Version Date: February 20th 2013
1.1. EPhost, Inc. ("EPhost") provides a variety of services, including web hosting, design and development, marketing, social media, domain registration and other related services ("Services") to its customers (each, a "Customer") under terms set forth in this Terms of Service Agreement (this "Agreement"). Services can be ordered via EPhost's website located at www.ephost.com, and any successor site thereto (the "Website"). This Agreement shall govern Services provided by EPhost to Customer, unless EPhost and Customer enter into a separate agreement intended to govern the provision of Services.
1.2. Customer: (a) agrees to be bound by this Agreement; (b) represents and warrants that, if Customer is an individual, Customer is 22 years old or older or, if Customer is an entity, that Customer is a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept this Agreement; (c) agrees to provide true, accurate, current, and complete information during the registration process, including billing and payment-related information and other account information, and agrees to maintain and update this information to keep it true, accurate, current, and complete; and (d) represents and warrants that Customer has the power and authority to enter into and perform under this Agreement. If this Agreement or any future changes are unacceptable to Customer, Customer's sole remedy is to cancel the Services. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO THIS AGREEMENT, CUSTOMER SHOULD NOT COMPLETE THE REGISTRATION PROCESS, ORDER SERVICES OR CONTINUE TO USE SERVICES, AS THE CASE MAY BE. IF CUSTOMER DOES NOT AGREE TO ABIDE BY THIS AGREEMENT, THEN SUCH CUSTOMER IS NOT PERMITTED TO USE THE SERVICES.
1.3. EPhost may periodically change, modify, or update this Agreement. Notice will be provided by posting new versions on the EPhost website, with the version dates as indicated at the top of this Agreement. In EPhost's discretion, notice may also be provided by posting a notice in the EPhost support area, and/or by email notification made to the email indicated in Customer's account settings. Therefore, Customer needs to ensure that contact information in Customer's account settings is kept up to date. The changes, modifications or updates to this Agreement will become effective 30 days following the posting of the new version, or other notice that may be provided by EPhost. Continued use of the Services after such 30 day notice period will constitute Customer's acceptance of a new version of this Agreement. Customer should refer to this Agreement regularly to remain updated as to current terms of this Agreement. Customer agrees that EPhost may send Customer service-related or other notices by e-mail rather than by postal mail.
1.4. Customer agrees to maintain the confidentiality of the Customer account, and to not share the account password, security question answers, or any other confidential information about Customer's account with others.
1.5. Customer acknowledges that EPhost may require access to Customer's servers for the performance of the Services and Customer hereby authorizes EPhost to access Customer's servers for such purposes.
2. Acceptable Use Policy:
EPhost provides the Services with the goal of promoting socially responsible content on the Internet. Accordingly, EPhost does not allow content that promotes intolerance of any race, religion, ethnicity, or other difference or that seeks to deny civil liberties or human rights, or advocates violence or physical harm to others. This description is not all inclusive, but serves to set the tone for EPhost's goals. Please see our Acceptable Use Policy posted on the Website for more information. Content or websites that are not deemed consistent with EPhost's objectives or that may result in liability or harm to EPhost, as determined in EPhost's sole discretion, may be immediately deactivated by EPhost without notice, or liability to EPhost of any kind. EPhost will determine the method, schedule, timing and scope of any actions undertaken to enforce such restrictions. In any given case, EPhost shall not be obligated to undertake enforcement actions, if EPhost in its sole discretion determines otherwise.
3. Fees and Billing:
3.1. Customer agrees to pay for the Services that Customer orders. The fees may include setup fees, monthly fees, quarterly fees, annual fees, usage fees, web traffic fees, hourly fees, late fees, and other fees. Customer shall pay or otherwise be responsible for all federal, state, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges imposed on, or with respect to, the Services under this Agreement.
3.2. If Customer has ordered a service on an automatic renewal basis (e.g., SSL certificates, domain name registrations, etc.), then Customer will be notified via email prior to the renewal dates. Failure of Customer to provide EPhost with notification of termination of the service with sufficient time prior to the renewal date for EPhost to cancel the service will result in a renewal of the service for a subsequent term.
3.3. All periodic payments are due on the account statement date or for other payments, when invoiced, or as otherwise may be agreed by EPhost. The account statement date is the anniversary (monthly, quarterly, annually or bi-annually) of the date the initial Services start date. Periodic payments are due in advance for the period covered.
3.4. If Customer provides EPhost credit or debit card or automatic bank withdrawal information (the "Payment Method"), Customer authorizes EPhost to automatically charge the Payment Method for all charges that apply to Customer's account. Charges will be posted to Customer's Payment Method without requiring additional authorization until such time that Customer cancels Customer's account or the applicable Service. Customer is responsible for updating, or notifying EPhost, of any changes to Customer's Payment Method (including, but not limited to card number, expiration date, billing address, or card status).
3.5. Customers not paying by an approved Payment Method agree to make payment of their balance due by no later than the account statement date, or for non-periodic and variable charges, within 10 days of the invoice date. Non-periodic and variable charges are billed monthly following the month in which the charges are incurred and may include charges for bandwidth, disk space, ecommerce transactions, hourly charges, and similar charges. Unless otherwise agreed, Customer shall pay in advance a deposit determined by EPhost for web design and development projects, with the balance paid upon completion, or prorated share monthly for projects extending beyond 30 days. Payment must be received by such due dates to avoid incurring late fees. EPhost does not mail paper invoices or statements. Statements can be viewed and printed through the Customer account settings.
3.6. EPhost may charge Customer interest on unpaid balances at the lesser of the rate of 1.5% per month or the maximum rate allowed by law, or, in EPhost's discretion, a charge of $5.00. Accounts 15 days overdue are subject to suspension of Service without notice until any overdue account has been made current by paying any and all overdue invoices. Time necessary for account restoration after suspension may vary. EPhost may use a third-party service to collect unpaid amounts and may charge Customer attorneys', collection, or other reasonable fees incurred to collect unpaid balances, and Customer consents to such charges.
3.7. If Customer disputes a charge, Customer must pay the whole amount to avoid service interruption and notify EPhost about the disputed amount. If EPhost validates Customer's claim, Customer's account will be credited with the validated amount. EPhost will not review or accept any billing error claims submitted more than sixty (60) days after disputed charges were incurred.
3.8. Customer specifically understands and agrees that for each "chargeback" Customer initiates to Customer's credit card for fees paid to EPhost that Customer will be liable to EPhost (and EPhost may collect from Customer) a "chargeback fee" in the amount of $39.00. Upon the occurrence of any chargeback, regardless of cause, EPhost may suspend Customer's account. Additionally, Customer will be charged a $25.00 fee for all returned checks. EPhost does not charge fees for accepting payment via domestic bank wire, however, international wire transfers may be assessed a $20.00 processing fee by an intermediary bank. In addition, Customer's issuing bank may also charge a fee for sending the wire. Please add these fees to the amount that Customer is sending to EPhost or the amount credited to Customer's account will be less than the intended payment.
3.9. Customer will be liable for all unfunded term commitments on Customer's account. For example, if Customer signed up for one (1) year of service and cancels the account (or the account is terminated) after five (5) months, the unpaid fees for the remainder of the term commitment will automatically accelerate and Customer will immediately become liable for all unpaid charges on Customer's account.
3.10. Charges for bundled Services will be "unbundled" if a portion of the bundle of Services is terminated.
3.11. Customer understands and agrees that Customer is responsible for any network bandwidth, memory over usage, or other overage charges Customer incurs for using the Services, even if such overages arise due to Customer's failure to protect Customer's password or account privacy.
3.12. If Customer wishes to reactivate a closed or suspended account, Customer must first pay EPhost any outstanding balance. A $50.00 fee will be assessed if EPhost restores data files to a reactivated account. Also see provisions relevant for backups in Section 15 hereof.
3.13. 30-Day Money Back Guarantee: EPhost's shared, reseller and cloud hosting plans carry a 30-day unconditional money back guarantee. If Customer is not completely satisfied with such EPhost Services within the first 30 days, Customer will be given a full refund of the fees paid in advance (excluding setup fees) upon plan cancellation. The following services do not qualify for the 30-day money back guarantee: dedicated hosting plans, web design and development, marketing and social media services, and overage fees.
3.14. All prices are subject to change at any time upon prior notice.
3.15. Except as otherwise provided in this Agreement, all payments, including pre-payments, are non-refundable.
4. Account Changes; Cancellation:
4.1. Customers electing to change to a lower priced hosting plan on the same platform will be charged a $19.95 downgrade fee. There is no upgrade fee for upgrading to a higher priced plan, however, Customer will be charged any difference between the setup fee applicable to the new and former plans.
4.2. Hosting plans will automatically renew until a plan is cancelled. In order to cancel a Service, Customer should go to the cancel account link in the Customer account settings. Alternatively, Customer may contact EPhost's customer service representatives, Monday through Friday, 9:00 A.M. to 5:00 P.M. Pacific Time using contact information located on the Website. Cancellation requests must be received by EPhost a minimum of 30 days prior to the end of a billing cycle for all hosting plans. Cancellations submitted later than this time may result in automatic renewal of the hosting plan. Unless otherwise indicated as "end of term," Cancellations become effective on the day processed by EPhost. EPhost is unable to cancel an account effective for a future date, unless otherwise indicated as "end of term." EPhost will confirm the cancellation request when it is processed. If Customer does not receive a confirmation, please contact EPhost as soon as possible. If EPhost believes that a hosting plan is being mistakenly cancelled, or that the cancellation will result in consequences unforeseen by Customer, then EPhost may leave the hosting active open, notify Customer of the reason for keeping the hosting plan active, and charge Customer for the hosting plan while remaining active.
4.3. Account contacts, including the primary account contact, designated by Customer during registration, or as thereafter changed, are authorized to make changes to an account. Customer acknowledges and agrees that EPhost may rely for all purposes on authorizations issued by any account contact, and Customer waives any right of action against EPhost for complying with authorizations issued by the account contact. If an account is in dispute between multiple claimants, EPhost, may in its sole discretion, lock the account until agreement is reached between the claimants or EPhost receives an order of a court.
5. Service Level Agreement:
EPhost recognizes the importance of reliable web hosting services and offers a 99.9% uptime guarantee. Customer will receive a credit for the applicable portion of the hosting fees for any unannounced downtime in accordance with this Section, except when caused by a Force Majeure event, as defined in Section 21.7 hereof. Customer will receive a full day's credit if downtime in a given day exceeds 20 minutes. Customer will also receive a full day's credit if downtime in a given month exceeds 20 minutes (except where such credit is based upon 20 minutes of downtime in a given day, for which a separate credit is earned). For example, if there is 10 minutes of applicable downtime in each of three days in a given month Customer will receive a full day's credit. If there was 25 minutes of applicable downtime in a single day Customer will receive a full day's credit. If both situations occur in a given month Customer will receive 2 days credit. However, if there is only 25 minutes of downtime during a single day, then Customer will receive a full day's credit for that day, but not an additional credit for the month. In order to claim a credit Customer must open a support ticket.
6. Co-Location and Dedicated Server Customers:
6.1. Co-location Customers are responsible for obtaining their own insurance for their equipment that has been placed in the EPhost cabinet(s) at the EPhost uplink facility. EPhost or the uplink facility will not be held liable whatsoever for any damages, consequential or otherwise, to Customer's website, equipment, or business resulting from network downtime, network maintenance, reboots of equipment due to network maintenance, or otherwise. Customer will be responsible for Customer's actions or the actions of Customer's delegated representatives who may accidentally, negligently or intentionally cause physical or economic damage to EPhost equipment, services or facilities. IN THE EVENT OF ANY DAMAGE TO CUSTOMER'S CO-LOCATED SERVER, CUSTOMER AGREES THAT LIABILITY OF EPHOST IS LIMITED TO REPLACEMENT OR REPAIR OF THE SERVER ONLY. Return of co-location equipment is subject to payment of all fees due to EPhost, and Customer grants EPhost a lien and security interest in such equipment as security for such payment.
6.2. Dedicated server Customers are responsible for maintaining, operating and troubleshooting software that a Customer has installed on a dedicated server, or that EPhost installed on Customer's behalf on a dedicated server. Software provided by EPhost under a software financing arrangement is the sole responsibility of Customer and is considered client-provided software. EPhost or the EPhost uplink facility will not be held liable whatsoever for any damages, consequential or otherwise, to Customer's website, software, or business resulting from software downtime, reboots of equipment, software maintenance, OS upgrades or patches that may interfere with software. Customer is responsible for damages, consequential or otherwise, to the server or to the EPhost network for any harm, unintentional or otherwise, due to Customer-provided software, including but is not limited to security breaches, attacks and viruses. Customer is responsible to maintain appropriate licensing for all Customer-provided software. ALL EPHOST DEDICATED HOST CUSTOMERS MUST PROVIDE ACCESS TO THE SERVERS BY PROVIDING PASSWORD DISCLOSURE, FOR MAINTENANCE AND SECURITY PURPOSES. FAILURE TO PROVIDE ACCESS MAY RESULT IN IMMEDIATE SHUT DOWN OF THE SERVICE UNTIL HOST SERVER ACCESS IS PROVIDED.
7. Maintenance Schedule:
EPhost has an international customer base. Therefore, given global time zones, there are no universally convenient times for performing scheduled maintenance on the EPhost servers. EPhost performs scheduled maintenance during hours between 10:00am and 6:00pm PST on Sundays when EPhost Administrative staff is readily available. In most cases, the performance of scheduled maintenance does not impact service and availability and EPhost makes all reasonable efforts to minimize any such impact on service and availability.
EPhost agrees to provide reasonable technical support by telephone or email to Customer during EPhost's normal technical support hours. Support is limited to the primary account contact only, and limited within the scope to basic web hosting services only.
9. Unlimited and Unmetered Services:
EPhost may provide hosting Services which are designated as "unlimited" or "unmetered" which is to say they are not allocated a quota. However, web servers and networks have a finite amount of resources and therefore such Services are limited to those maximums as determined solely EPhost. Additionally, usage outside normal and necessary amounts may be considered abusive and is prohibited. This may include, but is not limited to, bandwidth, hard disk space, CPU and RAM. Please see our Acceptable Use Policy posted on the Website for more information.
10. Software Licenses and Use:
If EPhost provides or resells certain software or services to Customer, Customer understands and agrees that Customer may be bound by additional terms and conditions imposed by third-party resellers or licensors, which are also hereby incorporated herein by reference. Additionally, EPhost may provide certain background technology composed of computer programming/formatting code or operating instructions developed by or for EPhost to be used to host or operate a Customer website or a webserver in connection with a Customer website. Customer may use such background technology for the sole purpose of operating the website or webserver, and may not transfer or assign this right or the background technology. Customer may not duplicate or distribute any such background technology to any third party without the prior written consent of EPhost. All rights to such background technology not expressly granted to Customer hereunder are retained by EPhost. Without limiting the foregoing, Customer agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of the background technology, except as allowed by law. IF CUSTOMER IS A USER OF INSTAORDER ECOMMERCE OR WEBJURIS/RECE CMS, OR OTHER APPLICATIONS THAT ARE INDICATED BY EPHOST TO BE LEGACY APPLICATIONS PROVIDED BY EPHOST, SUCH APPLICATIONS ARE PROVIDED "AS IS" AND THE PROVISION OF SUCH APPLICATIONS TO CUSTOMER IS SUBJECT TO ALL WARRANTY DISCLAIMERS AND EXCLUSIONS SET FORTH IN THIS SECTION 18.6.
11. Domain Name Registration Services; SSL Certificates:
If Customer registers, renews, or transfers a domain name through EPhost, EPhost will submit the request to a third party domain name services provider (the "Registrar") on Customer's behalf. EPhost's sole responsibility is to submit the request to the Registrar. EPhost is not responsible for any errors, omissions, or failures of the Registrar. Customer's use of domain name services is subject to the applicable legal terms of the Registrar posted at http://www.enom.com. Customer is responsible for closing any account with any prior reseller of or registrar for the requested domain name, and Customer is responsible for responding to any inquiries sent to Customer by the Registrar.
EPhost is a reseller of third party SSL certificate services. EPhost is not responsible for any errors, omissions, or failures of the third party SSL certificate service vendor. Customer's use of the SSL certificate services is subject to the applicable legal terms of the SSL certificate services vendor located at http://www.rapidssl.com/legal/.
12. Credit Card Processing Customers:
EPhost, or its affiliates, are a registered sales office for certain third party payment processing and payment gateway service companies (the "Payment Processing Companies"). Credit card processing and payment gateway services are provided by the respective Payment Processing Companies and are not provided directly by EPhost. EPhost will only provide limited customer service for the Payment Processing Companies services. The Payment Processing Companies can be contacted directly for customer service. EPhost will not be liable for any fraudulent charges on Customer's merchant account or any loss due to such activities. Refunds, if applicable, should be addressed to the appropriate Payment Processing Company. Customer is solely responsible for all activity occurring on Customer's merchant account.
13. Design and Development Services; Ownership; Licenses:
13.1. Customer represents and warrants that all artwork, media, specifications, data, software, code, content, logos, and trademarks, in whatever form (the "Customer Content"), supplied by Customer for the design, development and operation of a Customer website is properly owned or licensed by Customer for such purposes, and does not infringe or violate any third party's intellectual property rights, rights of publicity or privacy, or any other right. Customer Content shall remain the sole property of Customer.
13.2. All web design and development Services shall be deemed complete and accepted upon the earlier of (i) written acceptance by Customer, (ii) completion and delivery in substantial compliance with applicable specifications, and (iii) use of such Services by Customer in production. Such Services shall be considered complete in substantial compliance with applicable specifications when EPhost has completed as much of its responsibilities as possible given any lack of information or Customer Content that was supposed to have been provided by Customer for use in the website design and development, but was not provided or has been delayed past the scheduled completion date of the project. EPhost reserves the right to charge, above and beyond the quoted or estimated project fees for consultations, on-site meetings, project planning, proof of concepts, additional artwork proofs or any work deemed out-of-the-scope of the project.
13.3. All work product, deliverables, applications, websites and artwork developed and/or provided by EPhost during the performance of the Services shall remain the sole property of EPhost (the "EPhost Materials"). Subject to payment of all amounts due and compliance with this Agreement, EPhost hereby grants Customer a non-exclusive, non-transferrable, non-sublicensable, single instance, single server, limited license to the EPhost Materials for use with a website owned and operated by Customer. This license may not be resold, or transferred, in whole or part, to a third party without the prior written consent of EPhost.
13.4. Customer understands and agrees that (a) EPhost or any applicable licensor retains all rights, title, and interest in and to any computer programming, formatting code, operating instructions, or other software used in providing the Services to Customer and (b) that Customer will not, and will not facilitate another to, reverse engineer, disassemble, decompile, or otherwise attempt to derive any source code of any software.
13.5. Customer hereby grants to EPhost the limited, nonexclusive right and license to copy, distribute, transmit, display, perform, modify, and otherwise use any Customer Content, or any Customer trademarks provided to EPhost during the performance of the Services, solely for the purpose of performing the Services. Such limited right will terminate automatically upon termination of this Agreement for any reason.
13.6. Customer represents and warrants to EPhost that: (a) Customer owns or has the right to use all copyrighted and trademarked material contained in the Customer Content; and (b) the use, reproduction, distribution, and transmission of the Customer Content, or any information or materials contained in it, on and from EPhost's servers will not: (i) infringe or misappropriate any copyright, patent, trademark, trade secret, or any other proprietary rights of a third party; (ii) violate any criminal laws; (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity, or violate any other law or regulation.
For its own operational efficiencies and purposes, EPhost backs up data on the managed and shared servers every 24 hours (which backups are deleted after 24 hours when the next backup is performed), but EPhost is under no obligation or duty to perform backups under this Agreement. EPhost charges a recurring annual fee of $50.00 for up to 10 file restorations per year. Restorations are made without any guarantee that the file or particular file version is available in the backup repository and does not include returning the file to working order. IT IS SOLELY CUSTOMER'S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER'S FILES AND DATA, AND UNDER NO CIRCUMSTANCE WILL EPHOST BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER FILES AND/OR DATA ON ANY EPHOST SERVER.
16. Monitoring and Disclosures:
All activities occurring on, in, and/or via the Services or any website hosted by EPhost may be monitored, recorded, and examined by any authorized person, including law enforcement. In general, EPhost does not monitor its Customer's websites or activities to determine whether they are in compliance with this Agreement. However, when and if EPhost becomes aware of any violation of this Agreement, EPhost may take any lawful action, and in the event of illegal activity, will take action, to stop or correct such violation, including, but not limited to, shutting down a website, denying access to the Services or to the Internet via EPhost, and/or removing non-complying information. EPhost may disclose any information in its possession, including, without limitation, information about Customer, Internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, governmental request, or other legal process to protect EPhost or others from harm, and/or to ensure the proper operation of the Services. EPhost has no obligation to notify any person, including Customer, about whom information is sought, that EPhost has provided the information. EPhost and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, EPhost and its designees shall have the right to remove any content that violates this Agreement, is illegal, is alleged to infringe any intellectual property rights or violate any person's right of privacy, or is otherwise objectionable as determined in EPhost's sole discretion.
17. Term and Termination:
17.1. This Agreement as updated from time to time will remain in effect until its termination by either party under its terms.
17.2. EPhost may terminate this Agreement, at its convenience, without cause, at any time upon notice to Customer. Notwithstanding anything to the contrary herein, EPhost may also, but has no duty to, immediately suspend or terminate the Services, terminate Customer's access and password, remove Customer's Service from EPhost's servers, or remove any content within the Services, if EPhost concludes, in its sole discretion, that Customer (a) has breached, violated, or acted inconsistently with the letter or spirit of this Agreement, including any applicable law or regulation; (b) has provided false information as part of account information; (c) has failed to keep account information complete, true, and accurate; (d) fails to respond to any email communication sent to the email address listed in account information; (e) is engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (f) is engaged in activities or sales that may damage the rights or reputation of EPhost or others (each "Termination for Cause"). Any Termination for Cause by EPhost will take effect immediately, and Customer expressly agrees that Customer will not have any opportunity to cure.
17.3. Unless otherwise agreed in writing between the parties, both EPhost and Customer have the right to terminate web design and development projects for any reason at any time. Upon termination of a web design and development project, Customer will be responsible to pay for all applicable web design and development fees, and associated costs and expenses EPhost has incurred, or may incur as a result of such termination, through the termination date based upon the number of hours worked multiplied by EPhost's normal published hourly rate. If a web design and development project has been terminated by EPhost, for EPhost's convenience, Customer will receive a pro-rata refund for any amounts paid to EPhost for Services that has not been performed. This refund calculated by the number of hours worked multiplied by EPhost's normal published hourly rate and subtracted from your web design and development payment(s). All EPhost Materials developed for Customer will be subject to the license grant set forth in Section 13.3 of this Agreement. In the event either party cancels a project, EPhost will deliver, via electronic means (FTP) all work for which Customer has paid.
17.4. Customer understands and agrees that upon termination of this Agreement EPhost has the right to immediately bar Customer's access to any and all content related to the Customer's website or account. Upon any termination of the Services, EPhost reserves the right to permanently delete from its servers any and all information and content contained in Customer's account or Service, including but not limited to order processing information, mailing lists, files, email, and any web pages generated by Customer or the Services. EPhost accepts no liability for such deleted information or content.
18. Limitations; Indemnification; Disclaimers:
18.1. IN NO EVENT WILL EPHOST'S LIABILITY TO CUSTOMER IN THE AGGREGATE FOR ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER TO EPHOST DURING THE ONE (1) CALENDAR MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM OF LIABILITY AND $50.00. IN NO EVENT WILL EPHOST, ITS PARENTS, SUBSIDIARIES, AFFILIATES, MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, CONTRACTORS OR EMPLOYEES BE LIABLE TO CUSTOMER UNDER ANY CIRCUMSTANCES FOR ANY THIRD PARTY, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, MULTIPLE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS OR LOSS OF PROFITS) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE SERVICES WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF EPHOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND WITHOUT SUCH LIMITATIONS EPHOST WOULD NOT ENTER INTO THIS AGREEMENT. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
18.2. Depending upon what industry Customer is operating within or what type of data Customer processes or handles (e.g., medical or financial), there may be various security and related laws, regulations and standards with which Customer is obligated to comply, including, without limitation, HIPAA (Health Insurance Portability & Accountability Act), SOX (Sarbanes Oxley Act), (GLBA) Gramm Leach Bliley Act, HITECH (Health Information Technology for Economic & Clinical Health), and PCI DSS (Payment Card Industry Data Security Standard) (collectively, "Compliance Standards"). While EPhost may provide certain Services designed to assist Customer with compliance with certain Compliance Standards, actual compliance with Compliance Standards is solely Customer's responsibility and EPhost is not responsible for ensuring that Customer's systems operating in conjunction with the Services or EPhost equipment are compliant with the Compliance Standards. Additionally, the Compliance Standards include many features that are out of EPhost's control including, without limitation, Customer's network and business processes. ACCORDINGLY, EPHOST DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS THAT THE SERVICES, EQUIPMENT, SYSTEMS, NETWORK OR PROCESSES ARE COMPLIANT WITH ANY COMPLIANCE STANDARD AND EPHOST DOES NOT REPRESENT THAT EPHOST WILL ACHIEVE SUCH COMPLIANCE IN THE FUTURE. IN ORDER TO DETERMINE AND VERIFY COMPLIANCE WITH ANY COMPLIANCE STANDARD, CUSTOMER IS ADVISED TO ARRANGE FOR A THIRD PARTY TO AUDIT THE SERVICES, EQUIPMENT, SYSTEMS, NETWORK AND PROCESSES, UPON TERMS TO BE MUTUALLY AGREED. IF BASED UPON ANY SUCH AUDIT CUSTOMER DESIRES THAT EPHOST MAKE ADJUSTMENTS TO THE SERVICES, THE PARTIES WILL DETERMINE APPLICABLE TERMS FOR EPHOST TO IMPLEMENT ANY SUCH ADJUSTMENTS.
18.3. EPhost takes standard and reasonable precautions to protect website files and data. However, as online services, the Services are inherently subject to security vulnerabilities. Accordingly, EPhost does not guaranty the security of the Services or any data and files. EPhost highly recommends and advises that Customer obtain insurance coverage for general liability and professional liability errors and omissions and cyber liability. CUSTOMER AGREES THAT EPHOST IS NOT RESPONSIBLE OR LIABLE FOR THE SECURITY OR LOSS OF CUSTOMER FILES AND DATA UNDER ANY CIRCUMSTANCES.
18.5. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between Customer and EPhost. Also, neither party to this Agreement shall have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other.
18.6. EPHOST DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERRORS, BE UNINTERRUPTED, OR WILL MEET CUSTOMER'S REQUIREMENTS. THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND EPHOST EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING. CUSTOMER UNDERSTANDS AND AGREES THAT EPHOST WILL NOT BE LIABLE FOR ANY TEMPORARY DELAY, OUTAGE, OR INTERRUPTION OF THE SERVICES, AND CUSTOMER HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. ALL SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE DEEMED ACCEPTED WHEN DELIVERED. NO ONGOING WARRANTY OR SUPPORT IS INCLUDED WITH THE SERVICES UNLESS SPECIFICALLY PURCHASED BY CUSTOMER SEPARATELY.
18.7. UPON EXPRESS APPROVAL FROM EPHOST, CUSTOMER SHALL BE PERMITTED TO RESELL HOSTING SERVICES. ALL DOMAINS FOR WHICH CUSTOMER PROVIDES THE RESALE SERVICES ARE GOVERNED BY THE TERMS OF THIS AGREEMENT. THE RESOLD SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND EPHOST DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE RESOLD SERVICES, THE RELIABILITY, SECURITY, CONTINUATION OR SUCCESS THEREOF, THE MATERIALS CONTAINED THEREIN, THE SERVERS USED OR THE GOODS OR SERVICES OFFERED AND EPHOST EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER AGREES TO RELEASE, INDEMNIFY, AND HOLD EPHOST, ITS CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES (INCLUDING PARENT AND SUBSIDIARY COMPANIES) HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES AND COURT COSTS, FOR THIRD PARTY CLAIMS RELATING TO CUSTOMER'S ROLE AS A RESELLER OF HOSTING SERVICES.
19.1. Customer represents and warrants that Customer is not a resident of any country or affiliated with any organization prohibited to do business within the United States as defined and set forth at: http://www.export.gov and http://www.treas.gov/ofac. Customer further represents and warrants that Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer operates or does business. Customer agrees to comply with all applicable U.S. and non-U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import, embargo and trade sanctions, privacy, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations, including the CAN-SPAM Act of 2003. Customer shall be responsible for determining what laws or regulations are applicable to Customer's use of the Services. Customer shall, upon the request of EPhost, provide EPhost assurance of Customer's compliance with those laws. Customer acknowledges that EPhost exercises no control whatsoever over the content of the information passing through Customer's site(s) and that it is Customer's sole responsibility to ensure that the information Customer and Customer's users transmit and receive complies with all applicable laws and regulations.
19.2. Customer is responsible for charging and collecting from Customer's end-user customers any and all applicable taxes. If Customer fails to impose and/or collect any tax from end users or Customer's other retail customers as required herein, then, as between EPhost and Customer, Customer shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that Customer has agreed to pay or impose on and/or collect from end users or Customer's other retail customers, Customer agrees to indemnify and hold harmless EPhost for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from EPhost due to Customer's failure to pay or collect and remit such tax to such authority.
20. Government End Users:
Software and related documentation provided to Customer are "Commercial Items", as that term is defined at 48 C.F.R. Â§2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. Â§12.212 or 48 C.F.R. Â§227.7202, as applicable. Consistent with 48 C.F.R. Â§12.212 or 48 C.F.R. Â§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
21.1. This Agreement may not be assigned by Customer without EPhost's express written consent. EPhost may assign any or all of its rights and obligations to others at any time.
21.2. This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings, and agreements between the parties with respect to the subject matter hereof. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein. It is agreed that no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. This Agreement may not be modified or amended, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument executed by EPhost, or as otherwise provided herein.
21.3. EPhost's waiver of Customer's breach of any portion of this Agreement shall not operate or be construed as its waiver of any subsequent breach of the same provision or any other portion of this Agreement and no remedy available to EPhost hereunder is exclusive of any other remedy available to EPhost hereunder or otherwise available at law or in equity.
21.4. If any provision of this Agreement or its application is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect enforced to fullest extent consistent with applicable law.
21.5. Customer agrees that Customer will not solicit EPhost employees to become Customer's employees or contractors.
21.6. The section headings contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
21.7. EPhost shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of god, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, terrorism, denial of service/distributed denial of service attack, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, failure of any Internet infrastructure or component or of communications provider networks, other catastrophes, or any other circumstances beyond EPhost's reasonable control (collectively, "Force Majeure").
21.8. This Agreement shall be binding on Customer and EPhost and Customer's successors and assigns, and shall be governed by the laws of the state of California without giving effect to such state's law provisions regarding conflict of laws. Any action arising out of or related to this Agreement shall be brought in the applicable federal or state courts located in or with jurisdiction over San Diego County, California, and each party consents to the jurisdiction and venue of these courts. Each party expressly disclaims application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement and the Uniform Computer Information Transactions Act, as adopted in any state.
21.9. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
21.10. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic facsimile (fax), email, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed to Customer as set forth contact information provided by Customer to EPhost or addressed to EPhost as set forth below, or to such other address as shall be given in accordance with this Section. If notice is given in person, by courier, fax or email, it shall be effective upon receipt; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.
22. Contact Information:
2204 Garnet Avenue
San Diego, CA 92109
Email: email@example.com Phone: 858-433-2818
Complaints: In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact EPhost as set forth above or, if any complaint with us is not satisfactorily resolved, and Customer is a California resident, Customer can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.