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Hosting Agreement
& Terms of Service Hosting Agreement 1.
Definitions. 1.1 “Customer” means the persons, entity or agents and authorized representatives accepting this agreement. 1.2 “Content” means all text, pictures, sound, graphics, video, links, and other data stored by Customer on GendyXpro's server computers. 1.3 “Website”
means pages presenting the Content stored by Customer on GendyXpro's
server computers. 1.4 “User”
means users of Customer’s Website. 1.5 “User
Content” means all text, pictures, sound, graphics, video, links, and
other data stored by Users on GendyXpro's server computers. 1.6 “Confidential
Information” means information that Customer takes reasonable steps to
maintain in confidence and identifies in writing to GendyXpro as
confidential. 2.
Web Hosting. 2.1
Hosting. GendyXpro 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.” GendyXpro
will provide bandwidth and storage as specified in Exhibit A. If Customer requires additional bandwidth or
storage, GendyXpro will negotiate in good faith to amend this Agreement
unless GendyXpro's server computers cannot accommodate the requested
bandwidth or storage. 2.2
Website Backup. GendyXpro
will backup the Website in a commercially reasonable manner. However, Hosting is not responsible for lost
Content or lost User Content. Website
backups will be stored by GendyXpro for no longer than 14 days. GendyXpro 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. 2.3
Server Logs. As
requested by Customer, GendyXpro 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. GendyXpro
may, at its option, charge a fee to Customer for additional space
required to store oversized logs. 2.4
Standards. GendyXpro's
services will conform to the following: 2.4.1
Availability of Website. GendyXpro
will provide hosting services for the Website that meet reasonable
commercial standards for, among other matters, packet loss,
accessibility, latency, availability, and throughput. 2.4.2
Security. GendyXpro
will take commercially reasonable steps to prevent unauthorized access
to the Website, Content, User Content, and Confidential Information
stored on GendyXpro's server computers. 2.4.3
Server/Network Computer Outages.
GendyXpro will employ best efforts in
providing advance notice to Customer of scheduled server
computer/network outages. 2.4.4
Disclaimers. GendyXpro
provides no equipment, software, or communication connections to
Customer. GendyXpro makes no
representations, warranties or assurances that the Customer’s
equipment, software, and communication connections will be compatible
with GendyXpro's hardware and service. 3.
Ownership of Content. All
Content and User Content stored by Customer on GendyXpro's server
computers shall at all times remain the property of Customer. Customer grants to GendyXpro a
non-exclusive, worldwide license to the Content and User Content only
to the extent necessary for GendyXpro to host the Website. 4.
Content Control. 4.1
Lawful Purpose. Customer
will only use GendyXpro'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, GendyXpro's posted
Acceptable Use Policy, or any other GendyXpro policy. 4.2
Remedy for Violation. Should
GendyXpro become aware that Customer has violated Part 4.1,
GendyXpro 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, GendyXpro 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. GendyXpro will invoice monthly (unless otherwise agreed in writing), and payment is due fourteen (14) days from invoicing. In the case of credit card payments GendyXpro will automatically charge Customer Credit Card on file all fees associated with the account on the due date. GendyXpro may, at its option, charge a 1½ % fee for late payments. 5.2
Returned Checks and Declined Credit Cards may incur
a fee. 5.3
Account Updates. It is the responsibility of the
customer to maintain accurate billing information with GendyXpro . 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 Website. 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 GendyXpro , if such material breach remains uncured
for thirty (30) days following written notice to GendyXpro . This cure period shall be extended by delay
caused by events beyond the control of GendyXpro including, but
not limited to, natural disasters, governmental prohibitions or
regulations, viruses that did not result from the acts or omissions of
GendyXpro , or technical faults of GendyXpro's service providers or
vendors. After the initial term, Customer
may terminate this Agreement upon thirty (30) days written notice to
GendyXpro . 6.3
Termination by GendyXpro . GendyXpro
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 found at http://www.Gendyx.net/User_
agreement.htm and any written modifications thereof; and violation
of any other GendyXpro policy. GendyXpro
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, GendyXpro , AND ITS OWNERS, EMPLOYEES, AFFILIATES,
AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH
GendyXpro'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. GendyXpro
, 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 GendyXpro's HARDWARE OR
SERVICES. CUSTOMER AGREES THAT ITS SOLE
AND EXCLUSIVE REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO
GendyXpro . 9.
Customer Indemnity. Customer shall defend
GendyXpro against any third party claim, action, suit or
proceeding arising as a result of Customer’s use GendyXpro's hardware
or services and indemnify GendyXpro for all losses, damages,
expenses, and costs incurred by GendyXpro as a result of a final
judgment entered against GendyXpro 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 Netherlands. Both parties agree to
submit to personal jurisdiction in Netherlands and further agree that
any cause of action arising under this Agreement will be brought in a
court in Netherlands. 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. 1.
GendyXpro 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.
GendyXpro exercises no control over the
Content, User Content, or other information passing through GendyXpro .
4.
GendyXpro 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 Website. 5.
Customer will not use GendyXpro'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, GendyXpro's hardware,
operating systems or any other computing systems or networks. 7.
Customer will not attempt to use IP Address not
directly assigned by GendyXpro 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 GendyXpro's hardware and services
in accord with GendyXpro's Acceptable
Use Policy. The Acceptable
Use Policy and any modifications thereof will
be posted at GendyXpro's website at: http://www.GendyX.net/gTLD_agreement.html Customer’s continued use
of GendyXpro's hardware and services constitutes Customer’s acceptance
of the Acceptable
Use Policy and any modifications thereof. 9.
If GendyXpro becomes aware of a violation of
the Terms of Service, GendyXpro 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 GendyXpro's website.
Customer’s continued use of GendyXpro'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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