611 East Weber Rd, Suite 102
Columbus, OH 43211
HOSTING SERVICES AGREEMENT
(PLEASE COMPLETE AND FAX to the Number Above)
This agreement represents the complete agreement and understanding between iHostXtremes, (hereinafter referred to as “iHostXtremes”) and _________________ (hereinafter referred to as “CLIENT”) and supercedes any other written or oral agreement.
SERVICE. iHostXtremes, as an Internet Service
Provider, provides a dedicated server solution (the specifications of which
are listed in the attached Exhibit A) that is integrated into the Internet.
CLIENT desires to connect to and utilize the software and hardware facilities
of iHostXtremes, which will allow CLIENT to have a dedicated server solution
at the iHostXtremes Datacenter and take advantage of iHostXtremes’s Internet
2. TERM OF SERVICE. This agreement shall be in effect for an annual term, payable month to month beginning May 23, 2018 . Agreement will self renew at that time unless either party shall notify the other of NON-RENEWAL in writing, at least thirty days prior to the end of the term. Early termination without proof of negligence or incompetence on the part of iHostXtremes will constitute a penalty fee equivalent to two months of the contracted monthly hosting rate. After first year, either party may cancel in writing within 30 days notice.
INVOICING AND SERVICE FEES. Invoicing shall be as follows: CLIENT
shall be billed monthly in advance. Payments of the service fee will be done
upon inception (sign-up date). In the event that CLIENT shall fail to pay
in advance for the services provided herein or in the event there shall exist
any delinquency in the CLIENT’s account then in such event iHostXtremes reserves
the right, in its sole, absolute and unfettered discretion, to terminate the
Agreement and discontinue service to CLIENT with 10 days notice, without liability
for actual compensatory or consequential damages to CLIENT for the interruption
in service. iHostXtremes may discontinue or suspend service to CLIENT until
payment is made. Any service disconnection or suspension will result
in the requirement of a re-connect fee, which shall be the same as the set-up
fee as described in the attached Exhibit A.
4. REMITTANCE ADDRESS. iHostXtremes, 611 East Weber Rd, Suite 102, Columbus, Oh 43211.
5. RESPONSIBILITES. iHostXtremes’s responsibilities during the term shall be as follows:
iHostXtremes shall provide facilities, services and servers (in accordance with Exhibit A & Exhibit B) intended to allow public web browsers access to the servers on a seven day a week, 24 hour a day basis and to maintain during the term a system that, when operated using hardware, software and line communications provided by iHostXtremes and under agreed-upon controlled environments, provides end-user response time of no greater than three seconds from the time the router receives a request to the time that the router transmits a response to the request.
iHostXtremes shall provide systems personnel, to resolve, as quickly as possible using their best commercial efforts, problems with the Server(s) that cause Customer’s solution to be inaccessible to the public (a “Malfunction”). iHostXtremes agrees that it will respond promptly to CLIENT notification of a Malfunction and will work diligently to resolve any Malfunction. Malfunction shall be defined as a hardware failure or malfunction.
(Pertinent to Dedicated Servers Only)
6.1 iHostXtremes Equipment. Client has contracted to use iHostXtremes Equipment in connection with the Services, iHostXtremes will work with Client to order the necessary iHostXtremes Equipment and to develop a plan and schedule for installation of the iHostXtremes Equipment.
6.2 Restrictions on Use of iHostXtremes Equipment. Client will not take, nor attempt to take, any right, title or interest in the iHostXtremes Equipment or permit any third party to take any right, title or interest in the iHostXtremes Equipment. Client will not transfer, sell, assign, sublicense, pledge or otherwise dispose of, encumber or attach a lien or encumbrance upon or against any iHostXtremes Equipment or any interest in such equipment. Client will reimburse iHostXtremes for all reasonable repair or restoration costs associated with damage or destruction to the iHostXtremes Equipment caused by Client’s personnel or agents.
6.3 No Lease. This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property.
7.1 License. iHostXtremes hereby grants to Client a nonexclusive, nontransferable worldwide license, without the right to grant sublicenses, to use the Standard Software in object code form only on the Standard Equipment, during the term of this Agreement.
7.2 Restrictions. Client’s use of the Standard Software is subject to the following: Client will not, and will not permit others to, (a) modify, copy, or otherwise reproduce the Standard Software in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Standard Software; (c) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer the Standard Software or Client’s right to use the Standard Software; or (d) remove any proprietary notices or labels on the Standard Software. All rights not expressly granted to Client are reserved by iHostXtremes or iHostXtremes’s licensors. There are no implied rights.
8. USE OF SERVICE. These services are for the exclusive use of the Customer and CLIENT subsidiaries and affiliates specifically named above and does not extend to any other person or entity.
9. NO REPRESENTATIONS, Subject to the specifications listed in Exhibit A & B. iHostXtremes will utilize its best efforts to maintain acceptable performance of the contracted services, but iHostXtremes makes absolutely no warranties whatsoever, express or implied, of merchantability or fitness for a particular purpose. iHostXtremes cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via CLIENT system or via the Internet. iHostXtremes will not be liable for the inadvertent disclosure of, or corruption or erasure of, date transmitted or received or stored on CLIENT system. iHostXtremes shall not be liable to Customer or any of CLIENT customers for special, incidental, consequential or indirect damages which may be suffered by Customer or CLIENT customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions. Notwithstanding the foregoing, iHostXtremes represents and warrants that:
a) All of the services to be performed by it hereunder will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained qualified personnel and in conformance with the Specifications set forth in Exhibit A.
b) The Services, when performed, will operate so as to provide Customer with a fully functional and operational website and set forth herein.
c) The Server as delivered by iHostXtremes will not infringe upon any third party’s copyright, patents, trade secrets or other proprietary or intellectual property management right.
NO OTHER WARRANTY Except for the express warranty set forth in EXHIBIT B, iHostXtremes
makes no other representations or warranties, and hereby disclaims all responsibility
for any situation where the security, availability or stability of the Standard
Services is compromised by Client, Content or actions taken by iHostXtremes
at the request of client.
11. INDEMNIFICATION. CLIENT agrees that it shall defend, indemnify, save and hold harmless from any and all demands, liabilities, losses, costs, claims, including reasonable attorney’s fees, (“Liabilities”) against iHostXtremes, its agents, its customers, servants, officers, employees, that may arise or result from any services provided, performed or agreed to be performed under the Agreement or any product sold by CLIENT, its agents, employees or assigns under the Agreement. CLIENT agrees to defend, indemnify and hold harmless iHostXtremes against Liabilities arising out of any injury to person or property caused by any products sold or distributed in connection with iHostXtremes’s server under the Agreement; any material supplied by CLIENT infringing or allegedly infringing on the proprietary rights of a third party under the Agreement; and copyright infringement and any defective product which CLIENT sold on iHostXtremes’s Server under the Agreement. As a result of this, CLIENT agrees that iHostXtremes shall not be liable to CLIENT for any claims of actual, compensatory and/or consequential damages which may be suffered by CLIENT, including, but not limited to, losses or damages due to the loss data resulting from delays, non-deliveries, or service interruptions caused by the fault or negligence of iHostXtremes. Notwithstanding the above mentioned, CLIENT’s exclusive remedies, damages, losses and causes of actions shall not exceed the aggregate dollar amount which CLIENT paid during the Term of the Agreement. iHostXtremes shall defend, indemnify and save harmless CLIENT, its subsidiaries and affiliates, and CLIENT and their respective officers, directors, employees, successors and assigns from all Liabilities to CLIENT arising out of or resulting from: (i) any breach by iHostXtremes of the Agreement or the representations or warranties set forth herein; or (ii) any claim relating to the copyrights, patents, or other intellectual property supplied and used by iHostXtremes in providing the Server to CLIENT.
12. TERMS OF THIS AGREEMENT. The terms of this Agreement shall be governed by and construed in accordance with the laws of Ohio without regard to CLIENT choice of law principles. The headings in this Agreement are used for convenience of reference and shall not be deemed to modify or affect the interpretation of this Agreement. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. iHostXtremes’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision thereof. Neither iHostXtremes nor its Representatives will be liable for loss or damage or deemed to be in breach of this Agreement if its failure to perform its obligations results from (a) compliance with any law, ruling, order, regulation, requirement of any federal, state or municipal government or department or agency thereof or court of competent jurisdiction; (b) acts of God; (c) fires, strikes, war, insurrection or riot; or (d) or any other cause beyond its reasonable control. Any delay resulting therefrom will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable. The terms and conditions of this Agreement, including all Addenda executed pursuant hereto, shall prevail notwithstanding any different or additional terms and conditions of any purchase order or other form for purchase or payment submitted by Representative to iHostXtremes, all of which are hereby rejected. All terms and provisions of this Agreement, which should by their nature survive the termination or expiration of this Agreement shall so survive. This Agreement shall not be amended except by written amendment signed by authorized representatives of both parties.
13. FORCE MAJEURE Either party will not be in default of its obligations to the extent its performance is delayed or prevented by causes beyond its control, including but not limited to acts of God, earthquake, flood, embargo, riots, sabotage, utility or transmission failures, fire or labor disturbances.
14. ASSIGNMENT Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party. Notwithstanding the previous sentence, iHostXtremes may transfer or assign its rights and obligations under this Agreement to a subsidiary or entity controlling, controlled by or under common control with iHostXtremes or to an entity that acquires iHostXtremes by merger or purchase of all or substantially all of iHostXtremes’s assets.
RESTRICTIVE USE. The Customer may only use iHostXtremes’s services for lawful purposes.
In the event that at any given time, iHostXtremes reasonably believes that
the service is being used by the Customer in contravention with any of the
terms and provisions contained in this Agreement, iHostXtremes has the right
to immediately discontinue such service to Customer without liability other
than to refund any unearned prepaid service fees. The following are restrictive
uses and shall be cause for the immediate termination of web services and
this Agreement without notice to the Customer: The use of any data or material,
which CLIENT receives from the service provided by iHostXtremes, is at CLIENT’s
sole and absolute risk. iHostXtremes specifically disclaims and denies any
responsibility for the completeness, or accuracy or quality of any and all
information obtained through the services to be provided hereby. The account
fee does not include access to iHostXtremes’s NNTP or SMTP servers or other
access services not specified herein. iHostXtremes can provide additional
services, but they are neither implied nor included with the Agreement.
a) Unauthorized distribution or copying copyrighted software, violation of US export restrictions, embarrassment, fraud, trafficking in obscene material, drug dealing, and other illegal activities;
b) Unsolicited advertising via email and/or “Spamming” is a violation of State and Federal Law and is otherwise a violation of this agreement. Such prohibited conduct subjects Customer to immediate cessation of service as provided herein and the termination of this agreement without notice. iHostXtremes reserves the right to report such illegal activities to any and all regulatory, administrative and/or governmental authorities for appropriate prosecution. In addition, iHostXtremes will charge One Dollar ($1.00) per email recipient for any such activity;
c) Using a non-existing email return address on a commercial solicitation, spamming (sending unsolicited advertising to numerous email addresses or newsgroups and/or generating a significantly higher volume of outgoing email than a normal user), trolling (posting outrageous messages to generate numerous responses, mailbombing (sending multiple messages without significant new content to the same user), subscribing someone else to a mailing list without that person’s permission, cross-posting articles to an excessive number of newsgroups, or attempting without authorization to enter into a secured computer system. iHostXtremes reserves the right to determine what is Net abuse;
d) Tortuous conduct such as posting of defamatory, libelous, scandalous, or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyright, or other intellectual property rights;
e) The Customer expressly understands and agrees that illegal Adult oriented Websites featuring nudity and acts of a sexual nature are expressly prohibited. iHostXtremes reserves the right to immediately terminate and remove any such unauthorized Websites without notice and discontinue service to Customer without notice or liability for actual, compensatory or consequential damages to Customer for the interruption in service.
f) MUDDS, Listservers or any other Internet application that are not Website specific, are specifically prohibited, such sites are subject to additional setup and hosting fees as provided in paragraph six (6) herein;
Monthly Fee: (As Per Online Order or Supplied Sales Document Details)
Setup Fee: (As Per Online Order or Supplied Sales Document Details)
(As Per Online Order)
(As Per Online Order)
24/7 Ping and http monitoring of all servers
Additional port monitoring available per your request
Managed Admin Services:
This Includes, but is not
-Data backup, recovery and restore.
-Automatic installation of security patches and software upgrades.
-A managed services support team is personally responsible for your support and server administration.
-Regular server health status reports.
-Any administration support help that you require, up to and including complete administration of the server.
This document briefly describes the services and standards of service provided by iHostXtremes to Client. iHostXtremes is committed to providing a high level of service to ensure that information technology is an effective enabling tool for Client.
This agreement is intended to guarantee that individual and network users receive an acceptable level of response to their information technology needs and to ensure common expectations of quality and time frames for services provided by iHostXtremes. iHostXtremes’s service goals are:
1) timely and effective technical support of computer and telecommunications hardware and software
2) technical tools that effectively support business needs
3) support and implementation expectations that are appropriately met
4) secure and reliable electronic environments
5) new technology solutions that are rapidly acquired and implemented
This level of support will be provided throughout all iHostXtremes units for all standard hardware and software configurations and other nonstandard configurations where support for such configurations have been negotiated between Client and iHostXtremes.
1. Availability – 100% Service Availability Guarantee
iHostXtremes guarantees that it will maintain a 100% up time, excluding scheduled maintenance, for facilities and Internet connectivity as follows: in the event that one or more of Client’s servers or hosting accounts are unable to transmit or receive information via the Internet through the Front-end Network as a result of disruptions to either the Data center or the Front-end Network (a “Covered Outage”), iHostXtremes will, as iHostXtremes's sole obligation and Client's sole and exclusive remedy for failure to meet the foregoing guarantee, credit the Client’s account for every five (5) minutes of such Covered Outage with the prorated fees for one (1) day of services for the affected servers, up to a maximum credit during any calendar month equal to the total prorated fees due to iHostXtremes from Client during such calendar month for the affected servers (“Standard Service Credit”). In no event will iHostXtremes’s scheduled maintenance of the Data center, the Front-end Network or the iHostXtremes Equipment be deemed a Covered Outage entitling Client to the Standard Service Credit.
Scheduled Maintenance shall mean any maintenance at the IHOSTXTREMES data center at which CLIENT's server is located (a) of which CLIENT is notified 24 hours in advance. Notice of Scheduled Maintenance will be provided to CLIENT's designated point of contact by a method mutually agreed upon (telephone, email, fax or pager).
IHOSTXTREMES will calculate CLIENT's "Network Unavailability" in a calendar month. "Network Unavailability" consists of the number of minutes that the IHOSTXTREMES Network was not available to CLIENT, and includes unavailability associated with any maintenance at the IHOSTXTREMES data center where CLIENT's server is located other than Scheduled Maintenance. Outages will be counted as Network Unavailability only if CLIENT opens a trouble ticket with IHOSTXTREMES CLIENT support within five days of the outage. Network unavailability will not include Scheduled Maintenance, or any unavailability resulting from (b) acts or omissions of CLIENT, or any use or user of the service authorized by CLIENT or (c) reasons of Force Majeure (as defined in the contract).
General Availability of the iHostXtremes Network
The iHostXtremes network will be deemed to be available if it provides end-user response time of no greater than three seconds from the time the router receives a request to the time that the router transmits a response to the request.
2. Hardware Replacement Guarantee
If a server experiences an outage directly attributable to the failure of a hardware component of such server, iHostXtremes will replace the failed component, and if necessary, initiate a restore of the server from an available backup tape, within two (2) hours of iHostXtremes determining that a failed hardware component needs to be replaced. The hardware guarantee covers all hardware components to include processors, ram, hard disks, motherboard, NIC card and other hardware as described in this contract.
2.1 Hardware Replacement
If iHostXtremes does not replace the failed component, and if necessary initiate a restore of the server from an available backup tape, within two (2) hours of iHostXtremes determining that a failed hardware component needs to be replaced, iHostXtremes, upon Customer's request, will credit Customer's account ten percent (10%) of the Monthly Recurring Service Charges as set forth on Customer's Service Order (as defined in the applicable iHostXtremes contract)("Charges"), and an additional ten percent (10%) of the Charges for each additional hour over and above the two hour commitment. The total of all credits issued to Customer in any calendar month shall not exceed one hundred percent (100%) of the Charges. The Hardware Replacement Guarantee shall not apply if failure of the hardware component is a result of acts or omissions of Customer or its agents; failure of any non-standard hardware installed by iHostXtremes or Customer; or events of Force Majeure (as defined in the applicable iHostXtremes contract). In addition, the Hardware Replacement Guarantee shall not apply if the Customer is in breach of its agreement with iHostXtremes, including, but not limited to, violation of the Acceptable Use Policy or payment default.
3. Exceptions to the Credit
Credit will not be issued due to failures that are, as determined by iHostXtremes, in its good faith reasonable judgment, a result of:
Client initiated work that is independently generated by Client;
· iHostXtremes initiated maintenance completed during scheduled maintenance and emergency maintenance and upgrades;
Client required operating system software revisions and hardware/software configurations that are not iHostXtremes tested/approved;
Client-supplied Web site content or software;
The acts or omissions of Client, its employees, agents, third party contractors or vendors, or anyone gaining access to iHostXtremes’s Server and Software at the request of CLIENT
· Violations of iHostXtremes’s Acceptable Use Policy as posted on http://www.iHostXtremes.com/Acceptable_Use_Policy.shtml
· Circumstances beyond iHostXtremes's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the iHostXtremes SLAs
iHostXtremes shall maintain a Help Desk, which will be the primary point of contact for all queries. The help desk will be accessible by telephone, email and fax. This will be manned 24 hours a day, 7 days a week, 365 days a year.
5. CLIENT Data and Software
iHostXtremes will, on CLIENT’s behalf, use commercially reasonable efforts to: (i) make available and accessible on the iHostXtremes Network and/or World Wide Web, as appropriate, the CLIENT Web Site; and (ii) reproduce the CLIENT Data on the CLIENT Web Site. CLIENT will at all times retain complete copies of the CLIENT Data and if it should be lost or damaged while stored at the Data Center, CLIENT shall redeliver the same to iHostXtremes. CLIENT shall be solely responsible for the editorial supervision of the CLIENT Data. CLIENT shall review the CLIENT Data prior to delivery to iHostXtremes, to ensure that it complies with CLIENT’s representations and warranties as contained in this Agreement.
5.1 Software and Documentation Provided by iHostXtremes
In consideration for the payment of any applicable charges, CLIENT is granted the right to use the Software, if any, strictly in accordance with and subject to any accompanying documentation. Except as may be specifically set forth in the Documentation, iHostXtremes makes no representations and warranties with respect to the Software. iHostXtremes will pass through and assign to CLIENT all rights and warranties provided by third party licensors of the Software to the extent that such licensors permit such pass through and assignment. Any costs of such assignment shall be borne by the CLIENT. Except as specifically set forth herein, iHostXtremes has no obligation to provide maintenance or other support of any kind for the Software, including without limitation any error corrections, updates, enhancements or other modifications.
UNDERSTOOD AND AGREED:
Print Name: __________________________________________