Hosting
Agreement & Terms of Service
Hosting
Agreement
1.
Definitions.
1.1 “ParagonHost, LLC” is the
operating company of ParagonHost.
1.2 “Customer” means the
persons, entity or agents and authorized
representatives accepting this
agreement.
1.3 “Content” means all text,
pictures, sound, graphics, video, links,
and other data stored by Customer on
ParagonHost, LLC’s server
computers.
1.4 “Web site” means pages
presenting the Content stored by Customer
on ParagonHost, LLC’s server
computers.
1.5 “User” means users of
Customer’s Web site.
1.6 “User Content” means all
text, pictures, sound, graphics, video,
links, and other data stored by Users on
ParagonHost, LLC’s server
computers.
1.7 “Confidential Information”
means information that Customer takes
reasonable steps to maintain in confidence
and identifies in writing to ParagonHost,
LLC as confidential.
2. Web Hosting.
2.1 Hosting. ParagonHost, LLC 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 Web site. The Web
site, Content, and User Content must be
“server-ready.” ParagonHost, LLC
will provide bandwidth and storage as
specified in Exhibit A. If Customer
requires additional bandwidth or storage,
ParagonHost, LLC will negotiate in good
faith to amend this Agreement unless
ParagonHost, LLC’s server computers
cannot accommodate the requested bandwidth
or storage.
2.2 Web Site Backup. ParagonHost, LLC will
backup the Web site in a commercially
reasonable manner. However, ParagonHost,
LLC is not responsible for lost Content or
lost User Content. ParagonHost, LLC
backups are intended for disaster
recovery, not the restoration of
individual files.
2.3 Server Logs. As requested by Customer,
ParagonHost, LLC will deliver to Customer
in electronic form the Server Log of Web
site activity. Customer will be entitled
to one month of log storage free of
charge. ParagonHost, LLC may, at its
option, charge a fee to Customer for
additional space required to store
oversized logs.
2.4 Standards. ParagonHost, LLC’s
services will conform to the
following:
2.4.1 Availability of Web Site.
ParagonHost, LLC will provide hosting
services for the Web site that meet
reasonable commercial standards for, among
other matters, packet loss, accessibility,
latency, availability, and throughput.
2.4.2 Security. ParagonHost, LLC will take
commercially reasonable steps to prevent
unauthorized access to the Web site,
Content, User Content, and Confidential
Information stored on ParagonHost,
LLC’s server computers.
2.4.3 Server / Network Computer Outages.
ParagonHost, LLC will employ best efforts
in providing advance notice to Customer of
scheduled server computer / network
outages.
2.4.4 Disclaimers. ParagonHost, LLC
provides no equipment, software, or
communication connections to Customer.
ParagonHost, LLC makes no representations,
warranties or assurances that the
Customer’s equipment, software, and
communication connections will be
compatible with ParagonHost, LLC’s
hardware and service.
3. Ownership of Content. All
Content and User Content stored by
Customer on ParagonHost, LLC’s server
computers shall at all times remain the
property of Customer. Customer grants to
ParagonHost, LLC a non-exclusive,
worldwide license to the Content and User
Content only to the extent necessary for
ParagonHost, LLC to host the Web site.
4. Content Control.
4.1 Lawful Purpose. Customer will only
use ParagonHost, LLC’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, ParagonHost,
LLC’s posted Acceptable
Use
Policy,
or any other ParagonHost, LLC policy.
4.2 Remedy for Violation. Should
ParagonHost, LLC become aware that
Customer has violated Part 4.1,
ParagonHost, LLC may, at its option,
remove the Content or User Content in
violation, immediately terminate hosting
Customer’s Web site under Part 6.3,
and / or notify authorities. If hosting is
terminated, ParagonHost, LLC may, in its
sole discretion, reinstate hosting upon
adequate showing of Customer’s right
to use the Content or User Content.
5. Payments.
5.1 Fees. Customer shall pay fees
agreed upon during account signup.
ParagonHost, LLC will automatically charge
Customer Credit Card on file all fees
associated with the account on the due
date. ParagonHost, LLC may, at its option,
charge a 1½ % fee for late
payments.
5.2 Returned Checks and Declined Credit
Cards will incur a $25.00 fee.
5.3 Account Updates. It is the
responsibility of the customer to maintain
accurate billing information with
ParagonHost, LLC. This may include updated
credit card information, email address and
mailing address.
5.4 Taxes. Customer is solely liable for
any taxes or fees payable for products or
services sold by Customer on the Web
site.
6. Term and Termination.
6.1 Term. The initial term is agreed
upon during account signup. After the
initial term, this Agreement will
automatically renew on a month-to-month
basis until terminated.
6.2 Termination by Customer. During the
initial term, Customer may terminate this
Agreement upon the material breach of
ParagonHost, LLC, if such material breach
remains uncured for thirty (30) days
following written notice to ParagonHost,
LLC. This cure period shall be extended by
delay caused by events beyond the control
of ParagonHost, LLC including, but not
limited to, natural disasters,
governmental prohibitions or regulations,
viruses that did not result from the acts
or omissions of ParagonHost, LLC, or
technical faults of ParagonHost,
LLC’s service providers or vendors.
After the initial term, Customer may
terminate this Agreement upon thirty (30)
days written notice to ParagonHost,
LLC.
6.3 Termination by ParagonHost, LLC.
ParagonHost, LLC 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; nonpayment
of fees due under Part 5 of this
Agreement; breach of this Agreement;
violation of the Terms of Service found at
http://www.paragonhost.com/terms.html and
any written modifications thereof; and
violation of any other ParagonHost, LLC
policy. ParagonHost, LLC may terminate
this Agreement without cause at any time
upon thirty (30) days written notice to
Customer.
7. DISCLAIMER OF WARRANTIES. EXCEPT
AS EXPRESSLY PROVIDED HEREIN, PARAGONHOST,
LLC, AND ITS OWNERS, EMPLOYEES,
AFFILIATES, AGENTS, VENDORS, AND THE LIKE,
MAKE NO WARRANTY IN CONNECTION WITH
PARAGONHOST, LLC’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.
8. LIMITATION OF LIABILITY.
PARAGONHOST, LLC, 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 PARAGONHOST,
LLC’S HARDWARE OR SERVICES. CUSTOMER
AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY
SHALL BE RETURN OR REDUCTION OF FEES
PAYABLE TO PARAGONHOST, LLC.
9. Customer Indemnity. Customer
shall defend ParagonHost, LLC against any
third party claim, action, suit or
proceeding arising as a result of
Customer’s use ParagonHost,
LLC’s hardware or services and
indemnify ParagonHost, LLC for all losses,
damages, expenses, and costs incurred by
ParagonHost, LLC as a result of a final
judgment entered against ParagonHost, LLC
in any such claim, action, suit or
proceeding.
10. General Provisions.
10.1 Governing Law. This Agreement
will be governed and construed in
accordance with the laws of the State of
Massachusetts. Both parties agree to
submit to personal jurisdiction in
Massachusetts and further agree that any
cause of action arising under this
Agreement will be brought in a court in
Worcester County, Massachusetts.
10.2 Severability and Waiver. 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.
10.3 Relationship of Parties. No agency,
partnership, joint venture, or employment
relationship is created by this Agreement
and neither party has the power to bind
the other party.
10.4 Attorneys Fees and Costs. 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.
Terms
of Service
1.
ParagonHost, LLC may only be used for
lawful purposes. Customer will not store
or provide any Content or User Content
that: (a) violates any federal, state, or
local law, statute, ordinance, or
regulation (including, without limitation,
export control, consumer fraud, unfair
competition, antidiscrimination, gambling,
or false advertising laws); (b) is
defamatory, trade libelous, unlawfully
threatening, or unlawfully harassing; (c)
is obscene, child pornographic, or
indecent; (d) violates any third
party’s right of publicity or right
of privacy; or (e) contains any IRC
application, bots, egg drops, viruses,
trojan horses, worms, time bombs,
cancelbots or other computer programming
routines that are intended to damage,
detrimentally interfere with,
surreptitiously intercept or expropriate
any system, data or personal
information.
2. Customer will not store or provide any
Content or User Content, practice any
software or business methods, or use a
domain name that infringes any
party’s Intellectual Property.
“Intellectual Property” means
any and all property rights under
copyright, moral right, trademark, patent,
trade secret, or right of publicity law,
or any other rights in works of
authorship, inventions, designations of
source, persona, or economically valuable
information.
3. ParagonHost, LLC exercises no control
over the Content, User Content, or other
information passing through ParagonHost,
LLC.
4. ParagonHost, LLC does not monitor and
is not obligated to monitor the Content
and User Content and has not been informed
by Customer of the Content, User Content,
or nature of the Content on
Customer’s Web site.
5. Customer will not use ParagonHost,
LLC’s hardware or service to
misrepresent Customer’s identity.
6. Customer will not attempt to undermine
the security or integrity of, or gain
unauthorized access to, ParagonHost,
LLC’s hardware, operating systems or
any other computing systems or
networks.
7. Customer will not attempt to use IP
Address not directly assigned by
ParagonHost, LLC staff. Attempting to use
unauthorized IP Addresses may result in IP
Conflict. Any server found using IPs,
which was not officially assigned, will be
suspended from network access until such
time as the IP address conflict can be
corrected.
8. Customer will use ParagonHost,
LLC’s hardware and services in accord
with ParagonHost, LLC’s
Acceptable
Use
Policy.
The Acceptable
Use
Policy
and any modifications thereof will be
posted at ParagonHost, LLC’s Web site
at: http://www.paragonhost.com/aup.html
Customer’s continued use of
ParagonHost, LLC’s hardware and
services constitutes Customer’s
acceptance of the Acceptable
Use
Policy
and any modifications thereof.
9. If ParagonHost, LLC becomes aware of a
violation of the Terms of Service,
ParagonHost, LLC will investigate and may,
in its sole discretion, terminate hosting
under the Hosting Agreement.
10. These Terms of Service may be modified
at any time. Any modifications will be
delivered to Customer in written form or
posted at ParagonHost, LLC’s Web
site. Customer’s continued use of
ParagonHost, LLC’s hardware and
services after modification of these Terms
of Service constitutes Customer’s
acceptance of the modifications.
11. Customer will require Users and, if
Customer is a reseller, repurchasers to
agree to and abide by these Terms of
Service or substantially equivalent
terms.
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