This User Agreement ("Agreement") is an agreement between AlterHosting LLC, ("AlterHosting"), a Delaware corporation, and the party set forth in the related order form incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services (collectively, the "Services") ordered by Customer on the Order Form. Such party is referred to in this Agreement as "Customer" or "you". PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING AlterHosting USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. AlterHosting may modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference, at any time in its sole discretion and may also determine whether and when the modifications apply to existing or future customers. Any modifications are effective upon posting of the revisions on the AlterHosting Web site (the "Site"). AlterHosting will post a notice of modifications to this Agreement on the Site for 30 days. AlterHosting may post modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following AlterHosting's posting of any modifications constitutes your acceptance of the modifications.
- Term and Payment for Services
- Term. This Agreement will be for an "Initial Term" chosen by you in the Order Form, located on the Site, at the time you register for the Services. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term, unless you provide AlterHosting with notice of termination either: (a) at least 7 days before the end of the Initial Term or the Renewal Term. You must provide AlterHosting with your notice of termination by clicking on the "Cancel Service" button located in the Control panel. Any notice of termination will be effective upon AlterHosting's receipt of notice.
- Termination Policy. If you terminate the Services before the end of the Initial Term or the Renewal Term, whichever is then applicable: (a) AlterHosting will not refund to you any fees paid in advance of termination; (b) but if you have pre-paid for a 1-year period of Hosting Services, you are entitled to a pro-rata refund of the remaining months in the annual period (i.e., no partial month fees shall be refunded), less any setup fees and any discount applied for prepayment; (c) you shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term (other than basic hosting fees as provided in (b) above). You must submit your termination request to AlterHosting in the manner described in Section 1.1. AlterHosting may terminate this Agreement at any time and for any reason by providing to you 30 days prior written notice of termination. If AlterHosting terminates this Agreement, AlterHosting will refund to you the pro-rata portion of pre-paid fees attributable to Services not yet rendered as of the termination date, unless otherwise expressly provided in this Agreement.
- Liability and Obligations on Termination. If the Agreement expires or is terminated for any reason, AlterHosting is not liable to you because of the expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from the termination or expiration. If you terminate this Agreement, AlterHosting will not relieve you of any obligations to pay fees and costs accrued before the termination date or any other amounts you owe to AlterHosting under this Agreement.
- Charges. You will pay all charges for your use of the Services at the then current AlterHosting prices, which will be exclusive of any applicable taxes. You are responsible for paying all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on AlterHosting's net income.
- Payment. You will pay all charges for Services in advance according to the then current price for the Services. If you choose to pay by credit card when registering for Hosting Services, you authorize AlterHosting to charge your credit or debit card to pay for any charges that may apply to your account. AlterHosting may accumulate any supplemental charges, as described in the Order Form, that you incur in your use of the Services ("Supplemental Charges") until the charges exceed $20 and then charge your card. You must notify AlterHosting of any changes to your card account (including, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit AlterHosting from charging your account. If you fail to pay any fees and taxes within 10 days from the applicable due date for credit card or invoice payments, AlterHosting will assess late charges equal to the lesser of 1.5% per month or the maximum allowable under applicable law. Your failure to fully pay any fees and taxes within 10 days after the applicable due date is a material breach of this Agreement, justifying AlterHosting in suspending its performance and terminating this Agreement. If AlterHosting terminates for your material breach, you must still pay past due fees plus interest. You are responsible for any costs AlterHosting incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees. If you reinstate Services, you must pay any fees associated with reinstating Services.
- 30 Day Guarantee. If you are not fully satisfied with the Shared Hosting Services, you may terminate this Agreement at any time during the first 30 days from your initial order date and receive a full refund of all payments you made to AlterHosting for the Shared Hosting Services. To receive your refund, you must terminate this Agreement in the manner described in Section 1.1 and cease using the Services, and AlterHosting must receive your termination notice within the 30-day period. Your notice must describe why you are not satisfied with the Services.
- Use of Services
- Applicable Policies and Guidelines. The AlterHosting Terms and Conditions of Use (the "Usage Policy") govern the general policies and procedures for use of the Services. AlterHosting's On-line Privacy Statement governs how AlterHosting collects, stores, processes and uses information associated with your use of the Services. The Usage Policy and the On-line Privacy Statement are posted on AlterHosting's Web site at http://www. AlterHosting.com and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS TO THE TERMS. ALTERHOSTING MAY TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
- Material and Product Requirements. AlterHosting does not intend to systematically monitor the content which is submitted to, stored on or distributed or disseminated by Customer via the Service (the "Customer Content"). Customer Content includes content of Customer's customers and/or users of Customer's website. Accordingly, under this Agreement, you will be responsible for your customers content and activities on your website. Notwithstanding anything to the contrary contained in this Agreement, AlterHosting may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the Usage Policy. In the event AlterHosting takes corrective action due to a violation of the Usage Policy, AlterHosting shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that AlterHosting shall have no liability to Customer or any of Customer's customers due to any corrective action that AlterHosting may take (including, without limitation, disconnection of Services).
- Bandwidth, Storage, and E-Mail Usage. For Services, you will not exceed the bandwidth, storage and E-mail usage limits in the Order Form. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month or if you exceed E-Mail storage and attachment size limitations, AlterHosting may, in its sole discretion, assess you with additional charges, suspend the Service, or terminate this Agreement. If AlterHosting elects to take any corrective action, AlterHosting will not refund any unused pre-paid fees. Your use of your account and access to it is your responsibility. You are responsible for any unauthorized access to your account resulting in bandwidth, storage and/or E-mail usage exceeding the limits in the Order Form and resultant charges.
- Domain Names. As part of the Services, you will provide AlterHosting with a registered domain name or names, or AlterHosting will register domain name(s) you select if the domain name is available for registration and does not violate any registration services' policies, or any law or regulation. AlterHosting will not refund any fees you paid with respect to the registration of a domain name you are unable to use. If you received a "Free Domain Name Registration" offer when you signed up for the Services, and you terminate the Services within 1 year of the domain name registration, you will immediately pay AlterHosting the full retail price for the domain name registration in effect when you registered the domain name, in addition to any other fees for early termination described in this Agreement.
- Security. You are solely responsible for any security breaches affecting servers or accounts under your control. If your server or website is responsible for or involved in an attack on or unauthorized access into another server or system, AlterHosting will shut it down immediately. You will pay any charges resulting from the cost to correct security breaches affecting AlterHosting or any of its other customers.
- Commercial Advertisements via E-Mail. You will not use AlterHosting services, your account or server to send or facilitate in any way the transmission of unsolicited commercial email. AlterHosting will enforce substantial penalties, including charging you for related network costs and terminating your account, for violations.
- Intellectual Property Rights
- Your License Grant to AlterHosting. You grant to AlterHosting a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, exhibit, publish, transmit, participate in the transfer of, reproduce, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly: (a) grant to AlterHosting a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that this caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
- AlterHosting Materials And Intellectual Property. AlterHosting owns all right, title and interest in and to the Services and AlterHosting's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems.
- IP Address Ownership. AlterHosting shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by AlterHosting, and AlterHosting reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
- Your Warranties And Representations to AlterHostingt. You warrant, represent, and covenant to AlterHosting that: (a) you are at least 18 years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
- Investigation of Violations. AlterHosting may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers or third parties. AlterHosting will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
- Actions. AlterHosting may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If AlterHosting becomes aware that you have possibly violated this Agreement, any related policies or guidelines, third party rights or laws, AlterHosting may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on AlterHosting's systems, and (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by AlterHosting that, in AlterHosting's sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes AlterHosting to civil or criminal liability or public ridicule. It is AlterHosting's policy to terminate repeat infringers. These rights of action, however, do not obligate AlterHosting to monitor or exert editorial control over the information made available for distribution via the Services. If AlterHosting takes corrective action because of a possible violation, AlterHosting will not refund to you any fees you paid in advance of the corrective action.
- Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect AlterHosting's systems and customers, or to ensure the integrity and operation of AlterHosting's business and systems, AlterHosting may access and disclose any information it considers necessary or appropriate, including, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on AlterHosting's servers and systems. AlterHosting may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of AlterHosting's On-line Privacy Statement and AlterHosting's right to disclose under this section, AlterHosting's right to disclose under this section will control.
- Disclaimer of Warranty. Customer agrees to use all Services and any information obtained through or from AlterHosting, at Customer's own risk. Customer acknowledges and agrees that AlterHosting exercises no control over, and accepts no responsibility for, the content of the information passing through AlterHosting's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF AlterHosting, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "AlterHosting PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT AlterHosting PROVIDES. NO AlterHosting PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. AlterHosting IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMERS CUSTOMERS VIA THE SERVICES PROVIDED BY AlterHosting. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY AlterHosting PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
- Limitation and Exclusion of Liability.
- Limitations. IN NO EVENT WILL AlterHosting OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER AlterHosting NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO AlterHosting'S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF AlterHosting HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF AlterHosting AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO AlterHosting UNDER THIS AGREEMENT DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY AlterHosting UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE AlterHosting AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION
- Force Majeure. AlterHosting and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, AlterHosting is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third-party supplier failure).
- Indemnification. You release and hold harmless, and agree to indemnify, AlterHosting and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by AlterHosting or its suppliers, arising out of or relating to: (a) your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) your improper or illegal use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including defamation, libel, violation of privacy or publicity).
- Governing Law. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF DELAWARE, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN NEW CASTLE COUNTY, DELAWARE, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF THESE COURTS.
- Assignment. Customer shall not have the right to assign this Agreement without the prior written consent of AlterHosting. This Agreement shall be binding upon and inure to the benefit of Customer and AlterHosting and their successors and permitted assigns.
- Entire Agreement; Severability. This Agreement, together with the Order Form and any other documents or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supercedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.
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