1.1 "Customer" means the persons, entity or agents and authorized representatives accepting this agreement.
1.2 "Content" means all text, pictures, sound, graphics, video, links, and other data stored by Customer on Usable Web Solutions' server computers.
1.3 "Website" means pages presenting the Content stored by Customer on Usable Web Solutions' server computers.
1.4 "User" means users of Customer's Website.
1.5 "User Content" means all text, pictures, sound, graphics, video, links, and other data stored by Users on Usable Web Solutions' server computers.
1.6 "Confidential Information" means information that Customer takes reasonable steps to maintain in confidence and identifies in writing to Usable Web Solutions as confidential.
2. WEB HOSTING
2.1 - Hosting.
Usable Web Solutions will provide dedicated or shared server computers, with an Internet address for storage and access of Content, User Content, and the Website. The Website, Content, and User Content must be "server-ready." Usable Web Solutions will provide bandwidth and storage as specified in Exhibit A. If Customer requires additional bandwidth or storage, Usable Web Solutions will negotiate in good faith to amend this Agreement unless Usable Web Solutions server computers cannot accommodate the requested bandwidth or storage.
2.2 - Website Backup.
Usable Web Solutions will backup the Website in a commercially reasonable manner. However, Usable Web Solutions is not responsible for lost Content or lost User Content. Website backups will be stored by Usable Web Solutions for no longer than 14 days. Usable Web Solutions will provide, at Customer's expense, an electronic copy of the backup Website to Customer upon written request by Customer. Backups are intended for disaster recovery, not the restoration of individual files.
2.3 - Server Logs.
As requested by Customer, Usable Web Solutions will deliver to Customer in electronic form the Server Log of Website activity. Customer will be entitled to one month of log storage free of charge. Usable Web Solutions may, at its option, charge a fee to Customer for additional space required to store oversized logs.
2.4 - Standards.
Usable Web Solutions services will conform to the following:
2.4.1 - Availability of Website.
Usable Web Solutions will provide hosting services for the Website that meet reasonable commercial standards for, among other matters, packet loss, accessibility, latency, availability, and throughput.
2.4.2 - Security.
Usable Web Solutions will take commercially reasonable steps to prevent unauthorized access to the Website, Content, User Content, and Confidential Information stored on Usable Web Solutions' server computers.
2.4.3 - Server/Network Computer Outages.
Usable Web Solutions will employ best efforts in providing advance notice to Customer of scheduled server computer/network outages.
2.4.4 - Disclaimers.
Usable Web Solutions provides no equipment, software, or communication connections to Customer. Usable Web Solutions makes no representations, warranties or assurances that the Customer's equipment, software, and communication connections will be compatible with Usable Web Solutions' hardware and service.
3. OWNERSHIP OF CONTENT
All Content and User Content stored by Customer on Usable Web Solutions' server computers shall at all times remain the property of Customer. Customer grants to Usable Web Solutions a non-exclusive, worldwide license to the Content and User Content only to the extent necessary for Usable Web Solutions to host the Website.
4. CONTENT CONTROL
4.1 - Lawful Purpose.
Customer will only use Usable Web Solutions' hardware and services for lawful purposes and Customer will not store or provide any Content or User Content or link to any material that violates foreign, federal, state or local law, Usable Web Solutions' posted Terms of Service and any modifications thereof, Usable Web Solutions' posted Acceptable Use Policy , or any other Usable Web Solutions policy.
4.2 - Remedy for Violation.
Should Usable Web Solutions become aware that Customer has violated Part 4.1, Usable Web Solutions may, at its option, remove the Content or User Content in violation, immediately terminate hosting Customer's Website under Part 6.3, and/or notify authorities. If hosting is terminated, Usable Web Solutions may, in its sole discretion, reinstate hosting upon adequate showing of Customer's right to use the Content or User Content.
5.1 - Fees.
Customer shall pay fees agreed upon during account signup. Usable Web Solutions will invoice monthly (unless otherwise agreed in writing), and payment is due fiteen (15) days from invoicing. In the case of credit card payments Usable Web Solutions will automatically charge Customer Credit Card on file all fees associated with the account on the due date. Usable Web Solutions may, at its option, charge a 10% fee for late payments.
5.2 - Returned Checks and Declined Credit Cards may incur a fee.
5.3 - Account Updates.
It is the responsibility of the customer to maintain accurate billing information with Usable Web Solutions. This may include updated credit card information, email address and mailing address.
5.4 - Taxes.
Customer is solely liable for any taxes or fees payable for products or services sold by Customer on the Website.
6. TERM AND LIMITATIONS
6.1 - Term.
The initial term is agreed upon during account signup. After the initial term, this Agreement will automatically renew on an annual basis until terminated.
6.2 - Termination by Customer.
During the initial term, Customer may terminate this Agreement upon the material breach of Usable Web Solutions, if such material breach remains uncured for thirty (30) days following written notice to Usable Web Solutions. This cure period shall be extended by delay caused by events beyond the control of Usable Web Solutions including, but not limited to, natural disasters, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of Usable Web Solutions, or technical faults of Usable Web Solutions' service providers or vendors. After the initial term, Customer may terminate this Agreement upon fourteen (14) days written notice to Usable Web Solutions.
6.3 - Termination by Usable Web Solutions.
Usable Web Solutions may immediately terminate this Agreement for cause at any time without penalty. Causes justifying immediate termination include, but are not limited to: violation of any foreign, federal, state, or local law; non-payment of fees due under Part 5 of this Agreement; breach of this Agreement; violation of the Terms of Service found at http://www.us-able.com/policies/5-terms-of-service and any written modifications thereof; and violation of any other Usable Web Solutions policy. Usable Web Solutions may terminate this Agreement without cause at any time upon thirty (30) days written notice to Customer.
7. DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, USABLE WEB SOLUTIONS, AND ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH USABLE WEB SOLUTIONS' HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INGRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY.
USABLE WEB SOLUTIONS, ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE USABLE WEB SOLTIONS' HARDWARE OR SERVICES. CUSTOMER AGREES THAT ITS' SOLE AND EXCLUSIVE REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO USABLE WEB SOLUTIONS.
9. CUSTOMER INDEMNITY
Customer shall defend Usable Web Solutions against any third party claim, action, suit or proceeding arising as a result of Customer's use of Usable Web Solutions' hardware or services and indemnify Usable Web Solutions for all losses, damages, expenses, and costs incurred by Usable Web Solutions as a result of a final judgment entered against Usable Web Solutions in any such claim, action, suit or proceeding.
10. GENERAL PROVISIONS
10.1 - Governing Law.
This Agreement will be governed and construed in accordance with the laws of the State of Colorado. Both parties agree to submit to personal jurisdiction in Larimer County, Colorado, and further agree that any cause of action or dispute arising under this Agreement will be litigated or arbitrated in Larimer County, Colorado, United States of America.
10.2 - Severability and Waiver.
If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
10.3 - 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.
10.4 - Attorneys Fees and Costs.
In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorneys' fees, expert witness fees and legal expenses as may be fixed by a court of competent jurisdiction.