|
Terms of Service
Control Panel
This Services Agreement ("Agreement") governs your purchase and use, in
any manner, of all Web site hosting services as described in the Order
Form (the "Services"), ordered by you and accepted by Lobux Hosting and
describes the terms and conditions that apply to such purchase and use
of the Services.
BY CLICKING ON THE "I AGREE PLEASE
SUBMIT" BUTTON, AND REGISTERING FOR AND USING THE SERVICES, YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND
BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL
ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE. Lobux Hosting
reserves the right to change or modify any of the terms and
conditions contained in this Agreement, the Addendum and any policy
or guideline incorporated by reference at any time and from time to
time in its sole discretion, and to determine whether and when any
such changes apply to both existing or future customers. Any changes
or modification will be effective upon posting of the revisions on
the Lobux Hosting Web site (the "Site"). Lobux Hosting will post a
notice of such changes or modifications to this Agreement or the
Addendum on the Site for thirty (30) days. Lobux Hosting may post
changes or modifications to referenced Acceptable Use Policies
without notice to you. Your continued use of Services following
Lobux posting of any changes or modifications will constitute your
acceptance of such changes or modifications. IF YOU DO NOT AGREE TO
THE TERMS OF THIS AGREEMENT , DO NOT CLICK THE "I ACCEPT PLEASE
SUBMIT" BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF ANY
MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY
NOTIFY Lobux Hosting OF YOUR TERMINATION OF THIS AGREEMENT.
1.Term and Payment for Services 1.1. Term. This Agreement shall be
for an "Initial Term" as chosen by you in the Order Form located on
this Site at the time you register for the Services. This Agreement
will be automatically renewed (the "Renewal Term") at the end of the
Initial Term for the same period as the Initial Term unless you
provide Lobux Hosting with notice of termination thirty (30) days
prior to the end of the Initial Term or the Renewal Term. Any notice
of termination will be effective following thirty (30) days after
Lobux Hosting' receipt thereof.
1.2. Termination Policy. If you terminate your receipt of the
Services prior to the end of the Initial Term or the Renewal Term,
whichever is then applicable, (a) Lobux Hosting will not refund to
you any fees paid in advance of such termination and (b) you shall
be required to pay 100% of Lobux Hosting' standard monthly charge
for each month remaining in the term, unless otherwise expressly
provided in this Agreement. Notwithstanding the foregoing, if you
terminate your receipt of Shared Hosting Services prior to the end
of the first thirty (30) days of the Initial Term, you are entitled
to a refund of the fees you paid in advance for the monthly
Services, not including any set-up fees. Your termination request or
notice must be submitted to Lobux Hosting.
Lobux Hosting may terminate this Agreement at any time and for any
reason . If Lobux Hosting terminates this Agreement, Lobux Hosting
will refund to you the prorata portion of prepaid fees attributable
to Services (excluding set-up fees) not yet rendered as of the
termination date unless otherwise expressly provided in this
Agreement.
1.3 Default and Cure. In the event that either party hereto defaults
in the performance of any of its material duties or obligations
under this Agreement, including failure to make any payments due
under this Agreement, and such default is not cured within fifteen
(15) days after written notice is given to the defaulting party
specifying the default, then the party not in default, after given
written notice thereof to the defaulting party, may terminate this
Agreement.
1.4. Charges. You agree to pay for all charges attributable to your
use of the Services at the then current Lobux Hosting prices, which
shall be exclusive of any applicable taxes. You are responsible for
the payment of all federal, state, and local sales, use, value
added, excise, duty and any other taxes assessed with respect to the
Services, other than taxes based on Lobux Hosting' net income.
1.5. Payment. All charges for Services must be paid in advance
according to the then current prices applicable to the Services.
Upon entering this Agreement, you must choose to pay either by
direct charge to a credit card or paypal. If you choose to pay by
credit card upon registering for the Services, you thereby authorize
Lobux Hosting to charge your credit or debit card to pay for any
charges that may apply to your account. You agree that Lobux Hosting
may accumulate any supplemental charges, incurred by you in your use
of the Services ("Add on's and Extras") until such charges exceed $1
and then charge your account. You must notify Lobux Hosting of any
changes to your card account (including, without limitation,
applicable account number or cancellation or expiration of the
account), your billing address, or any information that may prohibit
Lobux Hosting from charging your account. If you choose to be
invoiced upon registration for Services, Lobux Hosting will send an
invoice to you for the Services applicable to the period for which
you have registered for the Services. Lobux Hosting may also send
periodic invoices to you for any applicable Supplemental Charges
associated with your use of the Services. You agree to pay to Lobux
Hosting the amount indicated in each invoice by the due date
reflected on the invoice. If you fail to pay any fees and taxes
within ten (10) days from applicable due date for credit card or
invoice payments, late charges of the lesser of one and onehalf per
cent (1.5%) per month or the maximum allowable under applicable law
shall also become payable by you to Lobux Hosting. In addition, your
failure to fully pay any fees and taxes within fifteen (15) days
after the applicable due date will be deemed a material breach of
this Agreement, justifying Lobux Hosting' suspension of its
performance of the Services and/or termination of this Agreement.
You are responsible for any fees associated with reinstatement of
Services. Any such suspension or termination would not relieve you
from paying past due fees plus interest. In the event of collection
enforcement, you will be liable for any costs associated with such
collection, including, without limitation, reasonable attorneys'
fees, court costs and collection agency fees.
2. Use of Services
2.1. Applicable Use Policy. The Lobux Hosting Acceptable Use Policy
(the "Usage Policy") govern the general policies and procedures for
use of the Services. The Usage Policy is posted on Lobux Hosting'
Web site (or such other location as Lobux Hosting may specify) and
may be updated from timetotime. YOU SHOULD CAREFULLY READ THE USAGE
POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF
THE USAGE POLICY AND ANY MODIFICATIONS. Lobux Hosting RESERVES THE
RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE
POLICY OR THIS AGREEMENT.
2.2. Material and Product Requirements. Unless we have agreed
otherwise in a separate agreement, you must ensure that all material
and data placed on Lobux Hosting' equipment is in a condition that
is "serverready," which is in a form requiring no additional
manipulation by Lobux Hosting. Lobux Hosting will make no effort to
validate any of this information for content, correctness or
usability. If your material is not "server-ready", Lobux Hosting has
the option at any time to reject this material. Lobux Hosting will
notify you of its refusal of the material and afford you the
opportunity to amend or modify the material to satisfy the needs
and/or requirements of Lobux Hosting. Use of the Services requires a
certain level of knowledge in the use of Internet languages,
protocols and software. This level of knowledge varies depending on
the anticipated use and desired content of your Web site. You must
have the necessary knowledge to create and maintain a Web site. It
is not Lobux Hosting' responsibility to provide this knowledge or
customer support outside of the Services agreed to by you and Lobux
Hosting.
2.3. Bandwidth and Storage Usage. You agree that use of the Services
under this Agreement will not exceed the bandwidth and storage usage
limits set out. If you use any bandwidth or storage space in excess
of the agreed upon number of megabytes per month, you agree to pay
the associated additional charges.
3 Enforcement
3.1. Investigation of Violations. Lobux Hosting may investigate any
reported or suspected violation of this Agreement, its policies or
any complaints and take any action that it deems appropriate and
reasonable under the circumstance to protect its systems,
facilities, customers and/or third parties. Lobux Hosting will not
access or review the contents of any e-mail or similar stored
electronic communications except as required or permitted by
applicable law or legal process.
3.2. Actions. Lobux Hosting reserves the right and has absolute
discretion to restrict or remove from its servers any content that
violates this Agreement or related policies or guidelines, or is
otherwise objectionable or potentially infringing on any third
party's rights or potentially in violation of any laws. If we become
aware of any possible violation by you of this Agreement, any
related policies or guidelines, third party rights or laws, Lobux
Hosting may immediately take corrective action, including, but not
limited to, (a) issuing warnings, (b) suspending or terminating the
Service, (c) restricting or prohibiting any and all uses of content
hosted on Lobux Hosting' systems, and/or (d) disabling or removing
any hypertext links to thirdparty Web sites, any of your content
distributed or made available for distribution via the Services, or
other content not supplied by Lobux Hosting which, in Lobux Hosting'
sole discretion, may violate or infringe any law or third party
rights or which otherwise exposes or potentially exposes Lobux
Hosting to civil or criminal liability or public ridicule. It is
Lobux Hosting' policy to terminate repeat infringes. Lobux Hosting'
right to take corrective action, however, does not obligate us to
monitor or exert editorial control over the information made
available for distribution via the Services. If Lobux Hosting takes
corrective action due to such possible violation, Lobux Hosting
shall not be obligated to refund to you any fees paid in advance of
such corrective action.
3.3. Disclosure Rights. To comply with applicable laws and lawful
governmental requests, to protect Lobux Hosting' systems and
customers, or to ensure the integrity and operation of Lobux
Hosting' business and systems, Lobux Hosting may access and disclose
any information it considers necessary or appropriate, including,
without limitation, user profile information (i.e., name, email
address, etc.), IP addressing and traffic information, usage
history, and content residing on Lobux Hosting' servers and systems.
Lobux Hosting also reserves the right to report any activity that it
suspects violates any law or regulation to appropriate law
enforcement officials, regulators, or other appropriate third
parties. 4. Intellectual Property Rights
4.1. Your License Grant to Lobux Hosting. You hereby grant to Lobux
Hosting a non-exclusive, worldwide, and royalty-free license for the
Initial Term and any Renewal Term to use your content as necessary
for the purposes of rendering and operating the Services to you
under this Agreement. You expressly (a) grant to Lobux Hosting a
license to cache materials distributed or made available for
distribution via the Services, including content supplied by third
parties, and (b) agree that such caching is not an infringement of
any of your intellectual property rights or any third party's
intellectual property rights.
4.2. Lobux Hosting Materials and Intellectual Property. All
materials, including but not limited to any computer software (in
object code and source code form), data or information developed or
provided by Lobux Hosting or its suppliers or agents pursuant to
this Agreement, and any know how, methodologies, equipment, or
processes used by Lobux Hosting to provide the Services to you,
including, without limitation, all copyrights, trademarks, patents,
trade secrets and other proprietary rights are and will remain the
sole and exclusive property of Lobux Hosting or its suppliers,
including but not limited to any software programs, inventions,
products and/or technology innovations and methodologies utilized,
developed, or disclosed by Lobux Hosting during the term of this
Agreement. Unauthorized copying, reverse engineering, decompiling,
and creating derivative works based on the any such software is
expressly forbidden except as permitted in this Agreement. You may
be held legally responsible for violation of any patent rights,
copyright or trade secret rights that is caused or encouraged by
failure to abide by the terms of this Agreement.
4.3.Trademarks. You hereby grant to Lobux Hosting a limited right to
use your trademarks, if any, for the limited purpose of permitting
Lobux Hosting to fulfill its duties under this Agreement. This is
not a trademark license and no other rights relating to the
trademarks are granted by this Agreement. Specifically, but without
limitation, the rights granted by this Agreement do not include the
right to sublicense use of your trademarks or to use your trademarks
with any other products or services outside the scope of the
Services provided under this Agreement. The limited trademark use
rights granted under this section terminate upon termination of this
Agreement
.5.. Warranty; Warranty Disclaimer
.5.1. Customer and/or Third Party Acts. Lobux Hosting is not
responsible in any manner for any nonconforming Services to the
extent caused by you or your customers. In addition, Lobux Hosting
is not responsible for loss or corruption of data in transmission,
or for failure to send or receive data due to events beyond Lobux
Hosting' reasonable control.
5.2. No Express or Implied Warranty. ALL SERVICES, SYSTEMS AND
PRODUCTS PROVIDED BY Lobux Hosting UNDER THIS AGREEMENT ARE PROVIDED
WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW,
WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT Lobux Hosting EXERCISES
NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF
THE INFORMATION PASSING THROUGH Lobux Hosting' COMPUTERS, NETWORK
HUBS AND POINTS OF PRESENCE, OR THE INTERNET. Lobux Hosting DOES NOT
WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR
ERROR-FREE. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE
PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF
PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO
COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, Lobux Hosting DOES NOT MAKE AND HEREBY
DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS
OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF
QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE
SECRET OR TRADEMARK INFRINGEMENT.
5.3 Your Warranties and Representations to Lobux Hosting. You
warrant, represent, and covenant to Lobux Hosting that (a) you are
at least eighteen (18) years of age or are a duly organized and
validly existing entity; (b) you possess the legal right and ability
to enter into this Agreement; (c) you will use the Services only for
lawful purposes and in accordance with this Agreement and all
applicable policies and guidelines; (d) you will be financially
responsible for the use of your account; (e) you have acquired or
will acquire all authorization(s) necessary for hypertext links to
thirdparty Web sites or other content; (f) you have verified or will
verify the accuracy of materials distributed or made available for
distribution via the Services, including, without limitation, your
content, descriptive claims, warranties, guarantees, nature of
business, and address where business is conducted, and (g) your
content does not and will not infringe or violate any right of any
third party (including any intellectual property rights) or violate
any applicable law, regulation or ordinance.
6. Limitation and Exclusion of Liability
6.1. Limitations. IN NO EVENT SHALL Lobux Hosting HAVE ANY LIABILITY
FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF
INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE
SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. Lobux
Hosting SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE
FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE
DAMAGES EVEN IF Lobux Hosting HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF Lobux Hosting TO YOU
FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE
AMOUNT ACTUALLY PAID TO Lobux Hosting BY YOU UNDER THIS AGREEMENT
DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH
SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION
IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET
BY Lobux Hosting UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO
BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY
RELEASE Lobux Hosting FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND
CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION
6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES,
OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW
.6.2. Interruption of Service. You hereby acknowledge and agree that
Lobux Hosting will not be liable for any temporary delay, outages or
interruptions of the Services. Further, Lobux Hosting shall not be
liable for any delay or failure to perform its obligations under
this Agreement, where such delay or failure results from any act of
God or other cause beyond its reasonable control (including, without
limitation, any mechanical, electronic, communications or thirdparty
supplier failure).
7. Indemnification. You will defend, indemnify and hold harmless
Lobux Hosting and its officers, directors, shareholders, employees,
consultants, agents, affiliates and suppliers (an "Indemnitee") from
any and all threatened or actual claims, demands, causes of action,
suits, proceedings (formal or informal), losses, damages, fines,
penalties, liabilities, costs and expenses of any nature, including
attorneys' fees and court costs, sustained or incurred by or
asserted against any Indemnitee by any person, firm, corporation,
governmental authority, partnership or other entity by reason of or
arising out of or relating to: (i) your violation or breach of any
term, condition, representation or warranty of this Agreement or any
applicable policy or guideline; (ii) your conduct, including but not
limited to your negligence, gross negligence, or willful misconduct;
(iii) your improper or illegal use of the Services; (iv) any claim
by a former employee of yours whose employment has been or may be
terminated in connection with or as a result of the execution of
this Agreement and performance of the Services by Lobux Hosting; or
(iii) any claim relating to your services or products, including but
not limited to advertising, product liability claims or infringement
of any trademark, copyright, patent, trade secrets or nonproprietary
right of a third party (including, without limitation, defamation,
libel, or violation of privacy or publicity).
8.Miscellaneous
8.1 Confidentiality. The parties each agree that all Confidential
Information (as defined below) communicated to it by the other is
done so in confidence and will be used only for the purposes of this
Agreement and will not be used to compete with the other party or
disclosed to any third party without the prior written consent of
the other party except as permitted under this Agreement.
"Confidential Information" means all information in any form,
including, without limitation, printed or verbal communications and
information stored in printed, optical or electromagnetic format,
which relates to the Services; or computer, data processing or
electronic commerce programs and software; electronic data
processing applications, routines, subroutines, techniques or
systems; information which incorporates or is based upon proprietary
information of either party; or information concerning business or
financial affairs, product pricing, financial conditions or
strategies, marketing, technical systems of either party; or any
information concerning customers or vendors of either party; or any
data exchange between a party and any customers or vendors.
Exceptions to Confidential Information include (1) information in
the public domain; (2) information developed independently by a
party without reference to information disclosed under this
Agreement; or (3) information received from a third party without
restriction and/or breach of this or a similar Agreement. It is not
a violation of this provision to disclose Confidential Information
in compliance with any legal, accounting or regulatory requirement
beyond the control of either Party or, but in such case, prior to
disclosure, the disclosing Party shall give written notice to the
other Party to permit that Party an opportunity to challenge such
disclosure. If either Party is subpoenaed, such Party shall give
written notice to the other Party to permit that Party an
opportunity to challenge the disclosure of Confidential Information.
Upon the termination of this Agreement and upon written request of
the disclosing Party, each Party shall promptly return all
Confidential Information of the other Party. This provision shall
survive the termination of this Agreement for two (2) years.
8.2. Notices. All notices, reports, requests, or other
communications given pursuant to this Agreement shall be made in
writing, shall be delivered by hand delivery, overnight courier
service, fax, or electronic mail, shall be deemed to have been duly
given when delivered.
8.3. Choice of Law and Forum. THIS AGREEMENT, WILL BE GOVERNED BY
THE LAWS OF THE UNITED STATES AND THE STATE OF TEXAS, WITHOUT
REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO
THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS
LOCATED IN TEXAS, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF
SUCH COURTS.
8.4. Entire Agreement. This Agreement and all policies and
guidelines incorporated in this Agreement by reference constitutes
the entire Agreement of the parties and may not be modified or
altered orally but only by an agreement in writing signed by both
parties.
8.5. No Fiduciary Relationship; No ThirdParty Beneficiaries. Lobux
Hosting is not the agent, fiduciary, trustee or other representative
of you. Nothing expressed or mentioned in or implied from this
Agreement is intended or shall be construed to give to any person
other than the parties hereto any legal or equitable right, remedy
or claim under or in respect to this Agreement. This Agreement and
all of the representations, warranties, covenants, conditions and
provisions hereof are intended to be and are for the sole and
exclusive benefit of the parties hereto. 8.6. Assignments. You may
not transfer or assign your rights, duties, or obligations under
this Agreement without Lobux Hosting' prior written consent. Lobux
Hosting may assign its rights and obligations under this Agreement
and may utilize affiliate and/or agents in performing its duties and
exercising its rights under this Agreement, without your consent.
Subject to that restriction, this Agreement will be binding on,
insure to the benefit of, and be enforceable against the parties and
their respective successors and assignees.
8.7. No Waiver. Lobux Hosting' failure to enforce the strict
performance of any provision of this Agreement will not constitute a
waiver of Lobux Hosting' right to subsequently enforce such
provision or any other provisions under this Agreement
8.8. Severability. If any provision of this Agreement is deemed
illegal, invalid, void or otherwise unenforceable in whole or in
part, that provision shall be severed or shall be enforced only to
the extent legally permitted, and the remainder of the provision and
the Agreement shall remain in full force and effect. If any
provision of this Agreement is deemed to be invalid, void or
unenforceable only with respect to a particular application, such
term or provision shall remain in full force and effect with respect
to all other applications.
8.9. Survival. All provisions of this Agreement relating to your
warranties, intellectual property rights, limitation and exclusion
of liability, your indemnification obligations and payment
obligations shall survive the termination or expiration of this
Agreement. Prohibited Uses. In addition to the terms and conditions
set forth in the Agreement relating to your use of the Services, you
acknowledge and agree not to use, nor permit the use of or by any
person, of Co-Location Equipment or any part thereof, including any
links to other Web space, (i) to transmit any obscene communications
with intent to annoy another person or persons or to any person
under 18 years of age, (ii) in violation of any patent, trademark,
service mark, or copyright law, or (iii) to transmit unsolicited
advertisements of services or products, a practice also known as
"spamming" or relay "spamming. Current rates for using Lobux
Hosting' Services may be obtained by going to the pricing schedule
on our web site at http://www.lobux.com. Lobux Hosting reserves the
right to change fees, surcharges, renewal fees or to institute new
fees at any time.
|
|
|
