This Hosting and Support Agreement (“Agreement”) is hereby entered into between you, your employees and agents (collectively “Client”) and applies to the purchase of all Hosting (“Hosting Services”) or Webmaster Support Services (“Support Services”) ordered by Client.
This Agreement shall be effective as of the time frame Client signs up for Hosting Services and/or Support Services.
Scope of Hosting Services
We will provide the Hosting Services for the amount of server storage space selected in exchange for payment of fees and full compliance with the terms and conditions of this Agreement.
Unless you have a Development or Maintenance Services Agreement with Webcom Resources, you agree that:
You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the “Upload Materials”) to your website, and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Hosting Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials will function properly and as intended. You are responsible for all activity originating from your website, unless proven to be a victim of outside hacking or address forgery. You assume responsibility for all material on your website that may be put on by a third party (such as the usage of Free For All links pages). Use of the Hosting Services requires a certain level of knowledge in the use of Internet languages, protocols, and software, which can vary depending on your anticipated use and desired content of your website. You acknowledge that you have the necessary knowledge to create, modify and maintain your website. We assume no responsibility to provide you with such knowledge.
In connection with the Hosting Services, we may provide certain tools and software for your use. Access to these Tools may be available through a Control Panel. To the extent that such Tools are provided to you, you are granted a nonexclusive, nontransferable license to use the Tools in object‐code form only for your internal use, solely in connection with the Hosting Services provided under this Agreement.
We reserve the right to monitor our 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 account holders or for any other reason it in good faith deems necessary. We reserve the right to report to law enforcement any suspected illegal activity we become aware of. It is not our intention that our Hosting Services or facilities be used in contravention of the Communications Decency Act of 1996 (the “CDA”) or any other applicable law.
You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the “DMCA”) and acknowledge that we are a “service provider” under the DMCA and are therefore immune from liability under the DMCA, including 17 U.S.C. § 512. Consistent with the DMCA, we will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, we have a policy of terminating accountholders who are copyright infringers.
Use and Misuse of the Hosting Services. All complaints of abuse, violation and misuse of the Hosting Services, whether described in this Section 4 or otherwise, shall be investigated promptly. You are responsible for all use of your website, with or without your knowledge or consent. You agree to use the Hosting Services only for lawful purposes, in compliance with all applicable laws. Linking to illegal material is also prohibited.
When we become aware of possible violations of this Agreement, we may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on our servers. We, in our 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 you to criminal or civil liability.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO WAIVE AND HOLD US HARMLESS FROM ANY CLAIMS RELATING TO ANY ACTION TAKEN BY US AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES WHATSOEVER FROM US AS A RESULT OF OUR DECISION TO REMOVE MATERIAL FROM ITS SERVERS, WARN YOU, SUSPEND OR TERMINATE YOUR ACCOUNT, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF OUR CONCLUSION THAT A VIOLATION HAS OCCURRED. THIS WAIVER APPLIES TO ALL VIOLATIONS DESCRIBED IN THIS AGREEMENT.
Use and Misuse of Materials. Materials in the public domain (e.g., images, text, and programs) may be downloaded, uploaded or re‐distributed. You assume all risks regarding the determination of whether the material is in the public domain.
You are prohibited from storing, distributing or transmitting any unlawful material through the Hosting Services. Examples of unlawful material include, but are not limited to, threats of physical harm, child pornography, and copyrighted, trademarked and other proprietary material used without proper authorization. Pornography and sex‐related merchandising, or links to such material, even if legal, are not acceptable uses of our servers. You may not post, upload or otherwise distribute copyrighted material on our servers without the consent of the copyright holder.
Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data: server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network; attempts to circumvent any user authentication or security of host, network, or account; accessing data not intended for user; probing the security of any network; spawning dozens of processes; port scans, ping floods, packet spoofing, and forging router information; denial of service attacks, sniffers, flooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop; promulgation of viruses; and IRC bots, such as eggdrop or BitchX.
Unacceptable activities include posting private information about a person without his or her consent, defaming a person or business, and knowingly making available code that will have a deleterious effect on third‐party computers. Where there are allegations that your on‐line activity has violated the legal rights of a third party, we will not substitute itself for a court of law in deciding tort claims raised by the third party.
Email Use. Unacceptable affronts to netiquette and unacceptable activities include, but are not limited to, the following: spamming (sending unsolicited advertising to those with which you have no existing business relationship and posting off‐topic advertising in newsgroups); spoofing (using a return email address that is not the valid reply address of the sender or sending an email message that does not contain enough information to enable the recipient to identify you); passive spamming (promoting a website hosted by us by spamming from some other source); trolling (posting controversial messages in newsgroups to generate responses); mailbombing (inundating a user with email without any serious intent to correspond or sending large or multiple files to a user); generating a higher volume of outgoing mail than a normal user (over 10% of available system resources); propagating chain letters; and subscribing someone else to an electronic mailing list without that person’s permission. 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. Mailing lists may not be used to distribute unsolicited email. If you are repeatedly mail bombed or attract such behavior, the Hosting Services will be terminated.
You may not alter the headers of email messages to disguise their identity or to prevent users from responding to the messages. We may disclose the usernames of accounts responsible for forged email messages to system administrators or users requesting the information.
Violations of our policies outlined herein can sometimes result in massive numbers of email responses. If you receive so much email that our resources are affected, our staff may shut down your mailbox.
System Security. You are prohibited from utilizing the Hosting Services to compromise the security of system resources or accounts on our servers or at any other site. Use or distribution of tools designed for compromising security or containing viruses or trojans are prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools.
If you are involved in violations of system security, we reserve the right to release all usernames of users involved in such violations to system administrators at other sites in order to assist them in resolving security incidents. We will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
System Resources. System abuse includes any use of our resources that disrupts the normal use of its servers or Hosting 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 our system resources is an undue burden on our system and is unacceptable. If your usage ever exceeds 10% of system resources, your account may be terminated immediately and without prior notice.
Further, running programs in the background on one of our servers without our prior written authorization, or running chat rooms, Internet Relay Chat, IRC bots, more than 1,000 emails a day and the like are not acceptable uses of our servers.
All Hosting Services provided by us may be used for lawful purposes only. Transmission, storage, or presentation of any information, data, or material in violation of any United States Federal, State, or City law is prohibited. This includes, but is not limited to copyrighted material, material we judge to be threatening or obscene or material protected by trade secret and other statute. The subscriber agrees to indemnify and hold us harmless from any claims resulting from the use of the service, which damages the subscriber or any other party.
Pornography and sex‐related merchandising is prohibited on all our servers. This includes sites that may infer sexual content or links to adult content elsewhere. We will be the sole arbiter in determining violations of this provision.
Also prohibited are sites that promote any illegal activity or present content that may be damaging to our servers or any other server on the Internet. Links to such materials are also prohibited. Examples of unacceptable content or links include Pirated software, Hacker programs or archives and Warez sites. We will be the sole arbiter as to what constitutes a violation of this provision.
- Sites offering download files. (This is any site where 20% or more of their monthly traffic is from file downloads)
- Sites using more than 20% of system resources.
We will be the sole arbiter as to what constitutes a violation of this provision
Commercial Advertising ‐ Email. Spamming, or the sending of unsolicited email, from our server or using an email address or domain that is maintained on our machine as reference is STRICTLY prohibited. We will be the sole arbiter as to what constitutes a violation of this provision.
Background Running Programs. We may allow programs to run continually in the background. These are considered on a case‐by‐case basis and an extra charge will be incurred based on system resources used and operational maintenance needed.
Domain Pointing. Domain pointers are to be used for the purpose of having more than one way to find the same site, not for the purposes of sharing an account among multiple sites. A domain pointer may not be set up to reference a subdirectory within an existing Web hosting account served by us or any other provider.
Server Abuse. Any attempt to undermine or cause harm to a server, or customer of ours is strictly prohibited, and will result in immediate termination or prosecution.
Backups. We have a responsibility to ensure that each of our clients is provided with the best Hosting Services we have available. Unless backup and restoration services are included in your Hosting Service plan or Support Services plan, we are in no way responsible for the archiving of a site. It is the sole responsibility of the site creator to copy, backup or archive all files that constitute a web site.
Malware, Spam, or Malicious Code. Removal of infections on a Client’s account is available for an additional charge for clients who are not on a Support Services Plan at the time of infection.
Scope of Support Services
Support Services will be completed according to the package purchased by the Client, and as listed on the invoice for payment.
- Cloud backup of the website on a recurrence defined by the Support Services package.
- Recovery of website files from backups, as needed.
- Uptime monitoring of the hosted website.
- Removal of malware, spam, and malicious code.
- Updates to text, images, and other minor changes to Client’s website pages, limited to the time allotted by the Support Service package.
Support Services Client Responsibilities
For the purposes of providing Support Services, Client agrees:
- To properly convey to Webcom Resources the information that needs to be changed or added.
- To answer any questions from Webcom Resources, in regards to task work on website, promptly.
- To provide Webcom Resources with access to its website for creating new pages, and making changes for the purpose of providing Support Services.
- To provide Webcom Resources access their web hosting account, providing active user name / password combinations for access to the server via FTP, assuring that ‘write permissions’ are in place with hosting provider.
For the purposes of providing Support Services, Client understands, acknowledges and agrees that:
- Regular technical updates to Client’s CMS software, including plugins, and themes will be completed after Webcom verifies the update is a stable version.
- The amount of time allotted for updates to text, images, and other minor changes, is determined by the Support Services package that they purchased and will be billed in five (5) minute increments.
- Once the time allotted in their Support Services package has been reached for the month, any unfinished tasks on the Client’s task list will be rolled into the next month for processing. If they must be completed immediately per Client, additional fees will apply due to overage on time.
- Unused time is not accumulative. Unused time does not transfer from month to month. Support Services time is strictly month to month.
- Website updates exclude, but are not limited to, image and graphic editing or design; database design or changes; and web programming.
- Unless your website is hosted with us, Webcom Resources has no control over your hosting company in regards to server downtime, incompatibilities with software, PHP compatibility issues, etc.
- Webcom Resources is not responsible for Client’s email issues or troubleshooting problems on their own computer. Our role is to maintain and keep your website running at it’s optimal capabilities.
- Webcom Resources is not responsible for changes made to Client’s web site(s) by other parties, including the Client themself.
- If another party, including the Client, creates errors on the website, the Client will be charged the Standard Hourly Fee for Webcom to repair the website.
- Webcom Resources is not responsible for third-party plugins that may become unusable as a result of Support Services performed.
- Removal of malware, spam, and malicious code that is already existing on a website when a Client signs up for a Support Services Plan will be charged an additional rate for repair.
- Recovery or repair of Client’s website is not guaranteed.
- Availability of backups is not guaranteed.
Fees; Limitations on Refunds and Cancellation Fees
Client agrees to pay Webcom Resources any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Support Services. THE Client FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY Client, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE Client FURTHER AGREES TO PAY UPON CANCELLATION ANY OTHER AMOUNTS DUE TO Webcom Resources FOR WORK PROVIDED AT CLIENT’S REQUEST ABOVE AND BEYOND THE MONTHLY ALLOTTED TIME OF MONTHLY AGREEMENT. Webcom Resources IS HEREBY AUTHORIZED TO CHARGE CLIENT’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CLIENT TO Webcom Resources.
Standard Hourly Fee. Additional services not listed herein will be provided for a standard hourly fee of $125.00 per hour.
This Agreement may be terminated by either party upon 30 day written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. It is the Client’s responsibility to move website files to another hosting provider prior to the end date of the Agreement. After the date of termination, all Client content will be removed from Webcom servers.
This Agreement may be terminated by Webcom Resources (i) immediately if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Webcom Resources or hinders Webcom Resources’ ability to perform the Support Services hereunder, including cutting off access to, or changing passwords without out knowledge to, services we use in our maintenance tasks.
We also reserve the right to comply with the take‐down provisions of the DMCA and to seek injunctive, declaratory, interpleader or other judicial or equitable relief (and, pending such action, to suspend all access to your website) if any third‐party claim is made that your website content or use violates any of the acceptable uses or your obligations or representations described in this Agreement.
Limited Warranty; Limitation of Liability; Indemnification
Limited Warranty. EXCEPT FOR OTHERWISE STATED IN THIS AGREEMENT, YOU AGREE THAT THE HOSTING SERVICES AND SUPPORT SERVICES ARE PROVIDED “AS IS.” THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CLIENT. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
Limited Liability. IN NO EVENT SHALL WEBCOM RESOURCES BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. Webcom Resources MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
Indemnification. Client shall indemnify and hold harmless Webcom Resources (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Webcom Resources as a result of any claim, judgment, or adjudication against Webcom Resources related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to Webcom Resources (the “Client Content”), or (b) a claim that Webcom Resources’ use of the Client Content infringes the intellectual property rights of a third party; (c) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (d) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti‐spam policy. To qualify for such defense and payment, Webcom Resources must: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
Client Representations. Client makes the following representations and warranties for the benefit of Webcom Resources:
- Client guarantees to Webcom Resources and unconditionally guarantees that Client’s website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Support Services.
- Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Webcom Resources for inclusion on the website above are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Webcom Resources and its subcontractors from any liability or suit arising from the use of such elements.
- Client agrees that the client is solely responsible for complying with laws, taxes, and tariffs, and will hold harmless, protect, and defend Webcom Resources and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.
Confidentiality. The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Webcom Resources and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
Force Majeure. Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
Relationship of Parties. Webcom Resources, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Client does not undertake by this Agreement, or otherwise, to perform any obligation of Webcom Resources, whether by regulation or contract. In no way is Webcom Resources to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.
Notice and Payment. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
Jurisdiction/Disputes. This Agreement shall be governed in accordance with the laws of the State of Florida. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Florida including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
Agreement Binding on Successors. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Assignability. Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Webcom Resources. Webcom Resources reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
Waiver. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
Severability. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
Disputes. Client and Webcom Resources agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Hernando County, Florida and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Florida sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Florida or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
Read and Understood. By purchasing a Support Services package, Client acknowledges that they have read and understand this Agreement and agree to be bound by its terms and conditions.