AVATAR, LLC HOSTING SERVICES TERMS AND CONDITIONS
These Terms of Service are incorporated by reference into any mutually agreed Master Services Agreement, AVATAR quotation, order form, statement of work or other document executed by AVATAR and Customer referencing these Terms of Service (each in effect a “Service Contract”). Each Service Contract shall be governed by these Terms and Conditions. Customer warrants that the individual executing the Service Contract is a duly authorized representative of Customer and understands that these Terms and Conditions are incorporated into all agreements between AVATAR and Customer.
Hosting Services and Fees; Term and Termination
1.1 Hosting Services. Pursuant to the terms and conditions set forth in this Agreement, AVATAR will provide Customer with the hosted software services. The Hosting Services will allow Customer to launch and maintain Business Websites on their computers, smart phones and tablets. Customer must provide, at its own expense, the necessary hardware and software required to establish and access the Hosting Services.
1.2 Fees. Customer shall pay for the Hosting Services in accordance with the fee schedule. These fees shall be fixed for Initial Term, after which point they are subject to change by AVATAR upon thirty (30) days’ notice to Customer. If Customer objects to a price change, it may terminate this Agreement in accordance with Section 1.7(c).
1.3 Payment Terms. Customer shall be billed quarterly or annually for the Hosting Services. recurring charges shall be billed in advance, and non-recurring charges (such as charges for excess bandwidth usage or for additional users), shall be billed in arrears. All payments shall be due upon Customer’s receipt of the invoice. Any amount not paid within thirty (30) days of the invoice date shall accrue interest at the rate of one and one-half percent (1½%) per month (or the highest rate allowed by law, whichever is lower), until paid. If Customer is delinquent in its payments, AVATAR may, upon written notice, modify these payment terms to require receipt of full payment before the Hosting Services will be provided, or other assurances from Customer to ensure that Customer will fulfill its payment obligations under this Agreement.
1.4 Taxes. Customer shall pay all taxes (if any) incurred in connection with, or as a result of, this Agreement or AVATAR’s provision of the Hosting Services, except taxes based on AVATAR’s net income.
1.5 Term. AVATAR shall initially provide the Hosting Services for the Initial Term set forth in Customers Master Services Agreement or similar document. This Initial Term shall then automatically be renewed for successive one (1) year intervals (each a “Renewal Term”) until terminated by the parties in accordance with Section 1.6 or Section 1.7.
1.6 Termination Without Cause. Either party may terminate this Agreement, without cause, as of the end of the Initial Term or any Renewal Term by giving the other party thirty (30) days prior written notice. Either party may also terminate this Agreement without cause during the Initial Term or any Renewal Term by giving the other party written notice to that effect at least sixty (60) days prior to the effective termination date.
1.7 Termination With Cause.
(a) Either party may terminate this Agreement immediately upon written notice to the other if the other party discontinues its normal business operations, becomes subject to a bankruptcy proceeding or the appointment of a receiver, or makes an assignment for the benefit of creditors.
(b) Either party may terminate this Agreement in the event of a material breach by the other party; provided that the non-breaching party gives the breaching party thirty (30) days written notice of its intention to terminate for cause specifying the breach, and this breach is not cured within the thirty (30) day notice period. During the notice period the non-breaching party shall have the right to suspend its performance under this Agreement.
(c) Customer may terminate this Agreement as of the effective date of any fee increase proposed by AVATAR in accordance with Section 1.2; provided that Customer gives AVATAR written notice to that effect with ten (10) days after receipt of notice of the fee increase from AVATAR.
(d) Customer may terminate this Agreement pursuant to Section 4.3 in the event of excessive downtime.
(e) Notwithstanding Section 1.7(b) hereof, AVATAR may terminate this Agreement and suspend the Hosting Services without notice in the event that Customer fails to pay any amounts due AVATAR hereunder when due.
1.8 Effect of Termination. Upon the termination of this Agreement for any reason, AVATAR shall have no further obligation to provide the Hosting Services to Customer or to maintain Customer’s data. Customer shall pay AVATAR for any Hosting Services rendered and billed in arrears through the date of Termination.
1.9 Intellectual Property Rights. Customer shall not obtain any rights in any software, technology, know-how, methodologies, trade secrets, or other intellectual property used in connection with the Hosting Services; nor shall AVATAR obtain any rights in any of Customer’s technology, know-how, methodologies, trade secrets, or other intellectual property. Provided, however, that to the extent it is necessary for AVATAR to access Customer’s software or data in order to better provide the Hosting Services, AVATAR shall have a nonexclusive royalty-free license during the term of this Agreement to use such software or data solely for the purposes of providing the Hosting Services to Customer. Customer shall have no right to use AVATAR’s software or data for any purpose other than in connection with the Hosting Services. Customer may not (a) copy or distribute any portion of the software made available to it through the Hosting Services, (b) rent, lease, or sublease access to the Hosting Services, (c) modify or attempt to modify, translate, distribute or prepare any derivative works based on any portion of the Hosting Services, (d) reverse engineer, decompile or dissemble any portion of any software made available to Customer as part of the Hosting Services, or (e) remove or modify any labels, notices or marks from any portion of the Hosting Services.
Non-Disclosure of Confidential Information
2.1 Definition of Confidential Information.
(a) For purposes of this Agreement, the term “Confidential Information” shall mean non-public information that either party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential. Confidential Information disclosed to a party by any employee, agent, representative, or affiliate of the other party is covered by this Agreement.
(b) Confidential Information shall not include any information that: (i) is or subsequently becomes publicly available without a breach of any obligation of confidentiality owed to a party under this Agreement or by any third party; (ii) was already known to a party prior to the other party’s disclosure of such information; (iii) became known to a party from a source other than the other party and other than by a breach of an obligation of confidentiality owed to the party by such source; or (iv) is independently developed by a party.
2.2 Restrictions on the Disclosure and Use of Confidential Information.
(a) Neither party shall disclose any Confidential Information to third parties for at least five (5) years following the date of its disclosure. Provided, however, that a party may disclose Confidential Information to its professional advisors on a need to know basis if such advisors have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither party shall use any Confidential Information except in as expressly permitted by, or as required to achieve the purposes of, this Agreement.
(b) Notwithstanding anything contained in Section 2.2(a) to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by statute. Provided, however, that a party so disclosing Confidential Information (the “Disclosing Party”) shall give the other party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party shall comply with any protective order or equivalent relating to the Confidential Information. In the event such a protective order is not obtained, the Disclosing Party agrees to use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law is disclosed.
(c) Each party shall take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to keep confidential the Confidential Information.
(d) Neither party may reverse engineer, de-compile, or disassemble any software or hardware of the other party disclosed to it pursuant to this Agreement, regardless of whether or not such software or hardware is considered Confidential Information.
3.1 Definition of Customer Content. For purposes of this Agreement, the term “Customer Content” shall mean any and all data, text, multimedia images (e.g., graphics and audio and video files), and other materials and information supplied by Customer for which the Hosting Services provide access to by Customer and others over the Internet.
3.2 Rights to Customer Content. All Customer Content shall be the property of Customer, and AVATAR shall have no right, title, or interest in the Customer Content. Subject to the last sentence of Section 3.3, Customer shall have the exclusive right and obligation to control and modify the Customer Content.
3.3 Warranties Regarding Customer Content. Customer represents and warrants that the Customer Content: (a) does not infringe or violate the rights of any third party (including, but not limited to, patents, copyrights, trademarks, trade secrets and rights of publicity); (b) is not defamatory or obscene; and (c) does not violate any other applicable law. AVATAR shall have the right (but not the obligation) to delete any material installed on a AVATAR server or to limit or terminate access to AVATAR servers which contain Customer Content which AVATAR believes in good faith breaches any of the warranties contained in this Section 3.3. Customer understands and acknowledges that AVATAR does not monitor the content passing through its servers, and that it is Customer’s sole responsibility to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations and does not infringe upon the rights of any third party. Customer shall be solely responsible for the Customer Content. In no event shall AVATAR be responsible for the Customer Content or its accuracy or completeness. AVATAR shall not be responsible for the loss of any Customer Content.
Limited Performance Warranties
4.1 General Performance Warranty. AVATAR represents and warrants that it will perform the Hosting Services in a good and workmanlike manner, consistent with industry standards. AVATAR DOES NOT WARRANT THAT THE HOSTING SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. AVATARDOES NOT WARRANT THAT THE HOSTING SERVICES, OR ITS SOFTWARE, WILL MEET THE CUSTOMER REQUIREMENTS, OR THAT THE HOSTING SERVICES, OR THE SOFTWARE, WILL BE FIT FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE HOSTING SERVICES.
4.2 Site Monitoring Obligations. AVATAR regularly monitors the availability and operation of its production hardware and software. This monitoring service automatically checks each device several times an hour, and notifies multiple AVATAR staff members if a device is found to be unavailable or inoperable. AVATAR will continue to use this or a comparable third party service, or other in-house methods with similar functionality, to ensure that it can respond to problems with its hardware or software that might interfere with the Hosting Services. Customer is solely responsible for site functionality, which is not regularly monitored by AVATAR.
4.3 Excessive Downtime.
(a) In the event of “Excessive Downtime,” Customer may terminate this Agreement without penalty by notifying AVATAR within five (5) days following the end of the calendar month in which the Excessive Downtime occurred. Such termination shall be effective as of the end of the month in which the termination notice was given.
(b) For purposes of this Agreement, Customer will be considered to have suffered “Excessive Downtime” if (subject to the last sentence of this Section 4.3(b) and Section 4.4): (i) Customer experiences more than ten (10) downtime periods of fifteen (15) minutes or more resulting from three (3) or more downtime events during a calendar month; or (ii) Customer experiences more than twenty-four (24) consecutive hours of downtime due to any single downtime event. Any packet loss or network unavailability during scheduled maintenance shall not be considered “downtime,” so long as Client is given reasonable advance notice of such maintenance, and such maintenance does not last longer than commercially reasonable.
4.4 Problems Caused by Third Parties. Customer understands and acknowledges that the Hosting Services are provided, in part, through the Internet and other computer networks AVATAR’s control. Consequently, actions or inactions of third parties have the ability to impair or disrupt the Hosting Services. AVATAR will take commercially reasonable efforts to avoid such events, but it cannot guarantee that such events will not occur. Consequently, AVATAR shall not be liable for any downtime or other problems with the Hosting Services that are due to factors beyond its reasonable control.
4.5 No Liability in Connection With Data Accessed Through Hosting Services. AVATAR shall not be liable to Customer or any third party in connection with any damages or problems caused by the data or other information accessed by Customer or Customer’s users through the Hosting Services, including any damage to Customer’s computer systems or loss or corruption of data caused by computer viruses contained in such accessed data or information.
4.6 No Liability For Transactions Conducted Through Hosting Services. AVATAR shall not be liable to Customer or any third party in connection with any damages or problems resulting from electronic commerce transactions conducted through the Hosting Services or otherwise for any damages or problems resulting from the Customer Content.
4.7 Exclusive Remedy. Section 1.6 and Section 1.7 set forth Customer’s sole and exclusive remedy in the event of any problems with, or if Customer is dissatisfied with, the Hosting Services. In no event shall AVATAR be liable to Customer for the cost of replacement services or any other monetary damages in connection with a failure to properly perform the Hosting Services.
4.8 No Other Warranties. The warranties set forth in this Article 4 are AVATAR’s only warranties regarding the Hosting Services. OTHER THAN THE WARRANTIES SET FORTH IN THIS ARTICLE 4, THE HOSTING SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.1 Compliance With Law. Customer warrants that the use of the Hosting Services by it and its users will not violate any applicable law (including U.S. laws restricting the transmission of certain technical information to foreign countries), or the rights of any third party. Customer and its users shall only use the Hosting Services for lawful purposes and in accordance with this Agreement.
5.2 No Resale of Hosting Services. Customer shall not, without the prior written consent of AVATAR (which may be withheld in its sole discretion or conditioned on the payment of additional fees), resell the Hosting Services to any third party.
5.3 Compliance With Member Terms of Service. Customer shall fully comply with the AVATAR Member Terms of Service set forth on Exhibit B, as may be amended by AVATAR from time to time on ten (10) days’ notice to Customer (the “Usage Rules”). Such notice may be in writing, by e-mail, or by posting the changes on a start-up screen in connection with Customer’s use of the Hosting Services. Customer shall have the right not to accept new Usage Rules, provided that it gives AVATAR written notice of its rejection within twenty (20) days after its receipt of notice of the new Usage Rules. In such an event, Customer shall continue to be bound by the Usage Rules then applicable to Customer. If Customer does not provide AVATAR with written notice of its rejection of the new Usage Rules within twenty (20) days, it shall be deemed to have accepted the new Usage Rules and agreed to be bound by them. The Usage Rules contain restrictions on Customer’s and Customer’s users’ online conduct, and may impose penalties for violations of such restrictions. Customer agrees to comply with the Usage Rules and accept any penalties imposed by AVATAR in connection with Customer’s or Customer’s users’ failure to abide by the Usage Rules.
5.4 Suspension of Hosting Services. In the event of a material breach by Customer of Section 5.1, Section 5.2, or Section 5.3, in addition to any other remedies available at law or in equity, AVATAR shall have the right to immediately suspend the Hosting Services if, in its reasonable discretion, such an action might prevent a material harm to AVATAR or any third party.
5.5 Prohibited Uses. In addition to other prohibitions as set forth in the Terms of Service, Customer is prohibited from using the Services (i) for any unlawful purpose; (ii) to solicit others to perform or participate in any unlawful acts; (iii) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (iv) to infringe upon or violate AVATAR’s intellectual property rights or the intellectual property rights of others; (v) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (vi) to submit false or misleading information; (vii) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services or of any related website, other websites, or the Internet; (viii) to collect or track the personal information of others; (ix) to spam, phish, pharm, pretext, spider, crawl, or scrape; (x) for any obscene or immoral purpose; or (xi) to interfere with or circumvent the security features of the Services or any related website, other websites, or the Internet. AVATAR reserves the right to terminate Customer’s use of the Services or any related website for violating any of the prohibited uses.
5.6 Indemnification. Customer agrees to indemnify, defend, and hold harmless the AVATAR and it’s respective parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Customer’s breach of these Terms and Conditions, the documents they incorporate by reference, such party’s violation of any law, or the rights of a third-party.
6.1 Exclusion of Consequential Damages. Not in limitation of Section 4.7, but except in connection with a breach of Section 2.2, each party’s liability under this Agreement shall be limited to the other’s direct and actual damages. Except in connection with a breach of Section 2.2, in no event shall either party be liable to the other for consequential, incidental, special, or indirect damages (including, without limitation, lost profits, lost reimbursements, lost data (including Customer Content), or lost savings), even if such party was advised of the possibility of the occurrence of such damages.
6.2 Independent Contractor. AVATAR is an independent contractor, and nothing in this Agreement shall be construed to create a joint venture, partnership, or agency relationship between the parties. AVATAR shall be solely responsible for the withholding and payment of all taxes and insurance premiums owed by its employees.
6.3 Entire Agreement/Modifications. This Agreement supersedes all prior negotiations and agreements between the parties, and constitutes their entire understanding, with respect to the subject matter contained herein. This Agreement may not be modified except by a writing signed by both parties subsequent to this Agreement.
6.4 Assignability. Except with respect to a successor to its business or purchaser of all or substantially all of its assets, neither party may assign any of its rights or obligations under this Agreement without the written consent of the other, and any attempt to do so shall be void.
6.5 Application of Ohio Law and Venue. This Agreement, and its application and interpretation, shall be governed exclusively by its terms and by the internal laws of the State of Ohio. Any action relating to this Agreement shall be brought exclusively in a federal or state court sitting in Lucas County, Ohio, and the parties hereby submit to the personal jurisdiction of such courts.
6.6 Attorneys’ Fees. The prevailing party in any action brought in connection with this Agreement shall be entitled to recover its costs and reasonable attorneys’ fees from the non-prevailing party.
6.7 Force Majeure. Neither party shall be liable for any delays or failures to perform due to acts of God or other circumstances beyond its control which could not have been avoided by the exercise of due care; provided that the delayed party gives the other party prompt notice of the delay and its cause, and uses commercially reasonable best efforts to promptly correct such delay or failure of performance.
6.8 Construction. When required by the context, whenever the singular number is used in this Agreement the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa.
6.9 Headings. The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions.
6.10 Waivers. The failure of any party to seek redress for the violation of, or to insist upon the strict performance of, any covenant or condition of this Agreement shall not prevent a subsequent act that originally would have constituted a violation from having the effect of an original violation.
6.11 Severability. If any provision of this Agreement, or its application to any person or circumstance, shall be found invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected, and shall remain enforceable to the fullest extent permitted by law.
6.12 Heirs, Successors, and Assigns. Each of the covenants, terms, provisions, and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns.
Copyright © 2022 AVATAR, LLC
1301 North Summit Toledo OH 43604