VPS Terms of Service
This document (the "Agreement") sets forth the principles, guidelines and requirements of the Terms of Service of HostMyApple, Inc. (the "Company") governing the use by the customer ("Customer") of Company's services and products ("Services and Products"). These Terms of Service have been created to promote the integrity, security, reliability and privacy of Company's facilities, network, and Customer data contained within. The Company believes it provides the best services in the industry, and provides the following policies in the best interests of the Company and the Company's clients. The Company retains the right to modify these Terms of Service at any time and from time to time and any such modification shall be automatically effective as to all customers when adopted by Company and published at http://www.hostmyapple.com/tos.html. Company shall be the sole and final arbiter as the interpretation of the following. By utilizing the Company's services and products, the Customer agrees to be bound by the terms herein outlined.
Questions or comments regarding this document should be forwarded to the Company at the following address: [email protected]
2. Compliance with the Law
Customer shall not post, transmit, re-transmit or store material on or through any of Services or Products which, in the sole judgment of the Company (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, "Persons") or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by Customer. The Customer agrees to indemnify and hold harmless the Company from any claims resulting from the use of the services which damages the Customer or any other party. Customer shall be responsible for determining what laws or regulations are applicable to its use of the Services and Products.
3. Prohibited Uses of Services and Products
In addition to the other requirements of these Terms of Service, Customer may only use the Services and Products in a manner that, in the Company's sole judgment, is consistent with the purposes of such Services and Products. If Customer is unsure of whether any contemplated use or action is permitted, please contact the Company as provided above. By way of example, and not limitation, uses described below of the Services and Products are expressly prohibited.
3.1.1. Pornography and pornographic related merchandising are prohibited under all the Company's services. This includes sites that include links to pornographic content elsewhere. Further examples of unacceptable content or links include pirated software, "hacker" programs, uTorrent, BitTorrent, torrents, Peer-to-Peer software, anonymous/public proxies, proxy services, archives of "Warez Sites", game rooms or MUDs, IRC Bots, IRC, Egg Drop programs, any kind of illegal software or shareware. In addition, sites offering online gambling, casino functionality, sportsbook betting (including offshore), and internet lotteries are prohibited.
3.1.2. Violations of the rights of any Person protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by Customer.
3.1.3. Actions that restrict or inhibit any Person, whether a customer of Company or otherwise, in its use or enjoyment of any of the Company's Services or Products.
3.2. System and Network
3.2.1. Introduction of malicious programs into the Company's network or server (e.g., viruses and worms).
3.2.2. Effecting security breaches or disruptions of Internet communication. Security breaches include, but are not limited to, accessing data of which Customer is not an intended recipient or logging into a server or account that Customer is not expressly authorized to access. For purposes of this Section 3.2.2., "disruption" includes, but is not limited to, port scans, flood pings, packet spoofing and forged routing information.
3.2.3. Executing any form of network monitoring which will intercept data not intended for the Customer's server.
3.2.4. Circumventing user authentication or security of any host, network or account.3.2.5. Interfering with or denying service to any user other than Customer's host (for example, denial of service attack).
3.2.6. Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable, a user's terminal session, via any means, locally or via the Internet.
3.2.7. Creating an "active" full time connection on a Company-provided account by using artificial means involving software, programming or any other method.
3.2.8. Any attempt to circumvent or alter monitoring, bandwidth tracking or utilization reporting, or other actions which have the effect of complicating the normal operational procedures of the Company, including but not limited to altering, removing or in any way modifying or tampering with Company created log files.
3.2.9. Any action which the Company determines, in its own judgment, will reflect poorly on the Company or negatively impact its operations.
3.2.10. Any action which the Company deems to be an unacceptable use of resources, business practice or otherwise unacceptable to the Company.
3.3.1. Furnishing false or incorrect data on the order form, contract or online application, including fraudulent use of credit card numbers.
3.3.2. Attempting to circumvent or alter the processes any billing procedures or procedures to measure time, bandwidth utilization, or other methods to document "use" of the Company's Services and Products.
3.3.3. All plans include a 14-day money back guarantee. While customers may cancel service and billing at any time, refunds for payments made are not given after the initial 14 day period.
3.4.1. Sending unsolicited commercial email messages (UCE), including the sending of "junk mail" or other advertising material to individuals who did not specifically request such material, who were not previous customers of Customer or with whom Customer does not have an existing business relationship ("email spam").
3.4.2. Sending UCE referencing an email address for any domain hosted by the Company;
3.4.3. Sending UCE referencing a domain hosted by the Company;
3.4.4. Sending UCE referencing an IP address hosted by the Company;
3.4.5. Posting advertisements on IRC, ICQ, or any other public chat system containing an email address hosted by the Company, a domain hosted by the Company, an IP address belonging to the Company;
3.4.6. The Company will be the sole arbiter as to what constitutes a violation of these provisions.
3.4.7. Harassment, whether through language, frequency or size of messages.
3.4.8. Unauthorized use, or forging, of mail header information.
3.4.9. Solicitations of mail for any other E-mail address other than that of the poster's account or service with the intent to harass or to collect replies.
3.4.10. Creating or forwarding "chain letters" or other "pyramid schemes" of any type.
3.4.11. Use of unsolicited email originating from within the Company's network or networks of other Internet Service Providers on behalf of, or to advertise, any service hosted by the Company, or connected via the Company's network.
3.4.12. Activities deemed to be unsolicited marketing efforts or otherwise harassing in any way.
3.4.13. Customer will be charged a minimum $300.00 service charge for each instance of a verifiable UCE that is reported to the Company and faces immediate account suspension and/or termination, as well as further penalties.
3.5. Customer Support
3.5.1. The Company promotes a mutually-professional relationship with its customers. Abusive, threatening, obscene or otherwise harassing communications with agents of the Company, via telephone, email, online chat or other means will result in immediate account termination not withstanding any other terms of this agreement. Violation of this or any section of this Agreement will result in refund ineligibility.
4. Indemnification of Provider/Relationship of Parties
4.1. Customer agrees to indemnify and hold the Company harmless from any lawsuit, claim, charge, or expense, including reasonable attorney fees and costs of defense, for any matter arising from or relating to Customer's Website provided hereunder.
4.2. Nothing contained herein shall be deemed to create a relationship between the Company and Customer in the nature of a partnership, joint venture, editorbrublisher or otherwise. Both parties acknowledge and agree that the Company has no interaction with the data or substance of Customer's Website, except as necessary to maintain the Website.
5.1. Customer agrees to take all steps reasonable, necessary, and prudent to protect Customer's login ID and password.
5.2. Customer agrees not to attempt to undermine or cause harm to any server, software, system or customer of the Company.
5.3. Customer agrees to maintain Customers' computing equipment responsibly, including running virus software.
5.4. Uploading a virus to a Company server will result in account termination, service charges and/or prosecution.
5.5. Customer acknowledges that the Company cannot provide technical support for any software and/or script that the Customer installs, other than variable name changes. Customer also acknowledges that the Company does not supply technical support for Microsoft FrontPage, other than initial configuration. The Company supplies technical support for Web hosting issues only. The Company shall be the sole arbiter as to what constitutes a "Web host" issue.
6. LIMITATION AND EXCLUSION OF LIABILITY
IN NO EVENT SHALL HOSTMYAPPLE, Inc. (the Company) HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO HOSTMYAPPLE, Inc. , DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. HOSTMYAPPLE, Inc. SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOSTMYAPPLE, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HOSTMYAPPLE, Inc. TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOSTMYAPPLE, Inc. BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCURED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY HOSTMYAPPLE, Inc. UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE HOSTMYAPPLE, Inc. FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION
6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
6.2. Interruption of Service
Temporary delay, outages or interruptions of the Services. Further, HostMyApple, Inc. shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
You hereby acknowledge and agree that HostMyApple, Inc. reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. HostMyApple, Inc. will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.
6.4. Backups and Data Loss
Your use of HostMyApple, Inc.'s servers and services is at your sole risk. HostMyApple, Inc. is not responsible for files and/or data residing on your VPS Server. While complimentary backups may be provided by the Company, You, the Customer agree to take full responsibility for files and data transferred to/from and maintained on your VPS server and agree that it is your own (the Customer's) responsiblity to take backups of data residing on your VPS server.
Any attempt to undermine or cause harm to the Company server or another customer's Web presence is strictly prohibited. Any violation of the above Terms of Service will result in grounds for account termination, with no refunds given; the Company reserves the right to remove any account without prior notice. Violation of these Terms of Service may result in legal action, service charges or a combination thereof.
Customer acknowledges that by reason of their relationship, both the Customer and the Company may have access to certain products, information and materials relating to the other party's business, which may include business plans, customers, software technology, and marketing plans that are confidential and of substantial value to either party, respectively, and which value would be impaired if such information were disclosed to third parties. Consequently, both the Company and the Customer agree that it will not use in any way for its own account or for the account of any third party, nor disclose to any third part, any such information revealed to it by either party, as the case may be.
The Customer and the Company further agrees that each will take every appropriate precaution to protect the confidentiality of such information. In the vent of termination of this agreement, there shall be no use or disclosure by either party of any such confidential information in its possession, and all confidential documents shall be returned to the rightful owner, or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, either party shall be entitled to injunctive relief, which relief will not be contested by the Customer or the Company.
9. Refusal of Service
9.1. The Company reserves the right to refuse or cancel service in its sole discretion with no refunds.
9.2. If any of these Terms of Service are failed to be followed it will result in grounds for immediate account deactivation.
10.1. USE OF THE COMPANY'S SERVICES AND PRODUCTS IS AT CUSTOMER'S SOLE RISK. NEITHER THE COMPANY NOR ITS EMPLOYEES, AGENTS, RESELLERS THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, MAKE ANY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE COMPANY'S SERVICES AND PRODUCTS WILL NOT BE INTERRUPTED OR BE ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE COMPANY'S SERVICES AND PRODUCTS OR AS TO THE ACCURACY, OR RELIABILITY OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED OR PROVIDED THROUGH THE COMPANY'S SERVICE, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. THIS INCLUDES LOSS OF DATA, WHETHER RESULTING FROM DELAYS, ON DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY THE COMPANY AND ITS EMPLOYEES OR OTHER CAUSES.
10.2. THE SOLE CUMULATIVE LIABILITY OF THE COMPANY FOR ALL CLAIMS MADE BY THE CUSTOMER, OR ANY OTHER PARTY, REGARDLESS OF FORM, INCLUDING ANY CAUSE OF ACTION BASED ON CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES AND CHARGES PAID TO THE COMPANY BY THE CUSTOMER.
10.3. The Company reserves the right to revise or change these Terms of Service at any time.
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Colocation & VPS Agreement
Please read this Colocation Agreement (this ìAgreementî) carefully before signing, since by signing this Agreement, you consent to all of its terms and conditions. This Agreement is made by and between HostMyApple Inc. (ìHostMyAppleî), a wholly owned subsidiary of HostMyApple Inc. and Customer. This Agreement is effective upon HostMyAppleís acceptance as indicated by its signature below on the Effective Date as indicated (the ìEffective Dateî). This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
Thank you for choosing HostMyApple to provide your Colocation services. As used in this Agreement, the term ìyouî and ìCustomerî refers to the above-named corporation, partnership or other business entity that enters into this Agreement. The initial Order Form is attached to this Agreement as Exhibit A. Colocation Gateways and Customer may enter into subsequent Order Forms, which may supercede or complement prior Order Forms. As used in this Agreement, the term ìCustomer Equipmentî refers to any and all computer equipment, software, networking hardware or other materials placed by or for Customer in the Colocation Space, other than HostMyApple Equipment.
HostMyApple will begin installation, initiation and service after it receives and accepts: (1) your Order Form; (2) a copy of this Agreement signed by your authorized representative and (3) payment of amounts due under Section 1.1 below, detailed on your Order Form.
1. Fees and Billing. Customer agrees to pay the Activation Charges, Monthly Fees and other fees indicated on the Order Form (collectively, ìService Feesî).
1.1 Activation Charges. HostMyApple will bill Customer for all Installation Charges and first month recurring Service Fees (the ìActivation Chargesî) (as specified on the Order Form) upon Colocation Gatewayís acceptance of this Agreement and the Order Form. HostMyApple will not commence installation, initiation and Service unless and until it has received payment in full of all Activation Charges.
1.2 Recurring Service Fees. HostMyApple will begin billing for Recurring Service Fees on the date that is the earlier of: (a) the Installation Date specified on the Order Form; or (b) the date that Customer places Customer Equipment in HostMyAppleí premises. If, however, Customer is unable to use the Services commencing on the Installation Date solely as a result of delays caused by HostMyApple (this does not include delays caused by third party service providers), then the Installation Date specified in the Order Forms shall be extended one day for each day of delay caused by Colocation Gateways. On or about the first day of each month, HostMyApple will bill Customer for services to be provided in the current month. Recurring Service Fees do not include monthly telephone company charges or data line charges that are each billed separately by third parties.
1.3 Payment. All fees and charges will be due, in U.S. dollars, on the first day of the service month as indicated on the HostMyApple invoice. Late payments will accrue interest at a rate of one and one-half percent (1 1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. If in its judgment HostMyApple determines that Customer lacks financial resources, HostMyApple may, upon written notice to Customer, modify the payment terms to secure Customerís payment obligations before providing Services. HostMyApple, using its sole judgment, reserves the right to determine whether to charge interest to a late paying customer, or to consider the customer as having breached this contract as specified in Paragraph 11.
1.4 Taxes. All payments required by the Agreement are exclusive of applicable taxes and shipping charges. Customer will be liable for and will pay in full all such amounts (exclusive of income taxes payable by HostMyApple).
1.5 Term. The Term of this Agreement is specified in the Order Form. This Agreement shall automatically renew as defined in section 1.6 unless either party provides written notice of non-renewal within thirty (30) days of the end of the Term.
1.6 Renewal Term. All services are renewed on a month to month basis unless specified otherwise.
1.6.1 Renewal Option. Subject to the conditions stated in this Section 1.6.1, Customer shall have the option to extend this agreement each and every month. Each such Renewal Term shall commence the day following expiration of, as applicable, the initial Term or the preceding Renewal Term, and shall be for a Base Rent determined pursuant to section 1.6.2, and otherwise on and subject to all of the terms and conditions set forth in this Agreement. Customer may exercise the option granted hereby by written notice to HostMyApple, but only if, all of the following conditions are satisfied:
(a) Customer shall have given such notice not less than 30 days before the last day of the initial Term or Renewal Term to be extended;
(b) During the Term preceding delivery of such notice, Customer shall not have defaulted in any of its obligations hereunder, or Colocation Gateways shall, for purposes of this Section 1.6.1 only, waived the absence of any such default as a condition precedent to Customerís right to exercise the option:
(c) At the time that Customer gives such notice, and continuing until the first day of the Renewal Term, there shall not exist hereunder any default of Customer nor any event or circumstance that, with notice, the passage of time, or both, could ripen into a default.
(d) Customer is operating in the Premises in a manner consistent with the Building and Land.
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Subsequent references to the ìTermî of this agreement shall include the Term and the Renewal Term(s), if any, for which Customer effectively exercises the foregoing option. If all of the conditions stated to efficacy of the foregoing option are not timely satisfied, then this agreement shall expire on the last day of, as applicable, the expiring initial Term or Renewal Term. As of the date each Renewal Term begins, this agreement shall be deemed modified in the manner set forth above, without the necessity of any further agreement or document; provided, however that either party to this agreement shall, upon request of the other party, execute, acknowledge, and deliver an instrument evidencing such renewal and modification of this agreement.
1.6.2 Renewal Term Base Rent. Base Rent for the Premises shall be increased on the first (1st) day of each Renewal Term to an amount equal to the ìfair market rental valueî of the Premises (which fair market rental value determination may include increases in Base Rent during the Renewal Term). Fair market value shall be determined by Colocation Gatewayís in its sole but reasonable discretion, after evaluating, among other things, the rents at similar buildings in the same geographic area. Within ten (10) days after Colocation Gatewayís receipt of Customerís written notice of the exercise of the Renewal Option as set forth in section 1.6.1, Colocation Gateway shall provide Customer with Colocation Gatewayís determination of fair market rental value. Upon Colocation Gatewayís written notice of fair market rental value to Customer, Customer shall have ten (10) business days to accept or reject such Base Rent in writing. Should Customer reject such Base Rent, Customer shall have no further additional right to renew or extend the agreement term, and Customer shall vacate the Premises at the end the agreement term. Customerís failure to deliver written notice to Colocation Gateway accepting or rejecting such Base Rent within said ten (10) business day period shall be deemed Customerís acceptance of the same.
2.1 Installation. HostMyApple grants you the right to operate Customer Equipment at the Colocation Space, as defined on your Order Form. The Colocation Space is provided on an ìAS-ISî basis, and you may use the Colocation Space only for the purposes of maintaining and operating Customer Equipment as necessary to support local access communications facilities and links to third parties. HostMyApple will install Customer Equipment in the Colocation Space. HostMyAppleís Premises include all Colocation Gateways owned or leased property including Customer Colocation Space. Customer will be solely responsible for all packaging and shipping of Customer Equipment.
2.2 Access. You will not have access to the Colocation Space. No unescorted persons may enter the Colocation space under any circumstances.
2.3 Removal of Customer Equipment. Customer will provide HostMyApple with written notification two (2) days before Customer wishes to remove a significant piece of Customer Equipment. (This does not include replacing a piece of equipment with a similar piece of equipment). Before authorizing the removal of any significant Customer Equipment, HostMyAppleís accounting department will verify that Customer has no payments due to HostMyApple. Once HostMyApple authorizes removal of Customer Equipment, HostMyApple will remove such Customer Equipment, and will be solely responsible to leave area in good operating condition at its own expense.
2.4 Smarthands. At the request of Customer, HostMyApple may assist Customer in performing light duties or correcting minor problems such as circuit problems and/or outages, which may include:
a. Rebooting of equipment.
b. Pressing of reset or other readily accessible buttons or switches.
c. Reconfiguration of non-restricted cables with push-on type connectors.
d. Working cooperatively with Customer and/or third party provider to locate and correct circuit problems.
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Customer shall pay HostMyApple a fee of $25.00 per hour for a minimum of one (1) hour for each occurrence in which assistance is required during normal business hours (5:00 pm to 11:00 pm EST Monday through Friday, excluding holidays). A fee of $50.00 per hour and a minimum of three hours will apply to non-business hours and holidays.
2.5 Relocation of Customer Equipment. HostMyApple shall not arbitrarily or capriciously require Customer to relocate Customer Equipment; however, upon ninety (120) days written notice or, in the event of any emergency, HostMyApple may relocate Customer Equipment; provided however, the site of relocation shall afford comparable environmental conditions for the Customer Equipment and comparable accessibility to the Customer Equipment. In the event that HostMyApple requires relocation of Customer Equipment, all costs shall be borne by HostMyApple.
3. Security. HostMyApple does not guarantee security of Customer Equipment or of the Colocation Space. HostMyApple will assist in security breach detection and identification, but shall not be liable for any inability, failure or mistake in doing so.
4. Internet, Local and Long Distance Services. Customer is responsible for ordering all Internet, local and long-distance lines from carriers and ordering any and all necessary cross-connects from HostMyApple. HostMyApple Recurring Service Fees for such cross-connects are as indicated on the Order Form. The carriers will install such circuits in Customerís name. Customer will be solely responsible for such circuits and for all payments due to the carriers. Customer will notify the carrier directly when Customer wishes to terminate or modify such circuit. Customer understands that HostMyApple does not own or control these services and that HostMyApple is not responsible or liable for performance (or non-performance) of such services.
5. Resale. Should Customer resell any portion of the Service to any other party, Customer assumes all liabilities arising out of or related to such third party sites and communication. Customer agrees to enter into written agreements with any and all parties to which it resells any portion of the Services with terms and conditions at least as restrictive and as protective of HostMyApplesí rights as the terms and conditions of this Agreement, including without limitation, Sections 2.3,3,4,6,7,8,9, and 10.
6. Acceptable Use Guidelines. Customer must at all times conform its use of and comply with all sate and federal laws with respect to its operations in the Colocation Space. If HostMyApple is informed by government authorities or other parties of illegal use of HostMyAppleís facilities or Colocation Gateways otherwise learns of such use or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Colocation Gateways or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, Customer will be in Breach (defined below) of this Agreement and HostMyApple may immediately suspend Customerís Service.
7. Insurance. Customer will keep in full force and effect during the term of this Agreement: (i) business loss and interruption insurance in an amount not less than that necessary to compensate Customer and its customers for
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complete failure of Service; (ii) comprehensive generally liability insurance; (iii) employerís liability insurance; and (iv) workerís compensation insurance. Customer agrees that Customer and its agents and representative shall not pursue any claims against HostMyApple for any liability HostMyApple may have under or relating to this Agreement unless and until Customer or Customerís employee, as applicable first makes claims against Customerís insurance provider(s) and such insurance provider(s) finally resolve(s) such claims. Customer should try to name HostMyApple as an additional insured on all general liability insurance.
8. Limitations of Liability.
8.1 Personal Injury. Each Customer Representative and any other persons visiting HostMyApple facilities does so at his or her own risk and HostMyApple shall not be liable for any harm to such persons resulting from any cause other than HostMyApplesí gross negligence or willful misconduct resulting in personal injury to such persons during such a visit.
8.2 Damage to Customer Business. In no event shall HostMyApple be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customerís business, Customerís customers or clients, Customer Representativeís activities at HostMyApple or otherwise, or for any lost revenue, lost profits, replacement goods, loss of technology, rights or service, incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of Service or of any Customerís business, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
8.3 Damage to Customer Equipment. HostMyApple assumes no liability for any damage to, or loss of, any Customer Equipment resulting from any cause other than HostMyApplesí gross negligence or willful misconduct. In no event will HostMyApple be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer Equipment of any lost revenue, lost profits, replacement good, loss of technology, rights or services incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of any Customer Equipment, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
9. Defense of Third Party Claims and Indemnification.
9.1 Defense. Customer will defend HostMyApple, its director, officer, employees, affiliate and customers (collectively, the ìCovered Entitiesî) from and against any and all claims, actions or demand brought by or against HostMyApple and/or any of the Covered Entities alleging: (a) with respect to the Customerís 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 Use Guidelines or Anti-Spam Policy; (b) any damage or destruction to the Colocation Space, HostMyApple premises, HostMyApple Equipment or to any other HostMyApple customer which damage is caused by or otherwise results from acts or omissions by Customer, Customer representative or Customerís designees; (c) any personal injury or property damage to any Customer employee, Customer Representative or other Customer designee arising out of such individualís activities related to the Services, unless such injury or property damage is caused solely by HostMyAppleís gross negligence or will misconduct; or (d) any other damage arising from the Customer Equipment or Customerís business (collectively, the ìCovered Claimsî). In the event of any claim under this paragraph, HostMyApple may select its own counsel.
9.2 Indemnification. Customer hereby agrees to indemnify HostMyApple and each Covered Entity from and against all damages, costs, and fees awarded in favor of third parties in each Covered Claim, and Customer will indemnify and hold harmless HostMyApple and each Covered Entity from and against all claims, demand, liabilities, losses, damages, expenses and costs (including reasonable attorney fees) (collectively, ìLossesî) suffered by Colocation Gateways and each Covered Entity which Losses result from or arise out of a Covered Claim.
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9.3 Notification. Customer will provide HostMyApple with prompt written notice of each Covered Claim of which Customer becomes aware, and, at HostMyAppleís sole option, HostMyApple may elect to participate in the defense and settlement of an Covered Claim, provided that such participation shall not relieve Customer of any of its obligation under this Section.
10. Reliance on Disclaimer, Liability Limitations and Indemnification Obligations. Customer acknowledges that HostMyApple has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages and Customerís indemnity obligations set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if this Agreement is found to have failed of their essential purpose.
11. Conditions of Breach. Breach of this Agreement will occur if either party does not fulfill its obligations under this Agreement and such Breach is not cured within fifteen (15) days of written notice by the other party. Specifically relating to payment of Recurring Service Fees, the Customer will be in Breach of this Agreement if Customer has not paid its invoice within thirty (30) days of the invoice due.
12. Remedies for Breach. If Customer is in Breach of this Agreement, HostMyApple may (a) discontinue all Services to Customer; (b) disconnect Customer from its Internet, power and telecommunications services; (c) remove Customer Equipment from Colocation Space and place in storage; and (d) order Customer to pay any and all amounts due to the date that the Customer Equipment was removed and order Customer to buy out the remaining term of the Agreement as specified in the Order Form (ìEarly Buy Outî). If HostMyApple is in Breach of the Agreement, Customer has the right to withhold recurring Service Fees for the time period from which the Breach occurred to the date that the Breach was cured.
13. Early Buy Out. If Customer wishes to terminate this Agreement prior to the date specified on the Order Form, it may elect an Early Buy Out. If the Customer is in Breach of this Agreement, HostMyApple may order the Customer to purchase an Early Buy Out. The amount due in an early buyout shall be the sum of the following:
[ * ]14. Miscellaneous Provisions.
14.1 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
[*] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
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14.2 No Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in the Colocation Space or other HostMyApple premises, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulation or ordinances.
14.3 Marketing. HostMyApple will not send you any kind of marketing material or provide your information to any other company for marketing purposes.
14.4 Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
14.5 Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party that should not be unreasonably withheld, except to a party that acquires substantially all of the assigning partyís assets or a majority of its stock as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each partyís successors and permitted assigns.
14.6 Notices. Any notice or communication required or permitted to be given hereunder may be delivered personally, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party first indicated above, or at such other address as either party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered, or five (5) days after mailed or sent, whichever is earlier.
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14.7 Relationship of Parties. HostMyApple and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between HostMyApple and Customer. Neither HostMyApple nor Customer will have the power to bind the other or incur obligations on the otherís behalf without the otherís prior written consent, except as otherwise expressly provided herein.
14.8 Choice of Law and Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada. Each party agrees to submit any and all disputes concerning this Agreement, if not resolved between the parties, to binding arbitration under one (1) neutral, independent and impartial arbitrator in accordance with the Commercial Rules of the American Arbitration Association (ìAAAî); provided, however, the arbitrator may not vary, modify or disregard any of the provisions contained in this Section. The decision and any award resulting from such arbitration shall be final and binding. The arbitrator is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration. Both parties shall equally share the fees of the arbitrator. The arbitrator may award attorneyís fees to the prevailing party as determined by the arbitrator.
14.9 Changes Prior to Execution. Customer represent and warrants that it made no changes to this Agreement prior to providing this Agreement to HostMyApple for its acceptance and execution, and that HostMyApple alone incorporated any and all changes negotiated between, and accepted by, Customer and HostMyApple into this Agreement or into an addendum executed by both parties.
14.10 Entire Agreement. This Agreement, together with the Order Form and HostMyApple policies referred to in this Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only through a written instrument signed by both parties. Both parties represent and warrant that they have full corporate power and authority to execute and deliver this Agreement and to perform their obligations under this Agreement and the person whose signature appears above is duly authorized to enter into this Agreement on behalf of the respective party. Should any terms of this Agreement be declared void or unenforceable by any arbitrator or court of competent jurisdiction, such terms will be amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of the Agreement will remain in full force and effect. If a conflict arises between Customerís purchase order terms and this Agreement, this Agreement shall take precedence. In the case of international, federal, state or local provisions to the contrary on the face of this purchase order, attachments to this purchase order, or on the reverse side of this purchase order, this purchase order is being used for administrative purposes only, and this purchase order is placed under the subject solely to the terms and conditions of this Agreement executed between Customer and HostMyApple.
END OF COLOCATION & VPS AGREEMENT
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