This Web Hosting Agreement (this “Agreement”) is between ProVista Technologies (PVT) and the person (individual or legal person) who signs PVT’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of PVT’s Web hosting service.
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of PVT’s credit approval requirements, PVT agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that PVT generates an e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of having the same number of full calendar months as the Initial Term (each a “Renewal Term”) unless PVT or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be a calendar month or twelve calendar months, as indicated on the Order. The first service fee shall include a prorated portion of the monthly fee for the first partial month of service plus the fee for the first full billing cycle if there are less than 10 days remaining in the partial month. PVT may require payment in full of the first fee before beginning service. If the Order provides for credit/debit card billing, Customer authorizes PVT to bill subsequent fees to the credit/debit card on or after the first day of each billing cycle during the Term of this Agreement; otherwise PVT will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing PVT with changes to billing information (such as credit card expiration, change in billing address) At its option, PVT may accrue charges to be made to a credit/debit card until such charges exceed $10.00. PVT may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. PVT may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay PVT’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay PVT’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases.
PVT may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
At PVT’s request Customer shall remit to PVT all applicable sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on PVT), regardless of whether PVT fails to collect the tax at the time the related services are provided.
(d) Early Termination.
Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event PVT terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9(Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for PVT’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
(e) Refund Policy.
PVT will provide a full refund for any client who wishes to terminate an account with the first 30 days of service. PVT will not provide refunds for services already rendered. The only exception is if PVT fails to meet a specified Service Level Agreement or if the account is terminated by PVT due to a violation of the Acceptable Use Policy. Upon termination, PVT will refund the unused balance on the terminated account.
Customer agrees to use the service in compliance with applicable law and PVT’s Acceptable Use Policy, which is hereby incorporated into this Agreement as Appendix A. Customer agrees that PVT 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 PVT’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 PVT’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between PVT and Customer regarding the interpretation of the AUP, PVT’s commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to PVT that the information he, she or it has provided and will provide to PVT for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to PVT that he or she is at least 18 years of age. PVT 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.
Customer agrees to indemnify and hold harmless PVT, PVT’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 attorneys 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.77
7. Disclaimer of Warranties
PVT DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW PVT DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
8. 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 PVT 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.
9. Suspension / Termination
(a) Suspension of Service.
Customer agrees that PVT may suspend services to Customer without notice and without liability if: (i) PVT reasonably believes that the services are being used in violation of the Terms of Service; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the Terms of Service; (iii) PVT 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 PVT a reinstatement fee of up to $70.00 if service is re-instituted following a suspension of service under this subsection.
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 PVT 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 PVT 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 and fails to cure the violation within thirty (30) days of a written notice from PVT 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 this agreement more than once; (iv) immediately if the Customer is found to be in violation of the Acceptable use policy, or (v) 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.
10. Requests for Customer Information
Customer agrees that PVT 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 PVT 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.
11. Backup Copy
Customer agrees to maintain a current copy of all content hosted by PVT notwithstanding any agreement by PVT to provide back up services.
12. Changes to PVT’s Network
Upgrades and other changes in PVT’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. PVT reserves the right to change its network in its commercially reasonable discretion, and PVT shall not be liable for any resulting harm to Customer.
Notices to PVT under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.provistatech.com. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
14. Force Majeure
PVT shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond PVT’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.
15. Governing Law/Disputes.
The Agreement shall be governed by the laws of the State of Pennsylvania, exclusive of its choice of law principles, and the laws of the United States of America, 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 MONTGOMERY COUNTY, PENNSYLVANIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
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 PVT 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 PVT’s prior written consent. PVT’s approval for assignment is contingent on the assignee meeting PVT’s credit approval criteria. PVT may assign the Agreement in whole or in part.
This Agreement together with the Order constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, written or oral.
Appendix A: Acceptable Use Policy (AUP)
The Acceptable Use Policy (AUP) governs Customer’s use of PVT’s web hosting services. Violation of this AUP may result in suspension or termination of service. In the event of a dispute between Customer and PVT regarding interpretation of this AUP, PVT’s interpretation, in its reasonable commercial judgement, shall govern.
1. Prohibited Content
Customer may not publish or transmit via PVT’s service any content that PVT reasonably believes:
– constitutes child pornography, relates to kidnapping or any content that may jeopardize a minor;
– is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
– is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
– is an unlicensed application, cracking program, or key generator
– 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 an investigation by law enforcement;
– improperly exposes trade secrets or confidential properties of another person or entity;
– 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 any form of proxy that does not require authentication (i.e. open mail proxies, anonymous web surfing, etc.)
– is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to PVT; or
– is otherwise malicious, fraudulent, or may result in retaliation against PVT by offended viewers.
Content “published or transmitted” via PVT’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 PVT.
2. Prohibited Activity
Any attempts to undermine or cause harm to PVT’s equipment, network, operations, or clientele is STRICTLY prohibited. Any activity deemed damaging or abusive, whether unlawful or considered to be detrimental to the operations of ProVista Technologies is prohibited. This includes but is not limited to:
– Denial of Service Attacks
– Unnecessary Port Scans
– Mail Bombing
– Unsolicited Advertisements via IM, Forums, Newsgroups, E-Mail, etc.
Customer must take reasonable security precautions. Customer must protect the confidentiality of his/her password and should change their password frequently. Customer shall also notify PVT upon discovering that an account or system may have been compromised.
4. Bulk Commercial E-Mail
Customer must obtain PVT’s advance approval for any bulk commercial e-mail, which will not be given unless you are able to demonstrate all of the following to PVT’s reasonable satisfaction:
– Customer’s intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
– Customer’s procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the email address for which the consent is given;
– Customer must retain evidence of the recipient’s consent in a form that may be promptly produced on request, and honor recipient’s and PVT’s requests to produce consent evidence within 48 hours of receipt of the request.
– The body of the e-mail must describe how the e-mail address was obtained, for example, “You opted in to receive this e-mail promotion from our web site or from one of our partner sites,” and information on how to request evidence of the consent, for example, “If you would like to learn more about how we received your e-mail address please contact us at abuse@**yourdomain.com**.”
– Customer must have procedures in place that allow a recipient to easily revoke their consent – such as a link in the body of the e-mail, or instructions to reply with the word “Remove” in the subject line. Revocations of consent are to be honored within 72 hours, and customer shall notify recipients that there request will be honor in such a time frame.
– Customer must post an abuse@**yourdomain.com** e-mail address on any web site associated with the bulk e-mail, Customer must register that address at abuse.net and Customer must promptly respond to messages sent to that address;
– Customer must have the means to track anonymous complaints;
– Customer may not obscure the source of an email in any manner. The email must include the recipients email address in the body of the message or in the “To” line of the email; and
– Customer must otherwise comply with the CAN SPAM Act and other applicable laws.
These policies apply to messages sent using PVT service, or to messages sent from any network by Customer or any person on Customer’s behalf that directly or indirectly refer the recipient to a site hosted via Customer’s PVT service. In addition, Customer may not use a third party email service that does not practice similar procedures for all of its customers.
Failure to meet the acceptable criteria for bulk mail mail may lead to immediate termination. Additionally, if such actions have caused mail servers or IP address ranges on the PVT network to be blacklisted, PVT reserves the right to asses a $100 charge to the customer account. This fee is set to cover administrative costs associated with removal from such lists. Please make an effort to limit outgoing mail on your account to no more than 1000 pieces per hour. Large mailings are preferred to be sent from the hours of 12AM and 8AM EST.
PVT may test and otherwise monitor compliance with its requirements, including requesting opt-in information from a random sample of a list at any time.
5. Unsolicited E-Mail
Customer 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. Customer must comply with the rules of any other network accessed using PVT’s services.
6. Material Protected by Copyright
Customer may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless:
– Customer has been expressly authorized by the owner of the copyright to copy the work in that manner;
– Customer is otherwise permitted by established United States copyright law to copy the work in that manner.
PVT will terminate the service of any repeat copyright infringers.
7. Copyright Infringement Notice (Digital Millennium Copyright Act)
Any person or entity that believes that their copyright is being infringed by a person on the PVT network may send written notice of copyright infringement to:
P.O. Box 604
Plymouth Meeting, PA 19462
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 works at a single site are covered by a single notification, a representative list of such works at that site;
– Information reasonably sufficient to permit PVT to contact you, such as an address, telephone number, and, if available, an e-mail address;
– A statement that you have good faith belief that the 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.
Customer must have valid and current information on file with the domain registrar for any domain hosted on the PVT network.
9. Policy Violations
PVT may, at any time, audit systems for any data/activity showing potential policy violations. PVT makes an attempt to contact the client via email when the first sign of a possible violation is noted. These warnings are a courtesy. Responses to such alerts are required. If an alert is received from any PVT staff member, the client is responsible for acknowledging his/her understanding and citing any action planned or taken, within 24 hours of the notice. Failure to do so may lead to service suspension. Repeated failure to do so will result in termination.
10. Resource Usage
PVT will be the sole arbiter as to what constitutes a violation of resource usage limitations.
Overage fees will apply to any service utilizing more than it’s assigned bandwidth allocation, except for those services advertise/sold as “unmetered”. Overages will be calculated based on overall amount of gigabytes (GB) transferred in a monthly period, unless a service is sold based on megabits per second (Mbps). Services sold by Mbps will be calculated via the industry standard 95% method, unless specified in contract otherwise. Bandwidth reporting is available upon request for all services. Client is responsible for all usage, and any corresponding overage fees, that result from a service that may be hacked and/or flooding. ProVista Technologies may require a deposit should a client utilize/require large amounts of bandwidth beyond their standard bandwidth allocation.
(b) Port Usage
All dedicated and co-located servers are installed on a 100Mbps unthrottled port, unless otherwise specified. PVT reserves the right to monitor network usage, and if a service significantly exceeds average usage, to throttle the available speed to conserve network resources and to prevent any large billing anomalies. This will generally not include short spikes in usage, but will include, but not be limited to, sustained transfers of significantly larger than average amounts of bandwidth.
PVT reserves the right to block/filter ports or IP addresses at its discretion. This may include, for example, blocking port 6667 (IRC), denying access from a known spamming IP address range, or limiting the speed of point-to-point file sharing programs. This may also include giving priority to certain types of traffic such as VOIP to maintain a desired level of service.
(d) Unmetered Services
Services advertised/sold as “unmetered” will not be subject to bandwidth overage fees. Bandwidth is supplied from a shared pool, and is not supplied as guaranteed/dedicated bandwidth unless specified as such. Unmetered service is provided on a “best-effort” basis, which may result in periods of slower speeds during peak traffic times.
(e) Service Migration
To maintain the integrity of our service, PVT may relocate your service to a different server or IP address in order to reduce the load on the system(s) currently servicing your account.
PVT is under no duty, and does not by this policy undertake a duty, to monitor or police our customers activities and disclaims any responsibility for any misuse of the PVT network or services.
Inquiries regarding this policy should be directed to ProVista Technologies Management at [email protected].