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Terms of Service

 

Terms Of Service

1. Introduction

This Web Site Hosting Agreement ("Agreement") contains the Terms of Service which apply to your (the "Client") account with eMegaWeb.net (the "Host"). Host and Client are collectively referred to as the "parties."

2. Services

a. Services. Host agrees to perform and provide to Client, services consisting of non-exclusive electronic access to a digital information processing, transmission and storage system ("Server") to store Client's web site ("Site") and make the Site available on and via the global computer communications network ("Internet") as specified herein. The Hosting Services are referred to as the "Services." Client agrees that the Services shall not include any web site development services, authorship or creation with respect to the Site.

b. Availability of Services. Subject to the terms and conditions of this Agreement, Host shall attempt to provide the Services for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. Client agrees that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Host may undertake from time to time; or (iii) causes beyond the control of Host or which are not reasonably foreseeable by Host, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. Client agrees that Host has no control of availability of Services on a continuous or uninterrupted basis.

c. Host Materials. In connection with performance of the Services and at the sole discretion of Host with no obligation, Host may provide to Client certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Host or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to Client, and other know-how, methodologies, equipment, and processes used by Host to provide the Services to Client ("Host Materials").

d. Client Content. Client shall be solely responsible for providing, updating, uploading and maintaining the Site and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the Site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, metatags, domain names, software and text ("Client Content"). The Client Content shall also include any registered domain names provided by Client or registered on behalf of Client in connection with the Services.

3. Site and Services Terms and Limitations

a. Storage and Security. At all times, Client shall bear full risk of loss and damage to the Site and all Client Content. Client shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Client Content; (ii) maintain independent archival and backup copies of the Site and all Client Content; (iii) ensure the security, confidentiality and integrity of all Client Content transmitted through or stored on the Server; and (iv) ensure the confidentiality of Client's password. The Server, Host and Services are not an archive and Host shall have no liability to Client or any other person for loss, damage or destruction of any Client Content. If Client's password is lost, stolen or otherwise compromised, Client shall promptly notify Host, whereupon Host shall suspend access to the Services by use of such password and issue a replacement password to Client's authorized representative.

b. Acceptable Use Policy. Client is solely responsible for all acts, omissions and use under and charges incurred with Client's account or password or in connection with the Site or any Client Content displayed, linked, transmitted through or stored on the Server. Client agrees not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which Client does not have authorization to access or at a level exceeding Client's authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; or (viii) engage in any other activity deemed by Host to be in conflict with the spirit or intent of this Agreement or any Host policy.

c. Rights of Host. Client agrees that Host may, in its sole discretion, remove or disable access to all or any portion of the Site or Client Content stored on the Server at any time and for any reason. Host has no obligation to monitor the Site or any Client Content, but reserves the right in its sole discretion to do so.

4. Payment Terms

a. Payment. Client shall pay Host for the Services the amounts set forth at the Plan Comparison Page for the particular Plan chosen by Client, and at such times provided by the payment schedule specified therein. In the event that Client exceeds the scope of the Services as set forth at the Plan Comparison Page for the particular Plan chosen by Client (for example, bandwidth or disk utilization space), Client shall pay Host for such additional services not within the scope of the Services at Host's then current rates.

b. Client acknowledges, agrees, and assumes full responsibility for making timely payments for each eMegaWeb account. Timely payment includes keeping account and billing information current for all of Client's accounts. Clients who pay via credit card must provide eMegaWeb with their full name, billing address, credit card number and expiration date. It is the Client's responsibility to timely notify eMegaWeb of any changes in the Client's credit card account.

c. eMegaWeb reserves the right to cancel any Client account without notice due to non-payment of hosting fees.

d. In the event of cancellation by Client, Client must contact eMegaWeb in one of the following manners: 1) via email to support@emegaweb.net where the subject has the words 'Account Cancellation'; or 2) via telephone to an eMegaWeb representative at 866-235-1612, followed by written confirmation by Client with proof of receipt, properly addressed to and received by eMegaWeb within ten (10) days from the date of telephone cancellation. Notification of cancellation MUST be accompanied by the Client's eMegaWeb username.

e. NON-USAGE OF AN ACCOUNT IS NOT PROOF OF CANCELLATION OF SERVICE. Clients are responsible for full payment on all accounts whether or not the account is ever utilized.

f. Any billing discrepancies shall be presented to eMegaWeb in reasonable detail, in writing, within twenty (20) days of the date of the charge. Such notification shall not relieve Client of the obligation to make all payments including the amounts disputed by the due date. eMegaWeb shall not be obligated to consider any Client notice of billing discrepancies which are received by EMEGAWEB more than twenty (20) days following the date of the invoice in question. If a Client fails to dispute any charge after twenty (20) days from the date of the charge, Client waives its rights to thereafter make any such dispute and all such charges will be deemed valid.

g. In the event that a Client pre-pays for their Hosting account, any discounts given by EMEGAWEB for such payment plans are calculated that the Client is paying for the regular months of service and getting additional months at the end of the service term at a discount. In the event that a Client cancels their service within a year, such Client is no longer entitled to any discounts.

h. Client agrees that at the end of the term of the Hosting Account initially agreed to by Client or any term thereafter, EMEGAWEB may, at its sole discretion, automatically renew such Hosting Account for an additional term. Client further agrees that upon renewal of such Hosting Account, EMEGAWEB may continue to charge Client's credit card or seek other form of payment from Client, for which Client shall be responsible for. In the event that Client does not wish EMEGAWEB to automatically renew such Internet Account, it is Client's sole responsibility to notify EMEGAWEB of such intent prior to the expiration of such term.

5. Disclaimer Of Warranty

HOST MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING ANY SUBJECT MATTER OF THIS AGREEMENT.

6. Limitation of Liability

EXCLUSIVE OF LIABILITY UNDER SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL HOST BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HOSTíS TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO HOST HEREUNDER FOR THE ONE (1) YEAR PERIOD PRIOR TO ANY ACT OR OMISSION GIVING RISE TO ANY POTENTIAL LIABILITY.

7. Indemnification

a. By Client. Client agrees to indemnify, hold harmless and defend Host and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney's fees and costs, arising from or relating to: (i) Client's breach of this Agreement; (ii) any negligence or willful misconduct of Client; (iii) any allegation that the Site or Client Content infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets; or (iv) any action or conduct of Host undertaken pursuant to this Agreement. Client agrees that Host shall have the right to participate in the defense of any such claim through counsel of its own choosing.

b. By Host. Host agrees to indemnify, hold harmless and defend Client and its directors, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorney's fees and costs, arising from or relating to any allegation that the Host Materials infringe a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets.

8. General

a. Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

b. Assignment. Client may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void and/or a material breach of this Agreement.

c. Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.

d. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.

e. Amendment. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.

f. Law. This Agreement shall be governed in all respects by the laws of the State of New Jersey without regard to its conflict of laws provisions.

g. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

h. Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.