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Hosting/Service Agreement This Web Hosting
Agreement governs Customer's use of Coastal Hosting
Solution's Web hosting service.
1. Services.
Subject to the terms of this Agreement, and contingent on
Customer's satisfaction of Coastal Hosting Solution's credit
approval requirements, Coastal Hosting Solutions agrees to
provide the web hosting services described in the Order for
the fees stated in the Order.
2. Term.
The initial service term of the Agreement shall begin on
the date that Coastal Hosting Solutions generates an e-mail
message to Customer announcing the activation of the
Customer's account (the "Service Commencement Date") and
shall continue for the number of months stated in the Order
(the "Initial Term"). Upon expiration of the Initial Term,
this Agreement shall automatically renew for successive
renewal terms of the same length as the Initial Term (each a
"Renewal Term") unless Coastal Hosting Solutions or Customer
provides the other with written notice of non-renewal at
least thirty (30) days prior to the expiration of the
Initial Term or then-current Renewal Term, as applicable.
The Initial Term and any Renewal Term may be referred to
collectively in this Agreement as the "Term."
3. Payments.
(a) Fees.
Fees are payable in advance on the first day of each
billing cycle. Customer's billing cycle shall be monthly or
annually as indicated on the Order, beginning on the Service
Commencement Date. Coastal Hosting Solutions may require
payment for the first billing cycle before beginning
service. If the Order provides for credit/debit card
billing, Customer authorizes Coastal Hosting Solutions to
bill subsequent fees to the credit/debit card on or after
the first day of each successive billing cycle during the
Term of this Agreement; otherwise Coastal Hosting Solutions
will invoice Customer via electronic mail to the Primary
Customer Contact listed on the Order. Invoiced fees may be
issued on or before the 1st day of each billing cycle, and
the fees shall be due on the 10th day following invoice
date, but in no event earlier than the first day of each
billing cycle.
Payments must be made in United States dollars. Customer
is responsible for providing Coastal Hosting Solutions with
changes to billing information (such as credit card
expiration, change in billing address) At its option,
Coastal Hosting Solutions may accrue charges to be made to a
credit/debit card until such charges exceed $10.00. Coastal
Hosting Solutions may charge interest on overdue amounts at
the lesser of 1.5% per month or the maximum non-usurious
rate under applicable law. Coastal Hosting Solutions may
suspend the service without notice if payment for the
service is overdue. Fees not disputed within sixty (60) days
of due date are conclusively deemed accurate. Customer
agrees to pay Coastal Hosting Solution's reasonable
reinstatement fee following a suspension of service for
non-payment, and to pay Coastal Hosting Solution's
reasonable costs of collection of overdue amounts, including
collection agency fees, attorney fees and court costs.
(b) Fee Increases. Coastal Hosting Solutions may increase
its fees for services effective the first day of a Renewal
Term by giving notice to Customer of the new fees at least
forty five (45) days prior to the beginning of the Renewal
Term, and if Customer does not give a notice of non-renewal
as provided in Section 2 above, the Customer shall be deemed
to have accepted the new fee for that Renewal Term and any
subsequent Renewal Terms (unless the fees are increased in
the same manner for a subsequent Renewal Term).
(c) Early Termination. Customer acknowledges that the
amount of the fee for the service is based on Customer's
agreement to pay the fee for the entire Initial Term, or
Renewal Term, as applicable. In the event Coastal Hosting
Solutions terminates the Agreement for Customer's breach of
the Agreement in accordance with Section 9 (Termination), or
Customer terminates the service other than in accordance
with Section 9 (Termination) for Coastal Hosting Solution's
breach, the unpaid fees for each billing cycle remaining in
the Initial Term or then-current Renewal Term, as
applicable, are due on the business day following
termination of the Agreement.
4. Law/AUP.
Customer agrees to use the service in compliance with
applicable law and Coastal Hosting Solution's Acceptable Use
Policy posted at
http://www.coastalhostingsolutions.com/AUP.html (the
"AUP"), which is hereby incorporated by reference in this
Agreement. Customer agrees that Coastal Hosting Solutions
may, in its reasonable commercial judgment consistent with
industry standards, amend the AUP from time to time to
further detail or describe reasonable restrictions and
conditions on Customer's use of the Services. Amendments to
the AUP are effective on the earlier of Coastal Hosting
Solution's notice to Customer that an amendment has been
made, or the first day of any Renewal Term that begins
subsequent to the amendment. Customer agrees to cooperate
with Coastal Hosting Solution's reasonable investigation of
any suspected violation of the AUP. In the event of a
dispute between Coastal Hosting Solutions and Customer
regarding the interpretation of the AUP, Coastal Hosting
Solution's commercially reasonable interpretation of the AUP
shall govern.
5. Customer Information.
Customer represents and warrants to Coastal Hosting
Solutions that the information he, she or it has provided
and will provide to Coastal Hosting Solutions for purposes
of establishing and maintaining the service is accurate. If
Customer is an individual, Customer represents and warrants
to Coastal Hosting Solutions that he or she is at least 18
years of age. Coastal Hosting Solutions may rely on the
instructions of the person listed as the Primary Customer
Contact on the Order with regard to Customer's account until
Customer has provided a written notice changing the Primary
Customer Contract.
6 Indemnification.
Customer agrees to indemnify and hold harmless Coastal
Hosting Solutions, Coastal Hosting Solution's affiliates,
and each of their respective officers, directors, agents,
and employees from and against any and all claims, demands,
liabilities, obligations, losses, damages, penalties, fines,
punitive damages, amounts in interest, expenses and
disbursements of any kind and nature whatsoever (including
reasonable attorneys fees) brought by a third party under
any theory of legal liability arising out of or related to
the actual or alleged use of Customer's services in
violation of applicable law or the AUP by Customer or any
person using Customer's log on information, regardless of
whether such person has been authorized to use the services
by Customer.
7. Disclaimer of Warranties.
COASTAL HOSTING SOLUTIONS DOES NOT WARRANT OR REPRESENT
THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR
COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW
COASTAL HOSTING SOLUTIONS DISCLAIMS ANY AND ALL WARRANTIES
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN
"AS IS" BASIS.
8. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST
PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT
COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE,
ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY
HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF
SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE
CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF COASTAL HOSTING
SOLUTIONS AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES,
UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT,
STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF
MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE
MONTHS OF SERVICE.
9. Suspension/Termination.
(a) Suspension of Service. Customer agrees that Coastal
Hosting Solutions may suspend services to Customer without
notice and without liability if: (i) Coastal Hosting
Solutions reasonably believes that the services are being
used in violation of the AUP; (ii)
Customer fails to cooperate with any reasonable
investigation of any suspected violation of the
AUP; (iii) Coastal Hosting Solutions
reasonably believes that the suspension of service is
necessary to protect its network or its other customers, or
(iv) as requested by a law enforcement or regulatory agency.
Customer shall pay Coastal Hosting Solution's reasonable
reinstatement fee if service is reinstituted following a
suspension of service under this subsection.
(b) Termination. The Agreement may be terminated by
Customer prior to the expiration of the Initial Term or any
Renewal Term without further notice and without liability if
Coastal Hosting Solutions fails in a material way to provide
the service in accordance with the terms of the Agreement
and does not cure the failure within ten (10) days of
Customer's written notice describing the failure in
reasonable detail. The Agreement may be terminated by
Coastal Hosting Solutions prior to the expiration of the
Initial Term or any Renewal Term without further notice and
without liability as follows: (i) upon ten (10) days notice
if Customer is overdue on the payment of any amount due
under the Agreement; (ii) Customer materially violates any
other provision of the Agreement, including the AUP, and
fails to cure the violation within thirty (30) days of a
written notice from Coastal Hosting Solutions describing the
violation in reasonable detail; (iii) upon one (1) days
notice if Customer's Service is used in violation of a
material term of the AUP more than
once, or (iv) upon one (1) days notice if Customer violates
Section 5 (Customer Information) of this Agreement. Either
party may terminate this agreement upon ten (10) days
advance notice if the other party admits insolvency, makes
an assignment for the benefit of its creditors, files for
bankruptcy or similar protection, is unable to pay debts as
they become due, has a trustee or receiver appointed over
all or a substantial portion of its assets, or enters into
an agreement for the extension or readjustment of all or
substantially all of its obligations.
10. Requests for Customer Information.
Customer agrees that Coastal Hosting Solutions may,
without notice to Customer, (i) report to the appropriate
authorities any conduct by Customer or any of Customer's
customers or end users that Coastal Hosting Solutions
believes violates applicable law, and (ii) provide any
information that it has about Customer or any of its
customers or end users in response to a formal or informal
request from a law enforcement or regulatory agency or in
response to a formal request in a civil action that on its
face meets the requirements for such a request.
11. Back Up Copy.
Customer agrees to maintain a current copy of all content
hosted by Coastal Hosting Solutions notwithstanding any
agreement by Coastal Hosting Solutions to provide back up
services.
12. Changes to Coastal Hosting Solution's Network.
Upgrades and other changes in Coastal Hosting Solution's
network, including, but not limited to changes in its
software, hardware, and service providers, may affect the
display or operation of Customer's hosted content and/or
applications. Coastal Hosting Solutions reserves the right
to change its network in its commercially reasonable
discretion, and Coastal Hosting Solutions shall not be
liable for any resulting harm to Customer.
13. Notices.
Notices to Coastal Hosting Solutions under the Agreement
shall be given via electronic mail to the e-mail address
posted for customer support on
http://www.coastalhostingsolutions.com/Contact_Us.html.
Notices to Customer shall be given via electronic mail to
the individual listed as the Primary Customer Contact on the
Order. Notices are deemed received on the day transmitted.
Customer may change his, her or its notice address by a
notice given in accordance with this Section.
14. Force Majeure.
Coastal Hosting Solutions shall not be in default of any
obligation under the Agreement if the failure to perform the
obligation is due to any event beyond Coastal Hosting
Solution's control, including, without limitation,
significant failure of a portion of the power grid,
significant failure of the Internet, natural disaster, war,
riot, insurrection, epidemic, strikes or other organized
labor action, terrorist activity, or other events of a
magnitude or type for which precautions are not generally
taken in the industry.
15. Governing Law/Disputes.
The Agreement shall be governed by the laws of the State
of South Carolina, exclusive of its choice of law
principles, and the laws of the United States of America, as
applicable. The Agreement shall not be governed by the
United Nations Convention on the International Sale of
Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR
RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL
COURTS IN OAKLAND COUNTY, MICHIGAN, AND EACH PARTY AGREES
NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL
OBJECTIONS THERETO.
16. Miscellaneous.
Each party acknowledges and agrees that the other party
retains exclusive ownership and rights in its trademarks,
service marks, trade secrets, inventions, copyrights, and
other intellectual property. Neither party may use the other
party's name or trade mark without the other party's prior
written consent. The parties intend for their relationship
to be that of independent contractors and not a partnership,
joint venture, or employer/employee. Neither party will
represent itself to be agent of the other. Each party
acknowledges that it has no power or authority to bind the
other on any agreement and that it will not represent to any
person that it has such power or authority. This Agreement
may be amended only by a formal written agreement signed by
both parties. The terms on Customer's purchase order or
other business forms are not binding on Coastal Hosting
Solutions unless they are expressly incorporated into a
formal written agreement signed by both parties. A party's
failure or delay in enforcing any provision of the Agreement
will not be deemed a waiver of that party's rights with
respect to that provision or any other provision of the
Agreement. A party's waiver of any of its right under the
Agreement is not a waiver of any of its other rights with
respect to a prior, contemporaneous or future occurrence,
whether similar in nature or not. The captions in the
Agreement are not part of the Agreement, but are for the
convenience of the parties. The following provisions will
survive expiration or termination of the Agreement: Fees,
indemnity obligations, provisions limiting liability and
disclaiming warranties, provisions regarding ownership of
intellectual property, these miscellaneous provisions, and
other provisions that by their nature are intended to
survive termination of the Agreement. There are no third
party beneficiaries to the Agreement. Neither insurers nor
the customers of resellers are third party beneficiaries to
the Agreement. Customer may not transfer the Agreement
without Coastal Hosting Solution's prior written consent.
Coastal Hosting Solution's approval for assignment is
contingent on the assignee meeting Coastal Hosting
Solution's credit approval criteria. Coastal Hosting
Solutions may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP
constitutes the complete and exclusive agreement between the
parties regarding its subject matter and supersedes and
replace any prior understanding or communication, written or
oral. |