Legal Information / Web Hosting Agreement
NEXCO WEBSITE HOSTING - DEDICATED AND VIRTUAL DEDICATED SERVER SERVICE AGREEMENT
This Website Hosting Dedicated and Virtual Dedicated Server Service Agreement ("Agreement") is by and between Nexco, Inc. ("Nexco"), a California corporation, and You, Your heirs, assigns, agents and contractors ("Customer") and is effective as of the date of electronic or written execution or any use of Nexco Hosting or Hosting Support Services.
This Agreement sets forth the terms and conditions of Customer's use of Nexco's Website and Dedicated and/or Virtual Dedicated Server services (collectively, the "Services") and represents the entire agreement between Customer and Nexco as it relates to hosting and all support services related to hosting. By using the Services, Customer acknowledges that Customer has read, understands and agrees to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies, including Customer's Statement of Work or Master Services Agreement (if any), which Nexco may establish and/or update from time to time.
In addition to transactions entered into by Customer on Customer's behalf, Customer also agrees to be bound by the terms of this Agreement for transactions entered into on Customer's behalf by anyone acting as Customer's Agent, and transactions entered into by anyone who uses the account Customer has established with Nexco, whether or not the transactions were in Customer's behalf.
1. SCOPE OF SERVICES; RESTRICTIONS; CUSTOMER OBLIGATIONS
1.1 Service Definition: Nexco currently provides the Services to its customers for a monthly fee. Nexco will host Customer's Website on Nexco's servers, provided, however, Customer abides by the terms and conditions set forth herein and in each of Nexco's policies and procedures here.
1.2 License of Customer's Website Content: Nexco grants to Customer, and Customer accepts from Nexco, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Customer's Website content in connection with Nexco's performance or enforcement of this Agreement.
1.3 Service Availability Guarantee: Nexco shall use commercially reasonable efforts to cause the Site to be accessible via the Internet at least 99% of the time, as measured on a monthly basis, except for periods of Excused Downtime (the "Uptime Commitment"). In the event of any failure of Nexco to meet the Uptime Commitment, Nexco's sole and exclusive liability and Customer's sole remedy shall be a pro-rata refund of the applicable fees for the period of time which the Uptime Commitment was not met; provided, however, that in order to receive such a remedy, Customer must promptly notify Nexco of any such failure. Said refund does not apply to service interruptions caused by:
• periodic scheduled maintenance or repairs Nexco may undertake from time to time;
• errors caused by Customer from custom scripting or coding;
• outages that do not affect the appearance of the Website but merely affect access to the Website such as FTP and email;
• causes beyond the control of Nexco or that are not reasonably foreseeable by Nexco ; and
• outages related to the reliability of certain programming environments.
Total Uptime Commitment shall be solely determined by Nexco and shall be calculated on a monthly basis.
1.4 Availability of Services: Subject to the terms and conditions of this Agreement, Customer agrees that from time to time the Services may be inaccessible or inoperable for any reason ("Excused Downtime"). Excused Downtime shall mean periods of scheduled or emergency maintenance, interruptions due to Customer requests, and interruptions otherwise beyond the reasonable control of Nexco, including, without limitation:
• equipment malfunctions;
• periodic maintenance procedures or repairs that Nexco may undertake from time to time; or
• causes beyond the control of Nexco or that are not reasonably foreseeable by Nexco, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
Customer agrees that Nexco has no control of availability of the Services on a continuous or uninterrupted basis.
1.5 Acceptable Use Policy for Website Content: Customer shall be solely responsible for providing, updating, uploading and maintaining Customer's Website and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Customer's Website, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. Customer's Website content shall also include any registered domain names provided by Customer or registered on behalf of Customer in connection with the Services.
Notwithstanding anything in this Agreement to the contrary, in no event shall Customer's Website consist of any of the following types of content or engage in any of the following types of activities:
• transmitting mass unsolicited e-mail, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis (A message is considered unsolicited if it is posted in violation of a newsgroup charter or sent to a recipient who has not requested the message. Making an email address available to the public does not constitute a request to receive messages. Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email.)
• any activity which has a substantial likelihood of giving rise to third party civil claims;
• transmitting files that could potentially infringe the copyright, trademark, patent, trade secret or other intellectual property right of any person;
• pornographic, obscene, grossly offensive, threatening, malicious or excessively profane content;
• hate, violence or racial or ethnic intolerance;
• as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service attacks, probing the security of any networks, spawning dozens of processes, port scans, ping floods, packet spoofing, and forging router information, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop, promulgation of viruses, and IRC bots, such as eggdrop or BitchX, or other abusive activities;
• use of software or scripts that cause a server load beyond a reasonable level as determined by Nexco;
• gambling;
• illegal activity;
• drug paraphernalia;
• creating a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
• use as an anonymous gateway, proxy service or "open relay";
• running phantom programs in the background on a Nexco server without Nexco's prior written authorization;
• exporting, re-exporting or downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;
• content intended to advocate or advance computer hacking or cracking or other perpetration of security breaches;
• interference, disruption or attempt to gain unauthorized access to any computer system, server, network or account for which Customer does not have authorization to access or at a level exceeding Customer's authorization;
• dissemination or transmission of any virus, trojan horse or other malicious, harmful or disabling data, work, code or program;
• use of site as repository or instrument for placing or storing archived files; or placing or storing material that can be downloaded through other Websites such as with online advertising, various kinds of live feeds and video and or music sharing as well as other types of repository services.
When Nexco becomes aware of possible violations of the types described here or other similar types, Nexco may initiate an investigation that may include gathering information from Customer and the complaining party, if any, and examination of material on Nexco's servers. Nexco, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of this Agreement could subject Customer to criminal or civil liability. In certain cases, upon Nexco's discovery of such content or activities on Customer's Website, Nexco will take Customer's Website offline at Customer's expense until Customer removes the disallowed content. There are no refunds for downtime due to site outages caused by disallowed content or activities. Customer acknowledges and agrees Nexco has the right to terminate Customer's Services in its sole discretion and for any reason, including, but not limited to, Customer's failure or unwillingness to comply with the terms and limitations of this Agreement, specifically, the content and material restrictions set forth in this Agreement.
1.6 Freedom of Speech: Nexco supports free speech on the Internet and will not suspend or cancel Customer's account simply because Nexco disagrees with Customer's views expressed at Customer's website. Where there are allegations that Customer's on-line activity has violated the legal rights of a third party, Nexco will not substitute itself for a court of law in deciding tort claims raised by the third party.
1.7 Information Shared with Partners: As a condition of purchasing and using the Services, Customer acknowledges and agrees that Nexco may provide Customer's personal information to their partners, as required to provide the plans for which Customer is purchasing.
1.8 Customer Control Panel: As part of the Services, Nexco will also provide Customer with its own web-based control panel (the "Control Panel") containing links to summaries of the Services chosen, Webstats, Email administration and other tools.
1.9 Website Content Backup Limitation: For server restoration purposes only, Nexco offers a nightly data back-up service for an additional fee over and above the monthly hosting rate. However, Nexco makes no guarantees of any kind, either expressed or implied, as to the integrity of these back-ups if this service is selected. Customer is solely responsible to maintain local copies of all Website files. If loss of data occurs and customer has subscribed to the data back-up service, then at Customer's direction, Nexco can attempt to recover the data from the most recent archive. If the data back-up service is not subscribed to, Customer's data may be lost permanently. At all times, Customer shall bear full risk of loss and damage to Customer's Website and all of Customer's Website content. Customer is entirely responsible for maintaining the confidentiality of Customer's password and account information. Customer agrees Customer is solely responsible for all acts, omissions and use under and charges incurred with Customer's account or password or in connection with the use of Nexco's hosting related services or any of Customer's Website content displayed, linked, transmitted through or stored on Nexco servers. Customer shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Customer's Website content; (ii) maintain independent archival and backup copies of Customer's Website content; (iii) ensure the security, confidentiality and integrity of all Website content transmitted through or stored on Nexco servers; and (iv) ensure the confidentiality of Customer's password. Nexco's hosting servers are not an archive and Nexco shall have no liability to Customer or any other person for loss, damage or destruction of any of Customer's content.
1.10 PCI / HIPAA Status: Unless specifically requested by Customer and provided by Nexco, the Services are not intended to provide a PCI DSS (Payment Card Industry Data Security Standard) or HIPAA security compliant environment and therefore should not be considered as one.
1.11 Security Breach Forensics Approval: Customer acknowledges and agrees that Nexco has the right to carry out a forensics examination in the event of a compromise to Customer's server or account. If the forensics examination is carried out at the request of Customer then Customer agrees to pay all costs associated with said examination. Customer acknowledges that Nexco does not maintain server logs indefinitely and that logs are rotated at regular intervals removing historic access data which may impact forensics research results. In the case where Customer's account resides in a shared server environment, and where another client of Nexco may have been impacted by a security breach on Customer's same server, Customer agrees that forensic examinations may be carried out for those other clients on the same server without notification to Customer. In the event that a security breach is confirmed on Customer's server, Nexco will promptly notify Customer in writing within 24 hours.
1.12. Communications Decency Act: Nexco reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its customers or for any other reason it in good faith deems necessary. Nexco will fully cooperate with law enforcement authorities in investigating suspected lawbreakers and reserves the right to report to law enforcement any suspected illegal activity it becomes aware of. It is not Nexco's intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (Title V of the Telecommunications Act of 1996 or the "CDA") or any other applicable law. For further information on Nexco's CDA policy please see Title V of the Telecommunications Act of 1996.
1.13. Digital Millennium Copyright Act: Customer agrees to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the "DMCA") and acknowledge that Nexco is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, Title 17 of the U.S. Code, § 512. Consistent with the DMCA, Nexco will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, Nexco has a policy of terminating Customers who are found to engage in copyright infringement. For further information on the Nexco DMCA policy and procedures, please see DMCA.
1.14. No Content Endorsement: Websites are unmodified forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics. Neither the content of Websites located on Nexco's servers nor the links to other Websites are screened, approved, reviewed or endorsed by Nexco. Nexco is not a publisher of any of the content of Websites, or of any content that may be available through the links to and from them, and is acting solely as an Internet Web-hosting service provider. The text and other material on such Websites are the opinion of the specific author and are not Nexco's statements of advice, opinion or information.
1.15 Server Overload Provision: Customer is responsible for ensuring there is no excessive overloading on Nexco's DNS or servers. In the event Customer exceeds Customer's allotted bandwidth or disk space and thereby overloads Nexco's DNS or servers, Customer shall be assessed any and all fees, costs and penalties associated with such overloading.
1.16 No Liability For Use: Nexco shall have no liability to Customer or any other person for Customer's use of the Services in violation of these terms.
2. LIMITED WARRANTY; LIMITATION OF LIABILITY; INDEMNIFICATION
2.1. Disclaimer of Warranties: Customer acknowledges that the Services are provided "as is." Neither Nexco, nor any of its employees or agents, warrants that the Services will be uninterrupted, error free or free from viruses or other harmful components. Nexco is not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or completeness, non-infringement, merchantability or fitness for a particular purpose of information available on its servers or residing on or passing through its interconnecting networks. Use of information obtained from or through the Services is at Customer's risk. Under no circumstances will Nexco be liable to Customer, or any other person, for any loss or damage caused by Customer's reliance on information available on Nexco's servers or obtained through the Services.
2.2. Limitation of Liability: IN NO EVENT SHALL NEXCO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR CUSTOMER'S USE OR INABILITY TO USE NEXCO'S SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF NEXCO'S SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF NEXCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS DESCRIBED HEREIN WILL ALSO APPLY TO ALL DOMAIN NAME DISPUTES, INVOLVING BOTH NEW DOMAIN REGISTRATIONS AND RENEWALS OR ANY FAILURE TO RENEW. IN NO EVENT SHALL NEXCO'S MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO NEXCO FOR THE SERVICES DURING THE PRIOR ONE (1) MONTH OR THE FEES ASSOCIATED WITH THE DOMAIN NAME REGISTRATION.
2.3. Indemnification: Customer shall indemnify, defend and hold harmless Nexco, its suppliers, licensors and affiliates and the directors, officers, employees and agents of the foregoing with respect to any and all claims, demands, damages, costs and expenses, including reasonable attorneys' fees, arising out of or as a result of Customer's breach of any representation, warranty, obligation, covenant or agreement herein, or from any legal proceedings threatened or instituted against Nexco, its suppliers, licensors or affiliates, or the directors, officers, employees and agents of the foregoing, as a result of any claims by third parties against any of them arising from any allegation with respect to any of the following: (a) with respect to Customer's business (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein, (b) any damage or destruction to Nexco's equipment or to any other Nexco account holder, which damage is caused by or otherwise results from acts or omissions by Customer, Customer's representative(s) or Customer's designees; (c) any personal injury or property damage arising out of Customer's activities related to the Services, unless such injury or property damage is caused solely by Nexco's gross negligence or willful misconduct.
2.4 Indemnification Procedures: A party seeking indemnification hereunder ("Indemnified Party") shall give the party from whom indemnification is sought ("Indemnifying Party") (a) reasonably prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim; and (c) the right to control the defense and settlement of any such claim; provided, however, Indemnified Party shall have the right to participate in the defense at its own expense with counsel of its choice and further provided that no settlement shall be effective without the prior written consent of the Indemnified Party.
3. PAYMENT OF FEES
3.1. Change of Pricing Notice: Nexco reserves the right to change pricing and fees at its discretion without notice. A listing of current monthly fees can be obtained from the Nexco Store at: Nexco Hosting Fees
3.2. Billing Information: Customer agrees to provide Nexco with accurate and complete billing information, including Customer's legal name, address, telephone number, e-mail address and to update this information immediately if any change occurs. Customer must secure Customer's account with a valid credit card. Payments must be submitted in advance of receiving the Services.
3.3 Term of Service: Notwithstanding Nexco's rights to terminate herein, the term of this agreement is month to month at Customer's discretion and will remain in force until Customer notifies Nexco of its wish to terminate.
3.4 Renewal of Term of Service: Upon the expiration of Customer's initial hosting term of service, Customer's hosting service shall automatically renew for the same period of time and Customer's payment method shall be charged for the renewal term on the renewal date. Customer acknowledges and agrees that in the event Customer does not desire to automatically renew Customer's hosting services for the same period of time, it is Customer's responsibility and obligation to notify Nexco and Customer's failure to do so shall be deemed acceptance of the renewal term.
3.5 Cancellation of Service: Customer must contact Nexco if it wishes to terminate the Services. After Nexco's receipt of Customer's wish to terminate, Nexco will continue to host Customer's Website until the end of that calendar month, at which time (a) the Services will cease, (b) Nexco will remove the site from its server(s), and (c) all further monthly hosting charges will stop. Nexco does not offer pro-rated refunds for days unused in the month where the termination occurs.
3.6. Automated Charges: Customer acknowledges that Nexco will charge Customer's credit card on the same day of every month. Customer authorizes automatic billing by Nexco on an on-going basis during the term of this Agreement. All accounts will be billed at this monthly interval automatically and without specific notice. Customer is responsible for terminating account(s) and associated billing except as noted here in cases of violation of Nexco policies. Customer is responsible for any overdraft or over limit fees that may result if there are insufficient funds in Customer's account to cover Customer's hosting or domain name or related service fees. Further, Customer authorizes Nexco to charge any overdraft, over limit or chargeback fees to Customer's account.
3.7. Delinquent Accounts: Delinquent accounts are those that remain unpaid at the beginning of the next Payment Interval. The Services will be suspended if Customer's account is delinquent. Notwithstanding any other rights Nexco may have in this Agreement, all of Customer's Website contents may be removed from Nexco servers if Customer's account is delinquent for 60 days. Customer hosting accounts continue to accrue charges while they are delinquent or if the Services are suspended.
3.8 Account Reactivation: A fee of $69.00 will be automatically applied to all suspended accounts. This fee must be pre-paid by Customer prior to Nexco reinstating Customer's account.
3.9 Responsibility for Account: Customer acknowledges responsibility for Customer's account until payment in full is made.
3.10 Deletion of Website Content: If Customer's account is terminated for any reason permitted by this Agreement, Nexco may, at its sole discretion, permanently delete Customer's Website contents from Nexco servers, and Nexco will not be able to reopen or restore such content.
3.11 Tier 3 Support: Advanced hosting related services such as: code level technical support, changing account names, maintaining databases, and other tier three engineering support services Customer may request, will be charged at Nexco's current hourly rate for system administration.
4. CUSTOMER SUPPORT
Nexco shall use commercially reasonable efforts to respond to all customer support requests from Customer during Nexco's normal business hours. Customer shall be responsible for all direct support of its own customers.
5. DOMAIN NAMES
Except as may be otherwise addressed in additional written agreements between Nexco and Customer, Customer shall bear all costs, expenses and monitoring related to the acquisition, maintenance and renewal of all domain names associated with Customer's hosting account(s).
6. SYSTEM RESOURCE LIMITS
System resource abuse includes any use of Nexco resources that disrupts the normal use of its servers or services for others. Examples of system abuse include running excessive numbers of processes or consuming excessive amounts of CPU time, memory or disk space. Any usage of 10% or more of Nexco's system resources is an undue burden on Nexco's system and is not allowed. If Customer usage exceeds 10% of system resources, Nexco will attempt to contact Customer about said abuse in an effort to warn Customer to cease the abusive activities. If system abuse continues, Customer's account may be suspended or terminated immediately without further notice.
7. MISCELLANEOUS
7.1 Independent Contractor: Status
The parties hereto are independent contractors. Nothing in these Terms shall be deemed to create any form of partnership, principal-agent relationship, employer-employee relationship or joint venture between the parties hereto. Nexco provides services to Customer as an independent contractor or service provider on a non-exclusive basis only.
7.2 Assignment: Customer may not assign this Agreement, by operation of law or otherwise, in whole or in part, without the prior written consent of Nexco. Nexco may assign this Agreement and/or subcontract some or all of its obligations hereunder.
7.3 Publicity and Promotion: Nexco may use Customer's name and logo to identify Customer as a Nexco customer in any advertising, publicity or similar materials throughout the world.
7.4 Severability and Waiver: The invalidity or unenforceability, in whole or in part, of any provision, term or condition hereof shall not affect the validity or enforceability of the remainder of such provision, term or condition or of any other provision, term, or condition. Neither party shall be deemed to have waived any right hereunder unless such waiver is in writing and executed by a duly authorized officer of the waiving party. No waiver by either party of any right hereunder shall constitute a waiver of any right on any other occasion.
7.5. Amendment: These Terms may be amended only in a writing signed by both Customer and Nexco.
7.6 Governing Law: This Agreement is governed by the laws of the State of California, without regard to its rules concerning conflicts of laws.
7.7 Entire Agreement: This Agreement, along with any other Schedules, Statements of Work or Master Service Agreements, constitutes the entire agreement between Customer and Nexco, and supersedes all prior agreements and understandings between the parties.
7.8 Force Majeure: Except for Customer's obligations to make payments hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, restrictions of law, regulations, orders or other governmental directives; labor disputes; acts of God; adverse weather conditions; third-party mechanical failure or other equipment breakdowns; fire; explosions; terrorist activities; war; interruption or failure of telecommunication or digital transmission links; Internet failures and delays; or other similar events.
7.9 Refusal of Service: Nexco reserves the right to refuse, cancel, or suspend service at Nexco's sole discretion.
