Hosting Agreement

Website Hosting Agreement

[HOST'S WEBSITE]

This is your agreement with [NAME OF HOST]. By accessing or using the Services, you agree to be bound by this agreement.

1. Website Hosting Services. You engage us to provide, and we will provide, the Services to you in accordance with these Terms of Service.

2. Grant of License. We hereby grant to you a limited, non-exclusive, non-transferable license to access the Website for your[ personal and non-commercial] use in accordance with these Terms of Service.

3. Host Obligations

3.1. Standard of Performance. We will perform the Services in a professional, workmanlike manner, consistent with industry standards, and in a manner that meets or exceeds the Service Levels.

3.2. Website Operation. We will

(a) provide the Services so that the Website is accessible to third parties,

(b) provide the necessary access to allow you to make updates to the Website, and

(c) specify the correct format for posting Client Content to the Website.

4. Client Obligations

4.1. Compliance with Acceptable Use Policy. You will comply with our Acceptable Use Policy.

4.2. Compliance with Laws. You will comply with all applicable Laws.

4.3. Community Standards. You will abide by the Community Standards found at [COMMUNITY STANDARDS URL].

4.4. Website Management

(a) Compliance with Host Standards. You will post all Client Content in conformity with our standards.

(b) Monitoring of Content. You will ensure that no Client Content contains any content or services that are inaccurate or misleading or that violate any applicable Law or infringe on the intellectual property or other rights of any third party.

(c) Accuracy of Published Content. You will ensure the accuracy of all materials that you publish on the Website.

(d) Ownership of Content. You will ensure that you either own all Client Content or have the right to publish it on the Website.

(e) Linking Authorizations. You will acquire any authorizations that may be necessary for hypertext links to third party websites.

(f) Unauthorized Access. You will use reasonable efforts to prevent unauthorized access to any restricted areas of the Website or to any databases or other sensitive material generated from or in connection with the Website.

(g) Notice of Breach of Security. You will notify us immediately when you become aware of any unauthorized use of the Website, any questionable activity relating to it, or any other breach of security.

(h) Account Information. You will provide us with accurate account information (including name, address, phone number, email address, and payment information) and update that information as appropriate. We will have no liability if we are unable to contact you as a result of inaccurate account information.

5. Changes to Terms of Service

5.1. Notice of Updated Terms. We may, on one or more occasions, change or modify the features or pricing of the Services. Unless the Company makes a change for legal or administrative reasons, the Company will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Website.

5.2. Acceptance of Updated Terms. You should review these Terms of Service and any Updated Terms before using the Website. Your use of the Website after the effective date of the Updated Terms constitutes your agreement to the Updated Terms.

5.3. Effective Date of Updated Terms. The Updated Terms will be effective as of either the time of posting or a later date if specified in the Updated Terms.

6. Payment Obligations

6.1. Fees

(a) Fees for Services. You will pay us all charges attributable to your use of the Services at our then-current rates for those Services.[ You will be responsible for paying any related banking fees for returned payments.]

(b) Changes to Fees. Following the Initial Term of these Terms of Service, we may change our fees for any of the Services upon [60] days' prior Notice to you.

(c) Charges. Any additional Services that we perform at your request are charged at our then-current consulting rates and billed on a monthly basis.

6.2. Payment

(a) Payment of Fees. You will pay us our fees within [30] days of the due date.

(b) Collection Enforcement. You will be liable for all legal and other expenses associated with collecting any overdue fees.

6.3. Payment Net of Taxes. All fee amounts are exclusive of taxes. You will pay, and we will collect and remit, any taxes payable.

6.4. Late Payments. Any amount not paid when due will bear interest from the due date until paid at a rate equal to [1]% per month ([12.68]% annually) or the maximum allowed by Law, whichever is less.

7. Term. These Terms of Service will begin on the date and continue for the term indicated on the Description of Fees and Services. Following the initial term, these Terms of Service will automatically renew for successive [monthly] terms, unless terminated earlier.

8. Client Acknowledgements. You acknowledge to us as follows:

8.1. Acceptable Use Policy. You have read and will be bound by our Acceptable Use Policy, the terms of which form part of these Terms of Service. We will make changes to our Acceptable Use Policy by publishing them on our website; any such changes are effective upon publication.

8.2. Website Management. You are solely responsible for the construction, management, and updating of the Website (including for any files that you damage or lose).

8.3. Services Performed "As Is." We perform all Services "as is." We do not make any other express or implied warranties (including any implied warranties of non-infringement or fitness for a particular purpose). We are not liable for any damages that you may suffer, including loss of data.

8.4. Privacy Policy. Your privacy rights are set forth in our Privacy Policy. Please review it to learn about

(a) what information we may collect about you,

(b) what we may use that information for, and

(c) whom we may share that information with.

8.5. Account Security. We cannot guarantee that unauthorized third parties will never be able to defeat the Site's security measures or to use any personal information you provide to us for improper purposes. You acknowledge that you provide your personal information to us at your own risk.

8.6. Backups. We recommend that you maintain backups of all Client Content located outside of space associated with the Services. Although we maintain system backups, they are intended only to recover from system failure. System backups are not intended for restoration of files to individual client sites.

8.7. Monitoring Website. We are under no obligation to, and will not, monitor the Client Content uploaded to the Website to ensure its compliance with the terms of these Terms of Service. We may, however, on one or more occasions, review the Website, the Client Content, and your actions in light of the obligations you owe to us.

8.8. No Endorsement of Client Content. By providing the Services, we in no way endorse the Website or deem either you or the Client Content to be in compliance with these Terms of Service.

8.9. Intellectual Property Rights

(a) Rights to Client Content. All Client Content remains your sole property; we do not acquire any interest in it.

(b) License to Client Content. You hereby grant to us a non-exclusive, worldwide, royalty-free license to modify the Client Content as we may reasonably require to provide the Services. In providing the Services, we may cache Client Content (including content supplied by third parties). You acknowledge that any such caching does not constitute an infringement of any of the intellectual property or other rights of you or any third party.

(c) Rights to Host Materials. All Host Materials remain the sole property of us or our suppliers. You do not acquire any interest in the Host Materials other than the rights that are granted to you under these Terms of Service. If the ownership of any of the Host Materials for any reason does not automatically vest in us, you hereby assign to us any interest that you may have in and to them.

8.10. IP Numbers. We maintain and control ownership of all Internet protocol (IP) numbers and addresses that may be assigned to you. We may therefore on one or more occasions change or remove any IP numbers or addresses.

8.11. Disclosure by Host

(a) Necessary or Appropriate Disclosure. To comply with applicable Laws and lawful governmental requests, to protect our systems and clients, and to ensure the integrity and operation of our business and systems, we may

(i) access and disclose to the appropriate authorities or other appropriate third parties any information that we consider necessary or appropriate (including user profile information, IP addresses and traffic information, usage history, and other content residing on our servers and systems), and

(ii) report to those authorities and third parties any activity that we suspect violates or may violate any Law.

(b) Conflict with Privacy Policy. If any inconsistency exists between any terms of our Privacy Policy and our right to disclose under this section, the terms of this section will prevail.

8.12. No Control over Internet. We exercise no control over, and accept no responsibility for, the content of the information passing through our host computers, network hubs and points of presence, or the Internet.

8.13. Links. The Website may contain links to third-party websites or resources. You acknowledge that we are not responsible or liable for (a) the availability or accuracy of those websites or resources, or (b) the content, products, or services on or available from them. Links to those websites or resources do not imply any endorsement by us of those websites or resources. You are solely responsibility for and assume all risk arising from your use of any of those websites or resources.

8.14. Responsibility for Providing Services. We are responsible only for providing the Services; we are not responsible for providing any other services not expressly required under these Terms of Service.

8.15. Third Party Services. We are in the business of hosting websites. Accordingly, we may provide services to third parties that are the same as or similar to the Services, and we may use any Host Materials in doing so.

8.16. Compliance with Local Laws. Our Services are controlled and offered from our facilities in the United States of America. We make no representation that any Services are appropriate or available for use in other locations. If you access or use the Services from other jurisdictions, you do so at your choice and you are responsible for compliance with local Law.

9. Confidentiality

9.1. Confidentiality Obligations. The receiving party will hold all Confidential Information in confidence in accordance with the terms of these Terms of Service.

9.2. Use Solely for Purpose. The receiving party will use the Confidential Information solely for the purpose of performing its obligations under these Terms of Service.

9.3. Permitted Disclosure. The receiving party may disclose Confidential Information to its representatives but only

(a) to the extent necessary to carry out the Purpose,

(b) if the receiving party first informs them of, and directs them to maintain, its confidential nature in accordance with the terms of these Terms of Service[, and

(c) upon the disclosing party's request in connection with any of the receiving party's representatives[ other than a director, officer, shareholder, partner, or employee], if they each first enter into separate written agreements to that effect[ in a form acceptable to the disclosing party].

9.4. Required Disclosure. The receiving party may disclose Confidential Information to a third party if it is required to do so by Law but only if, before that disclosure, the receiving party, to the extent permitted by Law,

(a) gives the disclosing party Notice to allow it a reasonable opportunity to either seek a protective order or other appropriate remedy or waive the receiving party's compliance with this section,

(b) reasonably cooperates with the disclosing party[, at the disclosing party's expense,] in its reasonable efforts to obtain a protective order or other appropriate remedy,

(c) discloses only that portion of the Confidential Information that[, having consulted with its counsel,] it is legally required to disclose, and

(d) uses reasonable efforts to obtain reliable written assurance from the third party that the Confidential Information will be kept confidential.

9.5. Value and Nature of Confidential Information. The parties acknowledge that the Confidential Information is proprietary and has competitive value. Accordingly, any disclosure to the disclosing party's competitors or to the public would be detrimental to the best interests of the disclosing party, which may incur losses, costs, and damages as a result.

9.6. Burden of Proof. The receiving party will have the burden of proof relating to all exceptions to the definition of Confidential Information. The receiving party may rely on its own written records in support of its position.

10. Claims Made Against Us

10.1. Our Response to Claims. We respect the intellectual property rights of others and expect all users of the Service to do the same. We may investigate any claim of violation of this agreement or our published policies and take any action that we deem appropriate and reasonable in the circumstances to protect our systems and facilities, our customers, and third parties. We will respond to claims made by any third party of alleged infringement of their intellectual property or other rights if the claims comply with applicable Law and are properly provided to us.

10.2. Our Actions. If we become aware of any possible violation by you of this agreement, any related policies, third party rights, or laws, we may, after reasonable investigation, immediately take any corrective action we deem appropriate and reasonable under the circumstance, such as

(a) issuing warnings to you,

(b) suspending or terminating your Services,

(c) restricting or prohibiting any or all of Your Content, and

(d) restricting or removing from our servers any content that

(i) violates this agreement or any of our published policies, or is otherwise objectionable, or

(ii) we reasonably believe may violate or infringe any Law or the rights of any third party or that otherwise exposes or potentially exposes us to civil or criminal liability or public ridicule.

10.3. Our Actions. If we take any corrective action as outlined in section 10.2 (Our Actions), we will not be obligated to refund to you any fees paid in advance of our action.

11.  Indemnification

11.1. Your Indemnity. You will indemnify us and our directors, officers, employees, shareholders, partners, agents, and affiliates, against all claims, liability, costs, and expenses (including legal fees)

(a) for damages caused to our systems by Your Content, and

(b) arising from any third party claim or proceeding brought against us

(i) alleging your actual or alleged infringement or misappropriation of any intellectual property or other rights of a third party that relates to or arises out of your use of the Services or your operation of the Website,

(ii) for any injury to person or property caused by any products that you sold or otherwise distributed by using the Services, or

(iii) based on or related to your use of the Services in breach of this agreement, for an unlawful purpose, or in a manner otherwise contrary to Law.

11.2. Notice of Claim. A party will give prompt Notice to the other party of any claim or potential claim for indemnification under this section.

11.3. Exclusive Remedies. The rights granted under this section 11 (Indemnification) are the exclusive remedies available under this agreement in connection with the claims and losses that this section addresses.

12. Interruptions of Service. Neither we nor our suppliers will be liable for any temporary delay, outages, or interruptions of the Services.

13. Force Majeure. We will not be liable for any delay or failure to perform our obligations under these Terms of Service where the delay or failure results from Force Majeure.

14.  Suspected Breach of Service Terms

14.1. Actions. If we reasonably suspect that you have engaged in any Prohibited Use, then upon our investigation of the matter, we may do any or all of the following:

(a) amend or delete the relevant Client Content,

(b) suspend any of the Services, and

(c) suspend your access to any of the Services.

14.2. Extent of Investigations. We are only required to conduct reasonable investigations into your suspected breach before being entitled to take action under this section.

15. Limitation of Liability

15.1. Foreseeability. Neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen on entering into these Terms of Service.

15.2. No Liability. We will not be liable for any action we take in good faith to restrict transmission of material that we or any other client reasonably consider to be in breach of our Acceptable Use Policy, whether or not the material is constitutionally protected.

15.3. Limitation of Liability. Our maximum aggregate liability to you under these Terms of Service is limited to the amount that you have actually paid us under these Terms of Service for the services related to the particular cause of action during the [six] months immediately preceding the date on which your claim for liability arose. This limitation applies to all claims of liability that you may have against us, even if we have been advised of the possibility of damage to you, and to the fullest extent possible under applicable Law.

15.4. Other Jurisdictions. For clients in jurisdictions that have rules relating to limitations or waivers of liability, our liability is limited to the least amount available under applicable Law. Specifically, in those jurisdictions, we do not disclaim liability for (a) death or personal injury caused by our negligence or that of any of our officers, employees, or agents, (b) fraudulent misrepresentation or intentional misconduct, or (c) any liability that it is not lawful to exclude, now or in the future.

16. Termination

16.1. Termination upon Notice. Either party may terminate these Terms of Service for any reason upon [TERMINATION FOR CONVENIENCE NOTICE] business days' Notice to the other party.

16.2. Termination upon Breach

(a) Failure to Pay. If you fail to pay when due any amount owing under these Terms of Service and that failure continues for [five] business days, we may, in addition to any other remedies available to us, terminate these Terms of Service, with immediate effect, by giving you Notice.

(b) Any Other Breach. If one party

(i) commits any material breach or material default in the performance of any obligation under these Terms of Service (other than your obligation to pay money), and

(ii) the breach or default continues for a period of [CURE PERIOD] business days after the other party delivers Notice reasonably detailing the breach or default,

then the other party may terminate these Terms of Service, with immediate effect, by giving Notice to the first party.

16.3. Termination upon Your Insolvency. These Terms of Service will immediately terminate immediately upon the occurrence of your insolvency, bankruptcy, receivership, dissolution, or liquidation.

17. Effect of Termination. Upon termination or expiration of these Terms of Service, the following terms apply:

17.1. Termination of Services. We may immediately, without Notice, suspend, restrict, or terminate the Services, delete content, or take any other action we consider appropriate in the circumstances.

17.2. Return of our Confidential Information. You will, at our request, return all our Confidential Information, both originals and copies, under your direct or indirect control or, if we agree, certify to us its complete destruction.

17.3. Unpaid Fees. You will pay all unpaid and outstanding fees through the effective date of termination or expiration.

17.4. Refund of Fees. If we terminate these Terms of Service, we will refund to you the pro-rata portion of prepaid fees attributable to Services not yet rendered as of the termination date. If you terminate these Terms of Service by Notice in accordance with these Terms of Service,

(a) we will not refund any prepaid fees, and

(b) you will pay the lesser of three times the standard monthly charge and 100% of our standard monthly charge for each month remaining in the term.

17.5. Transition Services. Except in the case of termination of the agreement as a result of a material breach or material default in the performance of any of your obligations under these Terms of Service, we will keep the Website publicly accessible for a period of [30] days following the date of termination or expiration. We may, if you request, provide you with transition services at our then-current rates.

18. Definitions. In these Terms of Service, the following definitions apply:

18.1. "Acceptable Use Policy" means means our Acceptable Use Policy, which is published on our website at [URL OF ACCEPTABLE USE POLICY], as we may amend or replace it on one or more occasions.

18.2. "Client Content" means all materials comprising the Website (including images, photographs, illustrations, graphics, audio clips, video clips, and text uploaded to the Website).

18.3. "Confidential Information" means all information that the parties would reasonably expect to be considered confidential, but does not include information that

(a) is or becomes publicly known through no wrongful act of the receiving party,

(b) the receiving party received in good faith on a non-confidential basis from a source other than the disclosing party or its representatives,

(c) was in the receiving party's possession before its disclosure by the disclosing party or its representatives,

(d) the receiving party developed independently without breach of these Terms of Service, or

(e) the disclosing party has explicitly approved, by Notice to the receiving party, for release to a third party.

18.4. "Client Content" means all data and other materials (including all intellectual property and other rights) that you provide to us in connection with providing the Services.

18.5. "Description of Fees and Services" means the itemization of our Services, and their corresponding fees, that you have agreed to.

18.6. "DMCA" means the Digital Millennium Copyright Act.

18.7. "Force Majeure" means any event (including any mechanical, electronic, communications, or third-party supplier failure) that

(a) is beyond the reasonable control of a party,

(b) materially affects the performance of any of its obligations under these Terms of Service, and

(c) could not reasonably have been foreseen or provided against,

but does not include general economic or other conditions affecting financial markets generally.

18.8. "Host Marks" means the design, trademarks, service marks, and logos that the Host uses in providing the Services.

18.9. "Host Materials" means any

(a) materials (including equipment, software, data, and information) developed or provided by us or our suppliers,

(b) the Host Marks,

(c) know-how, methodologies, or processes that we use to provide the Services, and

(d) intellectual property or other rights in or to any of them.

18.10. "Law" means

(a) any law (including the common law), statute, by-law, rule, regulation, order, ordinance, treaty, decree, judgment, and

(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any governmental authority having the force of law.

18.11. "Notice" means any notice, request, direction, or other document that a party can or must make or give under this agreement.

18.12. "Person" includes

(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and

(b) any individual.

18.13. "Privacy Policy" means means our Privacy Policy published on our website at [URL OF PRIVACY POLICY], as it may be amended or replaced on one or more occasions.

18.14. "Service Levels" means the service levels, response times, and other performance criteria detailed on the Description of Fees and Services.

18.15. "Services" means the website hosting services provided to you as detailed in the Description of Fees and Services.

18.16. "Site" means the Host's site [HOST'S URL].

18.17. "Website" means the Website provided to you under these Terms of Service and identified in the Description of Fees and Services.

19. General Provisions

19.1. Entire Agreement. These Terms of Service contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.

19.2. Amendment. These Terms of Service may only be amended by a written document signed by both parties.

19.3. Assignment. You may not assign these Terms of Service or any of its rights under it. We may assign these Terms of Service or any of its rights without notice or the need for your consent.

19.4. No Partnership. Nothing contained in these Terms of Service creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the parties.

19.5. Third Party Beneficiaries. The Indemnification terms of these Terms of Service confer rights and remedies upon our directors, officers, employees, shareholders, partners, agents or affiliates. No person other than the parties themselves and those beneficiaries has any rights or remedies under these Terms of Service.

19.6. Notices

(a) Form of Notice. All notices and other communications between the parties must be in writing.

(b) Method of Notice. Notices must be given by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in these Terms of Service, or to the address that a party has notified to be that party's address for the purposes of this section.

(c) Receipt of Notice. A notice given in accordance with these Terms of Service will be effective upon receipt by the party to which it is given or, if mailed, upon the earlier of receipt and the fifth Business Day following mailing.

19.7. Remedies Cumulative. Except as provided in section 13.3 (Exclusive Remedies), the rights and remedies available to a party under these Terms of Service are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party.

19.8. Survival. Sections 9 (Confidentiality), 11 (Indemnification), and 17 (Effect of Termination) survive the termination or expiration of these Terms of Service.

19.9. Severability. If any part of these Terms of Service is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

19.10. Waiver. A party's failure or neglect to enforce any of rights under these Terms of Service will not be deemed to be a waiver of that party's rights.

19.11. Equitable Relief. Each party acknowledges that its breach or threatened breach of any its obligations under section 9 (Confidentiality) would not be susceptible to adequate relief by way of monetary damages only. Accordingly, the non-breaching party may, in that case, apply to court for any applicable equitable remedies (including injunctive relief), without the need to post any security.

19.12. Governing Law. These Terms of Service will be governed by and construed in accordance with the laws of the State of [GOVERNING LAW STATE ], without regard to its conflict of laws rules.

19.13. Dispute Resolution

(a) Arbitration. Any dispute or controversy arising under or in connection with this agreement will be settled exclusively by arbitration in [STATE], in accordance with the rules of the American Arbitration Association then in effect by [NUMBER OF ARBITRATORS] arbitrator(s).

(b) No Punitive Damages. The arbitrator(s) will not have the power to award punitive damages.

(c) Judgment. The successful party may enter the arbitral judgment in any court having jurisdiction.

19.14. Waiver of Jury Trial. Each party irrevocably waives its rights to trial by jury in any action or proceeding arising out of or relating to these Terms of Service or the transactions relating to its subject matter.

19.15. Attorney Fees. If either party brings legal action to enforce its rights under these Terms of Service, the prevailing party will be entitled to recover its costs and expenses (including reasonable attorneys' fees) incurred in connection with the action and any appeal.

19.16. Interpretation

(a) Currency. Unless otherwise specified, all dollar amounts expressed in these Terms of Service refer to American currency.

(b) Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa, words importing gender include all genders.

(c) Headings. The headings used in these Terms of Service and its division into sections, schedules, and other subdivisions do not affect its interpretation.

(d) Internal References. References in these Terms of Service to sections, and other subdivisions are to those parts of these Terms of Service.

19.17. Counterparts. These Terms of Service may be signed in any number of counterparts, each of which is an original and all of which taken together form one single document.

19.18. Effective Date. These Terms of Service is effective as of the date noted on the Description of Fees and Services.