This Hosting Agreement governs your purchase and use, in any manner, of all Web site hosting, ordered by you and accepted by StrikeHawk eCommerce, Inc. and describes the terms and conditions that apply to such purchase and use of the Services. You AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. StrikeHawk eCommerce, Inc. reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. StrikeHawk eCommerce, Inc. may make changes or modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following StrikeHawk eCommerce, Inc.’ posting of any changes or modifications will constitute your acceptance of such changes or modifications.
As consideration for StrikeHawk eCommerce, Inc. providing the Hosting Services hereunder, Customer agrees to pay StrikeHawk eCommerce, Inc. the aggregate monthly fee based on all hosting services and the payment terms selected.
2. Provision of Services
StrikeHawk eCommerce, Inc. will provide Customer with the Services ordered that are described in the Hosting Package Features elsewhere in this document. Customer understands and agrees that StrikeHawk eCommerce, Inc. will host and create the Web site solely in accordance with the information provided by Customer.
3. Rights to the Web Site and Content
With the exception of any Third-Party Materials and Background Technology as set forth in section 4, Customer owns the Customer Content. “Customer Content” means all content or information (including, without limitation, any text, music, sound, photographs, video, graphics, data, or software), in any medium, provided by Customer to StrikeHawk eCommerce, Inc. “Third-Party Materials” means any content, software, or other computer programming material that is owned by an entity other than StrikeHawk eCommerce, Inc., and licensed by StrikeHawk eCommerce, Inc. or generally available to the public, including Customer, under published licensing terms, and that StrikeHawk eCommerce, Inc. will use to display or run a Web site.
4. Limited License to the Background Technology
“Background Technology” means computer programming/formatting code or operating instructions developed by or for and used to host or operate the Website or a Web server in connection with a Web site. Background Technology includes, but is not limited to, any files necessary to make forms, buttons, checkboxes, and similar functions and underlying technology or components, such as style sheets, animation templates, interface programs that link multimedia and other programs, customized graphics manipulation engines, and menu utilities, whether in database form or dynamically driven. Background Technology does not include any Customer Content. Customer may not duplicate or distribute any Background Technology to any third party without the prior written consent of . All rights to the Background Technology not expressly granted to Customer hereunder are retained by . Without limiting the foregoing, Customer agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of the Background Technology, except as allowed by law.
5. Limited License to Content
Customer hereby grants to the limited, nonexclusive right and license to copy, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use and exploit Web site, any Customer Content, or any Customer Marks provided to hereunder, solely for the purpose of rendering ‘ Services under this Agreement. Such limited right and license shall extend to no other materials or for any other purpose and will terminate automatically upon termination of this Agreement for any reason.
6. Content Standards
Customer agrees not to provide any content, that (a) infringes on any third party’s intellectual property or publicity/privacy rights; (b) violates any applicable law or regulation; (c) is defamatory, violent, clearly harmful, or obscene or pornographic or infringes on citizens’ rights; or (d) contains any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage or interfere with any system, data, or personal information. If Customer is international, then Customer agrees to comply with all applicable local and national laws. reserves the right to refuse any other subject matter it deems inappropriate.
8. Term and Termination
(a) This Agreement is effective as of the Effective Registration Date and shall continue unless terminated by Customer prior to the end of the billing term; (b) StrikeHawk eCommerce, Inc. may terminate this Agreement after five (5) days’ written notice to Customer if Customer materially breaches this Agreement, including, without limitation, failure to pay, and fails to cure such breach during such five (14) day period; and (c) upon the termination of this Agreement, Customer will pay StrikeHawk eCommerce, Inc. for all Services provided to Customer by StrikeHawk eCommerce, Inc. prior to termination. Sections 2, 3, 4, 5, 9, 11, and 12 will survive termination of this Agreement. Any violation of clause 6 will result in immediate termination without refund.
9. Warranty Disclaimer
Except as expressly provided in this Agreement, the Services are provided “as is,” and expressly disclaims all warranties and conditions of any kind, express, implied, or statutory, including, without limitation, the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose. Interruption of Service: You hereby acknowledge and agree that will not be liable for any temporary delay, outages or interruptions of the Services. Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein. Unless an approval process is specified herein or in a Statement, all Hosting provided by to a Customer will be deemed accepted when delivered.
(a) Customer Indemnity. Customer will defend StrikeHawk eCommerce, Inc. against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section . Subject to Section 11, Customer shall indemnify StrikeHawk eCommerce, Inc. for all losses, damages, liabilities, and all reasonable expenses and costs incurred by StrikeHawk eCommerce, Inc. as a result of any such third-party claim, action, suit, or proceeding. (b) StrikeHawk eCommerce, Inc.’ Indemnity. StrikeHawk eCommerce, Inc. will defend Customer against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section 6. Subject to Section 11, StrikeHawk eCommerce, Inc. shall indemnify Customer for all losses, damages, liabilities, and all reasonable expenses and costs incurred by Customer as a result of any such third party claim, action, suit, or proceeding. (c) Mechanics of Indemnity. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt, written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; (ii) granting control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
11. Limitation of Liability
StrikeHawk eCommerce, Inc.’s LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO StrikeHawk eCommerce, Inc. DURING THE THREE (3) MONTH PERIOD BEFORE THE ACTION AROSE. SHALL NOT BE LIABLE FOR
- (A)ANY LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS OR
- (B) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF StrikeHawk eCommerce, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, StrikeHawk eCommerce, Inc. WOULD NOT ENTER INTO THIS AGREEMENT
All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of FLORIDA, Volusia County or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in WEB HOSTING & SOFTWARE DEVELOPMENT and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. If you bring a claim subject to arbitration, you will pay toward the fees and deposits imposed by the American Arbitration Association or other arbitrator only an amount equal to the amount you would have had to pay as filing fees and initial court and legal representation costs if you had filed suit in a court of competent jurisdiction. StrikeHawk eCommerce, Inc. will pay the remainder of the fees and deposits of arbitration. In the event that you substantially prevail in the arbitration, the company will reimburse the fees and deposits you have paid.