This document sets forth the guidelines, principles and requirements of the hosting agreement. Advomatic provides elite hosting services, and has enacted these policies in the best interests of both parties. Because of the volatile nature of the industry, and in consideration of the client not being “locked-in” to a long-term agreement, Advomatic retains many rights, including the right to unilaterally modify this agreement from time to time. Any modification will be published at http://www.advomatic.com/hosting/tos.
Use of Advomatic's services constitutes an acceptance of this agreement and binds the client to the terms of the most current version of this document available at http://www.advomatic.com/hosting/tos. This document represents the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
§1 Services.
Advomatic agrees to provide hosting in accordance with the terms of the Agreement. The Hosting Service includes:
(i) Support: A Technician will be on call 24/7 to provide a good faith effort to resolve issues involving the health of your site.
(ii) Maintenance: Advomatic will provide its best effort to maintain your service at peak performance. Maintenance includes: system administration, human-verified data backup, security audits, software updates, log rotations and installing security patches to make sure your data is safe.
(iii) Bandwidth and resource utilization: Bandwidth and resource utilization, by its nature, is subject to a number of differing and/or additional factors. Due to the extreme variation of web application and site design it is difficult to determine how any particular site should be able to perform given a set amount of resources. Advomatic provides a generous amount of data transfer to our customers. The allowed amount of monthly bandwidth is continually tracked and determined by our estimate of the resources your site will use. Customers will not be charged for the bandwidth consumed, nor do we have specific limits or caps on bandwidth. If Advomatic determines the Client's site requires more resources, we will negotiate a new monthly fee. Generally, spikes in usage are not charged to the Client. If the site utilizes any services in a manner which consumes excessive bandwidth or affects Advomatic's core equipment (including, but not limited to CPU processing, memory usage and network resources), overall network performance, or other users' services, Advomatic may require that you cease or alter these activities. Advomatic will be the sole arbiter of what is considered to be an excessive amount of service resource utilization.
(iv) The large-scale storage and distribution of audio, video and other large files via the Advomatic network is strongly discouraged. Subject to section 13 of this agreement, Advomatic is willing to work with third party vendors to insure that all large file hosting concerns are met.
(v) Advomatic reserves the right to either throttle the site's bandwidth usage or suspend the site at it's sole discretion.
§2 Length of Service
This agreement begins on commencement of services and renews monthly until the client provides Advomatic with thirty (30) days notice of termination to hosting@advomatic.com
§3 Payments & Fees.
Client agrees to pay a monthly fee for the services. The monthly fee will be mutually determined by Advomatic and the Client, the amount invoiced by Advomatic, and paid by the Client. Client's payment of the invoiced amount shall constitute Client's acceptance and agreement of that amount as the monthly fee.
Advomatic may require payment in full of its first invoice before beginning the service. Following the Service Commencement Date, monthly recurring fees shall be invoiced in advance, and are due upon receipt. Invoices for Supplemental Services, excess data transfer, reinstatement of service, and other non-recurring amounts are due upon receipt. Advomatic may charge interest on amounts that over due by ten (10) days. Advomatic may suspend any or all services if payment for any service is overdue. Fees not disputed within thirty (30) days of due date shall be deemed accurate. Client agrees to pay Advomatic reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
§4 Client Obligations.
The client is responsible for taking reasonable security precautions in connection with its use of the services.
§5 Suspension of Service.
ADVOMATIC IS NOT OBLIGATED TO PROVIDE ADVANCED NOTICE OF ACCOUNT SUPENSION DUE TO VIOLATION OF THIS AGREEMENT AND MAY AT ITS DISCRETION SUSPEND OR TERMINATED FOR ANY REASON WITHOUT LIABILITY.
§6 Warranties
The client represents and warrants to Advomatic, that:
(i) it has the power and authority and the legal right to enter into the Agreement and to perform its obligations under the Agreement;
(ii) it has taken all necessary action on its part to authorize the execution and delivery of the Agreement;
(iii) the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents; and,
(iv) the information client has provided and will provide to Advomatic for purposes of establishing and maintaining the Services is accurate;
§7 Uptime Assurance Coverage & Limitation
This section provides the performance objectives and commitments for availability, latency and packet loss.
(i) Network Availability: Advomatic guarantees that its network will function 100% of the time. In the event that service is disrupted due to circumstances caused by or in the control of Advomatic, and if Advomatic cannot correct the problem within twenty (20) minutes of its identification, Advomatic will issue credits to the client for Network outages in an equal amount to one day's worth of the monthly fee paid by the Customer, multiplied by each hour (or portion thereof rounded to the next hour) of the cumulative duration of such network outages during a particular month.
(ii) Service Availability: Advomatic Assures service availability of 99% during any 1-month period, the following limitation of coverage applies: Server reboots, scheduled server maintenance, CPU / Memory / HDD failures, RAID cluster failures, Registry DNS outages or Registrar DNS failures, Denial of Service attacks, Acts of God and War. Advomatic will refund 5% of the monthly fee for each hour of downtime during guaranteed service availability up to 100% of the monthly fee. Downtime is measured from the time the server is 100% unreachable until service is once again restored.
(iii) Support Response Time: For non-outage support requests, initial response time is within one business day, with updates weekly, and a resolution goal of less than one week. For urgent support requests (service is slow, partially available and affecting 50% or more end users) initial response time is within 30 minutes, with updates at least every two hours, and a resolution goal of 3 hours. For emergency support requests (service is totally unavailable, causing serious disruption to 50% or more end users) initial response is within 20 minutes, updates every hour, and a resolution goal of two hours.
(iv) Other: The upper limit of credits is the monthly fee paid by the customer, and customers will be asked to claim any credits from Advomatic within 7 days of the minimum uptime standards breach. Violation of any section of this Agreement will result in refund ineligibility.
§8 Indemnification
The client agrees to indemnify and hold harmless Advomatic, Advomatic’s affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to:
(i) The actual or alleged use of the Services in violation of any other portion of the Agreement or applicable law, by any person regardless of whether such person has been authorized to use the Services by client, except for unauthorized use that results from Advomatic’s failure to perform its obligations under the Agreement, or
(ii) Any dispute regarding the control of client’s account with Advomatic.
Amounts due under this Section shall be paid as incurred and may be offset against other amounts due under the Agreement. Client shall be responsible for determining and obeying applicable laws or regulations. The parties agree that the indemnification obligations defined in this Section shall be in lieu of and supersede any indemnification obligations that may otherwise exist by law.
§9 Disclaimer.
THE CLIENT ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT'S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY. ALL GOODS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. UNLESS HARM WAS CAUSED BY ADVOMATIC’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF ADVOMATIC AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAID BY CLIENT FOR THE HOSTING SERVICE FOR THE THREE MONTHS PRIOR TO THE OCCURENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM. NO CLAIM MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT OR OMISSION THAT OCCURRED MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.
§10 Confidentiality
Each party agrees not to disclose the other’s confidential information to any third party except to its service providers, agents and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement and provided that such service providers, agents and representatives are bound by confidentiality restrictions at least as stringent as those stated in the Agreement. Confidential information includes but is not limited to:
(i) Advomatic’s unpublished prices for services, audit and security reports, server configuration designs and other proprietary technology,
(ii) with respect to client, content transmitted to or from, or stored by client on, Advomatic’s servers,
(iii) and with respect to both parties, other information that is marked as “confidential” or is verbally designated as “confidential” at the time of disclosure.
§11 Use of Client’s Name and Marks.
Client agrees that Advomatic may publicly disclose that Advomatic is providing services to client and may include client’s name in promotional materials, press releases, and Advomatic’s Web site.
§12 Software Licenses
Client agrees to all rules and regulations dictated by the licenses (including “open source) that govern the use of applicable software.
§13 Third Parties
Client’s use of third party software, services, and other products is governed by the terms of any license or other agreement between client and the third party. ADVOMATIC MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING THIRD PARTY PRODUCTS AND SERVICES.
§14 Notice
Notices to Advomatic under the Agreement shall be sent to hosting@advomatic.com. Notices are deemed received on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered.
§15 Miscellaneous.
(i) Solicitation of Advomatic Employees. Client agrees that it shall not solicit any Advomatic employee with whom client has had direct contact in connection with this Agreement for employment with client or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement. In the event of a violation of this provision, in addition to any other right Advomatic may have at law or in equity, client shall make a one-time payment to Advomatic in the amount of fifty percent (50%) of the employee’s base salary for one year.
(ii) Ownership. Each party acknowledges and agrees that the other party retains ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property, and that Advomatic shall control any intellectual property that it may develop in the course of performing the Services. Client does not acquire any ownership interest or rights to possess Advomatic’s server(s) or other hardware, and has no right of physical access to the hardware.
(iii) Shell Access. The client does not have the right to command line access
(iv) Upon termination of the agreement, client agrees to promptly release any Internet protocol numbers, addresses or address blocks assigned to client in connection with the Service (but not any URL or top level domain or domain name) and agrees that Advomatic may take steps to change or remove any such IP addresses.
§16 Arbitration:
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered in New York, New York by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules [including the Emergency Interim Relief Procedures], and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator selected by the claimant and the arbitrator selected by respondent shall, within 10 days of their appointment, select a third neutral arbitrator. In the event that they are unable to do so, the parties or their attorneys may request the American Arbitration Association to appoint the third neutral arbitrator. Prior to the commencement of hearings, each of the arbitrators appointed shall provide an oath or undertaking of impartiality. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties
§17 Non-Waiver.
Either Parties failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. Either Parties waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
§18 Survival.
The following provisions will survive termination of hosting: fees, indemnity obligations, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, arbitration and other provisions that by their nature are intended to survive termination of the Agreement.
§19 Severability.
In the event any term of this Agreement is held unenforceable by an arbitration panel, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
§20 Non-Exclusive
This Agreement is non-exclusive. Advomatic may provide service to any person or organization, including a competitor of client.
§21 Assignment.
Client may not transfer or assign this agreement without Advomatic’s prior written consent.
§22 Relationship of Parties.
No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.
§23 Acceptable Use
The client shall not post, transmit, re-transmit or store material which, in the sole judgment of Advomatic (i) violates any local, state, federal or other binding law or regulation, (ii) is threatening, obscene, indecent, defamatory (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property. Advomatic reserves the right, at its sole discretion, to make a determination of what constitutes abuse and the client agrees that Advomatic determination is final and binding upon the client.
