Hosting Services Agreement
This Hosting Agreement (“Agreement”) is between the party placing the order for the Services (as defined below) or on whose behalf such order is placed by its authorized representative (the “Client”) and Solar Flare, LLC dba Cyberian Frontier (“Cyberian Frontier”) and governs the hosting, related internet connectivity and/or other services (including, without limitation, hosting and domain name registration services (“DNR Services”), data backup and storage services (the “Backup Services”), and Cyberian Frontier Business Solutions (the “Business Solutions”) (collectively, the “Services”) specified in the Service Order form completed by or on behalf of Client in connection herewith (as the same may be amended and supplemented from time to time by the parties hereto, the “Service Order or Invoice”), which Service Order or Invoice is incorporated herein by this reference.
Services are controlled and operated by Cyberian Frontier, Inc. from its offices within the United States. Cyberian Frontier makes no representation that the Products or Services are appropriate or legally available for use in other locations. Those who choose to access the Products, Services, or our Web site from other locations do so of their own volition and are responsible for compliance with applicable local laws.
Individuals, organizations, and businesses located in countries subject to United States embargoes as well as any person, listed on the U.S. Treasury Department’s list of Specially Designated Nationals, or listed on U.S. Commerce Department’s Table of Denial Order or Entities List may not enter into agreements associated with the Products or Services available from Cyberian Frontier. By placing your order with Cyberian Frontier, you acknowledge that you are not such a person, organization or business.
1. Cyberian Frontier shall provide the Services as set forth herein and Client shall pay the fees for the Services as specified on the Service Order or Invoice. Payment is due for the initial term of the Services (as specified on the Service Order or Invoice) when Client places the order, and payment is due for each renewal term of the Services on the date specified in the applicable renewal notice from Cyberian Frontier (each, the “Due Date”). Amounts unpaid after the applicable Due Date shall accrue interest at the lesser of 1.5% per month and the maximum lawful rate (“Interest Rate”). Cyberian Frontier reserves the right to suspend or terminate Services to any account in payment default, which suspension or termination (irrespective of its cause) shall not relieve Client of its obligation to pay the fees for the Services. Cyberian Frontier’s refund policy can be found in the Terms of Service for the applicable Service(s).
2. This Agreement shall be effective as to the parties hereto upon Client’s acceptance of the terms hereof pursuant to the instructions set forth in on-line Services ordering process (the “Effective Date”) and shall continue to the Expiration Date (as defined below). Unless (i) earlier terminated in accordance with the terms hereof, (ii) otherwise renewed for a specific renewal term, (iii) other than with respect to DNR Services or Backup Services, Client has given Cyberian Frontier written notice of termination within 10 days following the date of Cyberian Frontier’s renewal notice regarding the Services or (iv) Cyberian Frontier has given Client written notice of termination, this Agreement shall renew and continue in effect for a renewal term equivalent in length to the term just ended (unless otherwise requested in writing by Client) at Cyberian Frontier’s then-current price for such term length for the Services as set forth in the applicable renewal notice from Cyberian Frontier. “Expiration Date” means the last day of the service term for which any Services are ordered (as per the applicable Service Order or Invoice), with such service term being measured for purposes of this definition from the date Cyberian Frontier first makes the Services available for use by the Client (“Commencement Date”), as extended by any renewal term. Any notice of termination must be given to Cyberian Frontier by providing the appropriate data online at www.CyberianFrontier.com or in writing. A portion of related Services may be terminated upon termination of the underlying agreement between Cyberian Frontier and the third-party vendor.
3. As part of the Services (other than DNR Services, Backup Services, or Business Solutions), Cyberian Frontier provides servers, the associated operating system and other applicable software, equipment used for Internet connectivity and required space in a Cyberian Frontier data center (collectively, the “Equipment”). Cyberian Frontier acts solely as a provider or “reseller” of the Equipment it uses to provide the Services, which have been manufactured or otherwise provided by a third party. Client’s sole remedies for any malfunction or defect in the Equipment are the Service Level Agreements described in Section 11 below. Cyberian Frontier will perform the initial configuration of the Equipment and such maintenance and support Services as are specified on the Service Order or Invoice. Cyberian Frontier and it’s suppliers will occasionally perform maintenance services which Client acknowledges may require Equipment downtime, and in such event Cyberian Frontier will attempt to provide prior notice of such downtime. Client shall supply (and shall cause its third-party suppliers to provide) Cyberian Frontier with such reasonable assistance as Cyberian Frontier requires to provide the Services. Client is solely responsible for all other services not specified on the Service Order or Invoice, which may include, without limitation, the management, administration and support of Client’s software and the software that is part of the Equipment once it is installed by Cyberian Frontier. In addition, Client acknowledges and agrees that while Cyberian Frontier may perform certain backups as part of its internal operations with respect to the Services, such backups are not meant to be a complete disaster recovery solution for Client and, as such, Client is solely responsible for backup of its software and data residing on the Equipment.
4. Cyberian Frontier shall have no obligation to provide support and no liability for any interruption or deficiency in the Services resulting from (a) tampering or alteration of the Equipment by persons not authorized, or in a manner not explicitly required, by Cyberian Frontier or (b) the function or malfunction of hardware or software not supplied by Cyberian Frontier. Client shall promptly report all alterations to Equipment or software initiated or implemented by persons not explicitly required by Cyberian Frontier and shall promptly implement any corrective procedures required by Cyberian Frontier. Cyberian Frontier exercises no control over, and specifically rejects any responsibility for, the content, accuracy or quality of information passing or obtained through or resident on the Equipment. Use of any information obtained via the Equipment is strictly at Client’s own risk.
5. In connection with the capitalized services, Cyberian Frontier may provide certain limited Client information to its third-party provider.
7. Client shall indemnify, defend and hold harmless Cyberian Frontier and its affiliates from and against any claims, causes of action, losses, damages, costs or expenses (collectively, “Claims”) arising out of or relating to use by or through Client of the Services in any way, including any breach of the AUP.
8. Cyberian Frontier reserves the right to monitor Client’s bandwidth and/or disk usage and to utilize technology to limit such usage to ordered amounts and/or to charge Client for any excessive usage. Cyberian Frontier further reserves the right to suspend access to Client’s Web site, script or other application in the event Cyberian Frontier reasonably believes that such Web site, script or other application is the cause of interruptions in Cyberian Frontier’s ability to provide services to other Clients, which suspension or termination shall not relieve Client of its obligation to pay the fees for the Services. In the event of any such suspension, Cyberian Frontier will notify Client as soon as practicable so that Client may take remedial action in order to regain access to its Web site, script or other application. Client acknowledges and agrees that in an effort to control spam (i) Cyberian Frontier may utilize certain technologies to block incoming and outgoing email which Cyberian Frontier determines, in its sole discretion, may be spam, (ii) Cyberian Frontier servers will not accept connections from unsecured systems (including, without limitation, open relays, open proxies, open routers or any other system that has been determined to be available for unauthorized use), (iii) Cyberian Frontier may, in its sole discretion, reject connections from systems that use dynamically assigned or residential IP addresses, and (iv) Cyberian Frontier may, in its sole discretion, reject connections from any IP address that does not have reverse DNS (a PTR record).
9. SUBJECT TO SECTION 11 BELOW, CYBERIAN FRONTIER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR EQUIPMENT; AND DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Cyberian Frontier shall not be liable for any failure or delay in performance due to circumstances beyond its reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, or any other such occurrences. Either party may terminate this Agreement if the failure or delay of performance caused by such event of force majeure continues for a continuous period of 10 business days.
10. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUE, DATA OR USE OF SERVICES BY CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. Notwithstanding anything to the contrary stated in this Agreement, Client’s sole remedies for any Claims relating to the Services are set forth in Section 11. In no event shall Cyberian Frontier’s and its affiliates’ aggregate, collective liability for any Claims (including negligence or otherwise), exceed the amount paid by Client for the Services during the 12-months preceding the date the Claim occurred or arose.
11. Any Internet Protocol addresses (“IP Addresses”) assigned to Client by Cyberian Frontier or it’s suppliers in connection with the Services (i) shall be used only in connection with the Services and (ii) will require Cyberian Frontier to disclose certain Client contact information to the applicable registry for Internet numbers. If for any reason Client discontinues use of the Services or this Agreement terminates, Client’s right to use the IP Addresses shall terminate. Cyberian Frontier may change the IP Addresses upon 30 days’ written notice to Client.
12. The Service Level Agreements (“SLAs”), if any, for the Services, which are incorporated into this Agreement and include commitments with respect to certain availability of the Services, are set forth at www.CyberianFrontier.com and set forth Client’s sole and exclusive remedies for Claims relating to the Services.
13. Client acknowledges that all right, title and interest in any and all technology, including the software, that is part of or provided with the Services and any trademarks or service marks of Cyberian Frontier or third parties utilized in connection with the Services (collectively, “Cyberian Frontier Intellectual Property”) are vested in Cyberian Frontier and/or in Cyberian Frontier’s licensors. Unless otherwise specifically provided in this Agreement, Client shall have no right, title, claims or interest in or to the Cyberian Frontier Intellectual Property. Client may not copy, modify or translate the Cyberian Frontier Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the Cyberian Frontier Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so. Cyberian Frontier may not use Client’s name, trademarks, trade names or other proprietary identifying symbols without the prior written consent of Client, except that, unless otherwise specified on the Service Order or Invoice Cyberian Frontier may use Client’s name on a list of sample Clients for marketing purposes.
14. This Agreement shall be binding upon and inure to the benefit of Client, Cyberian Frontier and Cyberian Frontier’s successors and assigns. Client may not assign this Agreement without the prior written consent of Cyberian Frontier, which consent will not be unreasonably withheld or delayed.
15. The validity, interpretation, enforceability and performance of this agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to conflicts or choice of laws.
16. This Agreement may not be amended by Client except upon the written consent of Client and an officer of Cyberian Frontier. Client agrees that (i) this Agreement may be amended by Cyberian Frontier from time to time and (ii) any such amendments will be binding and effective immediately upon Cyberian Frontier’s notification to Client via (i) an email to Client’s current contact information in Cyberian Frontier’s records or (ii) via Client’s Control Panel for the Services, if applicable. The continued use of any Services shall constitute Client’s acceptance of any such amendments. IF CLIENT DOES NOT ACCEPT ANY SUCH AMENDMENTS, CLIENT’S SOLE REMEDY SHALL BE TO REQUEST THAT THE AFFECTED SERVICES BE DISCONTINUED, OR WITH REGARD TO DNR SERVICES, THAT THE DOMAIN NAME REGISTRATION BE CANCELLED OR TRANSFERRED TO A DIFFERENT DOMAIN NAME REGISTRAR. In order to request the discontinuance of affected Services, Client must (i) send a cancellation request to the Cyberian Frontier email cancellation address provided in Section 2 herein within 10 days of the date the email is sent by Cyberian Frontier or the date notification is posted on Client’s Control Panel, and (ii) pay all accrued but unpaid fees for the Services rendered to the date of cancellation.
17. All notices from Cyberian Frontier shall be deemed received by Client when sent by Cyberian Frontier to Client’s current email contact on record or posted on Client’s Control Panel. Client is solely responsible for ensuring that its contact information is kept up-to-date.
18. Client consents to Cyberian Frontier’s activation of a default “Welcome Page” which may appear when an Internet user requests Client’s registered domain name or Web site. This Welcome Page welcomes the user to Client’s temporary home page and may link to Cyberian Frontier Web sites, advertising and/or Internet search tools. The Welcome Page may appear unless and until Client posts Client’s own content or changes the Welcome Page via the account’s Control Panel.
19. This Agreement (including the Service Order or Invoice(s) to which it relates) supersedes all previous and contemporaneous written and oral representations, understandings or agreements related to the Services set forth on the related Service Order or Invoice(s). The terms of this Agreement shall control inconsistencies between this Agreement and any Service Order or Invoice. The rights and obligations in this Agreement of the Parties which would be, by their nature or content, intended to survive the expiration or termination of this Agreement shall so survive. It is the explicit intention of the Parties that there are no third-party beneficiaries to this Agreement. No failure or delay on the part of either party to exercise, any right or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted hereby or by law. No determination by a court of competent jurisdiction that any term or provision of this Agreement is invalid or otherwise unenforceable shall operate to invalidate or render unenforceable any other term or provision of this Agreement and all remaining provisions shall be enforced in accordance with their terms. This Agreement may be modified by Cyberian Frontier at any time.
Last Updated September 21, 2008