Welcome to Host Depot's web hosting services. This Hosting Agreement governs your
purchase and use, in any manner, of all web hosting services, including the Shared
Hosting Services and Dedicated Hosting Services, (collectively, the "Services") as described
in the Order Form, ordered by you and accepted by Host Depot, and describes the terms and
conditions that apply to such purchase and use of the Services. If you have registered for
Colocation Services, then the term "Services" shall also include such Colocation Services
so that this Agreement will govern your purchase and use of all such Services (including
Colocation Services); provided, however, that your purchase and use of the Colocation
Services shall also be governed by the terms and conditions set forth in Section 9 to
this Agreement. If you did not register for Colocation Services, however, then Section 9
is inapplicable to your purchase and use of the Services. For purposes of this Agreement,
the Shared Hosting Services include the E-Mail and E-Commerce Services. You must register and accept
the terms of this Agreement in order to use the Services. BY ACCEPTING THIS AGREEMENT, AND
REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT
AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL POLICIES
AND GUIDELINES INCORPORATED BY REFERENCE.
Host Depot reserves the right to change or modify any of the terms and conditions contained in
this Agreement, and any policy or guideline incorporated by reference 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. Any changes or modification will be effective upon posting of the
revisions on the HostDepot.com or SiteUtil.com web sites (the "Web Site"). Host Depot will post a notice of such changes or
modifications to this Agreement or the Addendum on the Web Site for thirty (30) days. Host Depot may
post changes or modifications to referenced policies and guidelines without notice to you. Your
continued use of the Services following Host Depot's posting of any changes or modifications will
constitute your acceptance of such changes or modifications. IF YOU DO NOT AGREE TO THE TERMS OF
THIS AGREEMENT, DO NOT ACCEPT THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION,
DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY HOST DEPOT OF YOUR TERMINATION
OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 1B BELOW.
- Term and Payment for Services
This Agreement shall be for an "Initial Term" of either (a) thirty (30) days if you register
for Shared Hosting Services, or (b) twelve (12) months from the order date if you register
for Dedicated Hosting Services, or (c) as otherwise chosen by you in the Order Form, located
on the Site, at the time you register for the Services. This Agreement will be automatically
renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial
Term unless you provide Host Depot with notice of termination either (a) at least seven (7)
days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable,
if you registered for and are receiving Shared Hosting Services or (b) at least thirty (30)
days prior to the end of the Initial Term or Renewal Term, whichever is then applicable, if
you registered for and are receiving Dedicated Hosting Services or have pre-paid for Shared Hosting Services. You must provide Host Depot with your notice of
termination by canceling your service by speaking with an account manager. Upon canceling your service, you
will be asked to provide Host Depot with sufficient customer identification information so
that Host Depot may properly identify you and your account. Any notice of termination will
be effective upon Host Depot's receipt thereof.
- Termination Policy
If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) Host Depot shall not refund to you any fees paid in advance of such termination and (b) you shall be required to pay the lesser of three (3) times the standard monthly charge or 100% of Host Depot's standard monthly charge for each month remaining in the term, unless otherwise expressly provided herein. Your termination request must be submitted to Host Depot in the manner described in Section 1A. Host Depot may terminate this Agreement at any time and for any reason by providing to you thirty (30) days prior written notice of termination. If Host Depot terminates this Agreement, Host Depot shall refund to you the pro-rata portion of pre-paid fees attributable to Services not yet rendered as of the termination date unless otherwise expressly provided herein.
- Liability and Obligations on Termination
Should the Agreement expire or be terminated for any reason, Host Depot will not be liable to you because of such expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your business, or for any other reason whatsoever flowing from such termination or expiration. Any termination of this Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by you to Host Depot as provided in this Agreement.
You agree to pay for all charges attributable to your use of the Services at the then current Host Depot prices, which shall be exclusive of any applicable taxes. You shall be responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services. You shall be responsible for paying any banking fees associated with the Services, including but not limited to returned check fees, chargeback fees, wire transfer fees, and processing fees. Your account will be assessed a returned check fee for each returned check associated with your account, a chargeback fee for each credit card chargeback associated with your account, and a wire transfer fee for each payment received by wire transfer. These fees are non-refundable and subject to change without notice.
All charges for Services must be paid in advance according to the then current price applicable to the Services. Upon registration for Shared Hosting Services or Dedicated Hosting Services, you must choose to pay for the Services either by credit card or upon your receipt of an invoice. If you choose to pay by credit card upon registering for Shared Hosting Services or Dedicated Hosting Services, you thereby authorize Host Depot to charge your credit or debit card to pay for any charges that may apply to your account. You agree that Host Depot may accumulate any supplemental charges, as described in the Order Form, incurred by you in your use of the Services ("Supplemental Charges") until such charges exceed $10 and then charge your card. You must notify Host Depot of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Host Depot from charging your account. If you choose to be invoiced upon registration for Shared Hosting Services or Dedicated Hosting Services, Host Depot will send an invoice to you for the Services applicable to the period for which you have registered for the Services. Host Depot may also send periodic invoices to you for any applicable Supplemental Charges associated with your use of the Services. You agree to pay to Host Depot the amount indicated in each invoice by the due date reflected on the invoice. If you fail to pay any fees and taxes within ten (10) days from applicable due date for credit card or invoice payments, a late charge of $5 or 10%, whichever is greater, or the maximum amount allowed by law will be assessed and become payable by you to Host Depot. In addition, your failure to fully pay any fees and taxes within ten (10) days after the applicable due date will be deemed a material breach of this Agreement, justifying Host Depot's suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstated of Services. Any such termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.
- 30-Day Money Back Guarantee
Notwithstanding Sections 1A through 1D, if you are not fully satisfied with the Services and the Services provide for a 30-day money back guarantee, you may terminate this Agreement at any time during the first thirty (30) days from your initial order date and receive a full refund of all payments made by you to Host Depot for the Services. This does not include any setup fees, hardware fees, installation fees, or fees paid for domain registration. To receive such refund, you must terminate this Agreement in the manner described in Section 1A and cease using the Services, and Host Depot must receive your termination notice, within the above described thirty (30) day period. You agree to provide Host Depot with a description of why you are not satisfied with the Services and are terminating this Agreement.
- Use of Services
- Applicable Policies
- Account Information
You agree to provide Host Depot with accurate and updated account information. This includes but is not limited to name, address, phone number, e-mail address, and payment information. It is not Host Depot's responsibility if we are unable to contact you as a result of inaccurate account information.
- Material and Product Requirements
You must ensure that all material and data placed on Host Depot's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Host Depot. Host Depot will make no effort to validate any of this information for content, correctness or usability. In the event that your material is not "server-ready", Host Depot has the option at any time to reject this material. Host Depot will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Host Depot. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your web site. You must have the necessary knowledge to create and maintain a web site. It is not Host Depot's responsibility to provide this knowledge or customer support outside of the Services agreed to by you and Host Depot.
- Bandwidth, Storage, and E-Mail Usage
You agree that use of the Services hereunder will not exceed the bandwidth, storage and e-mail usage limits set out in the Order Form. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month or if you exceed E-Mail storage and attachment size limitations, Host Depot may, in its sole discretion, assess you with additional charges, suspend the performance of the Service, or terminate this Agreement. In the event that Host Depot elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees.
- Domain Names
As part of the Services, you will provide Host Depot with a registered domain name or names or Host Depot will register such domain name(s) selected by you, provided that such domain name is available for registration and does not violate any Register.com or other registration services' policies, or any law or regulation.
You agree to promptly reimburse Host Depot for any fees paid by Host Depot to Register.com or other registration services with respect to the registration and maintenance of such domain name(s). In the event of any dispute or cause of action arising out of or related to your domain name used in connection with the Services, upon your request Host Depot will attempt to register with Register.com or other registrar an alternative domain name chosen by you. You agree to be bound by the terms of Register.com's then current domain name policy and/or the policies of the national DNS registration authorities to which you become subject upon registration of your domain name. The inability to use a domain name shall not entitle you to a refund by Host Depot of any fees paid with respect to the registration of such unusable domain name.
- Colocation Services
If you have registered for Colocation Services, Host Depot's provision of such services is subject to, in addition to the terms of this Agreement, the terms and conditions set forth in Section 9 to this Agreement. If you did not register for Colocation Services, however, Section 9 is inapplicable to your receipt of the Services.
- Intellectual Property Rights
- Your License Grant to Host Depot
You hereby grant to Host Depot a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to Host Depot a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
- Your Warranties And Representations to Host Depot
You warrant, represent, and covenant to Host Depot that (a) you are at least eighteen (18) years of age; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
- Host Depot Materials And Intellectual Property
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Host Depot or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Host Depot to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto shall remain the sole and exclusive property of Host Depot or its suppliers. Host Depot shall also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that may be assigned to you by Host Depot. Host Depot reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
- Investigation of Violations
Host Depot may investigate any reported violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. Host Depot will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
Host Depot reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies, or is otherwise objectionable or potentially infringing on any third party's rights or in potentially violation of any laws. In the event of becoming aware of any possible violation by you of this Agreement, any related policies, third party rights or laws, Host Depot may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Host Depot's systems, and/or (d) disabling or removing any hypertext links to third-party web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by Host Depot which, in Host Depot's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Host Depot to civil or criminal liability or public ridicule. It is Host Depot's policy to terminate repeat infringers. The above stated rights of action, however, do not obligate Host Depot to monitor or exert editorial control over the information made available for distribution via the Services. In the event Host Depot takes corrective action due to such possible violation, Host Depot shall not be obligated to refund to you any fees paid in advance of such corrective action.
- Disclosure Rights
- Disclaimed Warranties
You acknowledge and agree that Host Depot exercises no control over, and accepts no responsibility for, the content of the information passing through Host Depot's host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, HOST DEPOT DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
- Limitation and Exclusion of Liability
IN NO EVENT SHALL HOST DEPOT OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER HOST DEPOT NOR ITS SUPPLIERS SHALL HAVE LIABILITY WITH RESPECT TO HOST DEPOT'S OBLIGATIONS UNDER THIS AGREEMENT, THE ADDENDUM OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST DEPOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING LIMITATION OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ANY EVENT, THE LIABILITY OF HOST DEPOT AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST DEPOT BY YOU UNDER THIS AGREEMENT AND THE ADDENDUM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY HOST DEPOT HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE HOST DEPOT AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6A.
- Interruption of Service
You hereby acknowledge and agree that Host Depot and its suppliers will not be liable for any temporary delay, outages or interruptions of the Services. Further, Host Depot shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
You hereby release and hold harmless, and agree to indemnify, Host Depot and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Host Depot or its suppliers, arising out of or relating to (a) your violation or breach of any term, condition, representation or warranty of this Agreement, the Addendum or any applicable policy or guideline; (b) your improper or illegal use the Services; or (c) your violation, alleged violation, or misappropriation of any intellectual property right (including, without limitation, trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including, without limitation, defamation, libel, violation of privacy or publicity).
- MISCELLANEOUS PROVISIONS
- Entire Agreement
This Agreement and all policies incorporated herein by reference, constitutes the entire agreement between you and Host Depot with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement and the related policies.
- No Fiduciary Relationship; No Third-Party Beneficiaries
Host Depot is not the agent, fiduciary, trustee or other representative of you. Except for the rights of Host Depot's suppliers under sections 6 and 7 hereof, nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the parties.
Host Depot may, free of any obligation to pay compensation, use your name and identify you as a Host Depot client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.
- Choice of Law and Forum
THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF FLORIDA, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN BROWARD COUNTY, FLORIDA, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
- Compliance With Laws
You shall at all times comply with all applicable laws and regulations and shall indemnify and save Host Depot harmless from your failure to so comply. You agree that Host Depot shall not have to perform any obligations set forth in this Agreement if such performance would violate any present or future law, regulation or policy of any applicable government.
You may not assign this Agreement or any right or obligation hereunder, by operation of law or otherwise, without Host Depot's prior written consent. Host Depot may assign its rights and obligations under this Agreement, and may utilize affiliate and/or agents in performing its duties and exercising its rights hereunder, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
- No Waiver
Host Depot's failure to enforce the strict performance of any provision of this Agreement or the Addendum will not constitute a waiver of Host Depot's right to subsequently enforce such provision or any other provisions hereunder or thereunder.
Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement and the Addendum, if applicable, shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
All provisions of this Agreement and the Addendum relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration hereof and thereof.
- Colocation Services
- Additional Terms
Additional terms applicable to Colocation services as stated in Section 2F of the Agreement, if you have registered for Colocation Services, the term "Services," as defined in the opening paragraph of the Agreement, shall include the Colocation Services so that Host Depot's provision of all such services is governed by both the terms and conditions set forth in the Agreement as well as the terms and conditions set forth in this Section. To the extent there are any contradictions between the terms of the Agreement and the terms of this Section with respect to your receipt of the Colocation Services, then the terms of this Section shall control.
- Host Depot will permit you to locate certain network and computer equipment and software (the "Colocation Equipment") in a designated area (the "Accessible Space") within one of it's data centers (the "Facility"). Host Depot shall provide or cause to be provided certain services ("Colocation Services") as outlined in the applicable Order Form. In connection with providing the Colocation Services, Host Depot shall also perform or provide, at no additional charge to you, the following services which support the overall operation of the Accessible Space: environmental systems maintenance, power plant maintenance and janitorial services. You shall be responsible for any extraordinary maintenance, including, but not limited to, replacement of hardware or software that shall be required for the operation of Colocation Equipment.
- The Accessible Space is hereby accepted by you "as is". You may use the Accessible Space only for the purposes of installing, maintaining and operating hardware and software necessary to support local access communications facilities and/or links to Host Depot or to other entities located outside of the Accessible Space.
- You will provide, maintain, repair and/or replace the Colocation Equipment, as needed, at your sole cost and expense. You shall setup, install, configure and generally make ready the Colocation Equipment necessary to provide Colocation Services. Host Depot agrees that it shall cooperate fully with and assist you as reasonably requested thereby with the installation of you Equipment and the connection thereof to Host Depot's network.
- You shall be solely responsible for the handling, processing and filling any orders by customers generated by the Colocation Equipment, if any, and for handling your customers' inquires and/or complaints arising therefrom.
- During the Term, Host Depot may, in its sole discretion, relocate the Colocation Equipment and provide the Colocation Services from a location other than the Facility. In such event, Host Depot shall notify you of the new facility within ten (10) days of relocating Colocation Equipment.
Any Colocation Services provided hereunder shall be provided to you for the initial term set out in the applicable Order Form. Your receipt of the Colocation Services shall be automatically renewed under the Agreement and this Addendum as provided in Section 1A of the Agreement, and may be terminated by you only as provided in Section 1B. The termination of the Colocation Services remains subject to Sections 1B and 1C.
- Fees And Payment
Upon registration for Colocation Services, you must choose to pay for the services either by credit card or upon your receipt of an invoice. Your payment for all charges and fees are subject to the terms and conditions of Sections 1D and 1E of the Agreement.
- Warranties and Limitation on Liability
YOU ACKNOWLEDGE THAT YOUR RECEIPT OF THE Colocation SERVICES IS SUBJECT TO THE LIMITATIONS ON WARRANTIES AND HOST DEPOT'S AND ITS SUPPLIERS LIMITATIONS ON LIABILITY AS PROVIDED IN SECTIONS 5 AND 6 OF THE AGREEMENT. YOU FURTHER ACKNOWLEDGES THAT THE INTERNET IS NEITHER OWNED NOR CONTROLLED BY ANY ONE ENTITY; AS A RESULT, HOST DEPOT AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE Colocation EQUIPMENT SHALL BE ABLE TO ACCESS THE INTERNET AT ANY GIVEN TIME. HOST DEPOT REPRESENTS THAT IT SHALL MAKE EVERY GOOD FAITH EFFORT THAT THE Colocation EQUIPMENT HAS INTERNET AVAILABILITY AS TO AS MANY USERS WITH AS MINIMAL INTERRUPTIONS OF Colocation SERVICE AS POSSIBLE; NEVERTHELESS, HOST DEPOT AND ITS SUPPLIERS CANNOT AND DO NOT WARRANT THAT THERE WILL BE SATISFACTORY AND/OR UNINTERRUPTED CONNECTIONS TO THE INTERNET.
- Risk of Loss
You acknowledges that your are accepting Host Depot's Colocation Services at your own risk. Neither Host Depot nor its suppliers shall bear any risk of loss or damage of the Colocation Equipment, which shall be borne exclusively by you. Host Depot shall bear the risk of loss or damage only of equipment that Host Depot provides for the Colocation Services. Neither you nor Host Depot shall bear the risk of loss or damage of third party equipment used in providing the Colocation Services.
- During the Term and provided you are not then in default of any of the material terms of the Agreement or this Addendum, including, without limitation, any payment terms:
- You will be allowed root access to the Colocation Equipment. You shall have sole access to the Colocation Equipment for programming purposes. You agree not to attempt or allow any of its users to attempt access to other Web servers, computers, routers, hubs or any other devices connected to any Host Depot network to which you do not have an account. Further, you shall not interconnect the Colocation Equipment with equipment or services of any entity without the prior written consent of Host Depot. If any of the foregoing provisions are breached, in addition to any other remedies Host Depot may have available at law, in equity or under the Agreement or this Addendum, Host Depot will immediately deny root access to you without penalty to Host Depot.
- You are entitled to physical access of the Colocation Equipment during normal business hours of the Facility or other facility where you Equipment is located. Each such visit shall be subject to Host Depot's rules and regulations then in effect concerning access to the Facility or such other facility. In addition, you must maintain, at your expense, during the entire time this Agreement is in effect (1) Comprehensive General Liability Insurance in an amount not less than One Million U.S. Dollars ($1,000,000) per occurrence for bodily injury and property damage, (2) Employer's Liability Insurance in an amount not less than Five Hundred Thousand U.S. Dollars ($500,000) per occurrence, and (3) Worker's Compensation in an amount not less than that prescribed by statutory limits. Within ten (10) days of the date hereof, you shall furnish Host Depot with certificates of insurance which evidence the minimum levels of insurance set forth herein and which name Host Depot as additional insured.
- The Colocation Equipment, including all software not belonging to Host Depot which constitutes a part thereof, is and shall remain proprietary to you. Title and all ownership and property rights in and to the Colocation Equipment and all copyrights, trademarks, trade names, service marks and all other intellectual property rights of you and/or its suppliers are and shall remain the sole and exclusive property of you and/or its suppliers.
- Host Depot agrees that it shall not (i) modify the Colocation Equipment, including any software, in any way, except for the purpose of resolving any issues which may effect other systems adversely, (ii) copy, except for backup or archival purposes, any software belonging to you included in the Colocation Equipment, (iii) sell, lend, rent, lease or otherwise transfer or dispose of the Colocation Equipment or any portion, component or copy thereof, (iv) use the Colocation Equipment or any portion, component or copy thereof for any purpose other than the provision of the Colocation Services to you as contemplated in this Addendum.
Host Depot will exercise no control whatsoever over, nor have any responsibility or liability whatsoever for, the content of the information passing through the Colocation Equipment, which shall be your sole responsibility. Host Depot shall make no effort to validate any information passing through the Colocation Equipment for content, correctness, usability or for any other reason.
- Prohibited Uses
In addition to the terms and conditions set forth in Section 2A of the Agreement relating to your use of the Services, you acknowledge and agree not to use, nor permit the use of or by any person, of Colocation Equipment or any part thereof, including any links to other web space, (i) to transmit any obscene communications with intent to annoy another person or persons or to any person under 18 years of age, (ii) in violation of any patent, trademark, service mark, or copyright law, or (iii) to transmit unsolicited advertisements of services or products, a practice also known as "spamming" or mail relay "spamming".