CLICK THROUGH WEB HOSTING AGREEMENT
IMPORTANT—THIS CLICK THROUGH WEB SITE HOSTING AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT APPLY TO THE HOSTING OF YOUR WEB SITE BY CAO-TECH LLC (THE “HOST”). READ THESE TERMS CAREFULLY BEFORE UPLOADING ANY CONTENT OR WEB SITE INFORMATION.
Note: In this document, “You” means the person executing this Agreement, whether in that person’s individual capacity or an behalf of a corporation, limited liability company, organization or other entity. You are the Customer.
IF YOU ARE ENTERING INTO THIS AGREEMENT FOR YOURSELF, YOU WILL BECOME THE PARTY BOUND UNDER THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AND IN YOUR CAPACITY AS AN EMPLOYEE OF THE CORPORATION, LIMITED LIABILITY COMPANY, ORGANIZATION OR OTHER ENTITY THAT EMPLOYS YOU, THEN SUCH ENTITY WILL BECOME THE PARTY BOUND AND IN SUCH CASE YOU THEREBY REPRESENT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, LIMITED LIABILITY COMPANY, ORGANIZATION OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS.
BY CLICKING ON THE ICON/BUTTON MARKED “I ACCEPT” YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS.
IF YOU DO NOT HAVE APPROPRIATE AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, PROMPTLY EXIT THIS PAGE WITHOUT UPLOADING ANY CONTENT OR WEB SITE INFORMATION. THIS AGREEMENT BECOMES EFFECTIVE UPON THE DATE YOU FIRST UPLOAD CONTENT OR WEB SITE INFORMATION (THE “EFFECTIVE DATE”) AND EACH USER BECOMES BOUND BY ITS TERMS AND CONDITIONS.
- Host provides web site hosting services, and desires to provide such services to Customer.
- Customer desires that Host provide such services to it in accordance with the terms and conditions of this Agreement.
Based on the foregoing recitals and the promises, representations, warranties, covenants and undertakings contained in this Agreement, the parties hereto hereby agree as follows:
1.1 “Confidential Information” has the meaning set forth in Section 9.
1.2 “Customer Content” means all text, pictures, sound, graphics, video and other
data supplied by Customer to Host for inclusion on the Web Site, as such materials may be modified from time to time.
- “Hosting Services” means the hosting of the Web Site as described in Section 2 and in Exhibit A hereto.
- “Including” means including but not limited to.
1.3 “Intellectual Property Rights” means any and all (a) rights associated with
works of authorship, including but not limited to copyrights, moral rights, and mask works, (b) trademark, business name and trade name rights and similar rights, (c) trade secret rights, (d) patents, and (e) all other intellectual and industrial property rights in any jurisdiction throughout the world.
1.4 “Web Site” means the Web Site found at the URL/web site address provided by Customer.
- Hosting Services. The Hosting Services are comprised of the services in this Section 2, along with any additional provisions contained in Exhibit A.
2.1 Hosting. Host will host the Web Site, in accordance with the provisions of this Agreement, including the terms set forth in Exhibit A. Host will not be responsible for the maintenance of the Web Site. However, Customer may engage Host to maintain the Web Site, or provide other services related thereto, pursuant to a separate written agreement. Host will place all content for the Web Site on the hosting server(s) promptly after the execution of this Agreement. Subject to the restrictions in Section 3, Host will include any content, advertising or links on the Web Site, as requested by Customer. Host will not place any content, links or advertisements on the Web Site without the prior written consent of Customer.
2.2 Availability. The website will be available 99.5% of the time, excluding downtime for scheduled maintenance, updates and upgrades, emergencies, and interruption due to third party service downtime (such as Internet service unavailability) and other circumstances beyond Host’s control (“Uptime”). Host will use reasonable commercial efforts to undertake routine maintenance and updates and upgrades after 12:00 a.m. and before 6:00 a.m. For each day (comprised of a 24 hour period from 12:00 a.m. through 11:59 p.m.) in a given month that Uptime is less than 99.5%, a credit will be issued to Customer which will be applied to the fee for the next month (or given in the form of a reimbursement if this Agreement terminates before the next month), determined by multiplying the monthly fee by the percentage derived from the following ratio: the number of days in the month under 99.5% Uptime divided by the number of days in the month. Where multiple Web Sites ae being hosted and only some of the Web Sites have less than 99.5% Uptime in a given month, the credit as described above will be prorated for just those Web Sites. Such credit is Customer’s sole and exclusive remedy for failure of Host to maintain the Uptime as provided for in this Section.
2.3 Support and Maintenance. Host will provide support and maintenance services to Customer as set forth below.
2.3.1 Standard Telephone Support. During the hours from 9:00 a.m. to 7:00 p.m. Eastern Time (Monday through Friday), Host will provide Customer with telephone technical assistance for hosting related issues, including hosting migration. Each service request will be evaluated and escalated as appropriate in Host’s sole discretion. Host may change the telephone support service hours as it deems necessary in its sole discretion. Host will notify Customer of any changes to such support hours via email and will post the new hours on its web site. Host also may post the hours on any social media tool (such as Facebook). Prior to contacting host, Customer will make reasonable efforts to confirm than an error is caused by the Hosting Services and not by any other hardware or software used by Customer or some other cause. If Host reasonably determines that a problem reported by Customer is not due to an error in the Hosting Services or results from one of the exclusions set forth in Section 2.4 below, Host will notify Customer by email, and Host has no obligation or responsibility to correct any such problem.
2.3.2 Software Updates. Host will make available to Customer each minor and major update to the Hosting Services. Updates do not include any release or future products that Host licenses separately. In addition, Host reserves the right to pass through to client any third party license fee for third party software that may be incorporated in an update.
2.3.4 Bug Fixes. Host will exercise commercially reasonable efforts to correct any malfunction related to the Hosting Services reported to Host by Customer.
2.4 EXCLUSIONS. HOST WILL HAVE NO OBLIGATION TO PROVIDE SUPPORT OR MAINTENANCE AND WILL HAVE NO LIABILITY UNDER THIS AGREEMENT FOR ANY MATTER, CIRCUMSTANCE OR EVENT ARISING IN WHOLE OR IN PART FROM: (I) MODIFICATION OF THE HOSTING SERVICES WITHOUT HOST’S WRITTEN CONSENT, (II) MISUSE OR OTHER USE OF THE HOSTING SERVICES OTHER THAN AS PROVIDED FOR IN THIS AGREEMENT, (III) CUSTOMER’S WEB SITE, NETWORK, HARDWARE, SOFTWARE AND/OR SYSTEMS, OR THIRD PARTY APPLICATIONS, OPERATING SYSTEMS, SOFTWARE AND/OR SYSTEMS NOT PROVIDED BY OR ON BEHALF OF HOST, (IV) CUSTOMER’S NEGLIGENT, RECKLESS, OR WILLFUL MISCONDUCT, (V) CUSTOMER’S VIOLATION OF ANY LAWS, REGULATIONS, RULES, ORDIANCES, ORDERS OR THE LIKE, AND/OR (VI) CUSTOMER’S BREACH OF THIS AGREEMENT.
- Customer’s Responsibilities.
3.1 Customer will provide the Web Site and all Customer Content to Host in the form and manner direct by Host. Customer will register for the Hosting Services as instructed by Host.
3.2 Customer will not use the Web Site for any inappropriate purposes, including, but not limited to:
- publishing, posting, or disseminating unlawful, threatening, harassing, defamatory, obscene, or fraudulent information or materials;
- violation of a third party’s Intellectual Property Rights or other rights, including, but not limited to, rights of privacy and publicity;
- requesting unlawful services or materials;
- maintaining an open email relay that allows email to be sent through Customer’s system by a third party that are neither to nor from Customer’s accounts;
- engaging in fraudulent or criminal activities;
- deliberate transmission of viruses, worms, Trojans, malware, or the like;
- causing degradation, interruption or disabling of the Hosting Services, or glutting or over storage of unreasonably large files, or excessive bandwidth use;
- attempting to gain unauthorized access to any site, network, computer, server or other device, including guessing passwords and the like;
- running programs or scripts that constantly run or “listen” on ports;
- inappropriate postings to forums, blogs, chat rooms and the like;
- sending bulk email except email to Customer’s own subscribers who consent to the same;
- using the Web Site as a repository or “dump” site or using the space in order to store content used on other sites (such as remote linking).
3.3 The Web Site may not use extreme or unwarranted CPU usage, meaning usage that places high demand on servers used by Host. The Web Site may consume more than .2% of CPU usage for a server at any given time.
3.4 Customer may not resell the Hosting Services or any portion of them.
3.5 Customer is responsible for protecting passwords and for any unauthorized use.
3.6 Customer must provide appropriate protection for minors.
3.7 Customer is responsible for all content on the Web Site and/or that is transmitted through or using the Web Site.
3.8 Customer may not exceed storage space allocated in a hosting package.
3.9 Customer will not, itself or through others, reverse engineer, decompile, disassemble or otherwise access or attempt to access any code or other Confidential Information of Host or its third party vendors or contractors.
Customer will pay Host the fees set forth in Exhibit A, in accordance with the schedule set forth therein. Host will pay all sales, use, excise and other taxes which may be levied upon Host in connection with this Agreement. Customer is responsible for sales, use, excise and any other taxes levied upon Customer. Host will invoice Customer annually for the hosting services. Customer will remit the amount set forth in such invoice within 30 days of the invoice date. Payment processing will be handled by a third party processor designated by Host. The annual fee will not be refundable for any reason, except that if Customer terminates this Agreement pursuant to Section 5.2(a) or 5.2(b), Customer will be entitled to a refund of the annual fee for the unused portion of the Term. Host may increase its fees for each renewal Term by providing written notice thereof at least sixty (60) days prior to the expiration of the current Term.
- Term and Termination.
5.1 Term. This Agreement will commence as of the Effective Date and remain in
effect for a period of one year (the “Term”), unless terminated earlier pursuant to Section 5.2. This Agreement will renew for successive one-year periods, unless either party gives notice of its intent not to renew at least 60 days prior to the end of the then-current term. Each renewal period will be a new Term.
5.2 Termination. This Agreement may be terminated immediately upon written
(a) by either party if the other party breaches any material provision of this Agreement and fails to cure such breach within 30 days after receipt of written notice of such breach (for sake of clarity, all of the provisions of Section 3 are material provisions);
(b) by either party if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, (v) institutes any proceedings for the liquidation or winding up, or (vi) ceases to conduct business in the ordinary course; provided, however, that, in the case any of the foregoing is involuntary, such party will only be in breach if such petition or proceeding has not been dismissed within 60 days.
5.3 Effect of Termination. Sections 1, 5.3 and 6 through 11 will survive expiration or earlier termination of this Agreement. Upon the termination of this Agreement for any reason and upon request by Customer at any time, Host will promptly deliver, all Customer Content and any copies previously made thereof copies thereof, and deliver to Customer a complete copy of all materials on the Web Site. In addition, upon the termination for any reason or expiration of this Agreement, Host will promptly provide to Customer reasonable assistance required by Customer in the transition of the Web Site from Host to any third party specified by Customer.
Customer represents and warrants that neither the Customer Content nor Customer’s use of the Website will (a) infringe on or violate the Intellectual Property Rights of any third party, or any rights of publicity or privacy or other proprietary rights, or (b) violate any law, statute, ordinance, regulation or the like.
- DISCLAIMERS AND LIMITS ON LIABILITY.
7.1 DISCLAIMER OF WARRANTIES. CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVERS UTILIZED BY HOST MAY BE OWNED BY THIRD PARTIES AND THAT SPACE ON THE SERVERS MAY BE SHARED WITH THIRD PARTIES. CUSTOMER ALSO ACKNOWLEDGES THAT SERVICES RELATED TO THE HOSTING SERVICES, SUCH AS INTERNET SERVICE, ARE PROVIDED BY THIRD PARTIES OVER WHOM HOST HAS NO CONTROL. CUSTOMER ACKNOWLEDGES AND AGREES THAT UNLESS AND EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, THE HOSTING SERVICES ARE PROVIED AS IS WITH NO WARRANTIES OF ANY KIND OR NATURE, AND HOST HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ABSENCE OF ANY LIENS, SECURITY INTERESTS OR OTHER ENCUMBRANCES, OR QUIET ENJOYMENT. WITHOUT IN ANY WAY LIMITING THE FOREGOING, CUSTOMER ACKNOLWEDGES AND AGREES THAT THERE IS NO GUARANTEE THAT THE HOSTING SERVICS WILL BE UNINTERRUPTED OR ERROR FREE AND THERE IS NO GUARANTEE OF RESULTS THAT MAY OR WILL BE OBTAINED BY USING THE HOSTING SERVICES.
7.2 EXCLUSION OF DAMAGES. HOST WILL NOT BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS OR OTHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, ENHANCED OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 LIMITATION ON DAMAGES. IN NO EVENT WILL HOST’S LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, DAMAGES, FEES AND COSTS OF ANY KIND OR NATURE, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT OF THE HIGHEST ANNUAL FEE PAID BY CUSTOMER IN ANY YEAR.
- License and Ownership.
Customer grants to Host a limited, nonexclusive, nontransferable, worldwide, royalty-free license, during the term of this Agreement to use, solely in connection with the Hosting Services for the Web Site, (a) any Customer Content provided by Customer and (b) Customer’s trademarks, trade names, logos and designations, solely as included in the Customer Content. Customer will own all right, title and interest in and to (i) all user data collected by Customer via the Web Site and (ii) the Customer Content and the trademarks, trade names, logos and designations of Customer, including all Intellectual Property Rights therein. Host will not use or disclose any user data collected by Customer via the Web Site without Customer’s prior written consent in each instance.
Customer will indemnify, defend and hold harmless Host, its affiliates, and their employees, representatives, agents, members, managers, directors, officers and shareholders, and all of their heirs, estates, successors and assigns, against any and all claims, demands, suits, actions, or other proceedings brought any of them, and all damages and expenses (including attorneys’ fees, costs and interest) incurred by any of them, arising out of or relating to any alleged or actual breach of any of the provisions of this Agreement. Host may participate in the defense of any claim with counsel of its own choosing and at its own expense.
- Confidential Information.
“Confidential Information” is any information of a party that does not fall within one of the exception below. The receiving party (“Recipient”) will hold the Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use the Confidential Information for any purpose other than as necessary to perform under this Agreement. Without limiting the foregoing, Recipient will treat the Confidential Information with at least the same degree of care it uses to prevent the disclosure of its own confidential information, but in no event less than reasonable care. Recipient will promptly notify the disclosing party (“Discloser”) of any actual or suspected misuse or unauthorized disclosure of the Confidential Information. Upon termination of this Agreement, Recipient will return all tangible copies of any Confidential Information. Confidential Information will not include information that the Recipient can prove (a) was generally available to the public at the time it received the information from the Discloser, (b) was known to it, without restriction, at the time of disclosure by the Discloser, (c) is disclosed with the prior written approval of Discloser, (d) was independently developed by it without any use of the Confidential Information, (e) becomes known to it, without restriction, from a source other than the Discloser or Discloser’s agent without a duty of confidentiality to the Discloser, or (f) is disclosed in response to an order or requirement of a court, administrative agency, or other governmental body; provided, however, that (i) to the extent practical, the Recipient will provide prompt advance notice of the proposed disclosure to Discloser and (ii) any Confidential Information so disclosed will otherwise remain subject to the provisions of this Section 10. Notwithstanding the foregoing, Recipient may disclose Confidential Information of Discloser to its legal counsel and financial advisors who are under an obligation of confidentiality.
- General Provisions.
11.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of New Hampshire, without regard to or application of New Hampshire’s conflicts of law principles.
11.2 Forum for Dispute Resolution. All disputes relating to this Agreement will be brought only in a court of appropriate jurisdiction and venue located in the State of New Hampshire and the parties hereby irrevocably consent to the exclusive personal jurisdiction over them of such courts.
11.3 Waiver and Modification. The failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment, supplementation or other modification or supplementation of any provision of this Agreement will be effective only if it is in writing and signed by both parties.
11.4 Severability. If any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, such determination will not affect the validity or enforceability of any other provision of this Agreement.
11.5 Headings and Interpretation. Headings are for convenience only and may not be construed to define, limit or affect the construction or interpretation of this Agreement or any provision. Neither party will be deemed to have drafted this Agreement for purposes of any rules of interpretation of this Agreement.
11.6 Assignment and Subcontracting. Host may assign this Agreement and may subcontract its duties hereunder; provided, however, that Host will remain liable for any breach of its obligations by any subcontractor. Customer may not assign this Agreement or any of its rights or obligations hereunder without Host’s express written consent, and any such assignment will be void and of no force or effect. The parties’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.
11.7 Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party will have the power to obligate or bind the other party.
11.8 Notice. All notices required or permitted under this Agreement must be in writing, and will be deemed given upon (a) personal delivery; (b) by facsimile, upon confirmation of receipt; (c) by certified or registered mail, postage prepaid, 5 days after the date of mailing; (d) one working day after delivery to a commercial overnight carrier, with written verification of receipt; and (e) by email with a reply email confirming receipt. All communications will be sent to the contact information set forth below or to such other contact information as may be designated by a party by giving written notice to the other party pursuant to this Section:
To Customer: As provided to Host during registration by Customer for the Hosting Services.
To Host: Cao-Tech LLC, Attn: Khoa Cao, 373 Harvard St, Manchester NH 03103
11.9 Force Majeure. Host will not be liable for any failure to perform due to circumstances beyond its control.
11.10 Entire Agreement. This Agreement, together with any Exhibits attached hereto (which are incorporated herein by this reference), represents the entire agreement between the parties hereto concerning the subject matter of this Agreement and supersedes any and all prior or contemporaneous oral or written statements, agreements, correspondence, quotations and negotiations.
Web hosting plans
-10 GB Storage
-Tech support as set out in Section 2.3 of the Agreement
-$60/ hour development hours (optional)
-20 GB Storage
-Tech support as set out in Section 2.3 of the Agreement
-$60/ hour development hours (optional)
-40 GB Storage
-Tech support as set out in Section 2.3 of the Agreement
-$50/hours development hours (optional)