MASTER SERVICES AGREEMENT
(Last updated: March 29,
2016)
This Master Services
Agreement (“MSA”), which includes the agreements, policies, and documents
referenced in this MSA, governs Hostway’s relationship with any persons using the
Hostway Services (as defined below). By ordering or using Hostway Services, Client
agrees to this MSA as updated from time to time in accordance with the
amendment provisions herein. Depending on the type of Hostway Services
applicable, Client may be subject to certain Supplemental Terms as described
herein. If there is any conflict between this MSA and such Supplemental Terms,
then the Supplement Terms will govern Client’s use of the applicable Hostway
Services to the extent of the conflict.
This MSA is comprised
of the following and includes such further agreements, policies, and documents
as referenced in each of the following:
These General Terms
apply to all persons using the Hostway Services.
1.1
Definitions
1.1.1 All other defined terms not listed in this
section are defined in their respective sections below and apply to the MSA as
a whole (and not limited to the section the term is defined in).
“Abuse of Services” means Client’s use
of the Hostway Services (including making any component of the Hostway Services
available to Client’s customers or End Users) in a manner that (a) contravenes
applicable laws, including regulations, policies, and rules thereto, (b)
creates legal liability or other actual or potential material risk or harm to
Hostway, its Affiliates, Hostway’s other clients and end users, or Hostway
Systems, (c) is a material violation of the MSA, or (d) is generally considered
materially objectionable in the Internet community.
“Affiliate” means any person that directly or indirectly through one
or more intermediaries controls, is controlled by or is under common control
with such first person, with “control” meaning the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a person, and “person” broadly construed to include any natural
person or any incorporated or unincorporated entity or association, trust,
joint venture, joint stock company or other entity.
“Business
Day” (or “business day”) means the period from 8:00 A.M. to 5:00 P.M.
Central Time on a day which is not a weekend or statutory holiday in Chicago,
Illinois, USA.
“Claim” means
any claim, demand, action, or proceeding (including law suits and administrative
proceedings).
“Client” (or “Client”) means the person (individual, company, etc.)
named in the Order Form as the Client or, in the absence of Client’s name on
such Order Form, the person otherwise using Hostway Services.
“Client
Account” means the account set up by Hostway, attributed exclusively to
Client, identified by the Client ID, and used for the provisioning and
administration of the Hostway Services to Client.
“Client
Data” means personal information relating to Client and data owned or controlled by Client, including (a) names,
addresses, and other personally identifiable information pertaining to Client,
(b) usage data collected by Client regarding Client’s own use of Enterprise
Services, (c) Client’s content hosted on Hostway Systems, including Client’s Uniform
Resource Locators, Web pages and other website data, Protected Healthcare Information
as such term is further described in Section 1.12 below, and (d) any of the
same relating to or owned by an End User.
“Client ID” or “customer ID” means the combination
of alphanumeric characters designated by Hostway which (a) is unique to Client,
and (b) identifies the Client and the Client Account to Hostway.
“Client Portal”
means Hostway’s online portal or interface tool (known as Sitecontrol™,
Client Portal™, or such other account management tool as Hostway may designate)
for Client to manage the Client Account and associated Hostway Services.
“End User” means any third party who accesses or uses the Hostway
Services via Client or any Affiliate of Client.
“Hostway” means Hostway Services, Inc., a Delaware corporation, or
such other Hostway company as named in the applicable Order Form.
“Hostway Services” (or “Services”) means the products,
services, and licenses provided to Client by Hostway, whether or not used or
paid for by Client, including the following:
(a)
Domain Name
Registration
(b)
Website Hosting
(c)
Add-ons and other
related products and services to (a) and (b) above;
(d)
Technical Support;
(e)
Any other product or
service specified in any of the supplemental terms or applicable Order Forms.
“Hostway Data” means any
data relating to Hostway, the Hostway Services or Hostway Systems, including
(a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data,
(b) source codes, digital files, encryption keys, and digital certificates, (c)
user identifications, account access, log-in information, and passwords, (d)
usage data collected by Hostway regarding Client’s use of the Hostway Services,
and (e) all other data owned or controlled by Hostway.
“Hostway Systems” means the technology (including systems,
networks, facilities, infrastructure, computer servers, other hardware,
software, online application program interfaces, Internet Protocol addresses,
and other technologies) owned, licensed, controlled, or otherwise used by
Hostway to provide Hostway Services to Client.
“Intellectual Property” means any and all rights, title, interest, and ownership, whether
by registration, statute, common law or other operation of law, in and to: (a)
copyrights, (b) patents, (c) trademarks, (d) trade Secrets, (e) any other
proprietary, intellectual, or industrial property rights of any kind or nature,
(f) registrations and registration applications of the foregoing in any
jurisdiction, (g) in Hostway’s case, Hostway Data and Hostway Systems, and (h)
in Client’s case, Client Data.
“Losses” means
any loss, liability, damage, penalty, cost, or expense (including reasonable
lawyer fees, witness compensation, and court fees).
“Order Form” means Hostway’s online sign up form, which (a) is an
integral part of this MSA, and (b) describes the Hostway Services to be
provided to Client.
“Service Fees” means the money amounts or rates, specified
in the applicable Order Form or which Client is otherwise to pay in consideration of the Hostway Services
provided, whether used by Client or not.
“Technical Support” means the assistance and advice
Hostway’s technical support staff provides to Client, as part of the Hostway
Services, via electronic mail, telephone, or other means of communication as
designated by Hostway (including Hostway’s ticketing system).
“Third Party Products” means the equipment, software, products
or services procured from a Third Party Vendor which Hostway, in turn, provides
to Client as part of, or in combination with, Hostway’s own products and
services which are part of the Hostway Services.
“Third Party Vendor” means a third party vendor who provides
Hostway with Third Party Products to be, in turn, provided to Client by Hostway
as part of, or in combination with, the Hostway Services.
1.1.2 All references in this MSA to particular
titles, headings, and sections will be references to the titles, headings, and
sections of this MSA only, unless specific reference is made otherwise. Such
titles, headings, and sections are for reference purposes only and will have no
effect on the interpretation of this MSA. The words “herein”, “hereof”,
“hereto”, and “hereunder” and words of similar meaning will refer to this MSA
in its entirety and not to any particular provision of this MSA. Bolding,
underlining, or italicizing of words herein are for ease of reference only and
the application or omission of them will have no effect on the interpretation
of this MSA.
1.1.3 When used for listing purposes, the term
“including” and “includes” will be deemed to mean “including, but not limited
to” or “includes, but is not limited to,” as applicable. Wherever in this MSA
that the masculine, feminine or neutral gender is used, it will be construed as
including all applicable genders, and wherever the singular is used, it will be
deemed to include the plural and vice versa, where the context so requires.
1.1.4 This MSA was written in the English language.
If there is any discrepancy between the English version and a version in any
other language, then the English version will control in all respects.
1.2
Hostway
Services
In consideration of
Client’s timely payment of all Service Fees, and subject to Client’s compliance
with this MSA, including all applicable Supplemental Terms, Hostway will
provide to Client the Hostway Services as described in the Order Form. In
furtherance of providing the Hostway Services to Client, Hostway hereby grants
to Client a worldwide, limited, non-exclusive, non-transferable, fully
revocable license to use Hostway Systems in connection with the Hostway
Services as permitted in this MSA. Hostway may, at its sole discretion, add to,
modify, or remove any particular product or service from the Hostway Services
based on factors including the unavailability of any relevant Third Party
Products. To prevent downtime caused by outdated components or malfunction of
the Hostway Systems, Client hereby consents to (a) Hostway upgrading or repairing the
Hostway Systems that are hosting Client Data at any time with or without notice
to Client, and (b) Hostway migrating Client Data within the Hostway Systems at any
time with or without notice to Client. In providing the Hostway Services to Client,
Hostway may (at Hostway’s sole discretion) provide any of the Hostway Services
(in whole or in part) through an Affiliate of Hostway, a Third Party Vendor, or
other subcontractors. Client understands and agrees that, as a part of providing the
Hostway Services, such Affiliates, Third Party Vendors, or other
subcontractors, may require access to Client’s systems or Client Data, either
within the Hostway Systems or in another data center or with another service
provider, and Client expressly acknowledges and consents to such access. In the
event that Client refuses or fails to permit such access, Client understands
and agrees that Hostway is not responsible for any malfunction or delay in the
performance of the Hostway Services resulting therefrom. In connection with Technical Support, Hostway makes no
representation or warranty that Hostway will be able to find the cause of, or
resolve, the problem for which Client contacts Hostway for Technical Support.
Unless otherwise expressly specified in the Order Form, Hostway is not
responsible for providing Technical Support, or any other support (including
customer service, billing support, and sales support), to Client’s customers
and End Users.
1.3
Third
Party Products
Certain Hostway
Services incorporate or include Third Party Products. Client will agree to, be bound by, and comply
with the terms of any license or other agreement for Third Party Products.
Client acknowledges that Client’s use of Third Party Products is subject to
Client’s agreement to, and compliance with, the terms and conditions of the
Third Party Vendors who provide the respective Third Party Products. All
trademarks and other Intellectual Property rights associated with or attached
to a Third Party Product belong solely to the relevant Third Party Vendor and
are used by Hostway subject to license from such Third Party Vendor. Except as may be permitted in the licenses
that are a part of the Third Party Products, nothing herein grants to Client
any right, title, or interest in or to a Third Party Vendor’s Intellectual Property. Hostway makes no warranty of any kind, either express or
implied, regarding the quality, accuracy, reliability, validity, or continued
existence of any or all aspects of Third Party Products. Client acknowledges
that Third Party Products may, at any given time, be no longer be available or
may be revoked at the discretion of the Third Party Vendor. Any mention of
Third Party Products by Hostway, its employees, or any third party entity
related to Hostway is for information purposes only and does not constitute an
endorsement or recommendation by Hostway. Hostway disclaims any and all
liabilities for any representation or warranty made by the Third Party Vendors
of the Third Party Products.
1.4
Client
Account
Upon Client’s submission or execution of an Order Form, Hostway
will create a unique Client Account and Client ID for Client. Once the Client
Account and associated Client ID have been set up, Hostway will provide Client
with appropriate login credentials and access to the Client Portal.
1.5
Client
Account Ownership
The legal owner of the
Client Account is the person who is identified as the “Client” in the
applicable Order Form or, in the absence of such name in the Order Form, the
person otherwise using Hostway Services. It is Client’s sole responsibility,
and not Hostway’s responsibility, to ensure that (a) Client’s correct full
legal name is stated on the Order Form and in the Client Account, (b) Client’s
current name and other contact information is kept up-to-date with Hostway, (c)
the Client ID and associated password are kept secure and disclosed only to
those with a need to know, and (d) Hostway receives all documentation
reasonably requested by Hostway to ascertain the correct legal owner of the
Client Account in the event of a dispute or verification of Client’s
identification. The includes regularly updating the Client Account to
accurately reflect staff departures or changes in service providers Client may
have used to subscribe for Hostway Services (e.g., website design companies or
online media management companies) who may have used their name as the contact
person for the Client Account. In the event of a dispute, or in the event of a
reorganization or dissolution of the Client, the legal ownership of the Client
Account will be as follows in order of precedence: (1) the company or
organization listed on the Client Account in Hostway’s database; (2) the
individual who submitted or executed the Order Form.
1.6
Domain
Name Ownership
Client acknowledges
that (a) the person listed as the “Registrant” of the domain name in the public
Whois registry is the legal owner of that domain
name, (b) the person listed as the “Admin” (or administrative contact) of the
domain name in the Whois registry has access to the
username and password, which gives such person the ability to change the Whois information, (c) ownership and administration
(including registration renewal and billing) of a particular domain name is
independent of the ownership and administration of the Client Account even if
the domain name is associated with the Client Account, (d) it is Client’s sole
responsibility, and not the responsibility of Hostway, to ensure that the
Registrant and Admin information are up-to-date in the Whois
registry, and (e) domain names are subject to the standard terms and
conditions, as amended from time to time, of the ICANN-accredited domain name
registrar and applicable registry, which Client is bound by at the time Client
registers the domain name(s).
1.7
Identification
Verification
Each time Client
wishes to communicate with Hostway about the Client Account or Client Data,
Client will abide by Hostway’s then-current security measures and
identification verification processes, including answering identification
verification questions over the phone and submitting a proof of identity form.
Hostway is not responsible or obligated to restore access to the Client Account
to any person if that person is unable to meet Hostway’s security measures and
procedures to Hostway’s sole reasonable satisfaction.
1.8
Ownership
Disputes
Hostway has no
responsibility to act as an arbiter, mediator or other authority in the event
of a dispute over the ownership of the Client Account or domain name associated
with the Client Account or any other dispute between Client and a third party
(including Client’s current or former employees, contractors, agents or
vendors). Hostway may suspend Client’s access to, or place an administrative
lock on, the Client Account and associated domain name(s) pending an
investigation into the ownership thereof.
1.9
Client
Data
Client represents and warrants that Client is the owner of, or
is duly authorized by the legal owner to, hold, store, upload, create, destroy,
use, run, implement, modify, edit, or otherwise manage the Client Data. Client further warrants that the use by
Hostway of any and all materials and data as furnished by Client to Hostway
will not violate or conflict with any intellectual property or privacy rights
of any third parties including copyrights, patents and trademarks, protected
health information, or personally identifiable information. Client warrants that it is authorized to
permit Hostway to use all relevant code for the purposes of performing the Hostway
Services hereunder.
1.10
Protected
Health Information
If
Client uses, transmits, or otherwise handles any information related to an
individual’s past, present, or future physical or mental health condition, any
treatment for that condition, and any payment for that treatment which
information identifies the individual or could reasonably be used to identify
the individual (such information referred to as “Protected Health Information”
or “PHI”), then Client will: (a) inform Hostway in writing of Client’s intended
use of the Hostway Services for PHI, (b) comply with all requirements of the
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its
implementing rules and regulations, (c) comply with all requirements of the
Health Information Technology for Economic and Clinical Health Act, codified at
42 U.S.C. §§17931-17953 (“HITECH”) and its implementing rules and regulations,
and (d) execute, as between Client and Hostway, a Business Associate Agreement
as mandated by HIPAA and HITECH (in Hostway’s standard form), whereby Client is
the covered entity and Hostway is the business associate or whereby Client is
the business associate and Hostway is the subcontractor if Client is the
service provider of a covered entity (as the terms “covered entity”, “business
associate”, and “subcontractor” are defined by HIPAA and HITECH). In addition to
Client’s indemnification obligations below, Client will indemnify Hostway
(including Hostway’s Representatives) from and against any Claims against Hostway
or Losses incurred by Hostway that result from: (i)
Client’s breach of or misrepresentation under the Protected Health Information
obligations of this MSA, or (ii) Client’s breach of HIPAA, HITECH, or any other
relevant statute.
1.11
Root
Access
As applicable, Client
will provide Hostway with continuous root administrative access to all computer
servers and other Hostway Systems licensed to Client and under Client’s control
as part of the Hostway Services. Client acknowledges that Hostway requires such
continuous root administrative access to provide the Hostway Services,
including Technical Support.
1.12 Data Backup
Unless the Order Form
expressly includes Hostway’s data backup services as part of the Hostway
Services to be provided, Client is solely responsible, and Hostway is not
responsible in any way, for the backup (copy and storage for purposes of
retrieval or data loss recovery) of Client Data or the management of such
backup. Client acknowledges that for any of Hostway data backup services, Client
Data is backed up onto Hostway Systems “as is” and that Hostway’s backup
services do not include any software, application, or other method for
monitoring, remediating, or preventing viruses, malfunctions, corruptions, or
other security issues with Client Data or the backup thereof. It is Client’s
sole responsibility, and not the responsibility of Hostway, to (a) secure and
protect, including encrypt, all Client data which may be backed up through
Hostway Systems, (b) implement and maintain a disaster recovery plan, including
adequate offsite backup commercially reasonable given the nature, scope, and
sensitivity of Client Data, and (c) locally backup all essential data on
Client’s own systems independent of Hostway (including at Client’s own
premises) for purposes requiring data recovery or retrieval. Client is solely
responsible, and Hostway is not responsible, for the backup of any of Client
Data which may have resided on Hostway Systems at one time but which no longer
resides on Hostway Systems at the time Hostway’s backup services, if expressly
included in the Order Form, is implemented. Hostway expressly disclaims the
usability, functionality, or accuracy of Client Data backed up using Hostway’s
backup services. Hostway makes no warranty of any kind (either express or
implied) regarding any of Hostway’s backup services, including (a) the format,
readability, configuration, accuracy, completeness, retrievability,
functionality or restorability of Client Data backed up on Hostway Systems to
its original state, and (b) the functionality, compatibility or reliability of
any of Hostway’s backup services with any firewall or software or updates and
upgrades thereto. If expressly included in the Order Form, then Hostway
provides its backup services “as is” without warranties of merchantability or
fitness for a particular purpose. Under no circumstances will Hostway be liable
for any loss of Client Data or for third party fees related to the recovery or
restoration of Client Data. Client’s use of Hostway’s backup services is at
Client’s sole risk.
1.13
Data
Security
Hostway will use
industry standard measures to detect and prevent unauthorized third parties
from accessing Hostway Systems. Notwithstanding anything to the contrary,
Client acknowledges that Hostway does not guarantee, and does not represent or
warrant, that the Hostway Systems cannot or will not be accessed by unauthorized
third parties. Client will review Hostway’s Privacy Policy included herein this
MSA
1.14
Data
Disclosures
Client hereby consents
to Hostway disclosing Client Data required to be disclosed by any: (a) law of the U.S.A., or (b) court order of any jurisdiction in
the U.S.A. or other jurisdiction in which either Hostway or Client
operates its business. However, if and to the extent allowed by such law or
court order, Hostway will promptly notify Client in writing of the legal
obligation and, if Client chooses, Client may seek protective measures against
the requirement at Client’s sole expense and reimburse Hostway for any
reasonable expenses (including costs for legal advice, staff hours, and disbursements)
incurred by Hostway in complying with such requirement.
1.15
Cross-Border
Data Transfers
Client acknowledges
that Hostway Services and Third Party Products may be provided from the U.S.A.
or any other country in which Hostway, its Affiliates, and its Third Party
Vendors maintain their business operations. As such, Hostway, its Affiliates,
and its Third Party Vendors may transmit, store, access, process, and use
(collectively “Process”) Client Data in, to, or from the U.S.A. or any other
country in which Hostway, it Affiliates, and its Third Party Vendors maintain
their business operations. In furtherance of the MSA and the applicable Order
Form, and in connection with the provisioning to Client of Hostway Services and
Third Party Products, Client acknowledges that Client Data may not remain in
the country such data originated from. Client hereby consents to Hostway, its
Affiliates, and its Third Party Vendors Processing Client Data in the U.S.A. or
any other country in which Hostway, it Affiliates, and its Third Party Vendors
maintain their business operations. As between Hostway and Client, it is the
sole responsibility of Client, and not the responsibility of Hostway, to ensure
that Client Data required to remain in a particular country is restricted to that
country. Prior to Client’s submission of an Order Form or use of Hostway
Services, Client will inform Hostway in writing of all transfer restrictions or
jurisdictional requirements pertaining to Client Data. Client will review
Hostway’s Privacy Policy included herein this MSA.
1.16
Hostway’s
Intellectual Property
In no way will any
license granted by Hostway in this MSA be an assignment of rights, title, or
ownership in any of Hostway’s Intellectual Property, including any of the
Hostway Systems, and Hostway retains sole and exclusive right, title and
ownership in and to all of Hostway’s Intellectual Property. As between Hostway
and Client, all Internet Protocol addresses provided to Client by Hostway
belong exclusively to Hostway. Client acknowledges that Client has no right to
use such Internet Protocol addresses except as permitted by Hostway in
connection with the Hostway Services and in accordance with this MSA. Hostway
may change or remove Internet Protocol numbers and addresses at its sole
discretion. Except as otherwise expressly permitted in this MSA, Client may not
use Hostway’s Intellectual Property without obtaining the prior written
consent, in each instance, of Hostway. Hostway’s Intellectual Property includes
any data relating to Hostway, the Hostway Services, or Hostway Systems,
including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages
and other website data, (b) source codes, digital files, encryption keys, and
digital certificates, (c) user identifications, account access, log-in
information, and passwords, (d) usage data collected by Hostway regarding
Client’s use of Hostway Services, and (e) all other data owned or controlled by
Hostway.
1.17
Other
Restrictions
Client will not take
any action or use any of Hostway’s Intellectual Property or any Third Party
Vendor’s Intellectual Property in a manner that (a) acquires, or may reasonably
acquire, any rights, title, or interest in or to Hostway’s Intellectual
Property or any Third Party Vendor’s Intellectual Property by Client or a third
party, or (b) compromises or diminishes Hostway’s rights, title, or interest in
or to Hostway’s Intellectual Property or any Third Party Vendor’s rights,
title, or interest in or to their Intellectual Property. If Client does acquire
any rights, title, or interest in or to any of Hostway’s Intellectual Property,
by operation of law or otherwise, then Client will immediately assign such
rights, title, or interest to Hostway at Client’s sole cost. Client will not,
and will not permit any third party, including its resellers, customers or End
Users, to copy, use, analyze, reverse engineer, decompile, disassemble,
translate, convert, or apply any procedure or process to any of the Hostway
Services, Hostway Systems, and Third Party Products to ascertain, derive, or
appropriate for any reason or purpose the source code or source listings
thereof or trade secrets contained therein.
1.18
Resellers,
Customers & End Users
Client is solely
responsible, and Hostway is not responsible, for the activities of any End User
and for the activities of Client’s resellers and customers. Client will ensure
that the use of Hostway Services by Client’s customers and End Users will not
be in contravention this MSA. If Hostway receives complaints about Client’s
customers or End Users (including complaints about infringement of a third
party’s Intellectual Property), subject to Hostway’s rights in this MSA to
suspend Hostway Services, Hostway may at its sole discretion (a) send a notice
directly to the reseller, customer or End User requesting them to cease,
remedy, and resolve the matter, or (b) forward the complaint to Client
whereupon Client will take immediate action to ensure that the matter is
resolved to Hostway’s satisfaction. If the particular activity continues or the
complaint is otherwise unresolved, then Client may be subject to termination or
other action as Hostway may deem appropriate.
1.19
Domain
Name Proxy Services
If the Hostway
Services provided to Client includes domain name registration services where
Hostway or a third party provider is named as the Registrant or Admin Contact
in Client’s place (“Proxy Services”), Client agrees that if Hostway or the
third party provider does not receive a response to a communication sent to Client
within 48 hours of such communication being sent, then Hostway or the third
party provider, as applicable, may suspend the Proxy Services or terminate all
services (including, as applicable, all Hostway Services) at its sole
discretion.
1.20
Other Representations & Warranties
Client represents and warrants to Hostway as
follows:
1.
Client
has the full authority to execute, deliver, and perform under the MSA, the MSA
is valid, binding, and enforceable against Client in accordance with the terms
herein, and no provision requiring Client's performance is in (a) conflict with
Client’s obligations under any other agreement, (b) violation of any law
applicable to Client, or (c) contravention of Client’s by-laws or other
governing rules, as applicable;
2.
Client
is duly organized, authorized, and in good standing under the laws of the
jurisdiction of its organization and is duly authorized to do business in all
other jurisdictions in which Client’s business makes such authorization
necessary or required; and
3.
Client’s
purpose for entering into this Agreement and using or delivering the Hostway Services
is not to engage in, or be part of, any activity that is, or may reasonably be
deemed, objectionable in the Internet community, unethical, unlawful or illegal.
1.21 Disclaimer
Notwithstanding
anything to the contrary in this MSA, Hostway (a) makes no representation or
warranty of any kind, either express or implied, regarding the quality,
accuracy, reliability, completeness, non-infringement, or validity of the Hostway
Services, Hostway Systems, or Third Party Products, and (b) provides all
aspects of the Hostway Services, Hostway Systems, and Third Party Products “as
is” and specifically disclaims all warranties of merchantability and fitness
for a particular purpose. Client acknowledges that Client uses the Hostway
Services, Hostway Systems, and Third Party Products at Client’s sole risk. No
verbal advice or written information given by Hostway, its employees, licensors
or the like, will create a warranty and Client will not rely on any such advice
or information as a warranty.
Furthermore, Hostway
disclaims all representations and warranties, including those of function,
usability, accuracy, uptime, integration with the Hostway Services, related to
the Comcast Marketplace and any other application, product, or service that
Client may procure through the Comcast Marketplace.
1.22
Force
Majeure
Hostway will not be
liable for delays in its performance of this MSA caused by circumstances beyond
Hostway’s reasonable control including natural disasters and other “acts of
God”, fire and other destruction, sabotage, terrorism, war, insurrection,
embargo and other acts of any governmental body, or strikes and other labor
disturbances (“Force Majeure”). If Hostway is affected by a Force Majeure,
Hostway will (a) promptly give written notice to Client, and (b) make
reasonable efforts to reduce to a minimum and mitigate the effect of the Force
Majeure.
1.23
Limitation
of Liability
Under no circumstances
will Hostway be liable to Client for any consequential, indirect, special,
general, incidental, reliance, exemplary, or punitive damages arising out of or
relating to this MSA or the Hostway Services, whether foreseeable or not, and
whether based on breach of any express or implied warranty, breach of contract,
misrepresentation, negligence, strict liability in tort, or other cause of
action (including damages for loss of data, goodwill, reputation, business,
money, or opportunity), even if Hostway has been advised of the possibility of
such damages. Hostway’s aggregate liability to Client, if any, arising out of
or relating to this MSA or the Hostway Services will not exceed the aggregate
amount of Service Fees paid hereunder during the 3 calendar months immediately
preceding the event giving rise to the liability. No Claim by Client against
Hostway, relating to this MSA or the Hostway Services, will be effective after
1 calendar year (12 calendar months) from the time the event or cause of action
comprising the basis of the Claim first occurred regardless of any statutory
limitation period allowing for a longer period.
1.24
Indemnification
If Hostway, or any
Representative of Hostway, incurs any Losses because of any Claim arising out
of or in connection with the acts or omissions of Client or its employee,
contractor, or agent which amount to (a) breach of
this MSA (including a breach of any representations or warranties made by
Client herein), (b) gross negligence or willful misconduct, (c)
misrepresentation, or (d) alleged or actual violations by Client of any law, regulation or rule, then
Client will indemnify, reimburse, and compensate Hostway and, as applicable,
Hostway’s Representatives, for all Losses, as they accrue and become payable by
Hostway, and defend, hold harmless, and protect Hostway, including Hostway’s
Representatives, from and against all Claims. “Representatives”
means, collectively, shareholders, Affiliates, directors, officers, employees,
contractors, agents, and advisors, including lawyers, accountants, consultants,
financial advisors, bankers, and lenders. In addition, if Hostway
(including Hostway’s Representatives) incurs Losses because of any Claim
arising out of, or in connection with, the acts or omissions of any of Client’s
customers or End Users, then Client will indemnify, reimburse, and otherwise
compensate Hostway for all Losses related thereto, as they accrue and become
payable by Hostway, and defend, hold harmless, and protect Hostway from and
against all Claims related thereto.
1.25
Abuse
of Services
Client will use the
Hostway Services, and access the Hostway Systems, only in a manner that is
legal, lawful, ethical, and generally acceptable in the Internet community.
Client will not engage in, and will ensure that Client’s customers and End
Users do not engage in, any Abuse of Services. Without limiting the generality
and scope of the definition of Abuse of Services in this MSA, Abuse of Services
include (i) infringement of a person’s Intellectual
Property or other rights, (ii) publishing or transmitting material which is
threatening, obscene, or defamatory, (iii) non-compliance with applicable
anti-spam legislation, including the U.S. Controlling the Assault of Non-Solicited
Pornography And Marketing Act of 2003 (CAN-SPAM Act), as amended, and Canada’
Anti-Spam Legislation (CASL), as amended, (iv) violation of applicable import
or export control laws, regulations, and policies, and (v) system or network
security violations. System or network security violations include the
following: (A) unauthorized access to or use of data, systems or networks,
including any attempt to ping, probe, scan or test the vulnerability of a
system or network or to breach security or authentication measures without
express authorization of the owner of the system or network); (B) interference
with service to any user, host or network, including mail bombing, flooding,
deliberate attempts to overload a system, denial of service attacks, and broadcast
attacks; (C) forging any TCP-IP packet header or any part of the header
information in an email or a newsgroup posting; (D) creating or sending
Internet viruses, worms or Trojan horses; (E) engaging in any other activity
which is intended to disrupt or interfere with, or that results in the
disruption of or interference with, the ability of others to effectively use
the Hostway Services and Hostway Systems (or any connected network, system,
service or equipment) or conduct their business over the Internet. Client
represents and warrants that Client (or any person employed or contracted by
Client or otherwise acting on Client’s behalf in connection with this MSA or
the Hostway Services) is not engaged in any activity which is, or may
reasonably be deemed, an Abuse of Services.
1.26
Executive
Order 13224
Client will not use
the Enterprise Services, in whole or in part, to do business with any person
who has been determined to have committed or supported, or who poses a risk of
committing or supporting, acts of terrorism or who otherwise is subject to the
prohibitions of Executive Order 13224. Client represents and warrants that
Client (or any person employed or contracted by Client or otherwise acting on
Client’s behalf in connection with this MSA or the Hostway Services) is not,
and has not been designated, (a) a “suspected terrorist” as defined in
Executive Order 13224, (b) owned or controlled by a “suspected terrorist” as
defined in Executive Order 13224, or (c) a member of, related to, associated
with, or controlled by any organizations on the list contained in the Annex to
Executive Order 13224 and all amendments thereto.
1.27
Sanctions
Client will not use
the Hostway Services, in whole or in part, to do business with any country,
person or group sanctioned by the United Nations, U.S.A., or Canada, including
those identified by the Office of Foreign Assets Control, as updated from time
to time. Client will not export the Hostway Services, in whole or in part, to
any country, person or group sanctioned by the United Nations, U.S.A., or
Canada. Client represents and warrants that Client (or any person employed or
contracted by Client or otherwise acting on Client’s behalf in connection with
this MSA or the Hostway Services) is not, and has not been designated, (a) a
resident of a country sanctioned by the United Nations, U.S.A., or Canada, or
(b) a person or member of a group sanctioned by the United Nations, U.S.A., or
Canada. Client further represents and warrants that Client (or any person
employed or contracted by Client or otherwise acting on Client’s behalf in
connection with this MSA or the Hostway Services) is not engaged in any
activity which is, or may reasonably be deemed, in contravention of any of the
abovementioned sanctions.
1.28
Suspension
Hostway may, at its sole discretion and without prior notice,
immediately suspend the Hostway Services and the Client Account if Hostway
determines that Client is engaging, or has engaged, in any Abuse of Services or
if the Client Account is involved
in any way, whether directly or indirectly, in an attack on another person’s
server or system (“Third Party Server”) or Hostway Systems. Upon a suspension of Hostway Services pursuant to this section
of the MSA, Hostway will promptly notify Client in writing. A suspension based
on an Abuse of Services or an attack on a Third Party Server may be implemented
until the Abuse of Services or threat has been remedied to Hostway’s sole
reasonable satisfaction. Service Fees will continue to accrue during the
suspension and Client will ensure timely payment of all Service Fees due. If
Client engages in any Abuse of Services, or Client’s Account is connected to
any Abuse of Services, Client will be responsible for all costs, including
labor and other resources, to remedy any damage done to Hostway Systems or
attend to complaints received by Hostway.
1.29
Revocation
of Domain Name
If Client purchase a
domain through Hostway, Hostway may exercise its suspension and termination
rights in this MSA against such domain name registration for reasons including
(a) Client’s Abuse of Services or other breach of this MSA, or (b) Hostway's
receipt of an arbitration award or order from a court of competent jurisdiction
instructing the suspension, termination or transfer of ownership of the domain
name. Client acknowledges that Client will not receive any refund whatsoever
for any such suspension, termination, transfer, or modification to Client’s
domain name registration.
1.30
Termination
Client may terminate
this MSA, a particular Order Form, or the Client Account by requesting
cancellation of given Hostway Services. Client acknowledges that (a)
termination of this MSA or the applicable Order Form does not automatically
cancel the registration of any of the domain names associated with the Client
Account, and (b) the cancellation or expiration of one, all, or some of Client’s
domain names that are associated with the Client Account does not automatically
terminate this MSA or the other Hostway Services. To cancel any particular
Hostway Service, Order Form, or the Client Account in its entirety, Client will
need to contact Comcast by phone or email at
CloudSolutions_Support@cable.comcast.com and specify the cancellation. Each
Client Account will automatically renew in its entirety, with all current Services,
until cancelled.
Hostway may terminate
this MSA or a particular Order Form for convenience upon 30 calendar days’
written notice to Client. Hostway may also terminate this MSA or a particular
Order Form for Client’s material breach upon 2 business days’ written notice to
Client if such material breach is uncured within such time. Client acknowledges
that (a) termination of this MSA or the applicable Order Form does not
automatically cancel the registration of any of the domain names associated with the Client Account, and (b) the cancellation or
expiration of Client’s domain names associated with the Client Account does not
automatically terminate this MSA or the other Hostway Services. This MSA, and
all Order Forms, will automatically terminate if Client makes a general
assignment for the benefit of Client’s creditors, Client appoints or has
appointed on its behalf a receiver, trustee in bankruptcy or similar officer to
take charge of all or part of its assets, Client files or has a petition filed against
Client for bankruptcy, or Client is otherwise adjudicated insolvent or
bankrupt. Upon any termination of this
MSA or the Client Account, Hostway may delete all of Client Data residing on
Hostway Systems. It is Client’s sole
responsibility, and not the responsibility of Hostway, to ensure that all
Client data is either retrieved prior to termination or otherwise backed up on
systems other than Hostway Systems or using Hostway Services.
Hostway does not
monitor, and will not automatically cancel, plans for any problems arising out
of or related to domain name transfers, non-usage, InterNIC,
Client’s ISP, or any other secondary issues not directly related to the Hostway
Services
1.31
Survival
Clauses
The provisions of this
MSA which by their nature continue beyond the termination of this MSA will
survive such termination, including the provisions of this MSA relating to
ownership, Intellectual Property, representations and warranties, disclaimer,
limitation of liability, indemnification, and governing law and jurisdiction.
1.32
Minimum
Age Requirement
Client must be at
least 18 years of age or the age of majority in the state, province, or country
of Client’s residence in order to agree to this MSA and submit an Order Form.
If the person wishing to use Hostway Services is under such age of majority (a
“Minor”), then such person must have a parent or legal guardian accept this
MSA, and submit the Order Form, in the name of the parent or legal guardian in
order for the Minor to use Hostway Services. If Client is a parent or legal
guardian who accepts this MSA and submits an Order Form on behalf of a Minor,
then Client will be the legal owners of the Client Account and primarily liable
for (a) the use of Hostway Services by the Minor, and (b) for the Minor’s
compliance with this MSA, including timely payment of all Service Fees. Client
will remain primarily liable for (a) and (b) mentioned above even after the
Minor has reached the age of majority unless Client executes a valid assignment
of the Client Account to transfer ownership to the Minor. Any agreement to this
MSA or submission of an Order Form by a Minor will be deemed null and void to
the extent that Hostway will not be liable in any way as a result of the
Minor's age or legal incapacity or the Minor's use of the Hostway Services.
1.33
Assignment
Client may not assign
or otherwise transfer Client’s respective rights or obligations under this MSA
without the prior written consent of Hostway, which will not be unreasonably
withheld. Without requiring Client’s prior consent, Hostway may assign or
otherwise transfer this MSA, and Hostway’s rights and obligations hereunder, to
(a) any of its Affiliates, or (b) to any third party who succeeds to all or
substantially all of Hostway’s business, stock or assets. Any assignment or
transfer in violation of this MSA will not have any effect against Hostway.
This MSA will be binding and have effect upon Hostway and Client and their
respective successors and permitted assigns. Nothing herein, express or
implied, is intended to confer upon any person, other than Hostway and Client
and their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities in connection with this MSA. Notwithstanding the
foregoing, Client acknowledges that Hostway may, at its sole option, perform
any of its duties or obligations hereunder, by itself or with or through any of
Hostway’s Affiliates, which will not be deemed an assignment of this MSA.
1.34
Amendments
Client acknowledges
that the Internet and information technology industries (and the laws,
regulations, policies, and risks associated with them) are constantly and
rapidly changing. As such, Client acknowledges that Hostway, at its sole
discretion, may update this MSA from time to time to address the changes
affecting this MSA and the Hostway Services. If Hostway makes any amendment to
this MSA or any portion thereof, such as the Supplemental Terms, Hostway may
post a notice online at https://marketplace.hostway.com/legal/msa.html Client’s
continued use of Hostway Services following notice of the amendment constitutes
Client’s agreement and acceptance of the amendments.
1.35
Waiver;
Severability; Cumulative Rights
No waiver by Hostway
of a breach of any provision of this MSA will take effect or be binding upon
Hostway unless expressly waived in writing, and such waiver will extend and
apply only to the particular breach so waived and will not limit or affect the
rights of Hostway in respect of any future breach or in respect of a breach of
any other provision hereof. If any portion of this MSA is
held by a court of competent jurisdiction to be illegal, invalid or
unenforceable for any reason, such illegality, invalidity or unenforceability
will not affect the validity of the remainder of this MSA. Any specific
right or remedy provided in this contract will not be exclusive but will be
cumulative of all other rights and remedies.
1.36
Non-Solicitation and Relationship of
Parties
Client
will not, individually or in association or in
combination with any other person or entity, directly or indirectly solicit for
employment, entice away from Hostway, induce, or procure services directly from
any employee of Hostway. Nothing in this
MSA will be construed as creating a relationship of employer and employee,
principal and agent, partnership or joint venture between Hostway and Client.
Each of Hostway and Client will be deemed an independent contractor at all
times and will not have any right or authority to assume or create any
obligation on behalf of the other party except as may be expressly permitted
herein. This MSA is for the sole benefit of Hostway and Client only and does
not create any rights on the part of any third party, including Client’s
customers or End Users.
1.37
Non-Exclusivity
Hostway and Client each acknowledge that the relationship
between them in connection with the Hostway Services and this MSA is
non-exclusive and that Hostway may grant a license
to use, market, sublicense, or distribute the Hostway Services, including
providing access to the Hostway Systems, to other parties who may engage in the
same or similar activities as Client, or who may compete with Client or Client’s
goods or services.
1.38
Governing
Law
This MSA will be
governed and construed in accordance with the laws of the State of Illinois
without giving effect to any rule of conflicts of law. Any Claim against a
Party in connection with the subject matter of this MSA (or the MSA itself)
will be brought in Chicago, Illinois. This MSA will not be governed by or
construed in accordance with the United Nations Convention on Contracts for the
International Sale of Goods.
1.39
Dispute
Resolution
All Claims arising out
of or relating in any way to this MSA (including requests for specific
performance) will be submitted to mandatory binding arbitration. The
arbitration will be administered by the American Arbitration Association (“AAA”)
and conducted pursuant to the AAA’s then current Commercial Arbitration Rules. The arbitration hearing will be conducted in the English language
and will take place in Chicago, Illinois before a single arbitrator selected in
accordance with the Commercial Arbitration Rules. The parties will each
bear the costs of the arbitration in equal shares. The parties will also bear
their own legal fees (including lawyer fees and witness costs) in connection
with the arbitration and the arbitrator may not reallocate the legal fees in
conjunction with the award. Any award rendered by the arbitrator will be
confirmed in a state or federal court of competent jurisdiction in Chicago,
Illinois and each of Hostway and Client hereby irrevocably submits and consents
to, and waives any objection to, personal jurisdiction and venue in such court.
1.40
Complete
Agreement
This MSA, which
includes the Order Forms, Supplemental Terms, and all other agreements,
policies, and documents referenced herein, constitutes the complete agreement
between Hostway and Client relating to the subject matter hereof and supersedes
all prior and other understandings, representations, warranties, and agreements
relating hereto – whether verbal, written, or otherwise.
This Privacy Policy
describes Hostway’s general principles for the collection and use of
information from Clients, and also describes the choices available to Clients
regarding the use of, access to, and how to update and correct Client’s
personal information.
2.1
What type of information does Hostway collect?
Upon signing up for
the Hostway Services, Client will be required to provide Hostway with certain
Client Data, such as Client’s name, address, phone number, and email address. Hostway
will also collect information with regard to Client’s account status, choice of
Hostway Services, and Client logs. In addition, Hostway may store Clients'
electronic mail and other communications as a necessary incident to the
transmission and delivery of those communications.
2.2
How Does Hostway Use a Client’s Information?
Hostway uses Client
Data to establish and provide the Hostway Services to Client, such as creating
and maintaining the Client Account and provisioning Client’s choice of the
Hostway Services. Hostway may also create and maintain Client logs in the
normal course of providing the Hostway Services. Hostway will not disclose Client Data that is
personal contact information unless Hostway has reason to believe that
disclosing such information is necessary to identify, make contact with, or
bring legal action against someone who may be causing harm or interfering with
the rights or property of Hostway, our Clients, or others. Hostway may provide
information to regulatory authorities and law enforcement officials in
accordance with applicable laws, respond to legal
process, or where Hostway has a good faith belief that the law requires such
disclosure.
Hostway also will not
disclose to third parties the contents of any electronic mail or other
electronic communications that Hostway stores or transmits for its Clients except
where: (a) it is a matter of public safety or policy; (b) it is in connection
with the transfer of other business assets; (c) it is required to cooperate
with orders, warrants, or other legal process that Hostway determines in its
sole discretion to be valid and enforceable; and (d) it is necessary to provide
to a law enforcement agency when the contents are inadvertently obtained by
Hostway and appear to pertain to the commission of a crime.
Hostway disclaims any
intention to censor, edit, or engage in ongoing review or surveillance of
communications stored on or transmitted through its facilities by Clients or
others. Hostway will, however, review, delete, or block access to
communications that may harm Hostway, its Clients or third parties. The grounds
on which Hostway may take such action include, but are not limited to, actual
or potential violations of this MSA.
2.3
Client Interactions
Hostway will use Client’s
contact information to notify Client of important information regarding the
Client Account or Hostway Services ordered, and Client may not opt out of
receiving such service related email communications. It is Client’s responsibility to ensure that
Client’s contact information is up to date.
In addition, Hostway may use Client Data to direct general service
notices to Client, such as system information or upgrade and update
notifications, well as to provide Client with general information regarding
other Hostway Services that may be of interest to Client.
2.4
Newsletters or Promotional Communications
Clients may opt out of
receiving newsletters and/or promotional emails from Hostway by sending a
request to newsletter-unsubscribe@hostway.com by using the unsubscribe
instructions included in each promotional communication, or by changing Client’s
email preferences in the Client Portal. If making a request to Hostway by email,
Clients must identify their domain name and specific contact information.
Clients may not opt out of receiving information from Hostway which is
essential for maintaining or updating Clients’ Account or system information.
Client can access Client’s personal
information, such as address and contact information, through the Client Portal
at any time to correct, change or delete any of the data shared with Hostway. If
Client needs assistance or has questions about correcting information in the
Client Portal, Client can contact Hostway via email at comcastcomm.support@hostway.com.
Hostway will retain Client’s personal
information for as long as the Client Account is active or as needed to provide
Client with the Hostway Services. Notwithstanding the foregoing, Hostway may
retain and use Client’s personal information after termination of the Client
Account only as necessary to comply with Hostway’s legal obligations, resolve
disputes, and enforce Hostway’s agreements.
These Web & Apps
Terms supplement (are in addition to) the General Terms above and apply only to those using Hostway Services
relating to Web Hosting and E-Commerce.
3.1
CGI
Scripts
Any script that poses
a potential security risk or are deemed to be adversely affecting server
performance or network integrity will be shut down or will be automatically
removed without prior notice. Hostway does not permit CGI script sharing with
domains not hosted by Hostway or scripts which may be abused for UCE purposes.
3.2
Chat
Rooms
Client is not
permitted to install any chat rooms because chat rooms tend to require
significant system resources.
3.3
Background
Running Programs
Hostway may allow
programs to run in the background, which programs will be considered by Hostway
on a case-by-case basis.
3.4
Software
Distribution
Client is not
configured for the purposes of distributing software or multimedia products.
3.5
Multimedia
Files
Client is not
permitted to use Client’s Web Hosting and E-Commerce Client Account to
distribute or store unusual amounts of graphics, audio, or video files
(collectively “Multimedia Files”). If the Client Account’s disk space usage for
storing Multimedia Files exceeds 70% of its total usage, in terms of total size
or number of files, Hostway may suspend or cancel the Client Account.
3.6
Databases
If Client stores any
database on Hostway’s Web Hosting and E-Commerce servers, Client must limit the
size to 10% of the total disk space allotted for the particular domain name
associated with the Client Account.