1.1 “Customer” means the persons, entity or agents and authorized representatives accepting this agreement. 1.2 “Provider” means Jason Garber, D.B.A. Radiant CMS Hosting. 1.3 “Content” means all text, pictures, sound, graphics, video, links, and other data stored by Customer on Provider’s server computers. 1.4 “Website” means pages presenting the Content stored by Customer on Provider’s server computers. 1.5 “User” means users of Customer’s Website. 1.6 “User Content” means all text, pictures, sound, graphics, video, links, and other data stored by Users on Provider’s server computers. 1.7 “Confidential Information” means information that Customer takes reasonable steps to maintain in confidence and identifies in writing to Provider as confidential.
Provider will provide dedicated or shared server computers, as specified in Exhibit A, with an Internet address for storage and access of Content, User Content, and the Website. The Website, Content, and User Content must be “server-ready.” Provider will provide bandwidth and storage as specified in Exhibit A. If Customer requires additional bandwidth or storage, Provider will negotiate in good faith to amend this Agreement unless Provider’s server computers cannot accommodate the requested bandwidth or storage.
Provider will backup the Website in a commercially reasonable manner. However, Provider is not responsible for lost Content or lost User Content. Website backups will be stored by Provider for no longer than 14 days. Provider will provide, at Customer’s expense, an electronic copy of the backup Website to Customer upon written request by Customer. Backups are intended for disaster recovery, not the restoration of individual files.
As requested by Customer, Provider will deliver to Customer in electronic form the Server Log of Website activity. Customer will be entitled to one month of log storage free of charge. Provider may, at its option, charge a fee to Customer for additional space required to store oversized logs.
Provider’s services will conform to the following:
Provider will provide hosting services for the Website that meet reasonable commercial standards for, among other matters, packet loss, accessibility, latency, availability, and throughput.
Provider will take commercially reasonable steps to prevent unauthorized access to the Website, Content, User Content, and Confidential Information stored on Provider’s server computers.
Provider will employ best efforts in providing advance notice to Customer of scheduled server computer/network outages.
Provider provides no equipment, software, or communication connections to Customer. Provider makes no representations, warranties or assurances that the Customer’s equipment, software, and communication connections will be compatible with Provider’s hardware and service.
All Content and User Content stored by Customer on Provider’s server computers shall at all times remain the property of Customer. Customer grants to Provider a non-exclusive, worldwide license to the Content and User Content only to the extent necessary for Provider to host the Website.
Customer will only use Provider’s hardware and services for lawful purposes and Customer will not store or provide any Content or User Content or link to any material that violates foreign, federal, state or local law, the Terms of Service of Exhibit B and any modifications thereof, Provider’s posted Acceptable Use Policy , or any other Provider policy.
Should Provider become aware that Customer has violated Part 4.1, Provider may, at its option, remove the Content or User Content in violation, immediately terminate hosting Customer’s Website under Part 6.3, and/or notify authorities. If hosting is terminated, Provider may, in its sole discretion, reinstate hosting upon adequate showing of Customer’s right to use the Content or User Content.
Customer shall pay fees agreed upon during account signup. Provider will automatically charge Customer Credit Card or bank account on file all fees associated with the account on a recurring basis. Provider may, at its option, charge a 10% fee for late payments.
It is the responsibility of the customer to maintain accurate billing information with Provider. This may include updated credit card information, email address and mailing address.
Customer is solely liable for any taxes or fees payable for products or services sold by Customer on the Website.
The initial term is agreed upon during account signup. After the initial term, this Agreement will automatically renew on an monthly basis until terminated.
During the initial term, Customer may terminate this Agreement upon the material breach of Provider, if such material breach remains uncured for thirty (30) days following written notice to Provider. This cure period shall be extended by delay caused by events beyond the control of Provider including, but not limited to, natural disasters, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of Provider, or technical faults of Provider’s service providers or vendors. After the initial term, Customer may terminate this Agreement upon fourteen (14) days written notice to Provider.
Provider may immediately terminate this Agreement for cause at any time without penalty. Causes justifying immediate termination include, but are not limited to: violation of any foreign, federal, state, or local law; non-payment of fees due under Part 5 of this Agreement; breach of this Agreement; violation of the Terms of Service and any written modifications thereof; and violation of any other Provider policy. Provider may terminate this Agreement without cause at any time upon thirty (30) days written notice to Customer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, JASON GARBER, D.B.A. RADIANT CMS HOSTING, AND ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH JASON GARBER’S HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INGRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
JASON GARBER, D.B.A. RADIANT CMS HOSTING, ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE JASON GARBER’S HARDWARE OR SERVICES. CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO JASON GARBER.
Customer shall defend Provider against any third party claim, action, suit or proceeding arising as a result of Customer’s use Provider’s hardware or services and indemnify Provider for all losses, damages, expenses, and costs incurred by Provider as a result of a final judgment entered against Provider in any such claim, action, suit or proceeding.
This Agreement will be governed and construed in accordance with the laws of the Commonwealth of Virginia. Both parties agree to submit to personal jurisdiction in Harrisonburg, Virginia, and further agree that any cause of action or dispute arising under this Agreement will be litigated or arbitrated in Harrisonburg, Virginia, United States of America.
If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.
In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorneys’ fees, expert witness fees and legal expenses as may be fixed by a court of competent jurisdiction.