WEB HOSTING TERMS OF SERVICE/WEB HOSTING AGREEMENT
By and between ShenValley Host (ShenValley) and the Web Hosting customer, who will be referred to in this document as “Customer”. The parties agree to the following, which shall apply during the term of this agreement:
A. “Plans” means proposals for offering various services to be provided by ShenValley as listed on our web site under “plans”.
B. “Customer” means an end user who is utilizing Web Hosting services provided by ShenValley.
All prices for Plans provided by ShenValley to Customer are in US dollars. Customer shall pay ShenValley for its services in US dollars. ShenValley bills annually for all hosting plans unless other arrangements are made.
3. ORDER ACCEPTANCE, PAYMENT
A. All orders are subject to acceptance by ShenValley. An order will be deemed accepted by ShenValley when written (e-mail) confirmation of the order is sent to Customer. ShenValley may refuse to accept or delay acceptance of any order for any reason.
B. Payment and Terms: Payment shall be made in US dollars to ShenValley. Payments are due upon account activation and future renewal. If due to bank charges, transfer fees, or the like, ShenValley should receive less than its invoice amount, ShenValley will re-invoice Customer for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by ShenValley within thirty (30) days after activation or renewal, ShenValley may discontinue, withhold, or suspend services to Customer.
4. LIMITATION OF ShenValley’s OBLIGATIONS AND LIABILITY
A. ShenValley will utilize its best efforts to maintain acceptable performance of services contracted for, but ShenValley makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. ShenValley cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. ShenValley will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. ShenValley shall not be liable to Customer for any claims or damages which may be suffered by Customer, 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, viruses, non-deliveries, or service interruptions whether or not caused by the fault or negligence of ShenValley.
B. ShenValley may discontinue servicing any Plan, or may require fulfillment of conditions ShenValley may choose to impose as a prerequisite for continuing to service any Plan. ShenValley agrees to provide Customer with reasonable notice via e-mail or fax of any such intent to discontinue or impose conditions unless it is determined that such notice would cause harm to ShenValley. The following activities are specifically not allowed by ShenValley and will result in IMMEDIATE account termination: Running ADULT web sites, Running HATE web sites, participation in undirected bulk e-mail delivery (SPAMMING) either through the use of our mail servers or not, GAMBLING web sites, or any sites promoting or participating in ILLEGAL activities.
C. ShenValley’s liability to Customer, and any end user of any Plan or other ShenValley services is limited to the amount paid to and received by ShenValley for services not accepted. In no event shall ShenValley be liable to Customer, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if ShenValley has been advised of the possibility of such damage.
D. Customer will take all necessary measures to preclude ShenValley from being made a party to any lawsuit or claim regarding ShenValley services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless ShenValley from any and all claims of whatever nature brought by any of Customer’s customers against ShenValley in excess of the remedy set forth in paragraph 4(C).
5. DUTIES OF ShenValley Host
ShenValley will acquire an Internet Domain Name (from any valid Domain Registration Company) on behalf of the Customer, as specified. Any costs of ShenValley in obtaining or maintaining a domain name for Customer shall be immediately reimbursed to ShenValley upon invoice from ShenValley to Customer. ShenValley does not warranty that its registration services are successful, whether a domain is actually acquired or reserved on behalf of Customer. Under any circumstances will ShenValley be held reliable for losses or damages suffered by Customer resulting from delays in the registration process or failure to acquire such said intellectual property. ShenValley will assist customer as necessary with web and e-mail related problems and will take necessary action as needed to correct problem.
6. PROPERTY RIGHTS
ShenValley owns all rights, titles and interests in ShenValley’s trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of Plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This agreement does not constitute a license to Customer to use ShenValley’s trade names or service marks. The use by Customer of the other property rights mentioned here is authorized only for the purposes of marketing and selling Plans.
Customer acknowledges that by reason of its relationship with ShenValley hereunder, it may have access to certain information and materials relating to ShenValley’s business, plans, customers, software, and marketing strategies that is confidential and of substantial value to ShenValley, which value would be impaired if such information were disclosed to third parties. Customer agrees that it will not use in any way for its own account nor for the account of any third party, nor disclose to any third party, any such information revealed to it by ShenValley. Customer further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this agreement, there shall be no use or disclosure by the Customer of any such confidential information in its possession, and all confidential materials shall be returned to ShenValley or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, ShenValley shall be entitled to injunctive relief, which relief shall not be contested by Customer.
8. RELATIONSHIP OF THE PARTIES
The relationship between ShenValley and Customer is that of vendor and vendee. They shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee. This agreement is a commercial agreement between businesses, not a consumer agreement. Customer has no authority, apparent or otherwise, to contract for or on behalf of ShenValley, or in any other way legally bind ShenValley in any fashion, nor shall Customer be authorized to make any representations about ShenValley or its services other than to set forth ShenValley’s responsibilities as outlined in this agreement.
9. APPLICABLE LAW, JURISDICTIONAL MATTERS
This agreement takes effect when accepted by ShenValley in Virginia. It is to be governed by and construed under the laws of the State of Virginia and the United States of America. The federal and state courts of the State of Virginia shall have exclusive jurisdiction to adjudicate any non-arbitral dispute arising out of this agreement. Customer hereby expressly consents to (1) the jurisdiction of the courts of Virginia and (2) service of process being effective upon it by registered mail sent to the address set forth at the beginning of this document, as may be changed from time to time by written notice actually received by ShenValley. To the extent permissible by the law of Customer’s jurisdiction, Customer waives any requirement that service of process or of any documents be made upon it pursuant to the provisions of the Hague Convention.
10. ENTIRE AGREEMENT; MODIFICATIONS
This agreement sets forth the entire agreement and understanding between the parties and merges all prior discussion between them. ShenValley may make changes to this agreement upon thirty (30) days’ written notice to Customer, advising of the change and the effective date thereof. Utilization of ShenValley services by Customer and/or its Customers following the effective date of such change shall constitute acceptance by Customer of such change(s). Otherwise, this agreement may not be modified except by the written consent of both parties.
To this end the parties agree as follows:
Principles Governing Acceptable use of the Internet by the Customer
Responsibility and Respect- the Internet is a network intended for use by mature, adult users. The Customer recognizes this principle and undertakes at all times to act with respect, courtesy and responsibility, giving due regard to the interests and rights of other Internet users. This general guideline carries with it the following specific responsibilities:
a) Knowledge of the Internet- the Customer agrees to obtain a basic knowledge of the Internet and its operating principles and procedures.
b) Improper Uses- the Customer will avoid violation of certain generally accepted guidelines on Internet usage such as restrictions on mass mailings and mass advertisements, pirating or copying of software, mail bombing or other methods of attempting to deny service or access to other users, and attempts to violate security.
c) Unsolicited Commercial Email- We strictly prohibits Unsolicited Commercial Email, also known as “spam”. This includes using our network to distribute unsolicited bulk email from your site on our servers or using any outside network to send bulk email advertising your site on the Vendor servers. ShenValley reserves the right to immediately terminate any customer account associated with unsolicited email and no refund will be issued for any unused service fees.
d) Compliance with Laws- The Customer will ensure that their use of the Internet complies with all applicable federal, state and local law and regulation, including but not limited to those principles of law which protect against compromise of copyrights, trade secrets, proprietary information and other intellectual property rights, libel or defamation of character, invasion of privacy, tortuous interference, and export of technical or military data to prohibited countries.
e) Validation of Information- the Customer is responsible for validating the integrity of the information and data it receives or transmits over the Internet.
f) Security-The Customer is required to protect the security of its Internet account and usage. The Customer(s) password will be treated as private and confidential and not disclosed to or shared with any third parties. It is exclusively the Customer’s obligation to maintain and control passwords to web site(s), control panel access, File Transfer Protocol (FTP) access and email accounts. Customer exclusively is responsible for all activities that occur in connection with Customer’s username; password as well as any and all scripts or programs added to the account by the Customer or authorized users. Customer agrees to immediately notify ShenValley of any unauthorized uses of the Service or any other breaches of security. It is exclusively Customer’s responsibility to update and secure any programs or scripts on all application and web files installed by the customer or authorized users. Customer’s failure to update and secure any programs or scripts may result in ShenValley suspending your account services until they are updated. ShenValley will not be liable for any loss or damages of any kind, under any legal theory, caused by Customer’s failure to comply with any of the foregoing security obligations or caused by any person to whom Customer grants access to Customer’s services, or due to any updates performed by ShenValley pursuant to the terms of this section.
g) Discretion and Judgment- the Customer is expected to use discretion in the treatment and handling of Internet information and data and to take particular care to insure that adult information is not transmitted to juvenile users of the Internet.
h) Pornography- Due to legal and social issues, we will not accept any customers who publish, store or otherwise process pornographic material. If an existing customer violates this principle, the Vendor reserves the right to immediately terminate the Customer’s account and no refund will be issued for any unused service fees. Material deemed to be pornographic is the sole discretion of ShenValley, with due regard to the laws of the United States.
i) Backup and Archiving – The customer agrees to make use of ShenValley’s servers primarily for the purpose of hosting a website, and associated email functions. Data uploaded must be primarily for this purpose. ShenValley’s servers are not intended as a data backup or archiving service. Emails more than 30 days old in an email account is considered to be archive and will be periodically purged by ShenValley.
j) Excessive Service Usage- Customers are restricted from using excessive amounts of CPU processing, network bandwidth or other shared resources provided by ShenValley. Judgments of excessive usage are determined solely by ShenValley and will be considered in comparison to other ShenValley’s customers using similar services. ShenValley will contact customers with resource intensive requirements and attempt to accommodate such needs. In the case that an agreement cannot be made to the satisfaction of both ShenValley and the customer, and that the customer continues to use excessive resources, ShenValley reserves the right to immediately terminate any customer account associated with excessive resource usage.