HOSTING AGREEMENT
This Hosting Agreement (“Agreement”) governs your purchase and use of all Web site hosting & e-mail services provided by Digital West Media, Inc. You must accept the terms of this Agreement in order to use the Services.
Digital West Media, Inc. may modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference, at any time in its sole discretion and may also determine whether and when the modifications apply to existing or future customers. Any modifications are effective upon posting of the revisions on the Digital West Media, Inc. Web site (the “Site”). Digital West Media, Inc. will post a notice of modifications to this Agreement on the Site for 30 days. Digital West Media, Inc. may post modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following Digital West Media, Inc.’s posting of any modifications constitutes your acceptance of the modifications.
1. Term and Payment for Services
1.1 Term. This Agreement will be for an “Initial Term” of 30. This agreement is a month-to-month agreement. This Agreement will be automatically renewed (the “Renewal Term”) at the end of the Initial Term for the same period as the Initial Term, unless you provide Digital West Media, Inc. with notice of termination either: (a) at least 7 days before the end of the Initial Term or the Renewal Term, whichever is then applicable. You must provide Digital West Media, Inc. with your notice of termination via e-mail or in writing. Any notice of termination will be effective upon Digital West Media, Inc.’s receipt of notice.
1.2 Termination Policy. If you terminate the Services before the end of the Initial Term or the Renewal Term, whichever is then applicable: (a) Digital West Media, Inc. will not refund to you any fees paid in advance of termination. You must submit your termination request to Digital West Media, Inc. in the manner described in Section 1.1. Digital West Media, Inc. may terminate this Agreement at any time and for any reason by providing to you 30 days’ prior written notice of termination. If Digital West Media, Inc. terminates this Agreement, Digital West Media, Inc. will refund to you the pro-rata portion of pre-paid fees attributable to Services not yet rendered as of the termination date, unless otherwise expressly provided in this Agreement.
1.3 Liability and Obligations on Termination. If the Agreement expires or is terminated for any reason, Digital West Media, Inc. is not liable to you because of the expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from the termination or expiration. If you terminate this Agreement, Digital West Media, Inc. will not relieve you of any obligations to pay fees and costs accrued before the termination date or any other amounts you owe to Digital West Media, Inc. under this Agreement.
1.4 Charges. You will pay all charges for your use of the Services at the then current Digital West Media, Inc. prices, which will be exclusive of any applicable taxes. You are responsible for paying all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on Digital West Media, Inc.’s net income.
1.5 Payment. You will pay all charges for Services in advance according to the then current price for the Services.. Digital West Media, Inc. may bill you for any supplemental charges that you incur in your use of the Services (“Supplemental Charges”). Digital West Media, Inc. may also send periodic invoices to you for any applicable Supplemental Charges associated with your use of the Services. You will pay to Digital West Media, Inc. the amount indicated in each invoice by the due date reflected on the invoice.Your failure to fully pay any fees and taxes within 10 days after the applicable due date is a material breach of this Agreement, justifying Digital West Media, Inc. in suspending its performance and terminating this Agreement. If Digital West Media, Inc. terminates for your material breach, you must still pay past due fees plus interest. You are responsible for any costs Digital West Media, Inc. incurs in enforcing collection, including reasonable attorneys’ fees, court costs and collection agency fees. If you reinstate Services, you must pay any fees associated with reinstating Services.
1.6 30 Day Guarantee. If you are not fully satisfied with the Shared Hosting Services, you may terminate this Agreement at any time during the first 30 days from your initial order date and receive a full refund of all payments you made to Digital West Media, Inc. for the Hosting Services. To receive your refund, you must terminate this Agreement in the manner described in Section 1.1 and cease using the Services, and Digital West Media, Inc. must receive your termination notice within the 30-day period. Your notice must describe why you are not satisfied with the Services.
2. Use of Services
2.1 Material and Product Requirements. You must ensure that all material and data placed on Digital West Media, Inc.’s equipment is in a condition that is “server-ready,” which is in a form requiring no additional manipulation by Digital West Media, Inc.. Digital West Media, Inc. will make no effort to validate any of this information for content, correctness or usability. If your material is not “server-ready”, Digital West Media, Inc. may reject this material. Digital West Media, Inc. will notify you of its refusal of the material and afford you the opportunity to modify the material to satisfy Digital West Media, Inc.’s requirements. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. Digital West Media, Inc. will charge you for any additional Services that are required.
2.2 Bandwidth, Storage, and E-Mail Usage. For Services, you will not exceed the bandwidth (2 GB), storage (20 MB) and E-mail usage limits described in the Basic Hosting Package. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month or if you exceed E-Mail storage and attachment size limitations, Digital West Media, Inc. may, in its sole discretion, assess you with additional charges. Your use of your account and access to it is your responsibility. You are responsible for any unauthorized access to your account resulting in bandwidth, storage and/or E-mail usage exceeding the limits stated for the Basic Hosting Package.
2.3 Domain Names. As part of the Services, you will provide Digital West Media, Inc. with a registered domain name or names, or Digital West Media, Inc. will register domain name(s) you select if the domain name is available for registration and does not violate any Network Solutions’ or other registration services’ policies, or any law or regulation. You will promptly reimburse Digital West Media, Inc. for any fees Digital West Media, Inc. pays to Network Solutions or other registration services for registering and maintaining the domain name(s). If any dispute or cause of action arises out of or is related to your domain name used in connection with the Services, then upon your request, Digital West Media, Inc. will attempt to register with Network Solutions or other registrar an alternative domain name you chose. Upon registering your domain name, you are bound by the terms of Network Solutions’ then current domain name policy and the policies of the national DNS registration authorities. Digital West Media, Inc. will not refund any fees you paid with respect to the registration of a domain name you are unable to use.
2.4 Security. You are solely responsible for any security breaches affecting servers or accounts under your control. If your server or web site is responsible for or involved in an attack on or unauthorized access into another server or system, Digital West Media, Inc. will shut it down immediately. You will pay any charges resulting from the cost to correct security breaches affecting Digital West Media, Inc. or any of its other customers.
2.5 Commercial Advertisements via E-Mail. You will not use Digital West Media, Inc. services, your account or server to send or facilitate in any way the transmission of unsolicited commercial email. Digital West Media, Inc. will enforce substantial penalties, including charging you for related network costs and terminating your account, for violations.
3. Intellectual Property Rights
3.1 Your License Grant to Digital West Media, Inc. You grant to Digital West Media, Inc. a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly: (a) grant to Digital West Media, Inc. a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that this caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
3.2 Your Warranties And Representations to Digital West Media, Inc. You warrant, represent, and covenant to Digital West Media, Inc. that: (a) you are at least 18 years of age; (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; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) 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.
3.3 Digital West Media, Inc. Materials And Intellectual Property. All materials, including any computer software (in object code and source code form), data or information that Digital West Media, Inc. or its suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes Digital West Media, Inc. uses to provide the Services to you, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto will remain Digital West Media, Inc.’s or its suppliers’ sole and exclusive property. Digital West Media, Inc. will also maintain and control ownership of all Internet protocol (“IP”) numbers and addresses that Digital West Media, Inc. may be assign to you. Digital West Media, Inc. may, in its sole discretion, change or remove any and all IP numbers and addresses.
4. Enforcement
4.1 Actions. Digital West Media, Inc. may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party’s rights or that potentially violates any laws. If Digital West Media, Inc. becomes aware that you have possibly violated this Agreement, any related policies or guidelines, third party rights or laws, Digital West Media, Inc. may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Digital West Media, Inc.’s systems, and (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by Digital West Media, Inc. that, in Digital West Media, Inc.’s sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes Digital West Media, Inc. to civil or criminal liability or public ridicule. It is Digital West Media, Inc.’s policy to terminate repeat infringers. These rights of action, however, do not obligate Digital West Media, Inc. to monitor or exert editorial control over the information made available for distribution via the Services. If Digital West Media, Inc. takes corrective action because of a possible violation, Digital West Media, Inc. will not refund to you any fees you paid in advance of the corrective action.
5. Disclaimed Warranties Digital West Media, Inc. exercises no control over, and accepts no responsibility for, the content of the information passing through Digital West Media, Inc.’s host computers, network hubs and points of presence, or the Internet. 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. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DIGITAL WEST MEDIA, INC. 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.
6. Limitation and Exclusion of Liability
6.1 Limitations. IN NO EVENT WILL DIGITAL WEST MEDIA, INC. 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 DIGITAL WEST MEDIA, INC. NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO DIGITAL WEST MEDIA, INC.’S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF DIGITAL WEST MEDIA, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF DIGITAL WEST MEDIA, INC. AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO DIGITAL WEST MEDIA, INC. UNDER THIS AGREEMENT DURING THE 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 DIGITAL WEST MEDIA, INC. UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE DIGITAL WEST MEDIA, INC. AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1.
6.2 Interruption of Service. Digital West Media, Inc. and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, Digital West Media, Inc. 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).
7. Indemnification. You release and hold harmless, and agree to indemnify, Digital West Media, Inc. and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by Digital West Media, Inc. or its suppliers, arising out of or relating to: (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your improper or illegal use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including defamation, libel, violation of privacy or publicity).
8. MISCELLANEOUS PROVISIONS
8.1 Entire Agreement. This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between you and Digital West Media, Inc. with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines.
8.2 No Fiduciary Relationship; No Third-Party Beneficiaries. Digital West Media, Inc. is not the agent, fiduciary, trustee or other representative of you. Except for the rights of Digital West Media, Inc.’s suppliers under sections 6 and 7, nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement.
8.3 Amendments. Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge of this Agreement is valid unless in writing and signed by the parties.
8.4 Identification. Digital West Media, Inc. may, free of any obligation to pay compensation, use your name and identify you as a Digital West Media, Inc. client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.
8.5 Choice of Law and Forum. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF California WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN San Diego COUNTY, California, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF THESE COURTS.
8.6 Compliance With Laws. You will comply with all applicable laws and regulations and will indemnify and save Digital West Media, Inc. harmless from your failure to so comply. Digital West Media, Inc. will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government.
8.7 Non-Assignment. You may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without Digital West Media, Inc.’s prior written consent. Digital West Media, Inc. may assign its rights and obligations under this Agreement, and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This Agreement are binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
8.8 No Waiver. Digital West Media, Inc.’s failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of Digital West Media, Inc.’s right to subsequently enforce the provision or any other provisions of this Agreement.
8.9 Severability. If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.
8.10 Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.
8.11 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.
