* The Acceptable Use Policy (“AUP”) of High Tech Solutions Inc. (the “Company”) is based on common sense, legal use of services, respect for others, and non-interference. The Company reserves the right to update this policy, and retroactively be in effect, at any time. Clients of the Company (“Clients”) must agree and adhere to the following provisions of acceptable use.
1. Restricted Content
The Company will not construct, nor abet in the construction of, nor host, any site whose nature is exploitation of minorities or children, hate, violence, any illegal activity or discrimination of any kind. Other examples of unacceptable use include all forms of malicious or illegal content. The Company reserves the right to decline your business or terminate your account on the previously mentioned grounds of content or purpose.
2. Copyright Infringement
Client’s web presence must not infringe on the copyrights, trademarks, or service marks of others. Client’s web presence may contain others copyrighted material with prior consent of the copyright holder. Clients will be notified of copyright infringements as reported by their respective owner and will have seven days to remove the material or the Company will remove it. The Company is not responsible for any broken links or problems arising from forced copyright content removal.
3. Zero Tolerance Spam Policy
The Company has zero-tolerance in regards to the sending of unsolicited e-mail, also known as spam. Any user who sends out spam will have their account terminated without notice. We reserve the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with this policy, at our sole discretion. We also reserve the right to make any such modifications in an emergency at our sole discretion. We reserve the right to charge the holder of the account used to send any unsolicited e-mail a clean-up fee. The cost of this clean up fee is left entirely to the discretion of the Company.
4. Abusive Programs and Scripts
The Company may provide products which include programming and scripting capabilities. The Client agrees that if the Company determines if any program or scripts written or in use by the Client are of questionable legal nature, or are adversely affecting services of other Clients of the Company, such programs and scripts may be removed or disabled. The Company reserves the right to disable or remove any such offending scripts/programs without prior notice to the Client. The primary contact will be notified within one business days that such action has been taken and the reason(s) for such action.
5. Network Activity Monitoring
The Client understands and agrees that in due course of preserving quality service for its customers, the Company may monitor and adjust Client’s network activity. Reasonable efforts are made to avoid disclosure of the Client’s data or information contained within the network activity. The Client further understands that the Company may be compelled to disclose complete network activity and data to law enforcement agencies when required by law.
Terms of Service
The Web Hosting Agreement ("Agreement") is between the Company, a corporation registered in the county of Shasta in the State of California; and the person (individual, company, organization or legal representative thereof) who contracts with the Company for services incorporating this Agreement, by reference (the "Client"). This Agreement governs Client’s use of the Company's web and hosting services, which may, but is not limited to e-mail, registrar services, DNS, FTP, web site content delivery and other Internet communication mediums necessary to facilitate Internet activity (“Web Hosting”).
Subject to the terms of the Agreement, and contingent upon Client’s satisfaction of the Company’s approval requirements, the Company agrees to provide the web and/or hosting services described in their invoice or for the fees stated therein.
The initial service term of any hosting Agreement shall begin on the date that the Company communicates to Client announcing the activation of the Client’s account (the "Service Commencement Date") and shall continue for the number of months stated in the invoice (the "Initial Term"). The minimum initial term is one month but the Initial Term may be pro-rated to one of the Company’s four billing cycles. Upon expiration of the Initial Term, this Agreement shall automatically renew for the number of months stated on Client’s invoice (each a "Renewal Term") unless the Company or Client provides the other with notice of non-renewal or change of term at least seven (7) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term".
* (i) Web Hosting fees are payable in advance of services by the first business day of each billing cycle, however, the Client will have 30 days from the date of invoice issuance to satisfy the invoice before termination is incurred. Beginning with the first Service Renewal Date after the Initial Term, Client’s billing term can revert to quarterly, semi-annually or annually as indicated on the invoice. The Company may require payment for the first billing cycle prior to beginning service. The Company will invoice Client via e-mail to the primary billing contact listed in the Client’s online profile.
* (ii) Payments must be made in US dollars. The Client is responsible for providing the Company with changes to billing information (such as e-mail/billing address, phone numbers, change of contacts, etc.). At its option, the Company may charge late fees on overdue amounts. The Company may suspend the service without notice if payment for the service is overdue. Fees not disputed prior to due date are conclusively deemed accurate. Client agrees to pay the Company’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay the Company's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Adjustments
The Company may increase its fees for services effective the first day of a Renewal Term by giving notice to Client of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Client does not give a notice of non-renewal as provided in Section 2 above, the Client shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term). Reductions in fees become effective on the next Renewal Term without any pro-rata for the period covered under the prior fee schedule.
At the Company's request, Client shall remit to the Company all sales, VAT or similar taxes imposed on the provision of the services (but not in the nature of an income tax on the Company), regardless of whether the Company failed to collect the tax at the time the related services were provided.
(d) Early Termination
Client acknowledges that the amount of the fee for the service is based on Client’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event the Company terminates the Agreement for Client’s breach of the Agreement in accordance with Section 9 (Termination), or Client terminates the service other than in accordance with Section 9 (Termination) for the Company's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
Client agrees to use the service in compliance with applicable law and the Company's Acceptable Use Policy (the "AUP"), which is hereby incorporated by reference in this Agreement. Client agrees that the Company may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Client’s use of the Services. Amendments to the AUP are effective on the earlier of the Company's notice to Client that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Client agrees to cooperate with the Company's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between the Company and Client regarding the interpretation of the AUP, the Company's commercially reasonable interpretation of the AUP shall prevail.
5. Client Information
Client represents and warrants to the Company that the information he, she or it has provided and will provide to the Company for purposes of establishing and maintaining the service is accurate. If Client is an individual, Client represents and warrants to the Company that he or she is at least 18 years of age. The Company may rely on the instructions of the person listed as the primary contact on the online account with regard to Client’s account until Client has provided a written notice changing the primary contact.
Client agrees to indemnify and hold harmless the Company, the Company's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorney’s fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Client’s services in violation of applicable law or the AUP by Client or any person using Client’s log on information, regardless of whether such person has been authorized to use the services by Client.
7. Disclaimer of Warranties
THE COMPANY DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
8. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF THE COMPANY AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR ONE MONTH OF SERVICE.
(a) Suspension of Service
Client agrees that the Company may suspend services to Client without notice and without liability if:
* (i) the Client is delinquent in any monetary payments due the Company by seven (7) days or more.
* (ii) the Company reasonably believes that the services are being used in violation of the AUP;
* (iii) Client fails to cooperate with any reasonable investigation of any suspected violation of the AUP;
* (iv) the Company reasonably believes that the suspension of service is necessary to protect its network or its other customers, or
* (v) as requested by a law enforcement or regulatory agency. Client shall pay the Company’s reasonable reinstatement fee if service is reinstated following a suspension of service under this subsection.
The Agreement may be terminated by Client prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if the Company fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Client’s written notice describing the failure in reasonable detail. The Agreement may be terminated by the Company prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows:
* (i) upon thirty (30) days notice if Client is overdue on the payment of any amount due under the Agreement;
* (ii) Client materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within ten (10) days of a written notice from the Company describing the violation in reasonable detail;
* (iii) upon one (1) days notice if Client’s service is used in violation of a material term of the AUP more than once, or
* (iv) upon one (1) days notice if Client violates Section 5 (Client Information) of this Agreement. Either party may terminate this agreement upon seven (7) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Client Information
Client agrees that the Company may, without notice to Client:
* (a) report to the appropriate authorities any conduct by Client or any of Client’s customers or end users that the Company believes violates applicable law, and
* (b) provide any information that it has about Client or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy
Client or Client’s agent agrees to maintain a current copy of all content hosted by the Company notwithstanding any agreement by the Company to provide backup services. The Company makes no warranty as to customer data, and is not responsible for maintaining backup copies.
12. Changes to the Company's Servers/Network
Upgrades and other changes in the Company's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Client’s hosted content and/or applications. The Company reserves the right to change its network in its commercially reasonable discretion, and the Company shall not be liable for any resulting harm to Client. Prior notice will be given to Client of any such changes and their potential impact on Client’s services.
Notices and requests to the Company under the Agreement shall be given via electronic form submission using the form located in the Client’s online account. Notices to Client shall be given via electronic mail to the individual listed as the primary contact on the online account. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Client may change his, her or its notice address by a notice given in accordance with this Section.
14. Force Majeure
The Company shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond the Company's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE LOCAL, STATE AND FEDERAL COURTS IN SHASTA COUNTY, CALIFORNIA AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal notice by both parties. The terms on Client’s invoice or other business forms are not binding on the Company unless they are expressly incorporated into a formal written contract signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Client may not transfer the Agreement without the Company's prior written consent. The Company's approval for assignment is contingent on the assignee meeting the Company's credit approval criteria. The Company may assign the Agreement in whole or in part.
This Agreement together with the invoice and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.
Tuesday, November 1, 2016