Services
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Host Maven's credit approval requirements, Host Maven agrees to provide the Services described in the Order and in this Agreement for the fees stated in the Order. The Services include the provision of Web hosting capacity (including e-mail) and may include related services described below in this Agreement such as **Customer or end user support, billing, payment processing, training, reporting, administrative tools, online marketing tools, and hourly consulting or one services** (the "Services"). **In addition, Host Maven may license its own or third party software to Customer, either for Customer's internal business use or for resale as indicated on the Order.** Customer may resell the Web hosting capacity to its end users, subject to the terms of this Agreement. Customer may not resell any other portion of the Services, or use any other portion of the Services or any software provided to Customer by Host Maven except for its internal business purposes, unless such use is inherent in the resale of the Web hosting capacity or is approved in advance in writing by Host Maven.
Service Level Agreement
Host Maven agrees that all web hosting servers will be accessible no less than 99.9% of any given calendar month. This average can be calculated only after one full calendar month has passed. Uptime percentages will be calculated by Host Maven, and only statistics provided by Host Maven will be the source used in determining uptime percentages. Once Host Maven agrees that compensation should be given, the compensation will be in the terms of a free month's credit. Money is not refunded, We offer a free month's worth of Host Maven's hosting as compensation. Maximum amount of credits possible is one month's worth. Scheduled maintenance and emergency maintenance and upgrades and interruption beyond Host Maven's control are the exceptions to the SLA. No reimbursement of any kind will be given if it follows under those two clauses.
Branding
Customer may use Host Maven's tradenames, trademarks, logos and similar property (the "Marks") only in connection with the provision of Web hosting services. As they may be modified from time to time, or as otherwise approved in advance in writing by Host Maven. Customer does not obtain any ownership rights in any of the Marks, including any non-English language version of any of the Marks. All use by Customer of the Marks shall inure to the benefit of Host Maven. Customer acknowledges that there is substantial goodwill and commercial value associated with the Marks and agrees that it will use commercially reasonable efforts to protect and enhance the Marks. Customer will not do any of the following in any market or jurisdiction in the world: (i) attack Host Maven's ownership of or rights to any of the Marks, (ii) file an application for registration of any of the Marks with the trademark office of any country, or file an application to register any of the marks as a domain name in any country or with any domain name registrar; (iii) use in any manner or file an application for registration any of the Marks or any mark that is arguably similar to the Marks; (iv) take any action that would bring any of the Marks into public disrepute; or (vi) take any action that would tend to destroy or diminish the goodwill in any of the Marks. Customer shall promptly notify Host Maven if it learns of (i) any claim, demand or suit or potential claim, demand or suit against Host Maven, Customer or any other person based upon or involving the Marks, and (ii) any potential claim, demand or suit that Host Maven may have against another person based upon the Marks. Customer shall cooperate with Host Maven in the prosecution or defense of any such action.
Bandwidth and Storage Limitations/Records Retention
Bandwidth
As indicated on the Order, the Web hosting service has a fixed bandwidth allocation. Customer shall pay Host Maven's bandwidth overage charges **stated in the Order** for any bandwidth used in excess of such allocation.
Storage
As indicated on the Order, the Web hosting service has a fixed storage limit. Host Maven may not store any content (including e-mail) that, when received, exceeds the storage limit, or may delete other content already stored to create storage capacity for the content. This content would therefore be permanently lost to Customer and Customer's end user. In the alternative, Host Maven may, but is not required to, store the additional content and charge Customer the storage overage fees **stated in the Order**. It is Customer's obligation to monitor the remaining storage capacity of the Web hosting service and to obtain whatever contractual provisions it deems appropriate with its end users to protect itself from liability risks related to loss of end user content under these circumstances.
Term
The initial service term of the Agreement shall begin on the date that Host Maven 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 up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless Host Maven 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."
Payments
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. Host Maven may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Host Maven 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 Host Maven 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 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
Fee Increases
Host Maven 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 thirty (30) 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).
Easy 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 Host Maven terminates the Agreement for Customer's breach of the Agreement in accordance with Section 13(b) (Termination), or Customer terminates the service other than for Host Maven's breach in accordance with Section 13(b) (Termination), 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.
LAW/AUP
Customer agrees to use the Service and require its end users to use the Service in compliance with applicable law and Host Maven's Acceptable Use Policy posted at http://www.hostmaven.com/aup.html (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that Host Maven 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 Host Maven'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 Host Maven's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Host Maven and Customer regarding the interpretation of the AUP, Host Maven's commercially reasonable interpretation of the AUP shall govern.
Representations and Warranties
Customer represents and warrants to Host Maven that the information he, she or it has provided and will provide to Host Maven for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Host Maven that he or she is at least 18 years of age. Host Maven 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.
Indemnification
Customer agrees to indemnify and hold harmless Host Maven, Host Maven'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: (i) 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, and (ii) any end user of Customer on any theory for any reason except for Host Maven's intentional misconduct, but including Host Maven's negligence.
Disclaimer of Warranties
Host Maven DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW Host Maven 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, EXCEPT AS DESCRIBED IN THE SLA, ALL SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS.
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 POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Host Maven 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.
Suspension/Termination
Suspension of Service
Customer agrees that Host Maven may suspend services to Customer without notice and without liability if: (i) Host Maven 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) Host Maven 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 Host Maven's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
Termination for Breach
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 Host Maven 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 Host Maven 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 or Customer's end user 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 Host Maven 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 9 (Representations and Warranties) of this Agreement.
Termination for Business Failure
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.
Requests for Customer Information
Customer agrees that Host Maven 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 Host Maven 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.
Back Up Copy
Customer agrees to maintain and require its end users to maintain a current copy of all content provided to or hosted by Host Maven notwithstanding any agreement by Host Maven to provide back up services. All account data backups is the account holder's responsibility. Host Maven is NOT responsible for your data backup or subsequent loss.
Cancellations
All cancellations must handled through our helpdesk. Cancellations must be received within seven (7) days of your next billing cycle. If you fail to submit the cancellation notice within the seven days of your next billing cycle you will be charged the full amount on your next billing cycle. Cancellations must be submitted within those seven days, no exceptions are made for any reason.
Refunds
In order to properly receive a refund, you must send us a notice fifteen (15) days within your first month of service. Refunds are not to be given if TOS is violated in any way, shape or form. Refunds are given at the sole discretion of Host Maven. Please note that any control panel licensing fee are non-refundable under any circumstances.
Changes to Host Maven's Network
Upgrades and other changes in Host Maven'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. Host Maven reserves the right to change its network in its commercially reasonable discretion, and Host Maven shall not be liable for any resulting harm to Customer.
Notices
Notices to Host Maven under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://my.hostmaven.com. 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, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
Force Majeure
Host Maven shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Host Maven'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.
Confidential Information
Except as provided in Section 12 (Requests for Customer Information) each party agrees to keep the other party's "Confidential Information" confidential and to use such information only for the purposes of providing the Services or using the Services pursuant to the terms of this Agreement. "Confidential Information" includes any of Host Maven's unpublished prices for Services, a party's product development or strategic business plans, any information that is marked or designated as confidential by the disclosing party, and any other information that is commonly understood to be confidential by reasonable persons in the industry, but does not include such information to the extent it becomes publicly available other than through breach of this provision or other wrongful act of the recipient. Notwithstanding the elimination of indirect damages by Section 12 (Limitation of Damages) of this Agreement, a party harmed by the other party's breach of this Section shall be entitled to recover such damages.
Governing Law/Disputes
The Agreement shall be governed by the laws of the State of Ohio, 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 BUTLER COUNTY, OHIO, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
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. 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 Host Maven 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 end users of Customer are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Host Maven's prior written consent. Host Maven's approval for assignment is contingent on the assignee meeting Host Maven's credit approval criteria. Host Maven may assign the Agreement in whole or in part.
This Agreement together with the Order, SLA, AUP, and any license agreement for software provided by Host Maven 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.
If you are terminated due to a violation of our terms of service you agree that you will not recieve any refund of any kind or service credit.