<< back to policies page 



OpenHosting Service Agreement (v1.0)

This agreement constitutes the complete and exclusive statement of the
agreement (the "Agreement") between you (the "Customer") and
OpenHosting, Inc., ("OpenHosting") with respect to Web Hosting and
other services (the "Service") provided by OpenHosting to you and
supersedes any proposal or prior agreement, oral or written, and any
other communications relating to the subject matter of this agreement.

1. Order Acceptance, Payment

A. All orders are subject to acceptance by OpenHosting. An order will
be deemed accepted by OpenHosting when OpenHosting sends by e-mail
written confirmation of the order to Customer. OpenHosting may refuse
to accept or delay acceptance of any order for any reason.

B. By the Fifth (5th) of every month, OpenHosting shall either (i)
debit Customer's credit card (where such information is provided by
Customer) or (ii) deliver by e-mail an invoice to Customer in
accordance with the applicable Services fees for services rendered for
the current month. Such fees and charges shall include, without
limitation, the fees for connectivity, design services, and charges by
any and all third parties whose materials are included as part of the
Services. OpenHosting reserves the right to change the amount of, or
basis for determining, any fees or charges and institute new fees and
charges upon prior notice to Customer. Customer shall be responsible
for any and all taxes related to this Agreement.

C. Where an invoice is delivered to Customer, Customer shall remit
payment to OpenHosting by the specified payment due date. Customers
are charged a $20 late fee if they fail to make payment by the due
date. Access to accounts not paid on time for any reason will be
suspended upon a 5 day e-mail notice to the customer. If 25 days after
notification no payment is received, the entire account including of
Customer's data will be deleted. A $20 reactivation fee applies to all
suspended accounts.

2. Duties of OpenHosting

A. OpenHosting will provide the web hosting services provided in the
service product chosen by Customer, including a dedicated server or
space on a shared server, connection of the server to the Internet,
maintenance on the server, automated server resource monitoring and
access. OpenHosting may utilize equipment and services provided by
third parties and Customer shall not obtain any right or title in any
OpenHosting or third party equipment or software.

B. If requested by Customer, OpenHosting will register on behalf of
the Customer an Internet domain name, provided that such domain name
is available for registration and does not violate any law or
regulation. OpenHosting does not warranty that it's registration
services are successful, whether a domain is actually acquired or
reserved on behalf of Customer. Under no circumstances will
OpenHosting 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.

C. The services and software offered are subject to change and
limitation at OpenHosting's sole discretion, as is any pricing
schedule. OpenHosting will notify Customer of any changes by
electronic mail to Customer, unless the change is judged by
OpenHosting to be necessary to preserve proper security or functioning
of OpenHosting's system.

D. The customer agrees to follow rules and regulations ("Acceptable
Use Policy" or "AUP") posted on OpenHosting's web site at
http://www.openhosting.com/aup. All such acceptable use policies are
incorporated by reference into this Agreement as if fully set forth
herein.

3. Intellectual Property Rights

Customer acknowledges and agrees that the OpenHosting services
constitute confidential and proprietary information of OpenHosting and
its licensors and embodies trade secrets and intellectual property of
OpenHosting and its licensors protected under United States copyright
and other laws and international treaty provisions. Customer further
acknowledges that all right, title, and interest in and to all parts
of the OpenHosting services, including, without limitation, associated
intellectual property rights, are and shall remain with OpenHosting
and its licensors. Customer shall not, and shall cause its employees
and agents not to, disclose or transfer any portion of the OpenHosting
services to any third party. Customer further agrees not to translate,
decompile, reverse engineer, disassemble, modify, reproduce, rent,
lease, lend, encumber, distribute, remarket, or otherwise dispose of
any portion of the OpenHosting services. Customer hereby acknowledges
that, if OpenHosting at any time or from time to time performs any
customizations or modifications to OpenHosting services, all rights
and interests to such customizations or modifications shall be the
sole property of OpenHosting.

4. Term and Termination

A. This Agreement shall be effective on the date you register for the
Services, and shall continue in effect on a month-to-month basis. This
Agreement and Customer's access to the OpenHosting services shall
terminate as follows: (i) Either party may terminate upon thirty (30)
days prior notice; (ii) OpenHosting may immediately and without prior
notice terminate upon a violation by Customer of OpenHosting's
Acceptable Use Policies; (iii) OpenHosting may terminate immediately
and without prior notice for violation of terms of Order Acceptance
and Payment (iv) OpenHosting may terminate immediately if, after 15
days prior notice to Customer, Customer has failed to correct any
breach of this Agreement.

B. After termination in accordance with Section 4(A)(i), OpenHosting
shall permit Customer forty-eight (48) hours to download via the
Internet any of Customer's data residing on OpenHosting's storage
facilities prior to removing such data from OpenHosting's
storage. Upon termination by OpenHosting under Sections 4(A)(ii),
(iii) or (iv), OpenHosting may immediately remove all of Customer's
data without providing the Customer an opportunity to download such
data, and, in such event all such data shall then become the property
of OpenHosting.

C. If Customer terminates its account, Customer shall be allowed to
re-instate Customer's use of the Services within thirty (30) days of
cancellation. Customer shall pay a fee of Fifty Dollars ($50) prior to
any re-instatement of Customer's account. Once payment has been
received, Customer's account will be activated within Forty-Eight (48)
hours. OpenHosting will maintain Customer's data for thirty (30) days
after OpenHosting receives notice of cancellation. Thereafter,
Customer will need to place a new order.

D. Sections 1, 3, 4, 6, 7, 8, 9, 10 shall survive any termination of
this Agreement.

5. Exclusion of Warranties

A. OpenHosting will utilize its best efforts to maintain acceptable
performance of services contracted for, but OpenHosting makes
absolutely no warranties whatsoever, express or implied, including
warranty of merchantability or fitness for a particular
purpose. OpenHosting cannot guarantee continuous service, service at
any particular time, or integrity of data stored or transmitted via
its system or via the Internet. 

6. Limitation of Liability and Damages

A. OPENHOSTING WILL NOT BE LIABLE FOR THE INADVERTENT DISCLOSURE OF,
OR CORRUPTION OR ERASURE OF, DATA TRANSMITTED OR RECEIVED OR STORED ON
ITS SYSTEM. OPENHOSTING 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,
NON-DELIVERIES, OR SERVICE INTERRUPTIONS WHETHER OR NOT CAUSED BY THE
FAULT OR NEGLIGENCE OF OPENHOSTING.

B. OPENHOSTING'S LIABILITY TO CUSTOMER, AND ANY END USER OF ANY
OPENHOSTING SERVICES IS LIMITED TO THE AMOUNT PAID TO AND RECEIVED BY
OPENHOSTING FOR SERVICES NOT ACCEPTED. IN NO EVENT SHALL OPENHOSTING
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 OPENHOSTING HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

7. Confidentiality

Customer acknowledges that by reason of its relationship with
OpenHosting hereunder, it may have access to certain information and
materials relating to OpenHosting's business, plans, customers,
software, and marketing strategies that is confidential and of
substantial value to OpenHosting, 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 OpenHosting. 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 OpenHosting 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, OpenHosting shall be
entitled to injunctive relief, which relief shall not be contested by
Customer.

8. Indemnification

Customer shall indemnify and hold OpenHosting harmless against all third
party claims, demands, suits, actions, judgments, losses, costs,
damages (direct, indirect and consequential), attorney's fees and
expenses that Company may sustain or incur by reason of any breach or
alleged breach of any term or condition of this Agreement (including
reasonable attorney?s fees) and for any act or omission of Customer or
its Customers which are in any way related to the OpenHosting Service.

9. Force Majeure

Either party shall be excused from any delay or failure in performance
hereunder caused by reason of any occurrence or contingency beyond its
reasonable control, including but not limited to, acts of God,
earthquake, labor disputes and strikes, riots, war, and governmental
requirements. The obligations and rights of the party so excused shall
be extended on a day-to-day basis for the period of time equal to that
of the underlying cause of the delay.

10. Applicable Law, Jurisdictional Matters

This agreement takes effect when accepted by OpenHosting in
Virginia. It is to be governed by and construed under the laws of the
Commonwealth 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 the jurisdiction
of the courts of Virginia.