This is an agreement between you and HOST45.COM regarding your use of HOST45.COM's computer, interactive information, communication and server management services. This Agreement governs the terms and conditions under which HOST45.COM makes the services offered by HOST45.COM available to individual consumers or small businesses. Under this Agreement, you must comply with HOST45.COM 's then current "Acceptable Use Policy," as updated from time to time by HOST45.COM.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
1. Term of Service
HOST45.COM will host an account for you, the purchaser (hereafter referred to as the "Account Holder"), for the Account Holder's chosen domain name, for the period of time (the "Term") corresponding with the payment plan chosen by the Account Holder. This contract will be automatically renewed at the end of the Term and each successive renewal term, unless terminated prior. Termination of services by the Account Holder must be given in written form, at least 30 days prior to the termination date. Phone and email notification is not acceptable. For any one of the virtual hosting plans, the full amount paid less any set up fees and overages will be refunded if HOST45.COM is notified of your intent to terminate within the first 30 days following activation. No refund is available after the 30th day.
2. No Warranty
HOST45.COM's services are provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. HOST45.COM expressly disclaims any representation or warranty that the HOST45.COM services will be error-free, secure or uninterrupted. No oral advice or written information given by HOST45.COM, its employees, licensors of the like, will create a warranty; nor may you rely on any such information or advice. The terms of this Section will survive any termination of this Agreement.
3. Use of Services
The Virtual Web Server Internet account and/or related electronic services can only be used for legal purposes under all applicable international, federal, provincial, and municipal laws. Further, the Account Holder agrees not to store, transmit, link to, advertise or make available any images containing pornography. The Account Holder agrees to follow generally accepted rules of "Netiquette" when sending e-mail messages or posting to newsgroups. Violations of these or any other provisions of this Agreement may result in termination of the services provided by HOST45.COM, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of HOST45.COM based upon the severity of the violation. HOST45.COM reserves the right to refuse service if any of the content within, or any links from, the Account Holder's website is deemed illegal, misleading, or obscene, or is otherwise in breach of HOST45.COM's then current "Acceptable Use Policy", in the sole and absolute opinion of HOST45.COM. If HOST45.COM terminates the services being provided to the Account Holder, such termination shall be without refund. Notwithstanding anything in this Agreement, the content of the Account Holder's website is the sole responsibility of the Account Holder. The Account Holder agrees to indemnify and hold harmless HOST45.COM from any and all claims, losses, damages, liabilities, judgments, or settlements, including reasonable attorney's fees, costs, and other expenses incurred by HOST45.COM, (collectively, "Claims") related to or in connection with the content of the Account Holder's website. The terms of this Section will survive any termination of this Agreement.
4. Price Changes
HOST45.COM reserves the right to change, at any time, the prices charged to the Account Holder for the services provided by HOST45.COM.
5. Passwords; Account Ownership
The Account Holder is responsible for security of its password. HOST45.COM will not change passwords to any account without proof of identification, which is satisfactory to HOST45.COM, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes Account Holder, Account Holder understands that HOST45.COM will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will HOST45.COM be liable for any losses incurred by Account Holder during this time of determination of ownership, or otherwise. The Account Holder agrees to indemnify and hold harmless HOST45.COM from any and all Claims arising from such ownership disputes. The terms of this Section will survive any termination of this Agreement.
6. Shared Services
The Account Holder agrees not to harm HOST45.COM, its reputation, computer systems, programming and/or other persons using HOST45.COM's services. HOST45.COM reserves the right to select the server for Account Holder's website for best performance. The Account Holder understands that the services provided by HOST45.COM are provided on a shared server. This means that one website cannot be permitted to overwhelm the server with heavy CPU usage, for example from the use of highly active CGI scripts or chat scripts. If the Account Holder's website overwhelms the server and causes complaints from other users, the Account Holder has outgrown the realm of shared servers, and will need to relocate it's website. HOST45.COM will refund any unused portion of prepaid services. If the Account Holder refuses to comply with this Section, then HOST45.COM has the right to terminate the services provided to the Account Holder without any refunds of the unused portion prepaid by the Account Holder. The Account Holder agrees to indemnify and hold harmless HOST45.COM and any other Account Holder from any and all Claims resulting from the Account Holder's use of the services provided by HOST45.COM The terms of this Section will survive any termination of this Agreement.
7. Transfer of Rights
The Account Holder's rights and privileges under this Agreement cannot be sold or transferred without the prior written consent of HOST45.COM.
8. Sale of Advertising
If the Account Holder sells or resells advertising or webspace to a third party then the Account Holder will be responsible for the contents of that advertising and the actions of that third party. HOST45.COM has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current HOST45.COM "Acceptable Use Policy". The e-mail distribution by the Account Holder of "SPAM", "JUNK MAIL", or "UNSOLICITED COMMERCIAL E-MAIL", is expressly prohibited. If the Account Holder refuses to remove any advertising or other third party content deemed objectionable by HOST45.COM, HOST45.COM may terminate the services being provided to the Account Holder, without refund.
9. Limitation of Liability
HOST45.COM will use its best efforts to maintain a full time Internet presence for the Account Holder. The Account Holder hereby acknowledges that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall HOST45.COM be liable to the Account Holder for any damages resulting from or related to any failure or delay of HOST45.COM in providing access to the Internet under this Agreement. In no event shall HOST45.COM be liable to the Account Holder for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof. The aggregate, total liability of HOST45.COM under this Agreement, if any, shall in no event or circumstance exceed the total amount actually paid by the Account Holder hereunder. The terms of this Section will survive any termination of this Agreement.
10. Account Holder Responsibility
This Agreement applies to all accounts, sub-accounts, and alternative account names associated with your principal account. The Account Holder is responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account. A HOST45.COM account may not be transferred without prior written approval from HOST45.COM. The Account Holder is responsible for maintaining the confidentiality of his/her password. In the event of a breach of security through the Account Holder's account, the Account Holder will be liable for any unauthorized use of the HOST45.COM services, including any damages resulting therefrom, until the Account Holder notifies HOST45.COM's customer service.
11. IP Address
If HOST45.COM assigns the Account Holder an Internet Protocol address in connection with the Account Holder's use of the HOST45.COM services, the right to use that Internet Protocol address will remain with and belong only to HOST45.COM, and the Account Holder will have no right to use that Internet Protocol address except as allowed by HOST45.COM in its sole and absolute discretion.
12. Entire Agreement
This Agreement constitutes the entire agreement between the Account Holder and HOST45.COM with respect to the HOST45.COM services and supersedes all prior agreements between the Account Holder and HOST45.COM. HOST45.COM's failure to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. The terms of this Section will survive any termination of this Agreement.
13. Dispute Resolution
The parties shall attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation and with a problem-solving mindset, without formal proceedings. Any dispute, which cannot be so resolved, shall be subject to binding arbitration upon the written demand of either party. Arbitration shall take place in San Diego, CA. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels. The terms of this Section will survive any termination of this Agreement.
The Account Holder agrees to indemnify and hold HOST45.COM harmless from any and all Claims resulting from or connected with any activities conducted by the Account Holder. The Account Holder and HOST45.COM will promptly notify the other upon receipt of any Claim or legal action arising out of activities conducted pursuant to this Agreement. The rights and responsibilities established in this paragraph will survive any termination of this Agreement.
15. Use of Account Holder's Name
HOST45.COM may include the Account Holder's name and contact information in directories of HOST45.COM service subscribers for the purpose promoting the use of the services by additional potential clients. However, HOST45.COM is not authorized to print the Account Holder's name, trademarks or other identifying information in any other advertising or promotional materials without the prior written consent of the Account Holder.
Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery or by mail. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested; with all postage and charges prepaid. All notices and other written communications under this Agreement shall be addressed to the individuals in the capacities indicated below, or as specified by subsequent written notice delivered by the party whose address has changed.
17. Successors and Assigns
This Agreement shall be binding on the parties, and on their successors and assigns, without regard to whether it is expressly acknowledged in any instrument of succession or assignment.