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 IHS Web Solutions Terms of Use IHS Web Solutions, LLC provides web hosting to many clients, and we have a responsibility to protect each client and to provide the best services available. The following guidelines were designed to ensure these obligations are met. This AGREEMENT (the “Agreement”) is made and entered into between IHS Web Solutions, LLC (“Host”) and you (“Client”) (each being referred to individually as a “Party” and collectively as the “Parties”). IHS Web Solutions, LLC. By registering for an account with IHS Web Solutions, LLC you agree to all of the terms and conditions contained in this agreement: Your agreement to these terms is affirmed by your successful payment via Credit Card, Paypal or check to IHS Web Solutions, LLC. CONTACT All contact with IHS Web Solutions, LLC will be made directly to support@ihswebsolutions.com or by calling 1-800-381-0687. For all legal correspondence, please use the following mailing address: IHS Web Solutions, LLC TERM Payments will be made through the Account Management System (by credit card or via PayPal) or by mailing payment to our physical address. Plan and payment options are available at http://ihswebsolutions.com/hosting. By making a payment for services to IHS Web Solutions, LLC, you are automatically starting your term. You must agree to at least one full year (12 months) of hosting. If your account is past due, IHS Web Solutions, LLC will attempt to contact you for a period of 30 days. If we are unable to contact you for late payment, we will suspend your account. If we are unable to contact you for 90 days, your account will be deleted, and all data will be erased. Accounts that are suspended will be reinstated at the highest published price listed for your current hosting package. Deleted accounts cannot be recovered. Services Hosting Services Host agrees to provide Client with services for hosting of a site on the World Wide Web portion of the Internet (the “Web Site”) as set forth or described in the Pricing Schedule contained on this site. Host shall provide the Hosting Services so that the Web Site is accessible to third parties via the World Wide Web portion of the Internet as specified herein. Except as expressly provided herein, Client agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any services or performing any tasks not specifically set forth in the Pricing Schedule. At the time of execution of this Agreement, to the extent that Client wishes to receive from Host Additional Services the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the “Services Addendum”), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the “Services”). Content Client shall be responsible for maintaining its own content via FTP (file transfer protocol). Availability of Web Site The Web Site shall be accessible to third parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of Hosting Services, Client’s sole and exclusive remedy and Host’s sole and exclusive liability for any loss or interruption of Hosting Services shall be as follows: for loss or interruption of Hosting Services which is due to (i) causes other than scheduled maintenance and required repairs, or (ii) causes beyond the control of Host, or (iii) causes which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slowdowns or failures, which loss or interruption of Hosting Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future Hosting Services equal to a pro rata portion of Hosting Services fees for the period of downtime. Client Website Backup The servers operated by IHS Web Solutions, LLC are backed up regularly in the event a critical hardware failure occurs. Client is responsible for backing up content on their individual web accounts, and should do so regularly using the backup feature in cPanel. IHS Web Solutions, LLC uses full backups solely to recover from widespread data loss, and does not restore individual accounts from backup unless Client specifically purchases additional backup options. IHS Web Solutions, LLC is not responsible for errors occurring on a website due to any of the following: installation of scripts, modification of database files, improper use of software, negligence on the part of the Client, or any other activity of the Client. This includes support provided by IHS Web Solutions at the request of Client. Client web sites can be backed up by IHS Web Solutions, LLC at regular intervals by purchasing a backup plan. Contact support@ihswebsolutions.com for more information or to order a backup plan or visit http://ihswebsolutions.com/ams. Abuse or Misuse of System Resource IHS Web Solutions, LLC reserves the right to refuse, cancel, or suspend service at our sole discretion base on resource misuse or abuse. Any attempt to undermine or cause harm to a server, or customer, of IHS Web Solutions, LLC is strictly prohibited. This includes, but is not limited to: Using programs that consume excessive CPU time No more than 5% of overall system utilization Allowing the use of mail services, mail forwarding capabilities, or autoresponders other than for the customer’s own account Resale of disk space without an appropriate reseller agreement Use of servers for backup of files unrelated to the web site of the account No storage of MP3 or any other copyrighted audio material Pirated software Hacker programs or archives Warez sites Resale or remote access to CGI scripts installed on our servers No IRC related software is permitted on our servers. This includes servers, bots, bouncers, or any other software that is used for the purpose of creating, maintaining, or providing access to IRC servers or channels. Accounts that are found to have such software uploaded to their web space are subject to immediate suspension and/or termination without notice. Domain Name Registration As part of the initial Hosting Services, Client shall provide Host with a registered domain name, or Host shall register domain name(s) selected by Client provided that such domain name is available for registration and does not violate any ICANN or other registration services’ policies, or any law or regulation. Client agrees to promptly reimburse to Host any fees paid by Host to a domain-name registrar or other registration services with respect to the registration and maintenance of such domain name. Domain Name Disputes Host shall not be liable for any domain-name disputes which Client may enter into or otherwise encounter. Such disputes shall be governed by the relevant ICANN dispute procedures adopted by the domain-name registrar with which Client’s domain-name has been registered. Additional Storage and Transfer In the event that the Web Site requires storage and transfer on the Host Server which exceeds the amount of storage included in the Hosting Services, Client may, upon two (2) days written e-mail notice to Host, request that Host (a) upgrade the level of Hosting Services, or (b) acquire additional incremental storage to be included in the Hosting Services, on a time and materials basis and in accordance with the Pricing Schedule hereto. Host shall review all such requests and determine, in consultation with Client, whether it can reasonably comply with such requests and, if so, Host shall propose a procedure and budget for complying with such request. Client Content Client assumes sole responsibility for (a) acquiring any necessary license(s), (b) authorization(s) necessary for hypertext links to third party web sites, (c) the accuracy of materials on the Web Site, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (d) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Host reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Client Content on the Web Site, or other content not supplied by Host which, in Host’s sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Host to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Host to monitor or exert editorial control over the Web Site. All IHS Web Solutions, LLC service may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or City law is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene or material protected by trade secret and other statute, and invasion of privacy. The subscriber agrees to indemnify and hold harmless IHS Web Solutions from any claims resulting from the use of the service which damages the subscriber or any other party. Any website containing such materials will be immediately removed and IHS Web Solutions, LLC will not refund any fees. IHS Web Solutions, LLC will be the sole arbiter in determining violations of this provision. All pornographic content is prohibited on IHS Web Solutions, LLC. This includes sites that may infer sexual content or links to adult content elsewhere, but does not include artistic expressions of nudity. IHS Web Solutions will be the sole arbiter in determining violations of this provision. Also prohibited are sites that promote any illegal activity or present content that may be damaging to IHS Web Solutions servers or any other server on the Internet. Links to such materials are also prohibited. Limitations on Client Content Commercial Advertising Email/Spam Spamming, or the sending of unsolicited email, from an IHS Web Solutions, LLC server or using an email address or domain that is maintained on an IHS Web Solutions, LLC, machine as reference is STRICTLY PROHIBITED. IHS Web Solutions, LLC will be the sole arbiter as to what constitutes a violation of this provision. Sites that promote, sell, or otherwise provide access to spamware products or products that are solely for the purpose of extraction or sale of email addresses or which are used to send bulk email are not permitted on any IHS Web Solutions, LLC server. Client shall not send bulk e-mail, commonly know as spam, from or through their account. Any use of Client’s account to send bulk e-mail shall be a material breach of this agreement and shall be grounds for immediate cancellation of Client’s account without notice. Fees Hosting Services Fees Client shall pay Host all fees for the Hosting Services in accordance with the applicable fee and payment schedule set forth in the Pricing Schedule hereto. Host expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein). Late Payment Host may terminate service when any payment is late and shall not be responsible for maintaining any data Client may have uploaded to Host’s server. Information Security Policy IHS Web Solutions, LLC is compliant with CISP/PCI security standards. Our complete Information Security Policy can be downloaded here: IHS Information Security Policy Indemnification A. Client Client agrees to indemnify, defend, and hold harmless Host, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Web Site infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses. B. Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action arises out of the gross negligence or willful misconduct of Host. Notice In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party’s written consent, which shall not be unreasonably withheld. Limitation of Liability HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEB SITE OR CLIENT’S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. HOST SHALL HAVE NO LIABILITY WITH RESPECT TO HOST’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HOST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CLIENT UNDER THIS AGREEMENT DURING THE MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. Termination and Renewal Term This Agreement shall be effective upon payment for services, which shall constitute signing by the Parties and thereafter shall remain in effect unless earlier terminated as otherwise provided in this Agreement (the “Initial Term”). This Agreement shall automatically be renewed beyond the Initial Term for additional one(1) year terms (each, a “Renewal Term”) unless Client provides Host with a written notice of termination at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term. Cancellation Cancellation can be made via email to support@ihswebsolutions.com. Although no notice is required, and there is no cancellation fee, all fees paid for service up to the notice of cancellation are non-refundable. If cancellation is made within the first 30 days of service all hosting fees will be refunded. This does not include fees for domain registration. Suspension Activity which results in a suspension or deactivation of an account will result in a forfeiture of fees paid. Complaints made regarding abuses of an account will be grounds for suspension. All legacy accounts (accounts created before May 31st, 2008) that are suspended for non-payment or breach of the Terms of Use will be reinstated solely at the discretion of IHS Web Solutions and at the current published price for hosting as of the date of reinstatement. Legacy Accounts All accounts created before May 31st, 2008 are considered legacy accounts. Legacy accounts cannot be customized. Legacy accounts will be converted to standard accounts no later than May 31st, 2010. At the time of conversion, legacy plans will be converted to current hosting plans offered by IHS Web Solutions, and at the prices published as of the date of conversion. Legacy customers wishing to move to an alternative hosting company may do so with 30 days written notice. Termination Refusal of Service IHS Web Solutions reserves the right to refuse, cancel, or suspend service at our sole discretion. Termination and Payment Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement. Entire Agreement This Agreement and Schedules referenced herein constitute the entire agreement between Client and Host with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. Force Majeure Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes. Kansas Law This Agreement shall be governed in all respects by the laws of the State of Kansas, County of Johnson, without regard to its conflict of laws provisions, and Client and Host agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the State of Kansas, and Client and Host hereby submit to the jurisdiction of such courts. Assignment Client shall not assign, without the prior written consent of Host, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement. Modification and Notice Host has the right to modify this Agreement. Any modification is effective immediately upon either a posting on the IHS Web Solutions Home Page (http://www.ihswebsolutions.com), or upon notice by electronic mail, or U.S. mail. Client’s continued use of the Host’s Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). Client’s only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Host in providing the Services, including, without limitation, (i) any change in the content of the Services, or (ii) any change in the amount or type of Service Fees, is to terminate this agreement by delivering notice to Host. Such notice will be effective upon receipt by Host. Waiver The waiver of failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. Severability If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. Counterparts This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the Parties hereto. Headings The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. Approvals and Similar Actions Survival All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement. All sub-networks, distributive hosting sites, and dedicated servers of IHS Web Solutions must adhere to the above policies. Please direct any reports of violations of the above policies to support@ihswebsolutions.com. Failure to follow any term or condition will be grounds for immediate account deactivation. Report all abuse of these policies to support@ihswebsolutions.com. Revised 10/10/2009
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