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The "Fine Print"
We wish we could just say "no jerks allowed", but the trouble with that is that jerks usually don't know they're being jerks. So, we have to protect ourselves, our clients, and resources with a "terms of service" agreement. In a nutshell, we do our best to keep the servers up and running and keep your site live, fast, and available 24 hours a day, seven days a week. If there is downtime, we work to fix the situation as fast as possible. From our clients we ask that they don't use our servers for illegal activity, spamming, bulk mailings, hacking and general mischief, or the filesharing of copyrighted material. Also, being in a shared environment, if your site is found to be hogging resources due to sudden popularity or other reasons, will notify you and work with you to come up with a solution. But we may have to take your site off-line for a short period in order to keep delivering fantastic service for our other clients.
We host our sites on the same servers that you'll host your site. So, we do have a vested interest in keeping everything smooth, fast, and reliable. Thank you again for considering ClearDev, and without further rambling, here's the fine print...
Terms of Service Agreement
WEB SITE HOSTING AGREEMENT
THIS AGREEMENT ("Agreement") is entered into between ClearDev LLC ("Host"), with its principal place of business located at P.O. Box 1751, New York, New York, 10113 and "User" (you), and shall be effective as of the day your account in activated (the "Effective Date").
RECITALS
WHEREAS, Host is engaged in the business of providing Internet web site hosting and related services;
WHEREAS, User desires to retain Host to perform the services provided for in this agreement.
NOW, THEREFORE, Host and User agree as follows:
Restrictive Use
1. Scope of Services
ClearDev LLC provides Internet web hosting and associated services and maintains dedicated server computers, other equipment and software which is integrated with the Internet. These servers send and receive data and information in relationship to the Internet. Customers wish to utilize the hardware and software resources of ClearDev LLC to establish an Internet web presence using ClearDev LLC's web hosting services and network.
2. Price and Payment
Payment is due according to the selected fee schedule following the establishment of the hosting service on the Internet. Web space and services will automatically be billed one (1) month in advance according on the selected fee schedule associated with the web hosting plan. In the event that the Customer fails to pay for such services in advance, ClearDev LLC shall be entitled to suspend the Customer's service without notice until payment is made.
The customer will continue to be billed until the customer cancels their hosting account by completing a cancellation form. ClearDev LLC will not deactivate hosting for a domain without a completed cancellation form. The customer is liable for all services rendered and billed up until the time that the account is cancelled. Hosting charges are not pro-rated when an account is cancelled. As long as the cancellation form is completed prior to the first of the next month, the customer will not be billed beyond the current month.
3. Restrictive Use
4. Term and Termination
A. Hosting Services will commence on the Effective Date of this Agreement and will automatically renew from month to month thereafter, unless earlier terminated as provided herein. User may terminate this Agreement without cause upon notice to Host. Host may terminate this Agreement without cause upon notice to User. Either party may terminate this agreement upon written notice for material breach, provided, however, that the terminating party has given the other party written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party's right to exercise any other remedies for breach.
B. If User's account is suspended due to lack of payment, User will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Services.
5.Customer Service
Host will provide to User reasonable amounts of consultation via telephone and/or electronic mail in the use of the system, but will not assist with any services that are not maintained or controlled by Host.
6. User's Warranties and Obligations
A.User is responsible for providing all equipment and/or software necessary to access the hardware and systems provided by Host. User agrees to adhere to Host's Acceptable Use Policy, a copy of which is available online at http://cleardev.net/aup.php. The Acceptable Use Policy may be modified from time to time in Host's sole discretion. User's continued use of the Services after the effective date of such modified Acceptable Use Policy will constitute User's acceptance of the modified terms. Failure by User to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this agreement.
B. User hereby warrants to Host, and agrees that during the term of this Agreement it will ensure that (a) User is the owner or valid licensee of all data and/or content it will upload in conjunction with the Services (the "Content"), and that User has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Host to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) User's use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated; (c) User will comply with all applicable laws, rules and regulations regarding the Content and will use the services only for lawful purposes; (d) User has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code.
C. User will cooperate fully with Host in connection with Host's performance of the Services. User will immediately notify Host of any change in User's mailing address, telephone, e-mail or other contact information.
7. Ownership of Intellectual Property
A.User hereby grants to Host a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary in the performance of Services: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and (b) make archival or back-up copies of the Content. Except for the rights expressly granted herein, Host does not acquire any right, title or interest in or to the Content, all of which will remain solely with User.
B. Any feedback, data, answers, questions, comments, suggestions, ideas or the like that User sends to Host relating to the Services will be treated as being non-confidential and non-proprietary. Host may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose.
C. Host's trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Host. User will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Host. Host will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Host to User. Host may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
D. Host hereby grants to User a non-exclusive, non-transferable, royalty-free license, for the term of this Agreement, to use the provided technology solely for the purpose of accessing and using the Services. User may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from Host to User any right, title or interest in and to the provided technology, and all right, title and interest thereto will remain solely with Host. User will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology.
8. Warranty and Disclaimer
With respect to the services to be provided herein, the Customer acknowledges that Host makes absolutely no warranties whatsoever, express or implied. As a result, the Customer agrees that Host shall not be liable to the Customer for any claims, damages, or loss of profit which may be suffered by the Customer or any other entity in any respect for direct, indirect, consequential, actual, or punitive damages arising out of, or in relation to, the services provided herein, including, but not limited to, losses or damages resulting from the loss of data as the result of delays, non-deliveries, or service interruptions.
9. Limitation of Liability
Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the Hosting Services, whether in contract, tort or otherwise, even if the other has been advised of the possibility of such loss or damages.
10. Unilateral Service Revocation
In the event that ClearDev LLC may at any time believe that the service is being utilized for unlawful purposes by the Customer or in contravention with the terms and provisions herewith, ClearDev LLC may immediately discontinue such service to the Customer without liability. This will include failure to pay, illegal activities and/or unsolicited email.
11. Indemnification of Host
User will indemnify and hold Host harmless against any claims incurred by Host arising out of or in conjunction with User's breach of this Agreement, as well as all reasonable costs, expenses and attorneys' fees incurred therein. Host's total liability under this Agreement with respect to the Services, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by User to Host during the six (6) month period prior to the date the claim arises.
12. Confidential Information
A. All information relating to User that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Host and will not be disclosed or used by Host except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.
B. All information relating to Host that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by User and will not be disclosed or used by User except to the extent that such disclosure or use is reasonably necessary to the performance of User's duties and obligations under this Agreement.
C. These obligations of confidentiality will extend for a period of 1 year after the termination of this agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
13. Relation of Parties
The performance by Host of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Host and User, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
14. Force Majeure
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control.
15. No Waiver
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
16. Entire Agreement
This Agreement together with any attachments referred to herein constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives by placing an order telephonically, in writing and/or electronically.
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