Apex Internet Solutions, LLC - Hosting Agreement

Apex Internet Solutions, LLC
Hosting Agreement

This Hosting Agreement governs your Hosting Services account with Apex Internet Solutions, LLC, L.P. Apex ("Apex") and describes the terms and conditions that apply to your purchase of Hosting Services. You must read this completely and type in "yes" on the Signup Form in order to get an account. BY TYPING IN "YES" ON THE SIGNUP FORM, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HERIN AS WELL AS POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. Apex reserves the right to change or 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 to determine whether and when any such changes apply to both existing or future customers. Apex may post changes or modifications to referenced policies and guidelines without notice to you. Your continued use of Hosting Services following any posting of any changes or modifications will constitute your acceptance of such changes or modifications. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT TYPE IN "YES" ON THE SIGNUP FORM. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY APEX OF YOUR TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 1A BELOW.

1. Term and Payment for Hosting Services

a. Term. This Agreement shall be for an "Initial Term" of (a) thirty (30) days if you sign up for Non-Contract Hosting Services, (b) twelve (12) months from the start date of a One-Year Hosting Agreement Contract (c) twenty-four (24) months from the start date of a Two-Year Hosting Agreement Contract, or (d) thirty-six (36) months from the start date of a Three-Year Hosting Agreement Contract. 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 Apex with a notice of termination either (a) at least seven (7) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, if you signed up for Non-Contract Hosting Services or (b) at least thirty (30) days prior to the end of the Initial Term or Renewal Term, whichever is the applicable, if you signed up for Hosting Services with a One, Two, or Three Year Contract, and have pre-paid for a one, two , or three year period of Hosting Services. You must provide Apex with your notice of termination by email or phone, whichever is applicable. Any notice of termination will be effective upon receipt by Apex.

b. Termination Policy. If you terminate your receipt of Hosting Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, Apex shall not refund to you any fees paid in advance of such termination. Your termination request must be submitted to Apex in the manner described in Section #1a. Apex may terminate this Hosting Agreement at any time for any reason by providing to you thirty (30) days prior written notice of termination. If Apex terminates this Hosting Agreement, Apex shall refund to you the pro-rata portion of pre-paid fees attributable to Hosting Services not yet rendered as of the termination date unless otherwise expressly provided herin.

c. Liability and Obligations on Termination. Should the Hosting Agreement expire or be terminated for any reason, Apex will not be liable to you because of such 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 such termination or expiration. Any termination of this Hosting Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by you to Apex as provided in this Hosting Agreement.

d. Charges. You agree to pay for all charges attributable to your use of the Hosting Services at the then current Apex prices, which shall be exclusive to any applicable taxes. You shall be responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Hosting Services, other than taxes based on Apex's net income.

e. Payment. All charges for Hosting Services must be paid in advance according to the then current price applicable to the Hosting Services. Upon agreement to this document, you are agreeing to have a Hosting Services account created and to be billed accordingly for it in the amount stated in the Final Quote. You must notify Apex of any changes to your billing address, or any information that may prohibit Apex from billing you. Apex will send you an invoice to your for the Hosting Services applicable to the period for which you have signed up for the Hosting Services. Apex may also send periodic invoices to you for any applicable Supplemental Changes associated with your use of the Hosting Services. You agree to pay to Apex the amount indicated in each invoice by the due date reflected on the invoice. Your failure to pay any fees and taxes within ten (10) days from the applicable due date on the invoice will be deemed a material breach of this Hosting Agreement, justifying Apex's suspension of its performance of the Hosting Services and/or termination of this Hosting Agreement. Any such termination would not relieve you from paying past due fees. In the event of collection reinforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.

f. 30 Day Guarantee. Notwithstanding Sections 1a through 1e, if you are not fully satisfied with the Hosting Services, you may terminate this Hosting Agreement at any time during the first thirty (30) days from your initial order date and receive a full refund of all payments made by you to Apex for the Hosting Services provided. To receive such refund, you must terminate this Hosting Agreement in the manner desribed in Section 1a and cease using the Hosting Services, and Apex must receive your termination notice, within the above described thirty (30) day period. You agree to provide Apex with a description of why you are not satisfied with the Hosting Services and are terminating this Hosting Agreement.

2. Use of Services

a. Applicable Policies and Guidelines. The Apex Internet Solutions, LLC Acceptable Use Policy (the "Acceptable Use Policy") governs the general policies and procedures for use of the Hosting Services. Apex's Acceptable Use Policy is posted on Apex's Web site at http://www.apex-internet.com/usage_policy.html (or such other location as Apex may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE GUIDELINES. BY USING THE HOSTING SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THE ACCEPTABLE USE POLICY AND ANY MODIFICATIONS THERETO. APEX RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE GUIDELINES OR THIS HOSTING AGREEMENT.

b. Material and Product Requirements. If you choose to use Hosting Services with your own personally designed Web site, you must ensure that all material and data placed on Apex's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Apex. Apex will make no effort to validate any of this information for content, correctness or usability. In the event that your material is not "server-ready", Apex has the option at any time to reject this material. Apex will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Apex. Use of the Hosting Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not Apex's responsibility to provice this knowledge or customer support outside of the Hosting Services agreed to by you and Apex.

c. Bandwidth, Storage, and E-Mail Usage. You agree that use of the Hosting Services hereunder will not exceed the bandwidth, storage, and E-mail usage limits set out in the Final Quote. 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, Apex may, in its sole discretion, assess you with additional charges, suspend the performance of the Hosting Services, or terminate this Hosting Agreement. In the event that Apex elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees.

d. Domain Names. As part of the Hosting Services, you will provide Apex with a registered domain name or names or Apex will register such domain name(s) selected by you, provided that such domain name is available for registration and does not violate any registration policies, or any law or regulation. You agree to promptly reimburse Apex for any fees paid by Apex with respect to the registration and maintenance of such domain name(s). In the event of any dispute or cause of action arising out of or related to your domain name used in connection with the Hosting Services, upon your request Apex will attempt to register an alternative domain name chosen by you. You agree to be bound by the terms of the national DNS registration authorities to which you become subject upon registration of your domain name. The inability to use a domain name shall not entitle you to a refund by Apex of any fees paid with respect to the registration of such unusable domain name.

3. Intellectual Property Rights

a. Your License Grant to Apex. You hereby grant to Apex a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Hosting Services to you under this Hosting Agreement. You expressly (a) grant to Apex a license to cache materials distributed or made available for distribution via the Hosting Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

b. Your Warranties And Responsibilities to Apex. You warrant, represent, and convenant to Apex that (a) you are at least eighteen (18) years of age; (b) you possess the legal right and ability to enter into this Hosting Agreement; (c) you will use the Hosting Services only for lawful purposes and in accordance with this Hosting 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 Hosting Services, including, without limitation, 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.

c. Apex Materials And Intellectual Property. All materials, including but not limited to any computer software (in object code and source code form), data or information developed of provided by Apex or its suppliers or agents pursuant to this Hosting Agreement, and any know-how, methodologies, equipment, or processes used by Apex to provide the Hosting Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of Apex or its suppliers. Apex shall also maintain and control ownership of all Internet protocols ("IP") numbers and addresses that may be assigned to you by Apex. Apex reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.

4. Enforcement

a. Investigation of Violations. Apex may investigate any reported violation of this Hosting Agreement or any complaints and take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, customers and/or third parties. Apex 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.

b. Actions. Apex reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Hosting Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or in potentially violation of any laws. In the event of becoming aware of any possible violation by you of this Hosting Agreement, any related policies or guildelines, third party rights or laws, Apex may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Hosting Services, (c) restricting or prohibiting any and all uses of content hosted on Apex's systems, and/or (d) diabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Hosting Services, or other content not supplied by Apex which, in Apex's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Apex to civil or criminal liability or public ridicule. It is Apex's policy to terminate repeat infringers. The above stated rights of action, however, do not obligate Apex to monitor or exert editorial control over the information made available for distribution via the Hosting Services. In the event Apex takes corrective action due to such possible violation, Apex shall not be obligated to refund to you any fees paid in advance of such corrective action.

c. Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect Apex's systems and customers, or to ensure the integrity and operation of Apex's business and systems, Apex may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, E-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Apex's servers and systems. Apex also reserves the right to 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 Apex's Acceptable Use Policy and Apex's right disclose under this section, Apex's ight to disclosure under this section ill control.

5. Disclaimed Warranties. You acknowledge and agree that Apex exercises no control over, and accepts no responsibility for, the content of the information passing through Apex's servers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED "AS IS", AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, APEX DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE HOSTING SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.

6. Limitation and Exclusion of Liability

a. Limitations. IN NO EVEN SHALL APEX OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZES ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE HOSTING SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER APEX NOR ITS SUPPLIERS SHALL HAVE LIABILITY WITH RESPECT TO APEX'S OBLIGATIONS UNDER THIS HOSTING AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF APEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSING OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING LIMITATION OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ANY EVENT, THE LIABILITY OF APEX AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO APEX BY YOU UNDER THIS HOSTING AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH A 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. THE FEES FOR THE HOSTING SERVICES SET BY APEX HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE APEX AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6A.

b. Interruption of Service. You hereby acknowledge and agree that Apex and its suppliers will not be liable for any temporary delay, outages or interruptions of the Hosting Services. Further, Apex shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).

7. Indemnification. You hereby release and hold harmless, and agree to indemnify, Apex 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, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Apex or its suppliers, arising out of or relating to (a) your violation or breach of any item, condition, representation or warranty of this Hosting Agreement or any applicable policy or guideline; (b) your improper or illegal use of the Hosting Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including, without limitation, defamation, libel, violation or privacy or publicity).

8. Miscellaneous Provisions

a. Entire Agreement. This Hosting Agreement, in conjunction with all policies and guidelines incorporated herein by reference, consitutes the entire agreement between you and Apex with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Hosting Agreement and the related policies and guidelines.

b. Amendments. Except as expressly provided in this Hosting Agreement, no amendment, change, waiver, or discharge hereof or to the Addendum shall be valid unless in writing and signed by the parties.

c. Indentification. Apex may, free of any obligation to pay compensation, use your name and identify you as an Apex client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.

d. Choice of Law and Forum. THIS HOSTING AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF MICHIGAN, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS HOSTING AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN LANSING, MICHIGAN, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.

e. Non-Assignment. You may not assign this Hosting Agreement or any right or obligation hereunder by operation of law or otherwise, without Apex's prior written consent. Apex may assign its rights and obligations under this Hosting Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights hereunder, without your consent. Subject to that restriction, this Hosting Agreement inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

f. No Waiver. Apex's failure to enforce the strict performance of any provision of this Hosting Agreement will not constitute a waiver of Apex's right to subsequently enforce such provision or any other provisions hereunder or thereunder.

g. Severability. Should any term or provision hereof be deemed invalid, void, or unenforceable either in its entirety or in a particular application, the remainder of this Hosting Agreement shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void, or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

h. Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.

i. Survival. All provisions of this Hosting Agreement, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration hereof and thereof.

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