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Hosting
Contract
This Web Space Hosting Agreement ("Agreement") is hereby entered into between sitecon.com, herein after referred to as Sitecon, and ____________________("Customer") on the following terms and conditions. In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement: 1. SERVICES TO BE PROVIDED BY SITECON Sitecon will provide Web Space Rental Services (the "Service"). The Service consists of allowing the Customer to offer content on the Internet. These services include space on Sitecon Internet Servers to store HTML, multimedia documents, Databases, Emails and files, the ability to maintain the website and email accounts. The terms and conditions of this agreement and any rules and prices published on the web site at http://www.sitecon.com/ or any of its domain pointers constitute the entire and only agreement (collectively the "Service Agreement") between Sitecon and the Customer (hereby defined as one who has an account with Sitecon for the Service, including Customer's designated users with respect to the Service) and supersede all other communications and agreements with regard to the subject matter hereof. 2.
CHANGES TO AGREEMENT/PRICES Upon notice provided in written, faxed or emailed form to the Customer, Sitecon may modify this Service Agreement or Prices and may discontinue or revise any or all aspects of the service at its sole discretion. 3.
RULES AND REGULATIONS From time to time Sitecon may impose rules and regulations regarding the use of its services. Such changes in rules and regulations will be mailed via email and will be incorporated into contract on the day the mail was sent out. 3.1
The following are specifically prohibited on Sitecon
Servers: Illegality in any form, including but not limited to activities such as unauthorized distribution or copying of copyrighted software, violation of Canadian/U.S. export restrictions, harassment, fraud, trafficking in obscene material, drug dealing, gambling/casino sites and other illegal activities. Net abuse,
including but not limited to activities such as using a non-existent email
return address on a commercial solicitation, spamming (sending unsolicited
advertising to numerous email addresses or newsgroups and/or generating a
significantly higher volume of outgoing email than a normal user), allowing
spamming by third parties to promote a web site hosted by Sitecon, trolling
(posting outrageous messages to generate numerous responses), mailbombing
(sending multiple messages without significant new content to the same user),
subscribing someone else to a mailing list without that person's permission,
cross-posting articles to an excessive number of newsgroups, or attempting
without authorization to enter into a secured computer system, newsgroup
flooding, widespread or organized forgery campaigns, widespread or organized
account hackery, widespread or organized censorship attempts, posting of
defamatory, scandalous, or private information about a person without their
consent, violating trademarks, copyrights, or other intellectual property
rights, misuse of system resources, including but not limited to employing posts
or programs which consume excessive CPU time or storage space; permitting use of
mail services, mail forwarding capabilities, POP accounts, or autoresponders
other than for the customer's own account; resale of access to CGI scripts
installed on Sitecon's servers; or attempting to use a single customer account
for third party web sites by allowing more than one domain pointer to be used to
reference pages within the customer's site, etc.
Sitecon reserves the right to determine what constitutes net abuse. 3.2
Adult Content: Sitecon
does not permit hosting of Adult Sites or Sites that display Adult Banners on
its server. Sitecon
reserves the right to determine what constitutes Adult Sites. 3.3
Violation of the rules: Sitecon reserves the right to immediately
suspend all accounts found to be in violation of rules, without prior notice. 4.
LIMITED 30-DAY MONEY-BACK GUARANTEE; DISCLAIMERS OF WARRANTY; LIMITATIONS ON SITECON's
OBLIGATIONS AND LIABILITIES 4.1 Sitecon offers a 30-day money-back guarantee on each Plan. If Customer is not completely satisfied with the Plan within the first 30 days, Customer may cancel this agreement by notifying Sitecon in writing (request for refund must be made in writing to support@sitecon.com or faxed in writing to our office within the first 30 days). In such case Customer will receive a full refund of any amounts paid pursuant to this agreement, less any setup fees. Setup fees will be refunded only if (i) Customer cancels this agreement prior to account activation, or (ii) the domain name requested by Customer is not available. 4.2 After the initial 30-day period. If no written claim or objection regarding such services has been received by Sitecon within the 30-day period, services provided by Sitecon to Customer shall be deemed accepted for all purposes. No claim related to such accepted services may be raised at a later date. 4.3 Sitecon's liability. Sitecon’s liability to Customer hereunder is limited to the amount paid to and received by Sitecon for services not accepted. Sitecon MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Sitecon CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA STORED OR TRANSMITTED VIA ITS SYSTEM. NEITHER Sitecon NOR ANYONE ELSE INVOLVED IN PROVIDING SERVICES PURSUANT TO THIS AGREEMENT WILL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS OR DAMAGES OF ANY KIND (DIRECT, CONSEQUENTIAL, SPECIAL, OR ANY OTHER) THAT ARISE OUT OF THE USE OR INABILITY TO USE SUCH SERVICES, whether or not resulting from fault or negligence on Sitecon's part, even if Sitecon has been advised as to the possibility of such damages. 4.4 Customer will take all necessary measures to preclude Sitecon from being made a party to any lawsuit or claim regarding Sitecon services provided to Customer. Customer hereby agrees to indemnify and hold harmless Sitecon from any and all such lawsuits or claims. 5.
PROPERTY RIGHTS Sitecon owns all right, title and interest in and to Sitecon's trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function,or operation of Plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This agreement does not constitute a license to Customer to use Sitecon's trade names or service marks. Any such license must be the subject of a separate written agreement. 6.
PRIVACY 6.1 Sitecon will not sell, and will not knowingly disclose, its customer lists or customer email or listserv address lists (although it cannot guarantee that such information will never be found out). Sitecon will cooperate with those attempting to minimize net abuse, and reserves the right to institute "filters" or other mechanisms as part of its efforts to reduce net abuse. 6.2 Sitecon will not monitor or disclose Customer's private email messages unless required to do so by court order or law, but Sitecon will cooperate with law enforcement authorities and will notify such authorities if it suspects that Customer is engaged in illegal activities. 7.
CONFIDENTIALITY Customer acknowledges that by reason of its relationship with Sitecon hereunder, it may have access to certain information and materials relating to Sitecon's business plans, customers, software technology, and marketing strategies that is confidential and of substantial value to Sitecon, which value would be impaired if such information were disclosed to third parties. Customer agrees that it will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by Sitecon. Customer further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement, Customer shall not disclose any such confidential information in its possession, and shall return all confidential materials to Sitecon or destroy them, at Sitecon's option. The provisions of this section shall survive the termination of this agreement. Upon any breach or threatened breach of this section, Sitecon shall be entitled to injunctive relief. 8.
RELATIONSHIP OF THE PARTIES; NATURE OF AGREEMENT The relationship between Sitecon and Customer is that of vendor and vendee. The parties shall not be construed as being in a or part of a joint venture, franchiser/franchisee, or employer/employee. Even if Customer is an individual, this agreement is a commercial agreement entered into for business purposes, not a consumer agreement. Customer has no authority, apparent or otherwise, to contract for or on behalf of Sitecon, or in any other way legally bind Sitecon in any fashion, nor shall Customer be authorized to make any representations about Sitecon or its services other than to set forth the contents of this agreement, of any Plan(s) contracted for, and of any rules and regulations promulgated by Sitecon from time to time. 9.
DISPUTES The parties shall attempt to resolve all disputes arising out of this agreement in a spirit of cooperation and with a problem-solving mindset, without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices, and other than the injunctive relief referred to in paragraph 7) shall be subject to binding arbitration upon written demand of either party. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator's compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue or reveal a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof. Should any legal action permissible under this agreement be instituted to enforce the terms and conditions of this agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels. 10.
TERM, TERMINATION OF AGREEMENT AND SERVICES 10.1 Initial term. Unless otherwise terminated as set forth herein, this agreement shall be effective for the term stated in the initial order. 10.2 Automatic renewal. This agreement shall be renewed automatically for subsequent terms of the same length unless, at least twenty (20) days prior to the next renewal date, one party gives notice of non-renewal to the other. If, prior to the renewal date, Sitecon tenders to Customer a copy of Sitecon's then-current Customer Agreement with notice that renewal is conditioned on Customer's agreement thereto, any renewal by customer will be deemed to be an acceptance of the terms contained in such subsequent Customer Agreement, rather than a renewal pursuant to the terms contained herein. Upon automatic renewal of this Agreement, the Plan(s) accepted by Customer shall be deemed to be the then-current Plan(s) most closely resembling Customer's prior accepted Plan(s), provided that such subsequent Plan(s) shall be at least as favorable to Customer as any prior Plan(s). 10.3 Termination. This agreement may be terminated and all accounts/domains of Customer may be shut down in any of the following ways: 10.3.1 By Sitecon, (i) upon thirty (30) days' written notice to Customer, if in the sole judgment of Sitecon, Customer breaches any material and substantial provision of this agreement and has not cured by the end of the 30 days. (ii) immediately upon written notice to Customer, in the event that (a) Customer, in the sole judgment of Sitecon, violates the AUPs, in which case Sitecon may either terminate this agreement, or suspend it pending discussions with Customer. (b) Any bank draft or check delivered by Customer to Sitecon in payment for products or services is returned unpaid and Customer fails to remedy such nonpayment within five business days; (c) Customer becomes more than sixty (60) days in arrears in payment of its account with Sitecon; (d) There are instituted bankruptcy or insolvency proceedings against Customer, which are not vacated within sixty (60) days from the date of filing; (e) Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; (f) Customer makes an assignment of all or part of its assets for the benefit of creditors; (g) Customer assigns or attempts to assign all or any part of this Agreement without Sitecon's prior written approval; or (h) Customer fails to inform Sitecon in writing immediately on the happening of any event specified in this section; (iii) Site(s) that will be immediately shut down without written notice to Customer (a) Customer site is found to be a Warez (illegal software), Adult site, links or advertising for an Adult Site, hacker/cracker site, hate site, gambling or Casino sites etc. Sitecon reserves the right to determine and judge in its sole and absolute discretion which site is inappropriate. (b) Customer’s who have incorrect or bad scripts running on shared servers that result in increased CPU usage, slow down of the server(s) and/or stoppage of the server will have their sites shut down immediately until the problem is corrected. Sitecon will not be held responsible in any way for the downtime associated with Customer’s bad scripts that require closure of the responsible site, nor will any financial renumeration or refund be issued for such a closure. 10.3.2 By Customer, (i) immediately upon giving written notice to Sitecon, if (a) There are instituted bankruptcy or insolvency proceedings against Sitecon, which are not vacated within sixty (60)days from the date of filing; (b) Sitecon institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; (c) Sitecon makes an assignment of all or part of its assets for the benefit of creditors; or (d) Sitecon fails to inform Customer in writing immediately on the happening of any event specified in this section. Customer will be responsible for paying the costs of enforcing any unpaid obligations to Sitecon, including reasonable attorney fees. 11.
PAYMENT METHODS 11.1 Check Payment. 11.2.1 Customer paying by check will not receive access to their account or web site until Sitecon receives payment. For accounts paid by check, Sitecon requires payment for a minimum quarterly period. 11.2.2 Payment for any charges is due upon the date of the invoice. Accounts which have balances outstanding shall be deemed to be in default and subject to termination of service. Any charge that is not paid within thirty (30) days from the date of the invoice shall be subject to an interest rate of 1.5% per month, or the maximum allowed by law. Customer shall be responsible for all costs of collection, including reasonable attorney's fees and court costs, in event of a default for nonpayment of any amounts due Sitecon. 12.
REFUNDS 12.1
Valid Complaint. All refunds
requested with a "valid complaint" will receive a refund of the
charged periods. Charged periods
are soley determined by Sitecon. What
constitutes a "valid complaint" shall be determined by Sitecon in its
sole and absolute discretion. 12.2 Customer will not receive a refund for any other reason, including but not limited to: late cancellation, slow connection caused by Customer's ISP/network, Customer's ignorance, Registration delays, account termination for violation of policies. 12.3 Customer will not receive a refund for any setup fees or any fees other than the monthly recurring hosting fees. 13.
DOMAIN DELETIONS Domain deletion of any/all Customer domains that are hosted on Sitecon servers MUST be specifically requested in writing. Sitecon will not be held responsible for any charges incurred by a Customer who fails to request in writing for the removal of a domain(s) from their account. Until the request is received, charges will apply for the domain(s) in question. 14.
NONASSIGNABILITY Customer's rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of Sitecon, which consent shall not be unreasonably refused. Sitecon's rights and obligations under this agreement may be transferred and assigned only if such transfer or assignment does not adversely affect the services provided to Customer hereunder. 15.
PARTIAL INVALIDITY If any provision of this agreement is held
to be invalid by a court of competent jurisdiction, then the remaining
provisions shall nevertheless remain in full force and effect. Sitecon and
Customer agree to renegotiate in good faith any term held invalid and to be
bound by mutually agreed substitute provision. 16.
NOTICES Except with respect to service of process as set forth in paragraph 13, all notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained. 17.
ENTIRE AGREEMENT; MODIFICATIONS This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. Sitecon may make changes to this agreement upon written notice to Customer, advising of the change and the effective date thereof. Utilization of Sitecon services by Customer and/or its Customers following the effective date of such change shall constitute acceptance by Customer of such change(s). Otherwise, this agreement may not be modified except by the written consent of both parties. Sitecon |
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Sitecon Toll Free: 1-866-SITECON