Hosting Agreement & Terms of Service
Hosting Agreement
1. Definitions.
1.1 “Customer” means the persons,
entity or agents and authorized representatives accepting this
agreement.
1.2 “Content” means all text, pictures,
sound, graphics, video, links, and other data stored by Customer
on Bizwala Hosting’s server computers.
1.3 “Website” means pages presenting
the Content stored by Customer on Bizwala Hosting’s server
computers.
1.4 “User” means users of Customer’s
Website.
1.5 “User Content” means all text,
pictures, sound, graphics, video, links, and other data stored
by Users on Bizwala Hosting’s server computers.
1.6 “Confidential Information”
means information that Customer takes reasonable steps to maintain
in confidence and identifies in writing to Bizwala Hosting as
confidential.
2. Web Hosting.
2.1 Hosting. Bizwala Hosting will provide dedicated
or shared server computers, as specified in Exhibit A, with an
Internet address for storage and access of Content, User Content,
and the Website. The Website, Content, and User Content must be
“server-ready.” Bizwala Hosting will provide bandwidth
and storage as specified in Exhibit A. If Customer requires additional
bandwidth or storage, Bizwala Hosting will negotiate in good faith
to amend this Agreement unless Bizwala Hosting’s server
computers cannot accommodate the requested bandwidth or storage.
2.2 Website Backup. Bizwala
Hosting will backup the Website in a commercially reasonable manner.
However, Bizwala Hosting is not responsible for lost Content or
lost User Content. Website backups will be stored by Bizwala Hosting
for no longer than 7 days. Bizwala Hosting will provide, at Customer’s
expense, an electronic copy of the backup Website to Customer
upon written request by Customer. Backups are intended for disaster
recovery, not the restoration of individual files.
2.3 Server Logs. As requested by Customer,
Bizwala Hosting will deliver to Customer in electronic form the
Server Log of Website activity. Customer will be entitled to one
month of log storage free of charge. Bizwala Hosting may, at its
option, charge a fee to Customer for additional space required
to store oversized logs.
2.4 Standards. Bizwala Hosting’s services
will conform to the following:
2.4.0 Please see http://www.bizwala.net/support/policy.php
for specifc policy information or policy updates.
2.4.1 Availability of Website. Bizwala Hosting
will provide hosting services for the Website that meet reasonable
commercial standards for, among other matters, packet loss, accessibility,
latency, availability, and throughput.
2.4.2 Security. Bizwala Hosting will take commercially
reasonable steps to prevent unauthorized access to the Website,
Content, User Content, and Confidential Information stored on
Bizwala Hosting’s server computers.
2.4.3 Server/Network Computer Outages. Bizwala
Hosting will employ best efforts in providing advance notice to
Customer of scheduled server computer/network outages.
2.4.4 Disclaimers. Bizwala Hosting provides
no equipment, software, or communication connections to Customer.
Bizwala Hosting makes no representations, warranties or assurances
that the Customer’s equipment, software, and communication
connections will be compatible with Bizwala Hosting’s hardware
and service.
3. Ownership of Content. All Content and User
Content stored by Customer on Bizwala Hosting’s server computers
shall at all times remain the property of Customer. Customer grants
to Bizwala Hosting a non-exclusive, worldwide license to the Content
and User Content only to the extent necessary for Bizwala Hosting
to host the Website.
4. Content Control.
4.1 Lawful Purpose. Customer will only use
Bizwala Hosting’s hardware and services for lawful purposes
and Customer will not store or provide any Content or User Content
or link to any material that violates foreign, federal, state
or local law, the Terms of Service of Exhibit B and any modifications thereof, Bizwala
Hosting’s posted Acceptable Use Policy, or any other Bizwala Hosting policy.
4.2 Remedy for Violation. Should Bizwala Hosting
become aware that Customer has violated Part 4.1, Bizwala Hosting
may, at its option, remove the Content or User Content in violation,
immediately terminate hosting Customer’s Website under Part
6.3, and/or notify authorities. If hosting is terminated, Bizwala
Hosting may, in its sole discretion, reinstate hosting upon adequate
showing of Customer’s right to use the Content or User Content.
5. Payments.
5.1 Fees. Customer shall pay fees agreed upon
during account signup. Bizwala Hosting will invoice monthly (unless
otherwise agreed in writing), and payment is due no more than
fourteen (15) days from invoicing. In the case of credit card
payments Bizwala Hosting will automatically charge Customer Credit
Card on file all fees associated with the account on the due date.
Bizwala Hosting may, at its option, charge a $10 fee for late
payments.
5.2 Returned Checks and Declined Credit Cards
will incur a $25 fee.
5.3 Account Updates. It is the responsibility
of the customer to maintain accurate billing information with
Bizwala Hosting. This may include updated credit card information,
email address and mailing address.
5.4 Taxes. Customer is solely liable for any
taxes or fees payable for products or services sold by Customer
on the Website.
6. Term and Termination.
6.1 Term. The initial term is agreed upon during
account signup. After the initial term, this Agreement will automatically
renew on a month-to-month basis until terminated.
6.2 Termination by Customer. During the initial
term, Customer may terminate this Agreement upon the material
breach of Bizwala Hosting, if such material breach remains uncured
for thirty (30) days following written notice to Bizwala Hosting.
This cure period shall be extended by delay caused by events beyond
the control of Bizwala Hosting including, but not limited to,
natural disasters, governmental prohibitions or regulations, viruses
that did not result from the acts or omissions of Bizwala Hosting,
or technical faults of Bizwala Hosting’s service providers
or vendors. After the initial term, Customer may terminate this
Agreement upon thirty (30) days written notice to Bizwala Hosting.
6.3 Termination by Bizwala Hosting. Bizwala
Hosting may immediately terminate this Agreement for cause at
any time without penalty. Causes justifying immediate termination
include, but are not limited to: violation of any foreign, federal,
state, or local law; non-payment of fees due under Part 5 of this
Agreement; breach of this Agreement; violation of the Terms of Service found at http://www.bizwala.net/terms.html
and any written modifications thereof; and violation of any other
Bizwala Hosting policy. Bizwala Hosting may terminate this Agreement
without cause at any time upon thirty (30) days written notice
to Customer.
6.4 Denial of Service. Bizwala Hosting reserves
the right to refuse service to anyone.
7. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, BIZWALA HOSTING, AND ITS OWNERS, EMPLOYEES, AFFILIATES,
AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION
WITH BIZWALA HOSTING’S HARDWARE OR SERVICES, WHETHER WRITTEN
OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
THE WARRANTIES OF TITLE, NON-INGRINGEMENT, MERCHANTABILITY, AND
FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. BIZWALA HOSTING,
ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE
SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST
DATA OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE BIZWALA HOSTING’S
HARDWARE OR SERVICES. CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE
REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO BIZWALA
HOSTING.
9. Customer Indemnity. Customer shall defend
Bizwala Hosting against any third party claim, action, suit or
proceeding arising as a result of Customer’s use Bizwala
Hosting’s hardware or services and indemnify Bizwala Hosting
for all losses, damages, expenses, and costs incurred by Bizwala
Hosting as a result of a final judgment entered against Bizwala
Hosting in any such claim, action, suit or proceeding.
10. General Provisions.
10.1 Governing Law. This Agreement will be
governed and construed in accordance with the laws of the State
of Nevada. Both parties agree to submit to personal jurisdiction
in Nevada and further agree that any cause of action arising under
this Agreement will be brought in a court in Clark County, Nevada.
10.2 Severability and Waiver. If any provision
of this Agreement is held invalid or unenforceable for any reason,
the remaining provisions will continue in full force without being
impaired or invalidated in any way. The waiver by either party
of a breach of any provision of this Agreement will not operate
or be interpreted as a waiver of any other or subsequent breach.
10.3 Relationship of Parties. No agency, partnership,
joint venture, or employment relationship is created by this Agreement
and neither party has the power to bind the other party.
10.4 Attorneys Fees and Costs. In the event
that any legal action becomes necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled,
in addition to its court costs, to such reasonable attorneys’
fees, expert witness fees and legal expenses as may be fixed by
a court of competent jurisdiction.
Terms of Service
1. Bizwala Hosting may only be used for lawful
purposes. Customer will not store or provide any Content or User
Content that: (a) violates any federal, state, or local law, statute,
ordinance, or regulation (including, without limitation, export
control, consumer fraud, unfair competition, antidiscrimination,
gambling, or false advertising laws); (b) is defamatory, trade
libelous, unlawfully threatening, or unlawfully harassing; (c)
is obscene, child pornographic, or indecent; (d) violates any
third party’s right of publicity or right of privacy; or
(e) contains any IRC application, bots, egg drops, viruses, trojan
horses, worms, time bombs, cancelbots or other computer programming
routines that are intended to damage, detrimentally interfere
with, surreptitiously intercept or expropriate any system, data
or personal information.
2. Customer will not store or provide any Content
or User Content, practice any software or business methods, or
use a domain name that infringes any party’s Intellectual
Property. “Intellectual Property” means any and all
property rights under copyright, moral right, trademark, patent,
trade secret, or right of publicity law, or any other rights in
works of authorship, inventions, designations of source, persona,
or economically valuable information.
3. Bizwala Hosting exercises no control over
the Content, User Content, or other information passing through
Bizwala Hosting.
4. Bizwala Hosting does not monitor and is
not obligated to monitor the Content and User Content and has
not been informed by Customer of the Content, User Content, or
nature of the Content on Customer’s Website.
5. Customer will not use Bizwala Hosting’s
hardware or service to misrepresent Customer’s identity.
6. Customer will not attempt to undermine the
security or integrity of, or gain unauthorized access to, Bizwala
Hosting’s hardware, operating systems or any other computing
systems or networks.
7. Customer will not attempt to use IP Address
not directly assigned by Bizwala Hosting staff. Attempting to
use unauthorized IP Addresses may result in IP Conflict. Any server
found using IPs, which was not officially assigned, will be suspended
from network access until such time as the IP address conflict
can be corrected.
8. Customer will use Bizwala Hosting’s
hardware and services in accord with Bizwala Hosting’s Acceptable Use Policy. The Acceptable Use Policy and any modifications thereof will be posted at
Bizwala Hosting’s website at: http://www.bizwala.net/aup.html
Customer’s continued use of Bizwala Hosting’s hardware
and services constitutes Customer’s acceptance of the Acceptable Use Policy and any modifications thereof.
9. If Bizwala Hosting becomes aware of a violation
of the Terms of Service, Bizwala Hosting will investigate and
may, in its sole discretion, terminate hosting under the Hosting
Agreement.
10. These Terms of Service may be modified
at any time. Any modifications will be delivered to Customer in
written form or posted at Bizwala Hosting’s website. Customer’s
continued use of Bizwala Hosting’s hardware and services
after modification of these Terms of Service constitutes Customer’s
acceptance of the modifications.
11. Customer will require Users and, if Customer
is a reseller, repurchasers to agree to and abide by these Terms
of Service or substantially equivalent terms.
