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Terms of Service & Hosting Agreement |
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1. Definitions.
1.1 "Customer" means the persons, entity or agents and authorized representatives accepting this
agreement.
1.2 "Content" means all text, pictures, sound, graphics, video, links, and other data stored by
Customer on Beyond Web Services, Inc.’s server computers.
1.3 "Website" means pages presenting the Content stored by Customer on Beyond Web Services, Inc.’s
server computers.
1.4 "User" means users of Customer's Website.
1.5 "User Content" means all text, pictures, sound, graphics, video, links, and other data
stored by Users on Beyond Web Services, Inc.’s server computers.
1.6 "Confidential Information" means information that Customer takes reasonable steps to
maintain in confidence and identifies in writing to Beyond Web Services, Inc. as confidential.
2. Web Hosting.
2.1 - Hosting.
Beyond Web Services, Inc. will provide dedicated or shared server computers with an Internet address for storage and access of Content, User Content, and the
Website. The Website, Content, and User Content must be "server-ready." Beyond Web Services, Inc.
will provide bandwidth and storage as specified in Exhibit A. If Customer requires additional
bandwidth or storage, Beyond Web Services, Inc. will negotiate in good faith to amend this Agreement
unless Beyond Web Services, Inc.’s server computers cannot accommodate the requested bandwidth or
storage.
2.2 - Website Backup.
Beyond Web Services, Inc. will backup the Website in a commercially reasonable manner.
However, Beyond Web Services, Inc. is not responsible for lost Content or lost User Content.
Website backups will be stored by Beyond Web Services, Inc. for no longer than 14 days.
Beyond Web Services, Inc. will provide, at Customer's expense, an electronic copy of the
backup Website to Customer upon written request by Customer. Backups are intended for
disaster recovery, not the restoration of individual files.
2.3 - Standards.
Beyond Web Services, Inc.’s services will conform to the following:
2.3.1 - Availability of Website.
Beyond Web Services, Inc. will provide hosting services for the Website that meet reasonable
commercial standards for, among other matters, packet loss, accessibility, latency, availability,
and throughput.
2.3.2 - Security.
Beyond Web Services, Inc. will take commercially reasonable steps to prevent unauthorized access
to the Website, Content, User Content, and Confidential Information stored on Beyond Web Services,
Inc.’s server computers.
2.3.3 - Server/Network Computer Outages.
Beyond Web Services, Inc. will employ best efforts in providing advance notice to Customer of
scheduled server computer/network outages.
2.3.4 - Disclaimers.
Beyond Web Services, Inc. provides no equipment, software, or communication connections to
Customer. Beyond Web Services, Inc. makes no representations, warranties or assurances that
the Customer's equipment, software, and communication connections will be compatible with Beyond
Web Services, Inc.’s hardware and service.
3. Content Control.
3.1 - Lawful Purpose.
Customer will only use Beyond Web Services, Inc.’s hardware and services for lawful purposes
and Customer will not store or provide any Content or User Content or link to any material that
violates foreign, federal, state or local law, or any other Beyond Web Services, Inc. policy.
3.2 - Remedy for Violation.
Should Beyond Web Services, Inc. become aware that Customer has violated Part 3.1, Beyond Web
Services, Inc. may, at its option, remove the Content or User Content in violation, immediately
terminate hosting Customer's Website under Part 5.3, and/or notify authorities. If hosting is
terminated, Beyond Web Services, Inc. may, in its sole discretion, reinstate hosting upon adequate
showing of Customer's right to use the Content or User Content.
4. Payments.
4.1 - Fees.
Customer shall pay fees agreed upon during account signup. Beyond Web Services, Inc. will
invoice monthly (unless otherwise agreed in writing), and payment is due fourteen (14) days
from invoicing. In the case of credit card payments Beyond Web Services, Inc. will automatically
charge Customer Credit Card on file all fees associated with the account on the due date. Beyond
Web Services, Inc. may, at its option, charge a 10% fee for late payments.
4.2 - Returned Checks and Declined Credit Cards may incur a fee.
4.3 - Account Updates.
It is the responsibility of the customer to maintain accurate billing information with Beyond Web
Services, Inc.. This may include updated credit card information, email address and mailing address.
4.4 - Taxes.
Customer is solely liable for any taxes or fees payable for products or services sold by Customer
on the Website.
4.4.1 - Proof of Sales Tax Filings.
To ensure that illegal tax evasion is not occuring with the use of the hosting services provided
by Beyond Web Service, Inc.'s servers and that all local tax laws are being followed,
proof of sales tax filings with the State of Florida's Department of Revenue may be requested.
Failing to provide any requested proof of sales tax filing documentation by written or electronic
means after 14 days of being requested by Beyond Web Service, Inc. will result in a temporary
suspension of the customer's hosting services and will continue until requested documentation has
been provided by the Customer to Beyond Web Service, Inc.
5. Term and Termination.
5.1 - Term.
The initial term is agreed upon during account signup. After the initial term, this Agreement will
automatically renew on a month-to-month basis until terminated.
5.2 - Termination by Customer.
During the initial term, Customer may terminate this Agreement upon the material breach of Beyond
Web Services, Inc., if such material breach remains uncured for thirty (30) days following written
notice to Beyond Web Services, Inc.. This cure period shall be extended by delay caused by events
beyond the control of Beyond Web Services, Inc. including, but not limited to, natural disasters,
governmental prohibitions or regulations, viruses that did not result from the acts or omissions of
Beyond Web Services, Inc., or technical faults of Beyond Web Services, Inc.’s service providers or
vendors. After the initial term, Customer may terminate this Agreement upon fourteen (14) days
written notice to Beyond Web Services, Inc..
5.3 - Termination by Beyond Web Services, Inc..
Beyond Web Services, Inc. may immediately terminate this Agreement for cause at any time without
penalty. Causes justifying immediate termination include, but are not limited to: violation of
any foreign, federal, state, or local law; non-payment of fees due under Part 4.1 of this Agreement;
non-payment for other services provided by Beyond Web Services, Inc. to the Customer,
non-payment for other financial agreements between Beyond Web Services, Inc. and the Customer,
breach of this Agreement; violation of the Terms of Service and any written modifications thereof;
and violation of any other Beyond Web Services, Inc. policy. Beyond Web Services, Inc. may terminate
this Agreement without cause at any time upon thirty (30) days written notice to Customer.
6. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BEYOND WEB SERVICES INC., AND ITS OWNERS,
EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH
BEYOND WEB SERVICES INC.'S
HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INGRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY. BEYOND WEB SERVICES INC., ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS,
AND THE LIKE SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA OR DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE BEYOND WEB
SERVICES INC.'S HARDWARE OR SERVICES.
8. Customer Indemnity.
Customer shall defend Beyond Web Services, Inc. against any third party claim, action, suit or
proceeding arising as a result of Customer's use of Beyond Web Services, Inc.’s hardware or services
and indemnify Beyond Web Services, Inc. for all losses, damages, expenses, and costs incurred by
Beyond Web Services, Inc. as a result of a final judgment entered against Beyond Web Services, Inc.
in any such claim, action, suit or proceeding.
9. General Provisions.
9.1 - Governing Law.
This Agreement will be governed and construed in accordance with the laws of the State of Florida.
Both parties agree to submit to personal jurisdiction in Pinellas, Florida, and further agree that
any cause of action or dispute arising under this Agreement will be litigated or arbitrated in
Pinellas County, Florida, United States of America.
9.2 - Severability and Waiver.
If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining
provisions will continue in full force without being impaired or invalidated in any way. The waiver
by either party of a breach of any provision of this Agreement will not operate or be interpreted as
a waiver of any other or subsequent breach.
9.3 - Attorneys Fees and Costs.
In the event that any legal action becomes necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable
attorneys' fees, expert witness fees and legal expenses as may be fixed by a court of competent
jurisdiction.
9.4 - Transferred Ownership of Websites Hosted with Beyond Web Services, Inc..
In the event a website is sold or ownership is transferred to another party, this Agreement
will pass on to the new website owner. A written notice to Beyond Web Services, Inc. of change of
ownership will be the responsibility of the new owner.
The new owner will have 14 days to notify Beyond Web Services, Inc. that they wish to cancel
this Agreement, otherwise this Agreement will automatically renew on a month-to-month basis until
terminated.
9.5 - Website Ownership Dispute.
In the event that ownership of a Website, or content of a Website that resides on
Beyond Web Services, Inc.'s
servers is disputed by another party or entity, Beyond Web Services, Inc. will have the
right at their discretion to suspend hosting services and/or suspend e-commerce activity,
such as the sale of products, and suspend access to the disputed Website by either party until
either party provides Beyond Web Services, Inc. with official
documentation of legal ownership, or either party is granted legal ownership in a court of law.
Beyond Web Services, Inc. will acknowledge and abide by all court rulings concerning Website ownership.
Exhibit A
Hosting Services Provided:
• Up to 40mb of web site space
• Up to 4gb bandwidth transfer
• MySQL database setup and services
• Email account setup, service, webmail
• Secure Certificate Setup
• Web site traffic reporting
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