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Overview
Use of
Host-Gather.com Managed Hosting's (hereafter
"Host-Gather.com") Service constitutes
acceptance and agreement to Host-Gather.com's
AUP (Acceptable Use Policy) as well as
Host-Gather.com's TOS (Terms of Service). By
providing service to a customer in
compliance with this TOS and AUP,
Host-Gather.com agrees to be bound by the
terms herein. From herewith in this TOS, AUP,
the usage of
"us", "we", "our", "ours" shall constitute
reference to Host-Gather.com, the usage of
"you", "your", "they", "them" shall refer to
client / customer of Host-Gather.com.
Documents
and Explanations
The following
documents pertain to your service with
Host-Gather.com:
General Terms of Service
This
Host-Gather.com Terms of Service (this
"Agreement") and the Host-Gather.com
Acceptable Use Policy ("AUP") govern your
purchase and use of all Host-Gather.com
services (collectively, the "Services"), as
described in the Order Form(s) submitted by
you, electronically or by analog means, and
accepted by Host-Gather.com ("Service
Order"). Acceptance of any terms or
conditions different from those contained
herein by Host-Gather.com will not be deemed
by provision of service, but only by
electronic or written signature of an
officer or other duly authorized
representative of Host-Gather.com. You must
register and accept the terms of this
Agreement and the AUP in order to use the
Services. BY CLICKING ON THE "I ACCEPT"
BUTTON BELOW, AND/OR REGISTERING FOR AND
USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU
HAVE READ THIS AGREEMENT AND THE AUP, AND
AGREE TO BE BOUND BY ALL TERMS AND
CONDITIONS OF THIS AGREEMENT AS WELL AS ALL
POLICIES AND GUIDELINES OF THE AUP, WHICH
ARE INCORPORATED HEREIN BY REFERENCE.
Host-Gather.com may modify any of the terms
and conditions contained in this Agreement
and the AUP, at any time, in its sole
discretion. Any modifications are effective
upon posting of the revisions on the
Host-Gather.com web site (the "Site") at the
respective locations shown in Section II and
incorporated herein by reference. Your
continued use of the Services following
Host-Gather.com posting of any modifications
constitutes your acceptance of the
modifications. If you do not agree to the
terms of any modification, do not continue
to use the services and immediately notify
Host-Gather.com of your termination of this
Agreement in the manner described in the
section below. All termination provisions
agreed to in this agreement will still be in
effect regardless of any service or policy
changes made by Host-Gather.com. It is
advised that you visit the Host-Gather.com
website frequently for updates.
Host-Gather.com agrees to furnish services to
the Subscriber, subject to the following TOS
(Terms of Service).
Term and Payment for Services
Term: This
Agreement will be for an initial "Term" of
one (1) month from the date the Services are
first provided by Host-Gather.com. This
Agreement will be automatically renewed (the
"Renewal Term") at the end of the Initial
Term or any Renewal Term for a period of one
(1) month unless you provide Host-Gather.com
with written notice of termination at least
seven days (7) before the end of the Initial
Term or Renewal Term (also referred to
interchangeably and collectively as "Term"),
whichever is then applicable. To provide
your notice of termination, you must submit
a billing request at
support@host-gather.com and fill out the corresponding cancellation
form to initiate the cancellation of your
service. In the event of a service failure
within the http://www.Host-Gather.com/clients/client ,
you may also submit your cancellation via
facsimile to the number shown for
Host-Gather.com contacts section on the main
website.
Termination
This Agreement
may be terminated: (i) by you or
Host-Gather.com during any Renewal Term,
without cause, by giving the other party no
less than 7 days prior written notice; (ii)
by Host-Gather.com in the event of nonpayment
by you as provided in the section below or
(iii) by Host-Gather.com, at any time,
without notice, if, in Host-Gather.com sole
judgment, you are in violation of any terms
or conditions of the AUP. If you terminate
this Agreement, or if Host-Gather.com
terminates this Agreement for your breach,
before the end of the Initial Term or the
Renewal Term, whichever is then applicable,
you will be required to pay immediately all
fees and costs accrued before the
termination date, all monthly recurring fees
for each month remaining in the Term and any
other amounts you owe to Host-Gather.com
under this Agreement. In no event will
Host-Gather.com be liable for any damages
resulting from termination or suspension of
your services, with or without notice.
Charges
You will pay
all charges for your use of the Services at
the current Host-Gather.com prices for that
category of service or any special offer
applicable to your account as determined by
Host-Gather.com. You are responsible for
paying all federal, state, and local sales,
use, value added, import/export, excise duty
and any other taxes assessed with respect to
the Services, other than taxes based on
Host-Gather.com net income. You are
responsible for all costs of collection of
all amounts owed under this Agreement,
including reasonable attorney.s fees of
Host-Gather.com. Host-Gather.com DOES NOT
ACCEPT ANY ANALOG PAYMENTS. ALL PAYMENTS
MUST BE MADE VIA ELECTRONIC MEANS AND AS
PREAPPROVED BY Host-Gather.com.
Payment and Fees
You will pay
all charges for the first month of service
in advance on the first day of the Initial
Term. Establishment of this service is
contingent upon receipt of payment from you
to Host-Gather.com. You will pay all
subsequent charges for Services in advance
on the anniversary day of each month. You
authorize Host-Gather.com to charge your
credit or debit card, paypal account, or
other electronic draft mechanism as approved
by Host-Gather.com, to pay for any charges
that may apply to your account. You must
notify Host-Gather.com of any changes to your
card account including applicable account
number, billing address, registered phone
number, or cancellation or expiration of the
account. Your failure to fully pay any fees
and taxes within 72 hours from the
applicable due date is a material breach of
this Agreement, justifying Host-Gather.com to
suspend its performance and terminate this
Agreement. If Host-Gather.com terminates for
your material breach, you will be required
to pay immediately all fees and costs
accrued before the termination date, all
monthly recurring fees for each month
remaining in the term, if any, and any other
amounts you owe to Host-Gather.com under this
Agreement. You are responsible for any costs
that Host-Gather.com incurs in enforcing
collection, including reasonable attorneys'
fees, court costs and collection agency
fees.
Refund and Disputes
ALL PAYMENTS
TO Host-Gather.com ARE NONREFUNDABLE after 30 days. This
includes any applicable setup fees and
subsequent charges regardless of usage. All
overcharges or billing disputes must be
reported within 60 days of the time that the
dispute occurred. If you dispute a charge to
your credit card Host-Gather.com may, at it.s
sole discretion, terminate all services
associated with your account, however, this
will not relieve you of your obligations
under this agreement.
Failure to Pay
The Company
may temporarily deny service or terminate
this Agreement upon the failure of
Subscriber to pay charges when due. Such
termination or denial will not relieve the
Subscriber of responsibility for the payment
of all accrued charges, plus reasonable
interest and any collection fees. In the
event of a material breech of this agreement
due to non- or late payment of your
services, all data, files, logs, and other
information on or associated with your
service will be, at Host-Gather.com's sole
discretion, deleted or otherwise destroyed.
In no event will Host-Gather.com be liable
for preservation of data subsequent to you
breeching this agreement.
Payment is due on the defined monthly
recurring billing date of each month. Credit
cards that are declined for any reason are
subject to a $10.00 declination fee. Service
will be interrupted on accounts that reach
10 days past due. Service interrupted for
nonpayment is subject to a $200.00 reconnect
charge. Accounts not paid by due date are
subject to a $10.00 late fee. Accounts that
are not collectable by Host-Gather.com will
be turned over to an outside agency for
collection. If your account is turned over
for collection, you agree to pay the company
a .Processing and Collection. Fee of not
less than Fifty ($50.00) nor more than One
Hundred, Fifty ($150.00)
Delinquent Reseller Accounts:
Should your
reseller account become delinquent, and
payment not made to Host-Gather.com, within
10 days of the due date, service is subject
to termination as outlined above. Once a
reseller account is terminated or suspended
for non-payment Host-Gather.com may, at
Host-Gather.com's sole discretion, allow your
customers to purchase the service previously
bought from you directly from
Host-Gather.com, and assume financial
responsibility for the service from that
point forward. Under no circumstances will
Host-Gather.com be liable for continuing
service relationships with your customers
subsequent to your termination or suspension
for non-payment.
Support Services and Boundaries
Your service
with Host-Gather.com is backed by our always
available support staff through our support
ticket system. The terms below
apply to standard hosting customers.
Host-Gather.com provides technical support 24
hours a day, 365 days a year with all
services. Host-Gather.com provides support
related to your server. Host-Gather.com does
not provide support for application specific
issues, such as any programming, website
code, third-party applications or any other
such issue, even if such programming or
third-party application was sold or
otherwise provided to you by Host-Gather.com.
Host-Gather.com does not provide technical
support for YOUR clients.
Reseller Policy
Resellers are
responsible for the conduct of their
Customers and by agreeing with this AUP,
Resellers agree that their Customers will
adhere to the AUP. Resellers should make
their perspective Customers aware of the AUP
and the consequences of violation. In the
event of an AUP violation, waiting to
contact your customer is not an acceptable
excuse for continuing abusive activity.
Bandwidth
You are
allocated a certain amount of internet
bandwidth per month. This amount of
bandwidth is shown at your cpanel control
panel. Bandwidth includes all data
transferred both IN and OUT of the server
and is calculated from your billing
anniversary date until the day before your
next billing anniversary date. This
bandwidth can be used as any combination of
IN & OUT. Should the server go over its
allocated amount of bandwidth in any given
month, a fee of $0.50 per GB over is
applicable. Bandwidth usage can be monitored
at cpanel bandwidth statistic.
Representations and Warranties
Your
Warranties and Representations to
Host-Gather.com: You warrant, represent, and
covenant to Host-Gather.com that: (a) you are
at least 18 years of age if an individual;
(b) you possess the legal right and ability
to enter into this Agreement; (c) you will
use the Services only for lawful purposes
and in accordance with this Agreement and
all applicable policies and guidelines,
including the AUP; and (d) your content does
not and will not infringe or violate any
right of any third party (including any
intellectual property rights) or violate any
applicable law, regulation or ordinance.
IP Addresses
Host-Gather.com
will maintain and control ownership of all
Internet Protocol ("IP") numbers and
addresses that Host-Gather.com may assign to
you. Host-Gather.com may, in its sole
discretion, change or remove any and all IP
numbers and addresses.
Third Party Products
Host-Gather.com
may provide you access to other third party
software and/or services ("Third Party
Products") through reseller relationships
that Host-Gather.com has established with
certain commercial vendors, including
without limitation, Microsoft Corporation
("Third Party Vendors"). Unless otherwise
notified, Customer understands that product
support for Third Party Products is provided
by Host-Gather.com and not by the Third Party
Vendor. Neither Host-Gather.com nor any Third
Party Vendor makes any representations or
warranties, expressed or implied, regarding
any Third Party Products. CUSTOMER EXPRESSLY
ACKNOWLEDGES AND AGREES THAT USE OF THIRD
PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK
AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED
"AS IS" AND WITHOUT REPRESENTATION OR
WARRANTY OF ANY KIND FROM Host-Gather.com OR
ANY THIRD PARTY VENDOR, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, LACK OF VIRUSES, ACCURACY OR
COMPLETENESS OF RESPONSES OR RESULTS,
CORRESPONDENCE TO DESCRIPTION, OR
NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, NEITHER Host-Gather.com NOR ANY THIRD
PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR
ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR
CONSEQUENTIAL, ARISING FROM THE USE OR
INABILITY TO USE ANY THIRD PARTY PRODUCT.
CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY
LICENSE AND/OR APPLICABLE END USER
SUBSCRIBER AGREEMENT FOR THIRD PARTY
PRODUCTS AND THAT CUSTOMER SHALL BE FULLY
LIABLE TO THIRD PARTY VENDORS AND
Host-Gather.com WITH RESPECT TO ANY IMPROPER
USE OF SUCH THIRD PARTY PRODUCTS OR
VIOLATION OF LICENSE AGREEMENTS WITH THEM
AND/OR APPLICABLE END USER SUBSCRIBER
AGREEMENTS.
You shall
not (i) remove, modify or obscure any
copyright, trademark or other proprietary
rights notices that appear on any Third
Party Product or that appear during use of
any Third Party Product; or (ii) reverse
engineer, decompile, or disassemble any
Third Party Product, except and only to the
extent that such activity is expressly
permitted by applicable law notwithstanding
this limitation.
Enforcement Actions
Special Termination of Services
Host-Gather.com
reserves the right to suspend or terminate
the Service immediately or take any other
corrective action it deems appropriate in
its sole discretion if in the sole judgment
of Host-Gather.com your server is the source
or target of any violation of the AUP or for
any other reason which Host-Gather.com
chooses. If inappropriate activity is
detected, all of your accounts in question
will be deactivated until an investigation
is complete. Prior notification to you is
not assured. In some cases, law enforcement
will be contacted regarding the activity.
These rights of action, however, do not
obligate Host-Gather.com to monitor or exert
editorial control over the information made
available for distribution via the Services.
If Host-Gather.com takes corrective action
because of a possible violation,
Host-Gather.com will not refund you any fees
that you paid in advance of the corrective
action.
The AUP specifically prohibits the use of
our service for illegal activities.
Therefore, you agree that Host-Gather.com may
disclose any and all of your information
including assigned IP numbers, account
history, account use, etc. to any law
enforcement agent who makes a written
request without further consent or
notification to you. In addition,
Host-Gather.com shall have the right to
terminate all service set forth in this
Agreement.
Disclaimed Warranties
Host-Gather.com
exercises no control over, and accepts no
responsibility for, the content of the
information passing through Host-Gather.com
host computers, network hubs and points of
presence, or the Internet. USE OF THE
SERVICES OR ANY INFORMATION THAT MAY BE
OBTAINED THERE FROM IS AT YOUR OWN RISK. ALL
SERVICES PERFORMED UNDER THIS AGREEMENT ARE
PERFORMED "AS IS" AND WITHOUT WARRANTY
AGAINST FAILURE OF PERFORMANCE INCLUDING,
ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR
COMMUNICATION SYSTEMS. Host-Gather.com DOES
NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL
RELIANCE ON, ANY REPRESENTATIONS OR
WARRANTIES, ARISING BY LAW OR OTHERWISE,
REGARDING THE SERVICES, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR
ARISING FROM COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE IN TRADE.
Host-Gather.com DOES NOT WARRANT THAT THE
SERVICES WILL BE UNINTERRUPTED, ERROR-FREE,
OR COMPLETELY SECURE.
Limitation and Exclusion of Liability
IN NO EVENT
WILL Host-Gather.com OR ITS SUPPLIERS HAVE
ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR
ALTERATION, THEFT OR DESTRUCTION OF
INFORMATION DISTRIBUTED OR MADE AVAILABLE
FOR DISTRIBUTION VIA THE SERVICES THROUGH
ACCIDENT, FRAUDULENT MEANS OR DEVICES.
NEITHER Host-Gather.com NOR ITS SUPPLIERS
WILL HAVE LIABILITY WITH RESPECT TO
Host-Gather.com'S OBLIGATIONS UNDER THIS
AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE
DAMAGES EVEN IF Host-Gather.com HAS BEEN
ADVISED OF THE POSSIBILITY OF THESE DAMAGES.
THE LIABILITY OF Host-Gather.com AND ITS
SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY
CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU
ACTUALLY PAID TO Host-Gather.com UNDER THIS
AGREEMENT DURING THE THREE (3) MONTHS
IMMEDIATELY PRECEDING THE DATE ON WHICH THE
CLAIM ACCRUED. THIS LIMITATION APPLIES TO
ALL CAUSES OF ACTION IN THE AGGREGATE,
INCLUDING BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, AND OTHER TORTS. THE
FEES FOR THE SERVICES SET BY Host-Gather.com
UNDER THIS AGREEMENT HAVE BEEN AND WILL
CONTINUE TO BE BASED UPON THIS ALLOCATION OF
RISK. ACCORDINGLY, YOU RELEASE
Host-Gather.com AND ITS SUPPLIERS FROM ANY
AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS
IN EXCESS OF THE LIMITATION STATED IN THIS
SECTION.
Interruption of Service
Host-Gather.com
and its suppliers are not liable for any temporary
delay, outages or interruptions of the
Services. Further, Host-Gather.com is not
liable for any delay or failure to perform
its obligations under this Agreement, where
the delay or failure results from any .act
of God. or other cause beyond its reasonable
control (including any mechanical,
electronic, communications or third-party
supplier failure).
Indemnification
In agreeing
to the Host-Gather.com AUP and this
Agreement, you agree to indemnify, defend
and hold harmless Host-Gather.com, its
employees, officers, directors, partners,
representatives and affiliates, for any
violation by you or your customers of the
AUP or this Agreement that results either in
(a) any cost, expense, damage or loss to
Host-Gather.com, or (b) the bringing of any
claim against Host-Gather.com by any
third-party, and all costs, expenses,
damages, and losses associated therewith.
For example, if Host-Gather.com is sued
because of your or your customer's activity
related to the Services, you will pay any
damages awarded against Host-Gather.com, its
employees, directors, partners,
representatives and affiliates, in addition
to all costs and attorney's fees.
Miscellaneous Provisions
Host-Gather.com
and you agree that, except as otherwise
expressly provided in this Agreement, the
Order Form(s) or the terms and conditions of
use of any third party software products,
there shall be no third party beneficiaries
to this Agreement, including but not limited
to the insurance providers for either party
or your customers. THIS AGREEMENT IS MADE
UNDER AND WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS (EXCEPT THAT BODY OF LAW CONTROLLING
CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING
FROM APPLICATION TO THIS AGREEMENT THAT LAW
KNOWN AS THE UNITED NATIONS CONVENTION ON
THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE
VENUE FOR ALL DISPUTES ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE THE
STATE AND FEDERAL COURTS IN TEXAS, AND EACH
PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL
JURISDICTION AND WAIVES ALL OBJECTIONS
THERETO. In the event any provision of this
Agreement is held by a tribunal of competent
jurisdiction to be contrary to the law, the
remaining provisions of this Agreement will
remain in full force and effect. The waiver
of any breach or default of this Agreement
will not constitute a waiver of any
subsequent breach or default, and will not
act to amend or negate the rights of the
waiving party. You may not sell, assign or
transfer its rights or delegate its duties
under this Agreement either in whole or in
part without the prior written consent of
Host-Gather.com, and any attempted assignment
or delegation without such consent will be
void. Host-Gather.com may assign this
Agreement in whole or part. Host-Gather.com
also may delegate the performance of certain
Services to third parties. All notices,
demands, requests or other communications
required or permitted under this Agreement
shall be deemed given when delivered
personally, sent by facsimile upon
confirmation, sent and received by return
receipt email, or upon receipt of delivery
of overnight mail. You and Host-Gather.com
are independent contractors and this
Agreement will not establish any
relationship of partnership, joint venture,
employment, franchise or agency between you
and Host-Gather.com. This Agreement,
including all documents incorporated herein
by reference, constitutes the complete and
exclusive agreement between the parties with
respect to the subject matter hereof, and
supersedes and replaces any and all prior or
contemporaneous discussions, negotiations,
understandings and agreements, written and
oral, regarding such subject matter.
Survival
All provisions of this Agreement relating to
your warranties, intellectual property
rights, limitation and exclusion of
liability, your indemnification obligations
and payment obligations will survive the
termination or expiration of the Agreement.
This Terms of Service Agreement can change
at anytime and it is your responsibility to
ensure that you regularly check for updated
version of this Terms of Service Agreement. |