Dedicated Server Hosting Agreement (version 2.1)
1799 Akron-Peninsula Road, Suite #117
Akron, Ohio 44313
The following agreement, entered into and dated as of the ____ day of ___________, between Incipio, Inc. as Provider and Client as named below:
The following words used in context of this agreement are defined as follows:
"Provider": Incipio, Inc. dba Incipio Web Services or subsidiaries of Incipio, Inc.
“Dedicated Server” or “Dedicated Server Dedicated Server”: Provider provides access to a physical computer (the “server”) exclusively to client for client’s use under the terms of this agreement.
"Client": The person or entity that is applying for Dedicated Server.
The Provider agrees to provide, and Client agrees to receive, access to the Dedicated Server according to the following terms and conditions:
- Services and Products.
- Client has agreed to and separately executed Exhibit A which specifies in more detail the specific services and time frame(s) of this Agreement.
- Provider’s service is provided on an "AS IS, AS AVAILABLE" basis. Provider gives no warranty, expressed or implied, for the Dedicated Server provided, including, without limitation, warranty of the merchantability and warranty of fitness for a particular purpose. This warranty expressly excludes any reimbursement for losses of income due to disruption of services by Provider or its providers beyond the fees paid by client to provider for services.
- Client will use the Dedicated Server in a manner consistent with any and all applicable laws of the State of Ohio and the US Federal Government.
- Use of any information obtained by way of Provider is at Client’s own risk, and Provider specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of a connection to and does not represent guarantees of available end-to-end bandwidth.
- Provider is not responsible for any damages arising from Client’s use of Provider’s services or facilities or by Client’s inability to use the Dedicated Server for any reason.
- While Provider shall make every reasonable effort to protect data stored on Client’s Server(s), Provider is not responsible for Client’s Data, files, or directories residing on Provider’s equipment. Client is solely responsible for maintaining data, file, and directory structure backups.
- Payment Terms.
- Payment of set-up fees and pro-rated services are due upon Provider’s receipt of contract.
- Client will receive an invoice at the beginning of every Billing Cycle (specified in Exhibit A) for charges. Payment is due in full by the due date indicated on the invoice.
- This agreement will automatically renew for successive Billing Cycles unless canceled under the terms of this Agreement. Renewal prices are subject to change. Renewal of services by Client indicates agreement to contract revisions.
- If an amount remains delinquent 30 days after its due date, a penalty of 15% APR will be assessed on a monthly basis.
- Client is responsible for any attorney fees incurred for the collection of any unpaid amounts
- Client agrees to this Agreement beginning after Provider’s receipt of a signed Agreement (by mail or fax) and payment.
- All Client initiated cancellation requests must be made in writing with 30 days prior notice and sent via US Mail to the Provider. Cancellation will not take effect until received. Fees paid for the current Billing Cycle fees are neither refundable nor prorated.
- Provider reserves the right to suspend service without notice for any unpaid or partially paid balances.
- Provider reserves the right to cancel an account at any time. In the event of cancellation initiated by Provider for reasons other than violation of this Agreement by Client, the unused, prorated amount of any deposit or monthly fee will be returned to the Client.
- Spamming (the practice of sending unsolicited, unwelcome mass mailings to people) is strictly prohibited. Any Client found to be Spamming will have their account immediately terminated and find themselves billed for any unpaid balances and any damages that occur as a result of such activity.
- The Provider shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or Client’s use of Dedicated Server. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
- In the event that any Federal, State or Local Municipality imposes any form of Tax on access to the Internet, customer agrees to pay such Tax in addition to the normal monthly access fee. The Provider reserves the right to modify its rates and Terms and Conditions as required. Notice of such changes will be delivered to users via email, letter or fax. Continued usage of your Internet Access account indicates your acceptance of the terms and conditions constituting this agreement.
- Trademarks and Copyrights.
- Client warrants that it has the right to use the applicable trademarks of Client, and grants to Provider the rights to use such trademarks, if any, in connection with Provider’s promotion of, referencing of, cataloging of, or indexing of Provider’s Hosting clients.
- Client hereby agrees that any material submitted for publication on provider through clients account(s) will not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything libelous or harmful.
- Hardware, Equipment, and Software.
- Client is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access the services. Provider makes no representations, warranties, or assurances that Clients equipment will be compatible with Providers Services.
- Depending on the nature of the services requested by the Client, the Provider may have to house Client owned equipment on the Providers premises. The Client agrees to indemnify the Provider from any possible liability resulting from fault with the equipment, since this may have resulted from misuse or abuse prior to the equipment being brought to the Providers premises.
- Notwithstanding the above, in the case of dedicated server management or co-location services where the Provider agrees to host equipment owned by the Client, the Client agrees that the Providers liability shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement and any reasonable attorney’s fee and court costs.
- Internet Etiquette.
- Users of Internet and electronic forums should be considerate of the expectation and sensitivities of others on the network when posting material for electronic distribution. The network resources may not be used to impersonate another person or misrepresent authorization to act on behalf of others or Provider. All messages transmitted via Provider’s service should correctly identify the sender; users may not alter the attribution of origin in electronic mail messages or postings. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorized access.
- Due to the public nature of the Internet, all information should be considered publicly accessible, and important or private information should be treated carefully. Provider is not liable for protection or privacy of electronic mail or other information transferred throughout the Internet or any other network provider or its customers may utilize.
- Use of distribution lists via unsolicited electronic mail or other electronic mailings is strictly prohibited. The Provider reserves the right to deactivate the Client’s account(s) upon any indication of such activity. Client hereby agrees to indemnify and hold harmless the Provider from any claim resulting form the Client’s or another party’s use of electronic mail service(s) on the Client’s account(s).
- Limited Liability.
- Client expressly agrees that use of Provider’s services is at Client’s sole risk. Provider, its employees, affiliates, agents, third party information providers, merchants, licensers or the like, warrant that Provider’s Dedicated Server will not be error free or uninterrupted; nor do they make any warranty as to the results that may be obtained from the use of the Dedicated Server or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Provider’s service, unless otherwise expressly stated in this agreement.
- Client hereby agrees that any material submitted for publication on provider through Client’s account(s) will not contain anything leading to an abusive or unethical use of the Dedicated Server or Host Server(s). Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, any harassing and harmful material or uses, any illegal activity, or material advocating illegal activity, and any infringement of privacy or libel.
- Client hereby agrees to indemnify and hold harmless the Provider from any claim resulting from Client’s publication of material or use of those materials. Provider may or may not give notice before deactivating the use of an account(s) which the Provider decides is an abusive or unethical use of, or a potentially illegal use of the Hosting account(s) or host sever(s). Client hereby agrees to indemnify and hold harmless the Provider in any claim resulting from the submission of illegal materials.
- Under no circumstances, including negligence, shall Provider, its offices, agents or anyone else involved in creating, producing or distributing Provider’s Dedicated Server be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Provider’s Dedicated Server; or that results from mistakes, omissions, interruptions, deletion or loss of files or data, errors, defects, delays in operation, or of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Provider’s records, programs or services. Client maintains sole responsibility for data backups and restoration. Client hereby acknowledges that this paragraph shall apply to all content on Provider’s Dedicated Server.
- Notwithstanding the above, Client’s exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which Client paid during the term of this Agreement and any reasonable attorney’s fee and court costs.
- Client agrees that it shall defend, indemnify, save and hold Provider harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees, ("Liabilities") asserted against Provider, agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employee or assigns. Clients agrees to defend, indemnify and hold harmless Provider against Liabilities arising out of (i) any injury to person or property caused by any products or services sold or otherwise distributed in connection with Provider’s Dedicated Server; (ii) any material supplied by Client infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which Client has sold on the server.
- Entire Understanding.
- The agreement contained in this Contract constitutes the sole agreement between Provider and Client regarding its Dedicated Server. It becomes effective only when signed by both parties.
- This agreement is made and entered into in the state of Ohio and shall in all respects be interrupted, enforced, and governed by said state. Any dispute of this contract shall be litigated or arbitrated in Summit County, Ohio
- The undersigned warrants that he or she is at least 21 years of age, has the authority to commit Client to this agreement, and Client agrees to all terms and conditions of this agreement and Exhibit A as of the day and year first written above. The parties hereto agree that facsimile signatures shall be as effective as if originals.
Name and Title _______________________________
Authorized Signature _______________________________
Name and Title _______________________________
Authorized Signature _______________________________