Terms of Service:
hybrid5hosting Web Hosting Services Agreement:
The terms and conditions set forth herein constitute the full and complete agreement between you and hybrid5hosting. (doing business as and hereinafter referred to as "hybrid5hosting") Your agreement to be bound by these terms is acknowledged by your use of the hybrid5hosting Web Site, Hosting Services, Support Services and/or any hybrid5hosting software made available to you. The terms contained herein supercede and replace any other agreement or negotiation between you and hybrid5hosting whether oral, written or otherwise including any statements made by any representative of hybrid5hosting at any time.
1 FEES; PAYMENT OF FEES
1.1 Fees - hybrid5hosting charges the following fees where applicable. All such fees are subject to change with 30 days notice. Not all fees are applicable to all accounts.
1.1.1 Set-Up Fee – This is a one time fee may that be charged in connection with the establishment of a new account.
1.1.2 Service Fee – This is the fee for your monthly, annual or bi-annual web hosting services.
1.1.3 Domain Registration Fee – This is the fee for the registration of a domain name and is non-refundable.
1.1.4 Other Service Related Fees – These are fees for additional services that you may choose to add to your account.
1.2 hybrid5hosting also reserves the right to alter, change, amend or delete fees at it's sole option. hybrid5hosting further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.
1.3 hybrid5hosting reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not effect the then existing rights and responsibilities of each party. hybrid5hosting also reserves the right to change the rate charged for any such fee under this agreement with 30 days notice.
1.4 Payment of Fees - hybrid5hosting accepts payment by Credit Card (Visa, MasterCard, Discover, American Express, and by personal check, cashiers check, electronic check, or money order. In addition, hybrid5hosting may from time to time allow additional forms of payment however the offering of a particular form of payment does not obligate hybrid5hosting to continue to offer that form of payment in the future. The current list of payment options will be displayed during the order process. If you have any questions concerning the current available payment options contact us.
1.5 Payment by Credit Card and Electronic Check
1.5.1 Prior to activation of your user account and at any applicable time thereafter you agree to allow hybrid5hosting to charge your provided credit card or bank account and at stated regular intervals the agreed service fee amount for the stated period together with any hybrid5hosting set-up charges, registration fees, or any other charges outlined herein as may be applicable. You further authorize hybrid5hosting to charge your credit card or bank account for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. You agree to maintain current valid existing credit card or bank account information with hybrid5hosting for the purpose of satisfying the hybrid5hosting charges as they become due. Refusal or rejection of any such charge or any portion thereof is grounds for account suspension and/or termination at the sole option of hybrid5hosting under Paragraph 8 herein. An administrative fee of $25.00 may be charged for the refusal, rejection or return of any such charge for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such charge for any reason whatsoever or any portion thereof is grounds for account suspension and/or termination at the sole option of hybrid5hosting under Paragraph 8 herein.
1.6 Payment by Check, Money Order
1.6.1 Prior to activation of your user account you agree to submit a check payable in U.S. dollars against a bank located within the United States . hybrid5hosting is under no obligation to initiate service until the proceeds of such check have been cleared by such financial institution and have been received by hybrid5hosting. Invoices will be submitted to at the email address on file for you as a courtesy only and you agree to receive such invoices via email. Payment for subsequent fees are due and payable immediately upon invoice and in no instance later than the expiration of the last day of the previous period without regard to any invoice. It is your responsibility when paying by check to make sure that your payment is received by hybrid5hosting. An administrative fee of $25.00 may be charged for the refusal, rejection or return of any such check for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such check for any reason whatsoever or any portion thereof is grounds for account suspension and/or termination at the sole option of hybrid5hosting under Paragraph 8 herein.
1.6.2 It is recommended that in order to avoid any service interruption that you submit your payment to hybrid5hosting a sufficient time before the expiration of the current service period so that it reaches hybrid5hosting in advance of the renewal date.
1.7 hybrid5hosting 30 Day Limited Money-Back Guarantee
1.7.1 hybrid5hosting is proud to offer a 30 day guarantee period. Upon receipt by hybrid5hosting of proper notice from you of the termination of your account within thirty (30) days of the creation of a new account or within thirty (30) days of the renewal of an existing account, hybrid5hosting will refund all service fees for the new term. Terminations after this period are not eligible for refund. There are no refunds of account Set Up Fees or Domain Name Registration Fees. hybrid5hosting may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder.
1.7.2 Waiver. Certain promotional services are offered to existing hybrid5hosting customers from time to time free or at a reduced cost. Where such services are made available to new customers still within the 30 day guarantee period such services may be offered subject to a waiver of the remainder of the 30 day guarantee period. Such waiver will be identified together with the offer where it applies.
2 WEB HOSTING SERVICES
For the term of the agreement as set forth herein hybrid5hosting agrees to provide Web Hosting Services according the plan selected by you upon activation of your account. hybrid5hosting reserves the right to change, amend and/or otherwise alter the services provided with equivalent or otherwise equal services without prior notice to you. The specifics of any particular offer are contained within the offer itself as published on the hybrid5hosting website at the time you create your account and remain in effect throughout the term of your agreement. The specifics of all current offers are located within the hybrid5hosting Website located at HostRocks Hosting Services (http://hostrocks.com). Web Hosting Services shall be defined as server space and data transfer allowances for the purposes of displaying a business or personal website.
3 DOMAIN REGISTRATION AND OTHER SERVICES
3.1 Domain Registration. At Customer's request, hybrid5hosting may also acquire a Second-Level Domain Name ("Domain Name"), on behalf of Customer. hybrid5hosting is an authorized domain name reseller of and utilizes Enom and Directi for all domain registration services. Your purchase of domain name registration services is specifically subject to your agreement to the terms of this agreement and also the agreements from Directi and Enom which is incorporated fully into this agreement and made available to you at the provided links.
3.2 hybrid5hosting will not own or otherwise control any domain name registered on your behalf under this paragraph. hybrid5hosting provides this service as a convenience to you only and you hereby waive any and all claims which you may have, or which may later arise, against hybrid5hosting for any and all damages, losses, claims or expenses arising out of or related to the acquisition, registration and/or use of the Domain Name. You hereby agree to pay any costs incurred by hybrid5hosting to register and/or maintain the Domain Name on your behalf by hybrid5hosting under the payment provisions of this agreement elsewhere herein.
3.3 Other Services. hybrid5hosting offers a listing of additional services in conjunction with its Domain Registration and Web Hosting Services. The terms of these services are governed by this agreement.
3.5 The Registered Name Holder shall provide to hybrid5hosting accurate and reliable contact details and promptly correct and update them during the term of the Registered Name registration, including: the full name, postal address, e-mail address, voice telephone number, and fax number if available of the Registered Name Holder; name of authorized person for contact purposes in the case of an Registered Name Holder that is an organization, association, or corporation.
3.6 A Registered Name Holder's willful provision of inaccurate or unreliable information, its willful failure promptly to update information provided to hybrid5hosting, or its failure to respond for over fifteen calendar days to inquiries by hybrid5hosting concerning the accuracy of contact details associated with the Registered Name Holder's registration shall constitute a material breach of the Registered Name Holder-registrar contract and be a basis for cancellation of the Registered Name registration.
3.7 Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name. A Registered Name Holder licensing use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the Registered Name, unless it promptly discloses the identity of the licensee to a party providing the Registered Name Holder reasonable evidence of actionable harm.
4 ACCEPTABLE USE
hybrid5hosting strictly enforces compliance with its acceptable use policy which may be found on the hybrid5hosting Website located at http://www.hostrocks.com/acceptable-use-policy. The terms of the acceptable Use Policy are incorporated into this agreement as though they were fully set forth at length herein. You agree to maintain your website in full compliance with the terms of the acceptable use policy. Failure to so comply is cause for immediate suspension and/or termination under paragraph (8) herein. hybrid5hosting reserves the right to refuse to provide service to anyone at their sole option.
hybrid5hosting, subject to the terms and conditions set forth herein, hereby grants you a non-exclusive, limited, personal, license to use the hybrid5hosting Web Hosting Service for the term of the agreement as set forth herein. Your rights under this agreement may be assigned only upon prior notice and express approval by hybrid5hosting. Any other assignment is null and void.
6 OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY
6.1 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of hybrid5hosting including but not limited to the hybrid5hosting customer service and maintenance tools. You acknowledge that all right and title to any such hybrid5hosting intellectual property shall remain the sole property of hybrid5hosting and that you have no right, title or interest therein. You further agree not to provide access to the hybrid5hosting services to any third party. You agree yourself and not to assist any third party in any way to use, translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the hybrid5hosting Services. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the hybrid5hosting service shall also remain the sole property or hybrid5hosting.
6.2 During the term of this agreement you may have access to certain information and materials relating to the hybrid5hosting business, customers, software technology and marketing which hybrid5hosting treats as confidential (hereinafter "Confidential Information"). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any "Confidential Information" without the express prior written consent of hybrid5hosting; and (ii) not use or disclose any of the "Confidential Information" for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
6.3 You are the sole owner of any information that you post within your account area. hybrid5hosting does not normally review or edit the information posted within your account. Notwithstanding the above hybrid5hosting specifically reserves all right to edit, change, remove or delete any information posted in violation of this policy, the hybrid5hosting Acceptable Use Policy or any applicable law, order or public policy. hybrid5hosting is not your partner, associate, joint venturer or agent with respect to any information placed by you on the hybrid5hosting servers.
The initial term of this agreement shall be the period selected by you at the commencement of your account. Periodic accounts (monthly, annual, biannual) are automatically renewed and are charged in the same manner you selected at the commencement of your account. Any Additional services are renewed for the same period as the corresponding hosting service. A listing of the presently available plans is available on the hybrid5hosting website located at www.hostrocks.com.
8 SUSPENSION AND TERMINATION
8.1 Suspension - At the sole option of hybrid5hosting for any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Payment of Fees) or any violation of the hybrid5hosting Acceptable Use Policy, hybrid5hosting may suspend your account by deactivating any access by you and/or by web users to any information contained on the hybrid5hosting servers related to your account while maintaining the information and data related to your account upon the hybrid5hosting servers. Suspension shall specifically include the disabling of your hosted domain and/or any access to information or data related to your account. In the event of any such suspension you will be notified. At the option of hybrid5hosting you may be given an opportunity to correct such breach or violation. Upon being notified of an opportunity to correct such breach or violation, if such breach or violation is not corrected the account may be terminated under paragraph 8.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
8.2 Termination - This agreement and all of it's terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the hybrid5hosting servers. Such information or data may or may not be made available to you by hybrid5hosting after any such termination. This agreement may be terminated either (a) after a period of suspension as set forth in paragraph 8.1 or (b) except as otherwise stated herein by either party upon 45 days notice in advance of a renewal period for any reason.
8.3 In the event of termination under paragraph 8.2(a) there will be no refund provided to you. In addition, hybrid5hosting may charge you an additional termination fee not to exceed $100.00 at its sole option. The assessment of this termination fee shall not affect the rights of hybrid5hosting to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney’s fees or other costs of any kind as may be applicable under Utah Law
9.0 INFORMATION USAGE AND COMMUNICATIONS
9.1 You hereby consent and agree that as to any information which hybrid5hosting may collect from you and/or maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from hybrid5hosting concerning you or your account, or other information which in hybrid5hosting sole judgment is reasonable, hybrid5hosting may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of hybrid5hosting and may include but shall not be limited to (1) compliance with court order, subpoena or other request of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the hybrid5hosting Terms of Service or other policies.
9.2 During and after the term of this agreement you agree to receive periodic emails from hybrid5hosting in regards to hybrid5hosting or partner products, services, your account, and system conditions, changes, updates or and schedules.
9.3 You agree to provide and at all times during the term of this agreement maintain true and accurate account information on file with hybrid5hosting specifically including your Name, Address, Email address, telephone number billing information and any other account information requested at any time during the sign up process. You further agree that the failure to provide or maintain such accurate information is a material breach of this agreement and subjects your account to suspension and/or termination as set forth in paragraph eight (8) herein.
10.1 Any notice under this agreement shall be given by hybrid5hosting to you via email at the address provided by you to hybrid5hosting at the commencement of this agreement or as hybrid5hosting is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so by contacting customer service via the hybrid5hosting website located at http://hostrocks.com/hostrocks-support-center.html.
10.2 Any notice by you to hybrid5hosting shall be made by telephone to a customer service representative at 801-913-8462 during hybrid5hosting regular business hours of 9:00 a.m. to 5:00 p.m. Mountain Standard time and is effective only upon receipt by hybrid5hosting of any such notice. Such notice may also be sent via United States Mail to the following Address:
1446 East 6050 South
Salt Lake City, Utah 84121
Sections 1, 3 through 6, 8, 9, 10, 12, 13, and 15 through 21, inclusive, of this agreement shall survive the termination of this agreement and shall remain in full force and effect after any such termination.
12 WARRANTEES AND LIMITATIONS
12.1 hybrid5hosting makes every reasonable effort to maintain operation of the hybrid5hosting service however because as many events and circumstances are beyond the control of hybrid5hosting, hybrid5hosting does not in any way warrant or otherwise guarantee the availability of the hybrid5hosting system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of hybrid5hosting.
12.2 THE hybrid5hosting SERVICE IS PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
12.3 In general, hybrid5hosting has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. hybrid5hosting accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. hybrid5hosting provides no warrantee for any goods or services which you obtain over the Internet nor the compatibility of any such services with the hybrid5hosting system.
12.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
12.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO hybrid5hosting IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL hybrid5hosting BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
13.1 You agree to fully defend and indemnify and hold harmless hybrid5hosting of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of hybrid5hosting in any way related to your use of the hybrid5hosting service or any portion thereof.
13.2 You agree to fully defend and indemnify and hold harmless hybrid5hosting of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the hybrid5hosting service or any portion thereof. Choice of counsel remains exclusively that of hybrid5hosting
13.3 You agree that upon the assignment of your user ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your user ID. You further agree to defend and indemnify and hold harmless hybrid5hosting of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of hybrid5hosting.
14 FORCE MAJEURE
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
15. U.S. EXPORT CONTROLS
Software available in connection with the hybrid5hosting services is subject to United States export controls. No Software may be downloaded from hybrid5hosting or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the any downloaded Software or software component is at your sole risk.
Your rights under this agreement may be assigned only upon prior notice and express approval by hybrid5hosting. hybrid5hosting may assign it's rights hereunder to any person or entity who shall become a principal owner, or shareholder of hybrid5hosting. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
18 CHOICE OF LAW
This Agreement shall be interpreted under the laws of the State of Utah without regard to any conflict of laws provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be venued in the Superior Court of the State of Utah , County of Salt Lake. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue.
19 NO AGENCY
Notwithstanding any other provision of this agreement, hybrid5hosting is not your agent, partner or joint venturer in any respect.
hybrid5hosting may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the hybrid5hosting web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts.