Legalese | Hosting Agreement

Hosting Agreement

1. Definitions.

1.1 “Customer” means the persons, entity or agents and authorized representatives accepting this agreement.

1.2 “Content” means all text, pictures, sound, graphics, video, links, and other data stored by Customer on MYRIAD Technologies’ server computers.

1.3 “Website” means pages presenting the Content stored by Customer on MYRIAD Technologies’ server computers.

1.4 “User” means users of Customer’s Website.

1.5 “User Content” means all text, pictures, sound, graphics, video, links, and other data stored by Users on MYRIAD Technologies’ server computers.

1.6 “Confidential Information” means information that Customer takes reasonable steps to maintain in confidence and identifies in writing to MYRIAD Technologies as confidential.

2. Web Hosting.

2.1 Hosting. MYRIAD Technologies will provide dedicated or shared server computers, as specified in Exhibit A, with an Internet address for storage and access of Content, User Content, and the Website. The Website, Content, and User Content must be “server-ready.” MYRIAD Technologies will provide bandwidth and storage as specified in Exhibit A. If Customer requires additional bandwidth or storage, MYRIAD Technologies will negotiate in good faith to amend this Agreement unless MYRIAD Technologies’ server computers cannot accommodate the requested bandwidth or storage.

2.2 Website Backup. MYRIAD Technologies will backup the Website in a commercially reasonable manner. However, MYRIAD Technologies is not responsible for lost Content or lost User Content. Website backups will be stored by MYRIAD Technologies for no longer than 14 days. MYRIAD Technologies will provide, at Customer’s expense, an electronic copy of the backup Website to Customer upon written request by Customer. Backups are intended for disaster recovery, not the restoration of individual files.

2.3 Server Logs. As requested by Customer, MYRIAD Technologies will deliver to Customer in electronic form the Server Log of Website activity. Customer will be entitled to one month of log storage free of charge. MYRIAD Technologies may, at its option, charge a fee to Customer for additional space required to store oversized logs.

2.4 Standards. MYRIAD Technologies’ services will conform to the following:

2.4.1 Availability of Website. MYRIAD Technologies will provide hosting services for the Website that meet reasonable commercial standards for, among other matters, packet loss, accessibility, latency, availability, and throughput.

2.4.2 Security. MYRIAD Technologies will take commercially reasonable steps to prevent unauthorized access to the Website, Content, User Content, and Confidential Information stored on MYRIAD Technologies’ server computers.

2.4.3 Server/Network Computer Outages. MYRIAD Technologies will employ best efforts in providing advance notice to Customer of scheduled server computer/network outages.

2.4.4 Disclaimers. Remarkable Hosting provides no equipment, software, or communication connections to Customer. MYRIAD Technologies makes no representations, warranties or assurances that the Customer’s equipment, software, and communication connections will be compatible with MYRIAD Technologies’ hardware and service.

3. Ownership of Content. All Content and User Content stored by Customer on MYRIAD Technologies’ server computers shall at all times remain the property of Customer, unless otherwise specified. Customer grants to MYRIAD Technologies a non-exclusive, worldwide license to the Content and User Content only to the extent necessary for MYRIAD Technologies to host the Website.

4. Content Control.

4.1 Lawful Purpose. Customer will only use MYRIAD Technologies’ hardware and services for lawful purposes and Customer will not store or provide any Content or User Content or link to any material that violates foreign, federal, state or local law, the Terms of Service of Exhibit B and any modifications thereof, MYRIAD Technologies’ posted Acceptable Use Policy, or any other MYRIAD Technologies policy.

4.2 Remedy for Violation. Should MYRIAD Technologies become aware that Customer has violated Part 4.1, MYRIAD Technologies may, at its option, remove the Content or User Content in violation, immediately terminate hosting Customer’s Website under Part 6.3, and/or notify authorities. If hosting is terminated, MYRIAD Technologies may, in its sole discretion, reinstate hosting upon adequate showing of Customer’s right to use the Content or User Content.

5. Payments.

5.1 Fees. Customer shall pay fees agreed upon during account signup. MYRIAD Technologies will invoice monthly (unless otherwise agreed in writing), and payment is due fourteen (14) days from invoicing. In the case of credit card payments MYRIAD Technologies will automatically charge Customer Credit Card on file all fees associated with the account on the due date. MYRIAD Technologies may, at its option, charge a 1½ % fee for late payments.

5.2 Returned Checks and Declined Credit Cards may incur a fee.

5.3 Account Updates. It is the responsibility of the customer to maintain accurate billing information with MYRIAD Technologies. This may include updated credit card information, email address and mailing address.

5.4 Taxes. Customer is solely liable for any taxes or fees payable for products or services sold by Customer on the Website.

6. Term and Termination.

6.1 Term. The initial term is agreed upon during account signup. After the initial term, this Agreement will automatically renew on a month-to-month basis until terminated.

6.2 Termination by Customer. During the initial term, Customer may terminate this Agreement upon the material breach of MYRIAD Technologies, if such material breach remains uncured for thirty (30) days following written notice to MYRIAD Technologies. This cure period shall be extended by delay caused by events beyond the control of MYRIAD Technologies including, but not limited to, natural disasters, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of MYRIAD Technologies, or technical faults of MYRIAD Technologies’ service providers or vendors. After the initial term, Customer may terminate this Agreement upon thirty (30) days written notice to MYRIAD Technologies.

6.3 Termination by MYRIAD Technologies. MYRIAD Technologies may immediately terminate this Agreement for cause at any time without penalty. Causes justifying immediate termination include, but are not limited to: violation of any foreign, federal, state, or local law; non-payment of fees due under Part 5 of this Agreement; breach of this Agreement; violation of the Terms of Service found at http://www.myriadtek.com/legal/tos.php and any written modifications thereof; and violation of any other MYRIAD Technologies policy. MYRIAD Technologies may terminate this Agreement without cause at any time upon thirty (30) days written notice to Customer.

7. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MYRIAD TECHNOLOGIES, AND ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH MYRIAD TECHNOLOGIES’ HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INGRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

8. LIMITATION OF LIABILITY. MYRIAD TECHNOLOGIES, ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE MYRIAD TECHNOLOGIES’ HARDWARE OR SERVICES. CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO MYRIAD TECHNOLOGIES.

9. Customer Indemnity. Customer shall defend MYRIAD Technologies against any third party claim, action, suit or proceeding arising as a result of Customer’s use of MYRIAD Technologies’ hardware or services and indemnify MYRIAD Technologies for all losses, damages, expenses, and costs incurred by MYRIAD Technologies as a result of a final judgment entered against MYRIAD Technologies in any such claim, action, suit or proceeding.

10. General Provisions.

10.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of New Jersey. Both parties agree to submit to personal jurisdiction in New Jersey and further agree that any cause of action arising under this Agreement will be brought in a court in Camden County, New Jersey.

10.2 Severability and Waiver. If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. 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.

10.3 Relationship of Parties. No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.

10.4 Attorneys Fees and Costs. In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorneys’ fees, expert witness fees and legal expenses as may be fixed by a court of competent jurisdiction.