This Terms of Service (this "TOS") is a Web Hosting Agreement ("Agreement") between Rivenhost, which has been formed under the laws of the State of California with its principal office at Sacramento, CA (Rivenhost) and the person (individual or legal person) whose signs Rivenhost's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer").
This TOS governs Customer's use of Rivenhosts's Web hosting service. All services provided by Rivenhost may be used for lawful purposes only. Transmission, storage or presentation of any information, data or material in violation of any United States federal, state or city law or that may be damaging to Rivenhost' infrastructure, or any other server on the Internet is prohibited. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, or material protected by trade secret and other statute.
The subscriber agrees to indemnify and hold harmless Rivenhost from any claims resulting from the use of service which damages the subscriber or any other party. Also prohibited are sites that promote or link to illegal activity or content, or content that violates the TOS/AUP.
NOTICE: IF YOUR ACCOUNT IS FOUND TO CONTAIN ILLEGAL ACTIVITY, ILLEGAL MP3 FILES, PIRATED SOFTWARE, HACKER PROGRAMS, WAREZ PROGRAMS, OR ANY OTHER ILLEGAL FILES, YOUR ACCOUNT WILL BE TERMINATED IMMEDIATELY, WITHOUT NOTICE, AND A $50.00 CANCELLATION FEE WILL APPLY. ADDITIONALLY, Rivenhost WILL NOTIFY THE PROPER AUTHORITIES OF YOUR ACTIONS.
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Rivenhost's credit approval requirements, Rivenhost agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that Rivenhost generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of having the same number of full calendar months as the Initial Term (each a "Renewal Term") unless Rivenhost or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
Payments must be made in United States dollars. Customer is responsible for providing Rivenhost with changes to billing information (such as credit card expiration, change in billing address) At its option, Rivenhost may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Rivenhost may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Rivenhost may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay Rivenhost's reasonable reinstatement fee following a suspension of service for non-payment, and to pay Rivenhost's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
Customer agrees to use the service in compliance with applicable law and Rivenhost's Acceptable Use Policy posted at http://www.rivenhost.com/aup.html (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that Rivenhost may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Rivenhost's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Rivenhost's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Rivenhost and Customer regarding the interpretation of the AUP, Rivenhost's commercially reasonable interpretation of the AUP shall govern.
Rivenhost provides a 15 Day Money Back Guarantee ("MBG") to all new customers if they;
Rivenhost reserves the right to refuse, cancel or suspend service, at our sole discretion.
Rivenhost's Service Level Agreement ("SLA") guarantees the availability of Rivenhost's infrastructure and services and establishes Customer expecations for Rivenhost's Service, Server and Public Internet Network ("Network").
Rivenhost guarantees 99.9% Server, Service (http, ftp, pop, imap, smtp) and Network uptime on all hosting plans. If Rivenhost should fail to deliver 99.9% Server, Services or Network uptime in a given month, those Customers affected will be eligible for a refund. Affected Customers will be refunded 5% of the Customer's monthly service fee for each 60 minutes of network downtime experienced up to 100% of the monthly service fee. The following conditions apply;
Customer represents and warrants to Rivenhost that the information he, she or it has provided and will provide to Rivenhost for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Rivenhost that he or she is at least 18 years of age. Rivenhost may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.
Customer agrees to indemnify and hold harmless Rivenhost, Rivenhost's affiliates, and each of their respective officers, directors, 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 the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE Agreement, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE Agreement TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Rivenhost 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 PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
Suspension of Service. Customer agrees that Rivenhost may suspend services to Customer without notice and without liability if:
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Rivenhost fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by Rivenhost prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows:
Customer my cancel at any time providing the Customer abides by the following:
Accounts will be cancelled at the end of the current billing cycle. Once an account is cancelled all user files/data are removed from Rivenhost's servers. In the event of cancellation, customer will automatically be billed for any excess bandwidth usage during the then-current monthly billing cycle.
Any account deactivated due to non-payment will require a reactivation fee of $25.00 prior to reactivation.
All payments to Rivenhost not covered under the MBG (section 5 of this TOS) are nonrefundable. This includes one time setup fees, prepayment fees, and subsequent charges regardless of usage. Customer shall not be entitled to any refunds, pro-rated or otherwise, in the event of early termination of this agreement by Rivenhost according to the terms herein. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer or payment provider (chargeback) that, in Rivenhost's sole discretion is a valid charge under the provisions of the TOS and/or AUP, you agree to pay WiredTree an "Administrative Fee" of not less than $75 and not more than $200.
All Account Service Plans ("Plans") come with predetermined and fair use amount of resources. The Customer agrees to limit resource use to the amount provided by the Customers Plan. These limitations are determined at the sole descretion of Rivenhost and include but are not limited to;
Rivenhost reserves the right to take corrective action with any account that exceeds these allocations on a regular basis will be asked to upgrade. Severe abuse of Rivenhost's resources may result in suspension of an account. Repeated abuse may lead to cancellation of an account.
Rivenhost believes in working with our customers and will try to contact our customers in order to resolve any overage issues before taking action which could cause a client's service to become unavailable. Rivenhost reserves the right to take immediate action based on the severity of the issue and other factors.
Any attempt to undermine or cause harm to a server or customer of Rivenhost is strictly prohibited. As our customer you are responsible for all your accounts. Should you violate the Terms of Services outlined within, your account will be cancelled without chance of refund.
Customer agrees that Rivenhost may, without notice to Customer,
Customer agrees to maintain a current copy of all content hosted by Rivenhost nothwithstanding any Agreement by Rivenhost to provide back up services. Upon Account Cancellation it is the Customer's responsibility to back up all of their files and data prior to the end of the current billing cycle.
Upgrades and other changes in Rivenhost's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Rivenhost reserves the right to change its network in its commercially reasonable discretion, and Rivenhost shall not be liable for any resulting harm to Customer.
Notices to Rivenhost under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.rivenhost.com. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
Rivenhost shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Rivenhost's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE Agreement SHALL BE THE STATE AND FEDERAL COURTS IN SACRAMENTO COUNTY, RIVENHOST, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Violations of these Acceptable Use Policies should be referred to abuse@rivenhost.com. All complaints will be investigated promptly. Failure to follow any term or condition will be grounds for immediate account deactivation and termination as detailed in item #12 of this TOS.
By activating your account with Rivenhost, you agree and accept all the above policies and disclaimers (including and not limited to our AUP, TOS, SLA, etc...). Upon requesting activation of an account, you are required to accept these policies, guidelines and disclaimer (AUP, TOS, SLA, etc...).
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any Agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written Agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Rivenhost unless they are expressly incorporated into a formal written Agreement signed by both parties. A party's 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. A party's waiver of any of its right 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. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Rivenhost's prior written consent. Rivenhost's approval for assignment is contingent on the assignee meeting Rivenhost's credit approval criteria. Rivenhost may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive Agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
