GENERAL SERVICES
This Service Agreement ("Agreement") applies to the purchase from onthespothosting and its affiliates (collectively,
"onthespothosting") of all services
selected by Customer on the Order Form and the Domain Name Registration Form,
as applicable, (collectively, the "Services"); provided, however, if
Customer is also ordering colocation and/or web site
production services, Customer is also required to sign the agreements specific
to those services. onthespothosting
reserves the right to modify its network and facilities used to provide the
Services for purposes any reason, including, but not limited to, accommodating
evolving technology and increased network demand, and providing enhanced
services. onthespothosting
shall use reasonable efforts to notify Customer of any planned changes to onthespothosting's network or facilities that may
adversely affect the Services provided hereunder. This agreement does not apply
to customers which resell onthespothosting
services. Such resellers must sign the onthespothosting
Reseller Agreement.
TERM AND CANCELLATION POLICY
This Agreement shall commence on the date of onthespothosting's
acceptance hereof and continue for a term which corresponds to the payment
option specified by Customer on the Order Form or Domain Name Registration
Form, as applicable (the "Initial Term"). This Agreement will be
automatically renewed for a similar term at the end of the Initial Term or any
renewal there of not less than five (5) days prior to the end of the then
current term (a) customer notifies onthespothosting
in writing that it elects a different payment option and thereafter the new
payment option shall control the term or (b) either party provides written
notice to the other of its election to terminate this Agreement at the end of the
then current term. If Customer cancels any services it shall remain obligated
to pay all fees due therefore for the remaining portions of the current term,
and if onthespothosting has purchased any
equipment on behalf of Customer, including but not limited to circuits and/or
routers, Customer shall assume responsibility for the payments for such
equipment. In the case of credit card orders, all termination requests should
be signed by Customer's primary contact person on the account who must provide
the last four digits of the credit card on file with onthespothosting.
onthespothosting
shall not be liable for unauthorized termination of an account. Any termination
by onthespothosting or Customer shall not
relieve Customer of its obligation to pay fees incurred prior to such
termination. onthespothosting
reserves the right to terminate this Agreement without cause prior to the end
of the term upon thirty (30) days written notice to Customer.
90 DAY MONEY BACK GUARANTEE -
If at any time during the first 90 days of hosting, starting on the day the
order was initially accepted the customer notifies onthespothosting
that it is dissatisfied with onthespothosting's
hosting services and wants onthespothosting to
terminate such hosting services, onthespothosting
will forthwith terminate its hosting services and will refund 100% of all
Hosting fees paid by the customer to onthespothosting.
This "fee" refund does not include; setup, domain name registration,
excessive bandwidth, and/or termination fee.
All Refunds will be made to the credit card the initial charge was made on. To
obtain a refund simply send an e-mail to accounts@onthespothosting.net from the
e-mail account you opened the account with (for security purposes), requesting
a cancellation of service. Please provide your account number, and domain
name(s). If you have any questions about the cancellation process, please
e-mail us at accounts@onthespothosting.net.
BILLING AND PAYMENT
Pricing: During the term of this Agreement, Customer shall pay the fees for the
Services that are set forth on the Order Form and Domain Name Registration
Form, as applicable. All fees are due in advance. Such fees may include taxes,
fees or assessments by governmental agencies and onthespothosting
shall have the right, at any time, to pass through and invoice to Customer any
new or increased taxes, fees, assessments or other charges imposed on or
required to be collected by onthespothosting
by any governmental agency.
Terms Of Payment: Invoices are due and payable upon
receipt. All payments shall be made in
Service Continuation After Initial Term: The fees set
forth in the Order Form or Domain Name Registration Form are guaranteed during
the Initial Term of this Agreement. If Customer continues to receive the
Services after the Initial Term without entering into a new agreement or
agreement extension, the fees charged after the Initial Term shall be at the
then standard onthespothosting rates for such
services.
Service Charge: Customer will pay a late payment charge equal to 1.5% (or the
highest amount permitted by law, whichever is lower) per month or portion
thereof on the outstanding balance of any invoice.
Suspension Or Interruption Of Service For Non-Payment:
In the event Customer does not pay its account when due, onthespothosting
may, in its sole discretion, suspend, interrupt or disconnect the Services. In
the event of such suspension, interruption or disconnection, Customer may be
required to post a deposit or such other security, as onthespothosting
deems necessary in order to resume receiving the Services. Suspension of
website services occurs 5 days after original bill date. Suspension of email
services occurs 15 days after original bill date. A reactivation fee of $9.95
will be assessed to reinstate any account that has been interrupted for
Non-Payment. This fee is not waivable.
ACCEPTABLE USES
Customer shall at all times adhere to the onthespothosting
Acceptable Use Policy located at http://www.onthespothosting.net/legal.html
, as amended from time to time by onthespothosting
effective upon posting of the revised policy at the URL. Notwithstanding
anything to the contrary contained herein, onthespothosting
may immediately take corrective action, including disconnection or
discontinuance of any and all Services, or terminate this Agreement in the
event of notice of possible violation by Customer of the onthespothosting
Acceptable Use Policy. In the event onthespothosting
takes corrective action due to a violation of the onthespothosting
Acceptable Use Policy, onthespothosting shall
not refund to Customer any fees paid in advance of such corrective action.
IP ADDRESS OWNERSHIP
onthespothosting shall maintain and control
ownership of all IP numbers and addresses that may be assigned to Customer by onthespothosting and onthespothosting
reserves, in its sole discretion, the right to change or remove any and all
such IP numbers and addresses.
CACHING
Customer expressly (i) grants to onthespothosting
a license to cache the entirety of Customer's Web Site, including content
supplied by third parties, hosted by onthespothosting
under this Agreement and (ii) agrees that such caching is not an infringement
of any of Customer intellectual property rights or any third party's
intellectual property rights.
BANDWIDTH AND/OR DISK USAGE
Customer agrees that bandwidth and/or disk usage shall not exceed the number of
megabytes per month for the Services ordered by Customer on the Order Form. onthespothosting shall
monitor the Customer's usage. If bandwidth or disk usage exceeds the agreed
upon number of megabytes per month, onthespothosting,
in its sole discretion, may assess additional standard charges, disconnect or
discontinue any and all Services, or terminate this Agreement. In the event
that onthespothosting elects to take such
action, Customer shall not be entitled to a refund of any fees paid in advance
of such corrective action.
EQUIPMENT
onthespothosting is acting only as a reseller
and/or provider of any hardware, software, circuit and equipment (collectively,
the "Equipment") offered under this Agreement. All equipment will be
manufactured by a third party. onthespothosting
shall not be responsible for any changes in Service(s) that cause Equipment to
become obsolete, require modification or alteration, or otherwise effect the
performance of the Service(s). Any malfunction or manufacturer's defects of
Equipment either sold or provided by onthespothosting
to Customer or purchased directly by Customer used in connection with the
Service(s) will not be deemed a breach of onthespothosting's
obligations under this Agreement. Any rights or remedies Customer may have
regarding the performance or compliance of Equipment are limited to those
rights extended to Customer by the manufacturer of such Equipment. Customer is
entitled to use any Equipment supplied by onthespothosting
only in connection with Customer permitted use of the Service(s). Customer
shall not resell, transfer, export or re-export any Equipment, or any technical
data derived there from, in violation of any applicable
DISCLAIMER OF WARRANTY
Customer acknowledges and agrees that onthespothosting
exercises no control over, and accepts no responsibility for, the content of
the information passing through onthespothosting's
host computers, network hubs and points of presence (the "onthespothosting Network") or the Internet.
NEITHER onthespothosting, ITS EMPLOYEES,
AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS,
LICENSORS NOR THE LIKE MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT FOR
THE SERVICES OR ANY EQUIPMENT onthespothosting
PROVIDES. NEITHER onthespothosting, ITS
EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS,
LICENSORS OR THE LIKE REPRESENT OR WARRANT THAT THE SERVICES WILL NOT BE
INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE
RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE
ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE
CONTAINED IN OR PROVIDED THROUGH THE SERVICES. onthespothosting
IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM
CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CLIENTELE VIA THE
SERVICE(S) PROVIDED BY onthespothosting.
INDEMNIFICATION
Customer will indemnify, save harmless, and defend onthespothosting
and all directors, officers, employees, and agents of onthespothosting
(collectively "indemnified parties") from and against any and all
claims, damages, losses, liabilities, suits, actions, demands, proceedings
(whether legal or administrative) and expenses (including but not limited to
reasonable attorneys' fees) arising out of or relating to the use of the
Services by Customer, including, but not limited to, any violation of the onthespothosting Acceptable Use Policy. Such claims
shall include, but shall not be limited to, claims based upon trademark,
service mark, trade name, copyright and patent infringement, trademark
dilution, tortious interference with contract or
prospective business relations, unfair competition, defamation or injury to
reputation, or other injuries or damage to business.
LIMITATION OF LIABILITY
IN NO EVENT SHALL onthespothosting BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF
PROFITS, REVENUE, DATA OR USE, SUFFERED BY CUSTOMER OR ANY THIRD PARTY, WHETHER
IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN
IF onthespothosting HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. In no event will onthespothosting's
liability for any damages, losses and causes of actions whether in contract or
tort (including negligence or otherwise) exceed the actual dollar amount paid
by Customer for the Service which gave rise to such damages, losses and causes
of actions during the 12-month period prior to the date the damage or loss
occurred or the cause of action arose. Some jurisdictions do not allow the exclusion
or limitation of warranties or incidental or consequential damages, so that the
above limitations or exclusions may not apply to Customer. In such
jurisdictions, onthespothosting's liability
(and the liability of its directors, officers, employees, affiliates, agents,
content providers and service providers) shall be limited to the greatest
extent permitted by applicable law.
FORCE MAJEURE
onthespothosting shall not be liable for
failure or delay in performing its obligations hereunder if such failure or
delay is due to circumstances beyond its reasonable control, including, without
limitation, acts of any governmental body, war, insurrection, sabotage,
embargo, fire, flood, strike or other labor disturbance, interruption of or
delay in transportation, unavailability of or interruption or delay in
telecommunications or third party services, failure of third party software or
inability to obtain raw materials, supplies, or power used in or equipment
needed for provision of the Services.
INTELLECTUAL PROPERTY
Customer represents and warrants that Customer's use of the Services shall not
infringe the intellectual property or other proprietary rights of onthespothosting or any third party. Customer
further acknowledges that all right, title and interest in any and all
technology, including the software that is part of or provided with the
Services and any trademarks or service marks of onthespothosting
(collectively, "onthespothosting
Intellectual Property") is vested in onthespothosting
and/or in onthespothosting's licensors. Unless
otherwise specifically provided in this Agreement, Customer shall have no
right, title, claims or interest in or to the onthespothosting
Intellectual Property. Customer may not copy, modify or translate the onthespothosting Intellectual Property or related
documentation, or decompile, disassemble or reverse engineer the onthespothosting Intellectual Property, or use it
other than in connection with the Services, or grant any other person or entity
the right to do so. Unless otherwise specifically provided in this Agreement,
Customer is not authorized to distribute or to authorize others to distribute
the onthespothosting Intellectual Property in
any manner without the prior written consent of onthespothosting;
provided, however, that nothing in this sentence would preclude Customer from
using the onthespothosting Intellectual
Property as incorporated in the Services. This paragraph shall not operate to
extinguish, restrict, vary, waive or affect in any manner whatsoever any right,
title or interest which Customer may now have or hereafter acquires in, or in
relation to, the third-party software that is part of or provided with the
Services solely to the extent such third-party licensors publicly provide such
rights, title or interest in the third-party software to Customer.
CONFIDENTIAL INFORMATION
Each party acknowledges that, in the course of the performance of this
Agreement, it may have access to customer information and communications,
including proprietary information claimed to be unique, secret, or confidential,
and which constitutes the exclusive property and trade secrets of the other
party ("Confidential Information"). Except as provided in onthespothosting's Acceptable Use Policy (AUP), each
party agrees to maintain the confidentiality of the Confidential Information
and to use the Confidential Information only to the extent necessary for
legitimate business uses in connection with this Agreement. Upon request of
either party or on termination or expiration of this Agreement, each party
shall return the Confidential Information of the other party then in its
possession. Nothing in this Agreement shall prohibit or limit either party's
use of information which (a) is now, or hereafter becomes, publicly known or
available through lawful means; (b) is rightfully in receiving party's
possession, as evidenced by receiving party's records; (c) is disclosed to the
receiving party without confidential or proprietary restriction by a third
party who rightfully possesses and rightfully discloses the information; (d) is
independently developed by the receiving party without any breach of this
Agreement; (e) is the subject of a written permission to disclose provided by
the disclosing party; or (f) is required by law to be disclosed. Customer
further agrees and acknowledges that onthespothosting
may disclose Customer account information in accordance with onthespothosting's AUP and Privacy Policy, located
at http://www.onthespothosting.net, as amended from time to time by onthespothosting effective upon posting of the
revised policy at the URL.
CUSTOMER DATA. Customer is responsible for its
content residing on onthespothosting servers,
and except as otherwise agreed with onthespothosting,
for the backup thereof.
SERVICES
DOMAIN NAME REGISTRATION
A. Bulk
Register Services. onthespothosting
has entered into an agreement with an accredited domain name Bulk Register,
Bulk Register (Bulk Registers) ("Bulk Register") to provide Customer
with domain name registration services, for any requests by Customer to onthespothosting to register an Internet domain
name. As consideration for the domain name registration services provided by
Bulk Register to Customer, on behalf of onthespothosting,
Customer agrees to pay onthespothosting, prior
to the effectiveness of the desired domain name registration, the then-current
amounts set forth in the onthespothosting
price schedule for the initial registration of the domain name and, should
Customer choose to renew the registration, subsequent renewals of the
registration. All fees are non-refundable, even if Customer's domain name
registration is suspended, cancelled or transferred prior to the end of
Customer's then current registration term. onthespothosting reserves the right to change
fees, surcharges, renewal fees or to institute new fees at any time, for any
reason, at its sole discretion. Customer's requested domain name will not be
registered unless and until onthespothosting
has received actual payment of the registration fee, and has confirmed
Customer's registration in an email from onthespothosting
to the email address indicated in Customer's registration application.
B. Cancellation;
Reinstatement. In the event of a chargeback by a credit card company (or
similar action by another payment provider allowed by onthespothosting)
in connection with the payments of the registration fee for Customer's domain
name registration, Customer agrees and acknowledges that the domain name
registration shall be transferred to onthespothosting
as the paying entity for that registration to the registry and that onthespothosting reserves all rights regarding such
domain name including, without limitation, the right to make the domain name
available to other parties for purchase. onthespothosting
will reinstate Customer's domain name registration solely at onthespothosting's discretion, and subject to
receipt of the initial registration or renewal fee and the then-current
reinstatement fee.
C. Renewal.
Customer will be notified when renewal fees are due. Should these fees go
unpaid Customer's registration will be cancelled. Payment must be made by
credit card or such other method as onthespothosting
may indicate in the registration application or renewal form. onthespothosting will renew
Customer's name for Customer provided Customer's credit card or other billing
information is available and up to date, unless Customer instructs onthespothosting otherwise within the time
specified.
D. Transfer.
Customer will be responsible for all costs and fees associated with the
registration of Customer's domain name including, but not limited to, all costs
and fees for moving or transferring such domain name. Under no circumstances
shall onthespothosting be responsible for this
cost.
E. Use
of Personal Information; Updated Information. Bulk Register and/or onthespothosting will collect certain personal
information (including, without limitation, contact information such as name,
address, email address and telephone number) ("Personal Information")
from Customer during the registration process. Customer agrees and acknowledges
that Bulk Register will share Personal Information that Customer provide (or
that is gathered about Customer during the registration process, including, for
example, Customer's primary domain name server and the like), or that Bulk
Register or onthespothosting otherwise
maintains, with one another, with the Internet Corporation for Assigned Names
and Numbers ("ICANN"), with registry administrator(s), and with other
third parties as ICANN and applicable laws and/or policy may require or permit.
Customer further agrees and acknowledges that Bulk Register and/or onthespothosting shall be permitted (and in some
cases may be required) to make publicly available, or directly available to
third party vendors, some, or all, of the Personal Information or domain name
registration information Customer provides, for purposes of inspection (such as
through our WHOIS service) or for targeted marketing and other purposes as
required or permitted by ICANN and applicable laws. Customer may access
Customer's Personal Information and/or domain name registration information in
Bulk Register's or onthespothosting's
possession to review, modify or update such information, through a onthespothosting information maintenance interface
("onthespothosting Interface") that
is accessible on the onthespothosting website.
We will not process data about any identified or identifiable natural person
that we obtain from Customer in a way incompatible with the purposes and other
limitations which we describe in this Agreement. Bulk Register will take
reasonable precautions to protect the information it obtains from Customer from
loss, misuse, unauthorized access or disclosure, alteration or destruction.
Customer hereby irrevocably waives any and all claims and causes of action
Customer may have arising from such disclosure or use of Customer's Personal
Information and/or domain name registration information by Bulk Register or onthespothosting.
F. ICANN
Guidelines. Additionally, Customer acknowledges that ICANN may establish
guidelines, limits and/or requirements that relate to the amount and type of
information that Bulk Register or onthespothosting
may or must make available to the public or to private entities, and the manner
in which such information is made available. Customer hereby consents to any
and all such disclosures and use of, and guidelines, limits and restrictions on
disclosure or use of, information provided by Customer in connection with the
registration of a domain name (including any updates to such information),
whether during or after the term of Customer's registration of the domain name.
G. Third
Party Data. In the event that, in registering the domain name, Customer is
providing information about a third party, Customer hereby represents that
Customer has (1) provided notice to that third party of the disclosure and use
of the party's information as set forth in this Agreement, and (2) that
Customer has obtained that third party's express consent to the disclosure and
use of that party's information as set forth in this Agreement.
H. Accuracy
of Data. Customer acknowledges that willfully providing inaccurate information
or willfully failing to update information promptly will constitute a material
breach of this Agreement and will be sufficient basis for cancellation of
Customer's domain name registration. (In addition, under certain federal laws,
such provision of inaccurate or false information is one factor in determining
whether Customer may have violated the trademark rights of another party in
registering a domain name confusingly similar to such party's trademark.)
Customer further agrees that Customer's failure to respond for over fifteen
(15) calendar days to inquiries by Bulk Register and/or onthespothosting
concerning the accuracy of contact details associated with Customer's
registration shall constitute a material breach of this Agreement and will be
sufficient basis for cancellation of Customer's domain name registration.
I.
Third-Party Proprietary Rights: onthespothosting
makes no representations concerning and does not guarantee that Customer's
domain name does not infringe upon any trademarks, trade names, service marks
or other proprietary rights owned by a third party. Customer agrees to be bound
by the terms of the Domain Name Registration Agreement, Domain Name Dispute
Policy which is posted at http://www.icann.org/udrp, and related agreements that
Customer will be asked to review and indicate Customer's acceptance of during
the domain name registration process.
J. Welcome
Page. Customer consents to onthespothosting's
activation ("parking") of the registered domain name on a
"Welcome Page" containing a notice, "Welcome to my Future
Website." Such "Welcome Page" indicates that onthespothosting
registered the domain name, and links to onthespothosting
websites. This "Welcome Page" may be replaced by the Customer when
the Customer contracts for web hosting and posts Customer's own content.
MISCELLANEOUS
GOVERNING LAW AND JURY TRIAL WAIVER. The validity, interpretation,
enforceability, and performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of
ENFORCEMENT OF AGREEMENT
In the event it is necessary for onthespothosting
to enforce its rights under this agreement, Customer agrees to pay all fees incurred
by onthespothosting (including, but not
limited to, attorney's fees and collection agency fees)
AMENDMENT OR WAIVER
Except as otherwise provided herein, this Agreement may not be amended except
upon the written consent of Customer and an officer of onthespothosting.
No failure to exercise and no delay in exercising any right, remedy, or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, or power provided
herein or by law or in equity. The waiver by any party of the time for
performance of any act or condition hereunder shall not constitute a waiver of
the act or condition itself.
ASSIGNMENT AND SEVERABILITY
This Agreement shall be binding upon and inure to the benefit of Customer, onthespothosting and their respective successors,
and assigns. Customer may not assign this Agreement without the prior written
consent of onthespothosting, which consent
will not be unreasonably withheld. If any provision of this Agreement shall be
held by a court of competent jurisdiction to be invalid, unenforceable, or
void, the remainder of this Agreement shall remain in full force and effect.
NOTICES
All notices to Customer hereunder shall be given at the Billing Address
provided on the signature page hereto. All notices to onthespothosting
hereunder shall be given to:
onthespothosting
Attention: Legal Department
1814 Holland Brook Rd
Suite 127
Neshanic Station NJ 08853
Any notice hereunder shall be in writing and shall be given by registered,
certified or Express mail, or reliable overnight courier addressed to the
addresses in this Agreement, or by confirmed e-mail or facsimile. Notice shall
be deemed to be given upon the earlier of actual receipt or five (5) days after
it has been sent, properly addressed and with postage prepaid.
ENTIRE AGREEMENT
This Agreement, and any other document or agreements specifically identified in
this Agreement, supercedes all previous representations, understandings or
agreements and represent the entire agreement between the parties hereto.
ACCEPTANCE OF SERVICES
ACTIVATION OF SERVICE SHALL INDICATE onthespothosting'S
ACCEPTANCE OF THIS AGREEMENT. USE OF THE onthespothosting
NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT BY THE CUSTOMER.
CUSTOMER represents and warrants that Customer has full authority and right to
enter into this Agreement. Customer further represents and warrants that
Customer is at least 18 years of age.