1. ACCEPTANCE OF TERMS
These Open Hosting, Inc. (OHI") Terms of Service ("TOS") are between you ("You", "Your," or "Merchant") and Open Hosting, Inc. and its affiliates ("OHI") and consists of the most recent versions of the terms and conditions of the TOS, as well as the Open Hosting Privacy Policy (all together, the "Terms of Service" or "Terms" or "Agreement"). Open Hosting reserves the right, in its sole discretion, to change, modify, add, or remove all or part of these Terms, including but not limited to, any term, applicable fee, policy, or guideline, at any time without notice or acceptance by You. Regardless of whether Open Hosting has provided You individual notice, Your continued use of the Service following Open Hosting's notice or posting of changed Terms will constitute Your acceptance of such changes. It is Your responsibility to check regularly for changes to the Terms and ensure that any contact information You provide to Open Hosting is updated and correct.
BY COMPLETING THE REGISTRATION PROCESS ("Registration Process") AND CLICKING THE "I ACCEPT" BUTTON, YOU: (a) agree to be bound by these Terms; (b) represent and warrant that, if You are an individual, You are 18 years old or older or, if you are an entity, that You are a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept these Terms; (c) agree to provide true, accurate, current, and complete information in the Service registration form, including billing and payment-related information and other account information (all together, the "Account Information"), and agree to maintain and update this information to keep it true, accurate, current, and complete; and (d) represent and warrant that You have the power and authority to enter into and perform under these Terms. If these Terms or any future changes are unacceptable to You, Your sole remedy is to cancel Your Service. IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS, DO NOT COMPLETE THE REGISTRATION PROCESS.
2. DESCRIPTION OF SERVICE
The complete list of services (the "Service") governed by these Terms is as follows:
OHI-KVM
OHI-vServer
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Service resources, shall be subject to these Terms. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any fees associated with such access. You are responsible for obtaining and maintaining all telephone, computer hardware, and other equipment needed for Your access to and use of the Service and any Software, and for all related fees.
3. INTELLECTUAL PROPERTY
Except for the rights expressly granted herein, this Agreement does not transfer from Open Hosting to You any technology developed, licensed, or owned by Open Hosting, and all rights, title, and interest in and to such technology will remain solely with Open Hosting. The parties agree that they will not, directly or indirectly, reverse engineer, deconstruct, disassemble, or otherwise attempt to derive source code or other trade secrets from the other party. Notwithstanding anything to the contrary in this Agreement, You will not attempt to prohibit or enjoin Open Hosting at any time from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Open Hosting.
Open Hosting may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act, and You expressly authorize Open Hosting to comply with any and all lawful notices, subpoenas, court orders, or warrants without prior notice to You.
Open Hosting Inc, OHI-KVM, OHI-vServer and other product and service names, and all of their related logos are each trademarks of Open Hosting Inc. (the "Open Hosting Marks"). Without Open Hosting's prior written permission, you agree not to display, or use in any manner, the Open Hosting Marks.
4. PAYMENT
You will pay all fees due according to the prices and terms applicable to your Services. All installation or setup fees and non-recurring charges, along with the first month's recurring charges, shall be due and payable within five (5) days of initiation of Service. Thereafter, recurring fees will be charged in advance to Your selected payment method. If Your selected payment method is invalid or You are otherwise past due in your payments for any reason, the Service may be terminated and removed from Open Hosting's servers by Open Hosting on five (5) days’ notice, and all the information contained within deleted permanently. Open Hosting accepts no liability for information or content that is deleted due to an invalid payment method or where Your payments are past due. Reactivation of the Service after termination or cancellation for any reason shall require the payment of additional setup fees. In the event You fail to pay charges, Open Hosting may assign unpaid late balances to a collection agency for appropriate action. In the event legal action is necessary to collect on balances due, You agree to reimburse Open Hosting for all expenses incurred to recover sums due, including attorneys' fees and other legal expenses. You also agree to pay all current charges for the Service as well as taxes and fees assessed against You or Open Hosting on the charges and all late payment, interest, or other fees as stated on Your bill. Open Hosting may modify its billing practices or late payment charges by providing You with prior written notice of the modification. Open Hosting in its discretion may offer discounts or special offers from time to time. Open Hosting may, upon notice required by applicable laws, at any time change the amount of or basis for determining any fee or charge or institute new fees or charges with respect to the Service. Upon renewal, as provided in Section 5, the prices charged may be changed without notice to the then prevailing price for the Services. You shall pay or otherwise be responsible for all federal, state, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges (hereinafter "Tax") imposed on, or with respect to, the Services under this Agreement.
You can upgrade or downgrade between the plans and products listed in Section 2 above at any time. Such upgrade or downgrade will take effect immediately. You will be automatically charged, via the payment method You provided, any and all fees based upon your upgrade or downgrade. If You are due a refund, the amounts will be credited to You. In the event that you change from one non-annual service to another, your payment method will be charged a pro-rata amount for the upgraded service and credited a pro-rata amount for the unused previous service. In the event that you change from a non-annual service to an annual service, your payment method will be charged for the entire annual service and credited a pro-rata amount for the unused non-annual service. In the event that you change from an annual service to a non-annual or annual service, no refunds will be provided. Both the refund and charge will be based on the number of days remaining in Your contract term. The contract term and anniversary date may change if You change from a non-annual service to an annual service, or from an annual service to a non-annual service. You may also be charged, as applicable, an upgrade or downgrade fee. Fees may not be credited towards other services.
5. TERM AND TERMINATION
The initial term of this Agreement will commence on the first date on which you use the Service and will remain in effect for the period of time corresponding to the plan You select ("Initial Term"). If You wish to terminate the Services at the end of the Initial Term or any subsequent term to which you have agreed ("Renewal Term"), You must provide Open Hosting thirty (30) days’ prior written notice of cancellation which can be done online. If You fail to notify Open Hosting of Your intent not to renew, this Agreement will be automatically renewed thirty (30) days prior to the end of the current Initial or Renewal Term for a month-to-month period, ninety (90) days prior to the end of the current term for a 3-month-term product, or fifteen (15) days prior to the end of the current annual term for a one-year product, at the Open Hosting then-current rates and charges. If You agree to a Renewal Term, or fail to cancel the services as set forth herein, this Agreement will be renewed at the then-current rates and fees. Except as set forth in these Terms, neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.
You may cancel Your Service and terminate these Terms at any time. If You cancel the Service before the end of the Initial or Renewal Term, Your Service and access to the Service will be discontinued immediately, and no refund will be provided for any payments You have made. If the Initial or Renewal Term is more than one month, and you cancel Your Service prior to the expiration of such Term, an early termination fee may apply to the extent agreed to during the Registration Process.
Open Hosting may terminate these Terms at any time, for any or no reason, upon notice to You. Notwithstanding anything to the contrary herein, Open Hosting may also, but has no duty to, immediately suspend or terminate Your Service, terminate Your access and password, remove Your Service from Open Hosting's servers, or remove any Content within the Service, if Open Hosting concludes, in its sole discretion, that You (a) have breached, violated, or acted inconsistently with the letter or spirit of these Terms, including any applicable Open Hosting Policy or any applicable law or regulation; (b) have provided false information as part of your Account Information; (c) have failed to keep your Account Information complete, true, and accurate; (d) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (e) are engaged in activities or sales that may damage the rights or reputation of Open Hosting or others (each "Termination for Cause"). Any Termination for Cause by Open Hosting will take effect immediately, and You expressly agree that You will not have any opportunity to cure.
In addition to any other right to terminate set forth herein, either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from Open Hosting; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
Upon any termination of the Service, Open Hosting reserves the right to permanently delete from its servers any and all information and content contained in Your account or Service, including, but not limited to, order processing information, mailing lists, files, email, and any web pages generated by You or the Service. Open Hosting accepts no liability for such deleted information or content.
You expressly waive any statutory or other legal protection in conflict with the provisions of this Section 5.
6. PRIVACY AND ACCEPTABLE USE
You agree that you have received, read and understand the Open Hosting Privacy Policy ("Open Hosting Policy"). The Open Hosting Policy contains restrictions on Your online conduct (including prohibitions against unsolicited commercial email). The current version of the Open Hosting Policy is posted at the Open Hosting web site as set forth in Section 1. Open Hosting may change the Open Hosting Policy upon notice to You, which notice may be provided by posting such new Open Hosting Policy at the Open Hosting web site.
As part of Your Registration Process, You agree that some communications are required, such as, by way of example and not limitation, customer service messages regarding Your Service, and updates to the Service. In order to opt out of receiving such communications, You must cancel the Service. You also understand and agree that the Service may include certain communications from Open Hosting, such as service announcements and administrative messages, that these communications are considered part of Open Hosting membership, and that You will not be able to opt out of receiving them.
In addition to those matters set forth in the Open Hosting Policy, You shall not post, transmit, retransmit, or store material on or through any of the Services which, in the sole judgment of Open Hosting (i) is in violation of any local, state, federal, or foreign law or regulation, (ii) is threatening, obscene, indecent, defamatory, or that otherwise could adversely affect any individual, group, or entity (collectively, "Persons"), or (iii) violates the rights of any Person, including rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for Your use. You agree that you will NOT knowingly use the Service, among other things, to:
(a) upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
(e) upload, post, email, transmit, or otherwise make available any content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, email, transmit, or otherwise make available any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
(g) upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
(h) upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
(k) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or
(m) collect, transmit, or store any type of adult, mature, or sexually explicit content.
You agree to indemnify and hold harmless Open Hosting from any claims resulting from the use of the Services which damages You or any other party. Open Hosting reserves the right to investigate You, Your business, and/or Your owners, officers, directors, managers, and other principals, Your sites, and the materials comprising the sites at any time. These investigations will be conducted solely for Open Hosting's benefit, and not for Your benefit or that of any third party. If the investigation reveals any information, act, or omission, which in Open Hosting's sole opinion, constitutes a violation of any local, state, federal, or foreign law or regulation, or the Open Hosting Policy, Open Hosting may immediately shut down the site, and notify You of the action. You agree to waive any cause of action or claim You may have against Open Hosting for such action.
Open Hosting uses certain confidential internal and third-party tools and techniques to protect users from abusive and other harmful behavior on the Internet and on the Open Hosting servers. Open Hosting reserves the right to take any action it deems necessary at its sole discretion, including, without limitation, account termination or suspension, to protect against such abusive or harmful behavior. Open Hosting updates these tools, techniques, and practices from time to time as the abusive practices and industry standards change. You agree that Open Hosting shall not be responsible or liable for any loss or damage of any sort incurred by You, or any third party, as the result of Open Hosting taking or not taking any actions in response to any actual or perceived abusive user behavior.
7. OWNERSHIP AND SECURITY
You will receive a password from Open Hosting to provide access to and use of Your Service, and You agree to keep Your password confidential. You are entirely responsible for maintaining the security of Your Service, and You are fully responsible for all activities that occur under Your Service and password, and any other actions taken in connection with the registered domain name. You agree to immediately notify Open Hosting of any unauthorized uses of the Service or any other breaches of security. Open Hosting cannot and will not be liable for any loss or damage from Your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Open Hosting be liable, in any way, for any acts or omissions of You or any user of Your Service to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions.
8. COMPLIANCE
You represent and warrant that You are not a resident of any country or affiliated with any organization prohibited to do business within the United States as defined and set forth at: http://www.export.gov and http://www.treas.gov/ofac. You further represent and warrant that You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction You operate or do business. You agree to comply with all applicable U.S. and non-U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations. You shall be responsible for determining what laws or regulations are applicable to Your use of the Services. You shall, upon the request of Open Hosting, provide Open Hosting assurance of Your compliance with those laws. You acknowledge that Open Hosting exercises no control whatsoever over the content of the information passing through Your site(s) and that it is Your sole responsibility to ensure that the information You and Your users transmit and receive complies with all applicable laws and regulations and the Open Hosting Policy.
9. SUPPORT
Open Hosting reserves the right to establish limitations on the extent of any support provided for the Service, and the hours at which it is available.
10. INDEMNITY
You agree to indemnify and hold harmless Open Hosting, and its parents, subsidiaries, affiliates, or other partners, officers, directors, shareholders, employees, and agents, from any claim, demand, or investigation, including reasonable attorneys fees, made by any third party due to or arising out of Your Content, Your conduct, Your use of the Service, the goods or services offered or sold through Your Service, any alleged violation of these Terms, including any applicable Open Hosting Policy, law, or regulation, or any alleged violation of any rights of another, including but not limited to Your use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Your Service. Open Hosting reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse Your indemnity obligations.
11. RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission of Open Hosting.
12. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Open Hosting may establish general practices and limits concerning use of the Service.
13. MODIFICATIONS TO AND DISCONTINUATION OF SERVICE
Open Hosting reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Open Hosting shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the Service. Open Hosting may interrupt the Service (or any part thereof) to perform maintenance on Open Hosting equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties.
You are responsible for maintaining security and for maintaining patches and disaster recovery systems. You will keep a back-up copy of all data hosted by Open Hosting. Customer will promptly report any Service failure to Open Hosting. Open Hosting is not responsible for providing physical access to or copies of software, data, or content stored on Open Hosting’s equipment under any circumstances and is not required to provide network access (i) after any termination or suspension of Your Service or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by You, or other interruption of network access. Open Hosting is not required to reimburse any expenses You incur for technology diagnosis or repair, including without limitation expenses for outside consultants.
14. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. OPENHOSTING EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
(b) YOUR USE OF THE SERVICE, THE SOFTWARE, AND ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
(c) NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT (i) THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
(e) OPEN HOSTING ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
15. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT OPEN HOSTING AND ITS AFFILIATES, OR OTHER PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF OPEN HOSTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICE OR THE SOFTWARE; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH, OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (vi) ANY GOOD OR SERVICE OFFERED OR SOLD THROUGH THE SERVICE; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE OR SOFTWARE. OPEN HOSTING’S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO OPEN HOSTING IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. YOU ACKNOWLEDGE THAT OPEN HOSTING HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
16. NOTICE
Notices under these Terms shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to Open Hosting, such notices shall be addressed to Open Hosting, Inc., 1266 East Main Street, Suite 700R, Stamford, CT 06902. If to You, such notices shall be addressed to the electronic or mailing address specified when You opened Your account, or such other address as either party may give the other by notice as provided above. Open Hosting may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to You generally on the Service.
17. CHOICE OF LAW AND FORUM (LOCATION OF LAWSUIT)
These Terms and the relationship between You and Open Hosting shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions. You and Open Hosting agree to submit to the personal jurisdiction of the courts located within the State of Delaware. The failure of Open Hosting to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
18. FORCE MAJEURE
Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet (not resulting from the actions or inactions of Open Hosting), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Open Hosting is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, You may cancel the Service(s), but there shall be no liability on the part of Open Hosting.
19. ASSIGNMENT
Except as expressly set forth herein, You may not assign Your rights or delegate Your duties under this Agreement either in whole or in part without the prior written consent of Open Hosting, and any attempted assignment or delegation without such consent will be void. Open Hosting may assign this Agreement in whole or part. Open Hosting also may delegate the performance of Services to third parties, including Open Hosting affiliates. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
20. RELATIONSHIP OF PARTIES
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between OpenHosting and You. Neither Open Hosting nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
21. NO THIRD-PARTY BENEFICIARIES
Open Hosting and You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or Your customers.
22. COPYRIGHTS AND COPYRIGHT AGENTS
Open Hosting respects the intellectual property of others, and we ask that You do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent for notice the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual-property interest;
(b) a description of the copyrighted work or other intellectual property that You claim has been infringed;
(c) a description of where the material that You claim is infringing is located on the site;
(d) Your address, telephone number, and email address;
(e) a statement by You that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by You, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual-property owner or authorized to act on the copyright or intellectual-property owner's behalf.
23. INTEGRATION AND SEVERABILITY
These Terms constitute the entire agreement between You and Open Hosting and govern Your use of the Service, superceding any prior agreements between You and Open Hosting (including, but not limited to, any prior versions of these Terms) pertaining to this Service. You also may be subject to additional terms and conditions that may apply when You use affiliate or other Open Hosting services, third-party content, or third-party software. If any provision of these Terms or incorporated documents is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect.
24. SURVIVAL
The provisions of Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24 will survive any termination or expiration of these Terms.
Since 2003, Open Hosting has been a trusted, reliable provider of VPS cloud hosting and customized solutions.
With corporate offices in Stamford, CT and a data center in Northern Virginia, we’ve always been pioneers in our field and partners in innovation for developers and businesses alike. Our clients trust us to store, host and manage their VPS solutions because of our exceptional services, our technical expertise and our outstanding support and performance.
