered against Provider in any such claim, action, suit or proceeding.
9.2 Provider Indemnity. Provider shall defend Customer against any third party claim, action, suit or proceeding resulting from Provider’s acts, omissions or misrepresentations under this Agreement (including without limitation Provider’s breach of the warranties contained in Sections 7). Subject to Section 10.3, Provider shall indemnify Customer for all losses, damages, liabilities and all reasonable expenses and costs incurred by Customer as a result of a final judgment entered against Customer in any such claim, action, suit or proceeding.
9.3 Mechanics of Indemnity. The indemnifying party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
10. Confidential Information. Customer’s “Confidential Information” are any passwords used in connection with the Website, all Server Logs, all Work Product and documents related to the Work Product, any Content which Customer designates as confidential, and any other materials of Customer which Customer designates as confidential or which Provider should reasonably believe to be confidential. Provider’s “Confidential Information” is defined as the source code of any Provider Tools. Provider understands and agrees that Customer does not want any other Confidential Information of Provider, and should the parties believe that additional confidential information of Provider needs to be disclosed to Customer, the parties shall execute a separate non-disclosure agreement regarding such information. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party’s Confidential Information.
11. Limitations On Liability. EXCEPT FOR BREACHES OF SECTION 13.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
12. General Provisions.
12.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the Commonwealth of Puerto Rico without giving effect to principles of conflict of laws. Both parties agree to submit to jurisdiction in Puerto Rico and further agree that any cause of action arising under this Agreement may be brought in a court in Puerto Rico.
12.2 Further Assurances. Provider shall cooperate with Customer, during the term of this Agreement, in the procurement and maintenance of Customer’s rights to intellectual property created hereunder.
12.3 Compliance With Laws. Provider shall ensure that its Website design and its web hosting services will comply with all applicable international, national and local laws and regulations.
12.4 Severability Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
12.5 Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
12.6 Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Provider shall work exclusively for Provider and shall not, for any purpose, be considered employees or agents of Customer. Provider assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
12.7 Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing.
12.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
12.9 Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.