Web Hosting Agreement

This Website Hosting Agreement ("Agreement") is entered into by you and between Intertune, Inc, a Delaware corporation (“Host”) and you (“Client”), and is made effective as of the date of your use of this website or the date of electronic acceptance. The Host and the Client shall be collectively referred to as the Parties. Under this Agreement, the Host will provide Web Hosting and related services to Client. The parties agree as follows:

1. Acceptance

By accepting this Agreement and using Host's Website Hosting Services ("Services"), Client agrees to be bound by all the terms and conditions of this Agreement.

 

2. Provision of Services

Host agrees to provide Client with website hosting services, consisting of website server space, e-mail capability, internet access, domain name registration, and such additional services, as may be provided by Host from time to time. Host reserves the right to change or modify the features of Client's service plan from time to time on 7 days written or e-mailed notice to Client. Client's continued use of Host's services after receipt of such a notice of modification shall constitute Client's acceptance of and agreement to be bound by the Host's modification of the terms and conditions of this Agreement.

 

3. Agreement Term

The initial term of this Agreement shall commence on the date of execution of this Agreement and shall continue through the remainder of the calendar month in which this Agreement was executed (the "Initial Term"). After the initial term, this Agreement shall be automatically renewed for successive monthly periods until terminated by one of the parties as provided in this agreement.

 

4. Termination without Cause

(a) Client may terminate this Agreement at any time, for any reason, by logging into account at Host and canceling all related subscriptions. In the event of a cancellation, Host will not refund amounts already billed for the current billing period in which Client terminates the Agreement. 

(b) Host may terminate this Agreement at any time, for any reason, by providing written or e-mail notice of termination to Client's primary website e-mail contact address no less than 7 days prior to the service termination.

 

5. Termination for Cause

Client agrees to abide by the terms of this Agreement and by Host's general use policies as set forth in this Agreement, as those policies may exist from time to time. Host may change its use policies on 7 day written notice to Customer by e-mail message, mail, or facsimile transmission. Any violation by Client of the terms of this Agreement or of Host's general use policies shall be grounds for immediate termination of Client's account for cause. If Host terminates Client's account for a violation of this Agreement, Host shall not be required to refund any amounts billed for the billing period in which Host terminates Client's services.

 

6. Payment Terms

(a) Client agrees to pay Host an amount equal to the subscriptions and terms for active services in Client’s subscriptions page. Host reserves the right to change or modify its charges for Client's plan from time to time on 7 days notice written or e-mailed to Client. Client's continued use of Host's services after receipt of such a notice shall constitute Client's acceptance of and Agreement to be bound by the Host's modified charges for its services. Additional charges for add-on services not included in Client's plan will be made as mutually agreed upon.

 

(b) Service charges are payable in advance on a monthly basis. Host will invoice Client at the beginning of each payment period. Host will submit all invoices to Client by e-mail. Payment is due immediately upon receipt of invoice by auto-charge of Client credit card or other online payment method as selected by Client.

(c) Client agrees to be billed for all recurring and one-time charges, including late charges, for any Services ordered by Client and any fees owed to Host.

 

7. Taxes

Host shall not be liable for any taxes and other governmental fees related to purchases made by Client or from Host's server. Client agrees that s/he will be fully responsible for all taxes and fees of any nature associated with products or services sold through the use of or with the aid of services provided to Client by Host.

 

8. Materials and Products

Any material and data Client provides to Host in connection with Services shall be in a form requiring no additional manipulation on the part of Host. Host shall make no effort to validate this material or data for content, correctness, or usability. Material or data that is not in this condition shall be a breach of this Agreement. Host, in its sole discretion, may reject material or data that Client has placed on Host's servers or that Client has requested that Host put on Host' servers. Host agrees to notify Client immediately of its refusal of any material or data and provide Client with an opportunity to amend or modify the material or data to meet the Host's requirements. Client's failure to amend or modify the data or material as directed by Host within a reasonable time shall be a breach of this Agreement.

 

9. Electronic Mail Abuse

Harassment by e-mail, whether through language, frequency, or size of messages, is prohibited. Client may not send e-mail to any person who does not wish to receive it. If a recipient asks to stop receiving e-mail, Client must not send that person any further e-mail. Clients are explicitly prohibited from sending unsolicited bulk e-mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, and political tracts. Such material may only be sent to those who have explicitly requested it. Clients may not forward or otherwise propagate chain letters, whether or not the recipient wishes to receive such mailings. Malicious e-mail, including but not limited to "mail bombing" (flooding a user or site with very large or numerous pieces of e-mail) and "trolling" (posting outrageous messages to generate numerous responses) is prohibited. Forging of header or any other information is not permitted. Subscribing someone else to an e-mail list or removing someone else from a mail list without that person's permission is prohibited. Host's accounts or services may not be used to collect replies to messages sent from another Internet Service Provider if those messages violate this Agreement or any usage policy of that other provider. Violations of this Agreement will result in immediate account termination.

 

10. Violations of Network Security

Client is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Client's agreement. Host will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Clients who are involved in such violations. These violations include, without limitation:

 

(a) Accessing data not intended for the Client or logging into a server or account that the Client is not authorized to access.

 

(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.

 

(c) Attempting to interfere with service to any Client, host or network, including, without limitation, via means of overloading, "flooding," "mail bombing," or "crashing".

 

(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

 

(e) Taking any action in order to obtain services to which the Client is not entitled.

11. Resource Utilization

In addition to the forgoing, the following policies apply to non-dedicated plans. While Intertune does not define arbitrary storage and bandwidth limits on the shared web hosting system, the intent of the service is to provide sufficient storage and bandwidth for typical websites. The shared web hosting system is not intended for uses such as video/media archiving, offsite backup storage for personal computers or remote-hosted servers, public file upload, file sharing/distribution, file-based "databases" such as catalogs that require more than 10,000 files, storage of any files larger than 200MB, large digital media collections, and any other use which requires a significant amount (in Intertune's judgment) of storage or bandwidth compared to other customers on the shared web hosting system. Upon identification of accounts that exhibit resource utilization in excess of the norm, we may disable the account, require an account upgrade, cause the excessive resource utilization to cease, exclude the site from backup routines, or terminate the account.

 

12. Warranty against Unlawful Use

Client warrants and represents that Client shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client's account for cause.

 

13. Liability; No Warranty; Limitation of Damages

(a) Client expressly agrees that use of Services provided by Host is at Client's sole risk.

 

(b) Host guarantees 99.99 percent uptime for its Web & Email services. If uptime for Client's services falls below 99.99 percent during any given month, Host will credit Client as follows: Client must request any such credit by opening up a support ticket with Host or by e-mail to help@intertune.com, no later than 7 calendar days after the previous month in which Host did not provide Client’s services 99.99 percent uptime. Any such credit shall be applied to future invoices. This credit shall be Client's sole and exclusive compensation for any downtime or other unavailability of Host's services under this Agreement. Host shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability. Host’s liability shall not exceed the dollar amount due from Client to Host for services in the calendar month that Host did not provide 99.99 percent uptime.

 

(c) Host, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.

 

(d) Host, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction, or unauthorized access to Host's records, programs, or services.

 

(e) Host will exercise no control over the content of the information passing through Host's network except those controls expressly provided herein.

 

(f) Host makes no warranties or representations of any kind, express or implied, for the services it is providing. Host also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays or non-deliveries.

 

14. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights

(a) Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all right, title, and interest in any product or service provided to Client belongs to Host. These products and services are only for Client's use in connection with Services provided to Client as outlined in this Agreement.

 

(b) Client expressly warrants to the Host that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Host servers.

 

15. Hardware, Equipment, and Software

Client is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Host servers. Host makes no representations, warranties, or assurances that Client's equipment will be compatible with Host Services.

 

16. Age

Client expressly represents and warrants that Client and any person to whom Client grants access to Client's Host account are at least 18 years of age.

 

17. Indemnification

Client agrees to defend, indemnify, and hold Host harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys' fees, asserted against Host, its agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Client, Client's agents, employees, or assigns. Client further agrees to defend, indemnify, and hold harmless Host against liabilities arising out of:

 

(a) Any liability to Host arising by virtue of any use of Host's services by Client for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;

 

(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Client;

 

(c) Any material supplied by Client infringing or allegedly infringing on the property or proprietary rights of a third party;

 

(d) Copyright or trademark infringement by Client, or violation by Client of intellectual property rights of any other party; and

 

(e) Any defective product which Client sold or distributed by means of Services. Client agrees that the liability limit of Host shall in no event be greater than the aggregate dollar amount which Client paid during the terms of this Agreement, including any reasonable attorneys' fees and court costs.

 

18. Attorneys' Fees

If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.

 

19. Notice

Client agrees to keep Host informed of all current contact information for Client's account. Changes in Client's account information may be updated within Client’s control panel provided by Host. Failure to maintain or keep current all contact information shall be a ground for Host to terminate Client's account for cause.

 

20. Governing Law

This Agreement has been entered into in the State of California, and its validity, construction, interpretation and legal effect shall be governed by the laws of that state applicable to contracts entered into and performed entirely within that state.

 

21. Severabilitay

In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.

 

22. Waiver

No waiver by Host of any breach by Client of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such writing.

 

23. Entire Agreement

This Agreement shall constitute the entire agreement between Client and Host, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding.