This Web Hosting Agreement (this “Agreement”) is between OneSite.WebSite (from now on, “OneSite”), and the person (individual or legal person or legal entity) whose signs OneSite’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of OneSite’s Web Hosting service. 1. Services Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of OneSite’s credit approval requirements, OneSite agrees to provide the web hosting services described in the Order for the fees stated in the Order. 2. Customer Information Customer represents and warrants to OneSite that the information he, she or it has provided and will provide to OneSite for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to OneSite that he or she is at least 18 years of age. OneSite may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract. 3. Indemnification Customer agrees to indemnify and hold harmless OneSite, OneSite’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 fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer. 4. Law/AUP Customer agrees to use the service in compliance with applicable law and OneSite’s Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that OneSite 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 Customer’s use of the Services. Amendments to the AUP are effective on the earlier of OneSite’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with OneSite’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between OneSite and Customer regarding the interpretation of the AUP, OneSite’s commercially reasonable interpretation of the AUP shall govern. 5. Disclaimer of Warranties OneSite does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. to the extent permitted by applicable law OneSite 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. 6. Limitation of Damages Neither party shall be liable to the other for any lost profits, or any indirect, special, incidental, consequential or punitive 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 possibility of such damages. Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of OneSite 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 three months of service. 7. Suspension/Termination (a) Suspension of Service. Customer agrees that OneSite may suspend services to Customer without notice and without liability if: (i) OneSite reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) OneSite reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay OneSite’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection. (b) Termination. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if OneSite 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 Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by OneSite prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (3) days of a written notice from OneSite describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) 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. 8. Requests for Customer Information Customer agrees that OneSite may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that OneSite believes violates applicable law, and (ii) provide any information that it has about Customer 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. 9. Back Up Copy Customer agrees to maintain a current copy of all content hosted by OneSite notwithstanding any agreement by OneSite to provide back up services. 10. Changes to OneSite’s Network Upgrades and other changes in OneSite’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. OneSite reserves the right to change its network in its commercially reasonable discretion, and OneSite shall not be liable for any resulting harm to Customer. 11. Force Majeure OneSite shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond OneSite’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. 12. Governing Law/Disputes The Agreement shall be governed by the laws of the State of Delaware, exclusive of its choice of law principles, and the laws of the United States, 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 state and federal courts in harris county, Delaware, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto. 13. Miscellaneous 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 written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on OneSite unless they are expressly incorporated into a formal written agreement 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. Customer may not transfer the Agreement without OneSite’s prior written consent. OneSite’s approval for assignment is contingent on the assignee meeting OneSite’s credit approval criteria. OneSite may assign the Agreement in whole or in part. This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
This Acceptable Use Policy (“AUP”) governs the use of OneSite’s web hosting service. Violation of this AUP may result in suspension or termination of your service. In the event of a dispute between you and OneSite regarding the interpretation of this AUP, OneSite’s interpretation, in its reasonable commercial judgment, shall govern. Offensive Content You may not publish or transmit via OneSite’s service any content that OneSite reasonably believes: – constitutes child pornography; – constitutes pornography or adult related material; – is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes; – is defamatory or violates a person’s privacy; – creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement; – improperly exposes trade secrets or other confidential or proprietary information of another person; – is intended to assist others in defeating technical copyright protections; – clearly infringes on another person’s trade or service mark, patent, or other property right; – promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; – is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to OneSite; or – is otherwise malicious, fraudulent, or may result in retaliation against OneSite by offended viewers. Content “published or transmitted” via OneSite’s service includes Web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission that relies on any Internet service provided by OneSite. Security You must take reasonable security precautions. You must protect the confidentiality of your password, and you should change your password periodically. Obeying the Law As OneSite is registered and located within the United States, we are required to follow any and all US laws. This provision applies to all Services provided and maintained by OneSite, whether located within the US or other countries. Resource Usage Each customer is required to utilize as little server resources as possible, so as to allow for reasonable performance by all OneSite customers. Because server CPU and memory are shared resources, excessive consumption of these resources can interfere with or completely prevent normal service performance for other users. The Company reserves the right to suspend or terminate Services on any account that, at our sole discretion, is abusing server resources. Such suspension or termination can occur at any time without prior warning, and for any or no reason. Abusive Actions Any and all abusive actions directed towards our staff will not be tolerated. If you use foul language, threaten us, or do anything else that we may find offensive, you will be subject to, at the Company’s sole discretion, suspension or termination of Services without refund, with or without notice. This includes, but is not limited to, threats to sue, slander, libel, publicly post, or chargeback. Restriction on Storage Space Usage All accounts are subject to the following restrictions on storage space usage: – Accounts must have valid, working websites, and not violate any previously subscribed terms – Accounts are not for use of mass storage of backups, files, audio, video, zip files or others at our discretion – Accounts are not for us of mass distribution of files, such as torrents or mirrors – Any account found violating these terms may be suspended or terminated without warning Unsolicited E-Mail You may not send any unsolicited e-mail, either in bulk or individually, to any person who has indicated that they do not wish to receive it. You must comply with the rules of any other network you access or participate in using your OneSite’s services. Material Protected by Copyright You may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless: – you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; – you are otherwise permitted by established United States copyright law to copy the work in that manner. OneSite will terminate the service of repeat copyright infringers. Copyright Infringement Notice (Digital Millennium Copyright Act) If you believe your copyright is being infringed by a person using the OneSite network, please send your notice of copyright infringement to email@example.com. Your notice must include the following: – A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; – Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted words at a single site are covered by a single notification, a representative list of such works at that site; – Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit OneSite to locate the material; – Information reasonably sufficient to permit OneSite to contact you, such as an address, telephone number, and, if available, an e-mail address; – A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the copyright owner’s agent, or the law; – A statement that the information in the notification is accurate, and under penalty of perjury that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Other You must have valid and current information on file with your domain name registrar for any domain hosted on the OneSite network. Disclaimer OneSite is under no duty, and does not by this AUP undertake a duty, to monitor or police our customers’ activities and disclaims any responsibility for any misuse of the OneSite network. Internet Abuse You may not engage in illegal, abusive, or irresponsible behavior, including: – Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures (including those belonging to OneSite and its customers) without express authorization of the owner of the system or network; – Monitoring data or traffic on any network or system without the authorization of the owner of the system or network; – Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; – Use of an Internet account or computer without the owner’s authorization, including, but not limited to Internet scanning (tricking other people into releasing their passwords), password robbery, security hole scanning, and port scanning; – Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting; or – Any conduct that is likely to result in retaliation against the OneSite’s network. – Use of OneSite’s network in a way that unreasonably interferes with OneSite’s other customers use of the network.