MASTER SERVICES AGREEMENT
(Last updated: September 13, 2023)
This Master Services Agreement (“MSA”), which includes the agreements, policies, and documents referenced in this MSA, governs Hostway’s relationship with any persons using the Hostway Services (as defined below). By ordering or using Hostway Services, Client agrees to this MSA as updated from time to time in accordance with the amendment provisions herein. Depending on the type of Hostway Services applicable, Client may be subject to certain Supplemental Terms as described herein. If there is any conflict between this MSA and such Supplemental Terms, then the Supplement Terms will govern Client’s use of the applicable Hostway Services to the extent of the conflict.
This MSA is comprised of the following and includes such further agreements, policies, and documents as referenced in each of the following:
1. GENERAL TERMS
These General Terms apply to all persons using the Hostway Services.
1.1 Definitions
1.1.1 All other defined terms not listed in this section are defined in their respective sections below and apply to the MSA as a whole (and not limited to the section the term is defined in).
“Abuse of Services” means Client’s use of the Hostway Services (including making any component of the Hostway Services available to Client’s customers or End Users) in a manner that (a) contravenes applicable laws, including regulations, policies, and rules thereto, (b) creates legal liability or other actual or potential material risk or harm to Hostway, its Affiliates, Hostway’s other clients and end users, or Hostway Systems, (c) is a material violation of the MSA, or (d) is generally considered materially objectionable in the Internet community.
“Affiliate” means any person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such first person, with “control” meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, and “person” broadly construed to include any natural person or any incorporated or unincorporated entity or association, trust, joint venture, joint stock company or other entity.
“Business Day” (or “business day”) means the period from 8:00 A.M. to 5:00 P.M. Central Time on a day which is not a weekend or statutory holiday in Chicago, Illinois, USA.
“Claim” means any claim, demand, action, or proceeding (including law suits and administrative proceedings).
“Client” (or “Client”) means the person (individual, company, etc.) named in the Order Form as the Client or, in the absence of Client’s name on such Order Form, the person otherwise using Hostway Services.
“Client Account” means the account set up by Hostway, attributed exclusively to Client, identified by the Client ID, and used for the provisioning and administration of the Hostway Services to Client.
“Client Data” means personal information relating to Client and data owned or controlled by Client, including (a) names, addresses, and other personally identifiable information pertaining to Client, (b) usage data collected by Client regarding Client’s own use of Enterprise Services, (c) Client’s content hosted on Hostway Systems, including Client’s Uniform Resource Locators, Web pages and other website data, Protected Healthcare Information as such term is further described in Section 1.12 below, and (d) any of the same relating to or owned by an End User.
“Client ID” or “customer ID” means the combination of alphanumeric characters designated by Hostway which (a) is unique to Client, and (b) identifies the Client and the Client Account to Hostway.
“Client Portal” means Hostway’s online portal or interface tool (known as Sitecontrol™, or such other account management tool as Hostway may designate) for Client to manage the Client Account and associated Hostway Services.
“End User” means any third party who accesses or uses the Hostway Services via Client or any Affiliate of Client.
“Hostway” means Hostway Services, Inc., a Delaware corporation, or such other Hostway company as named in the applicable Order Form.
“Hostway Services” (or “Services”) means the products, services, and licenses provided to Client by Hostway, whether or not used or paid for by Client, including the following:
- (a) Domain Name Registration
- (b) Website Hosting
- (c) Add-ons and other related products and services to (a) and (b) above;
- (d) Technical Support;
- (e) Any other product or service specified in any of the supplemental terms or applicable Order Forms.
“Hostway Data” means any data relating to Hostway, the Hostway Services or Hostway Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by Hostway regarding Client’s use of the Hostway Services, and (e) all other data owned or controlled by Hostway.
“Hostway Systems” means the technology (including systems, networks, facilities, infrastructure, computer servers, other hardware, software, online application program interfaces, Internet Protocol addresses, and other technologies) owned, licensed, controlled, or otherwise used by Hostway to provide Hostway Services to Client.
“Intellectual Property” means any and all rights, title, interest, and ownership, whether by registration, statute, common law or other operation of law, in and to: (a) copyrights, (b) patents, (c) trademarks, (d) trade Secrets, (e) any other proprietary, intellectual, or industrial property rights of any kind or nature, (f) registrations and registration applications of the foregoing in any jurisdiction, (g) in Hostway’s case, Hostway Data and Hostway Systems, and (h) in Client’s case, Client Data.
“Losses” means any loss, liability, damage, penalty, cost, or expense (including reasonable lawyer fees, witness compensation, and court fees).
“Order Form” means Hostway’s online sign up form, which (a) is an integral part of this MSA, and (b) describes the Hostway Services to be provided to Client.
“Service Fees” means the money amounts or rates, specified in the applicable Order Form or which Client is otherwise to pay in consideration of the Hostway Services provided, whether used by Client or not.
“Supplemental Terms” means the additional terms and conditions governing Hostway’s provision and Client’s use of specific Hostway Services.
“Technical Support” means the assistance and advice Hostway’s technical support staff provides to Client, as part of the Hostway Services, via electronic mail, telephone, or other means of communication as designated by Hostway (including Hostway’s ticketing system).
“Third Party Products” means the equipment, software, products or services procured from a Third Party Vendor which Hostway, in turn, provides to Client as part of, or in combination with, Hostway’s own products and services which are part of the Hostway Services.
“Third Party Vendor” means a third party vendor who provides Hostway with Third Party Products to be, in turn, provided to Client by Hostway as part of, or in combination with, the Hostway Services.
1.1.2 All references in this MSA to particular titles, headings, and sections will be references to the titles, headings, and sections of this MSA only, unless specific reference is made otherwise. Such titles, headings, and sections are for reference purposes only and will have no effect on the interpretation of this MSA. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning will refer to this MSA in its entirety and not to any particular provision of this MSA. Bolding, underlining, or italicizing of words herein are for ease of reference only and the application or omission of them will have no effect on the interpretation of this MSA.
1.1.3 When used for listing purposes, the term “including” and “includes” will be deemed to mean “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in this MSA that the masculine, feminine or neutral gender is used, it will be construed as including all applicable genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires.
1.1.4 This MSA was written in the English language. If there is any discrepancy between the English version and a version in any other language, then the English version will control in all respects.
1.2 Hostway Services
In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with this MSA, including all applicable Supplemental Terms, Hostway will provide to Client the Hostway Services as described in the Order Form. In furtherance of providing the Hostway Services to Client, Hostway hereby grants to Client a worldwide, limited, non-exclusive, non-transferable, fully revocable license to use Hostway Systems in connection with the Hostway Services as permitted in this MSA. Hostway may, at its sole discretion, add to, modify, or remove any particular product or service from the Hostway Services based on factors including the unavailability of any relevant Third Party Products. To prevent downtime caused by outdated components or malfunction of the Hostway Systems, Client hereby consents to (a) Hostway upgrading or repairing the Hostway Systems that are hosting Client Data at any time with or without notice to Client, and (b) Hostway migrating Client Data within the Hostway Systems at any time with or without notice to Client. In providing the Hostway Services to Client, Hostway may (at Hostway’s sole discretion) provide any of the Hostway Services (in whole or in part) through an Affiliate of Hostway, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the Hostway Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within the Hostway Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access. In the event that Client refuses or fails to permit such access, Client understands and agrees that Hostway is not responsible for any malfunction or delay in the performance of the Hostway Services resulting therefrom. In connection with Technical Support, Hostway makes no representation or warranty that Hostway will be able to find the cause of, or resolve, the problem for which Client contacts Hostway for Technical Support. Unless otherwise expressly specified in the Order Form, Hostway is not responsible for providing Technical Support, or any other support (including customer service, billing support, and sales support), to Client’s customers and End Users.
1.3 Third Party Products
Certain Hostway Services incorporate or include Third Party Products. Client will agree to, be bound by, and comply with the terms of any license or other agreement for Third Party Products. Client acknowledges that Client’s use of Third Party Products is subject to Client’s agreement to, and compliance with, the terms and conditions of the Third Party Vendors who provide the respective Third Party Products. All trademarks and other Intellectual Property rights associated with or attached to a Third Party Product belong solely to the relevant Third Party Vendor and are used by Hostway subject to license from such Third Party Vendor. Except as may be permitted in the licenses that are a part of the Third Party Products, nothing herein grants to Client any right, title, or interest in or to a Third Party Vendor’s Intellectual Property. Hostway makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of Third Party Products. Client acknowledges that Third Party Products may, at any given time, be no longer be available or may be revoked at the discretion of the Third Party Vendor. Any mention of Third Party Products by Hostway, its employees, or any third party entity related to Hostway is for information purposes only and does not constitute an endorsement or recommendation by Hostway. Hostway disclaims any and all liabilities for any representation or warranty made by the Third Party Vendors of the Third Party Products.
1.4 Client Account
Upon Client’s submission or execution of an Order Form, Hostway will create a unique Client Account and Client ID for Client. Once the Client Account and associated Client ID have been set up, Hostway may provide Client with appropriate login credentials and access to the Client Portal if applicable.
1.5 Client Account Ownership
The legal owner of the Client Account is the person who is identified as the “Client” in the applicable Order Form or, in the absence of such name in the Order Form, the person otherwise using Hostway Services. It is Client’s sole responsibility, and not Hostway’s responsibility, to ensure that (a) Client’s correct full legal name is stated on the Order Form and in the Client Account, (b) Client’s current name and other contact information is kept up-to-date with Hostway, (c) the Client ID and associated password are kept secure and disclosed only to those with a need to know, and (d) Hostway receives all documentation reasonably requested by Hostway to ascertain the correct legal owner of the Client Account in the event of a dispute or verification of Client’s identification. The includes regularly updating the Client Account to accurately reflect staff departures or changes in service providers Client may have used to subscribe for Hostway Services (e.g., website design companies or online media management companies) who may have used their name as the contact person for the Client Account. In the event of a dispute, or in the event of a reorganization or dissolution of the Client, the legal ownership of the Client Account will be as follows in order of precedence: (1) the company or organization listed on the Client Account in Hostway’s database; (2) the individual who submitted or executed the Order Form.
1.6 Domain Name Ownership
Client acknowledges that (a) the person listed as the “Registrant” of the domain name in the public Whois registry is the legal owner of that domain name, (b) the person listed as the “Admin” (or administrative contact) of the domain name in the Whois registry has access to the username and password, which gives such person the ability to change the Whois information, (c) ownership and administration (including registration renewal and billing) of a particular domain name is independent of the ownership and administration of the Client Account even if the domain name is associated with the Client Account, (d) it is Client’s sole responsibility, and not the responsibility of Hostway, to ensure that the Registrant and Admin information are up-to-date in the Whois registry, and (e) domain names are subject to the standard terms and conditions, as amended from time to time, of the ICANN-accredited domain name registrar and applicable registry, which Client is bound by at the time Client registers the domain name(s).
1.7 Identification Verification
Each time Client wishes to communicate with Hostway about the Client Account or Client Data, Client will abide by Hostway’s then-current security measures and identification verification processes, including answering identification verification questions over the phone and submitting a proof of identity form. Hostway is not responsible or obligated to restore access to the Client Account to any person if that person is unable to meet Hostway’s security measures and procedures to Hostway’s sole reasonable satisfaction.
1.8 Ownership Disputes
Hostway has no responsibility to act as an arbiter, mediator or other authority in the event of a dispute over the ownership of the Client Account or domain name associated with the Client Account or any other dispute between Client and a third party (including Client’s current or former employees, contractors, agents or vendors). Hostway may suspend Client’s access to, or place an administrative lock on, the Client Account and associated domain name(s) pending an investigation into the ownership thereof.
1.9 Client Data
Client represents and warrants that Client is the owner of, or is duly authorized by the legal owner to, hold, store, upload, create, destroy, use, run, implement, modify, edit, or otherwise manage the Client Data. Client further warrants that the use by Hostway of any and all materials and data as furnished by Client to Hostway will not violate or conflict with any intellectual property or privacy rights of any third parties including copyrights, patents and trademarks, protected health information, or personally identifiable information. Client warrants that it is authorized to permit Hostway to use all relevant code for the purposes of performing the Hostway Services hereunder.
1.10 Protected Health Information
If Client uses, transmits, or otherwise handles any information related to an individual’s past, present, or future physical or mental health condition, any treatment for that condition, and any payment for that treatment which information identifies the individual or could reasonably be used to identify the individual (such information referred to as “Protected Health Information” or “PHI”), then Client will: (a) inform Hostway in writing of Client’s intended use of the Hostway Services for PHI, (b) comply with all requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing rules and regulations, (c) comply with all requirements of the Health Information Technology for Economic and Clinical Health Act, codified at 42 U.S.C. §§17931-17953 (“HITECH”) and its implementing rules and regulations, and (d) execute, as between Client and Hostway, a Business Associate Agreement as mandated by HIPAA and HITECH (in Hostway’s standard form), whereby Client is the covered entity and Hostway is the business associate or whereby Client is the business associate and Hostway is the subcontractor if Client is the service provider of a covered entity (as the terms “covered entity”, “business associate”, and “subcontractor” are defined by HIPAA and HITECH). In addition to Client’s indemnification obligations below, Client will indemnify Hostway (including Hostway’s Representatives) from and against any Claims against Hostway or Losses incurred by Hostway that result from: (i) Client’s breach of or misrepresentation under the Protected Health Information obligations of this MSA, or (ii) Client’s breach of HIPAA, HITECH, or any other relevant statute.
1.11 Root Access
As applicable, Client will provide Hostway with continuous root administrative access to all computer servers and other Hostway Systems licensed to Client and under Client’s control as part of the Hostway Services. Client acknowledges that Hostway requires such continuous root administrative access to provide the Hostway Services, including Technical Support.
1.12 Data Backup
Unless the Order Form expressly includes Hostway’s data backup services as part of the Hostway Services to be provided, Client is solely responsible, and Hostway is not responsible in any way, for the backup (copy and storage for purposes of retrieval or data loss recovery) of Client Data or the management of such backup. Client acknowledges that for any of Hostway data backup services, Client Data is backed up onto Hostway Systems “as is” and that Hostway’s backup services do not include any software, application, or other method for monitoring, remediating, or preventing viruses, malfunctions, corruptions, or other security issues with Client Data or the backup thereof. It is Client’s sole responsibility, and not the responsibility of Hostway, to (a) secure and protect, including encrypt, all Client data which may be backed up through Hostway Systems, (b) implement and maintain a disaster recovery plan, including adequate offsite backup commercially reasonable given the nature, scope, and sensitivity of Client Data, and (c) locally backup all essential data on Client’s own systems independent of Hostway (including at Client’s own premises) for purposes requiring data recovery or retrieval. Client is solely responsible, and Hostway is not responsible, for the backup of any of Client Data which may have resided on Hostway Systems at one time but which no longer resides on Hostway Systems at the time Hostway’s backup services, if expressly included in the Order Form, is implemented. Hostway expressly disclaims the usability, functionality, or accuracy of Client Data backed up using Hostway’s backup services. Hostway makes no warranty of any kind (either express or implied) regarding any of Hostway’s backup services, including (a) the format, readability, configuration, accuracy, completeness, retrievability, functionality or restorability of Client Data backed up on Hostway Systems to its original state, and (b) the functionality, compatibility or reliability of any of Hostway’s backup services with any firewall or software or updates and upgrades thereto. If expressly included in the Order Form, then Hostway provides its backup services “as is” without warranties of merchantability or fitness for a particular purpose. Under no circumstances will Hostway be liable for any loss of Client Data or for third party fees related to the recovery or restoration of Client Data. Client’s use of Hostway’s backup services is at Client’s sole risk.
1.13 Data Security
Hostway will use industry standard measures to detect and prevent unauthorized third parties from accessing Hostway Systems. Notwithstanding anything to the contrary, Client acknowledges that Hostway does not guarantee, and does not represent or warrant, that the Hostway Systems cannot or will not be accessed by unauthorized third parties. Client will review Hostway’s Privacy Policy included herein this MSA
1.14 Data Disclosures
Client hereby consents to Hostway disclosing Client Data required to be disclosed by any: (a) law of the U.S.A., or (b) court order of any jurisdiction in the U.S.A. or other jurisdiction in which either Hostway or Client operates its business. However, if and to the extent allowed by such law or court order, Hostway will promptly notify Client in writing of the legal obligation and, if Client chooses, Client may seek protective measures against the requirement at Client’s sole expense and reimburse Hostway for any reasonable expenses (including costs for legal advice, staff hours, and disbursements) incurred by Hostway in complying with such requirement.
1.15 Cross-Border Data Transfers
Client acknowledges that Hostway Services and Third Party Products may be provided from the U.S.A. or any other country in which Hostway, its Affiliates, and its Third Party Vendors maintain their business operations. As such, Hostway, its Affiliates, and its Third Party Vendors may transmit, store, access, process, and use (collectively “Process”) Client Data in, to, or from the U.S.A. or any other country in which Hostway, it Affiliates, and its Third Party Vendors maintain their business operations. In furtherance of the MSA and the applicable Order Form, and in connection with the provisioning to Client of Hostway Services and Third Party Products, Client acknowledges that Client Data may not remain in the country such data originated from. Client hereby consents to Hostway, its Affiliates, and its Third Party Vendors Processing Client Data in the U.S.A. or any other country in which Hostway, it Affiliates, and its Third Party Vendors maintain their business operations. As between Hostway and Client, it is the sole responsibility of Client, and not the responsibility of Hostway, to ensure that Client Data required to remain in a particular country is restricted to that country. Prior to Client’s submission of an Order Form or use of Hostway Services, Client will inform Hostway in writing of all transfer restrictions or jurisdictional requirements pertaining to Client Data. Client will review Hostway’s Privacy Policy included herein this MSA.
1.16 Hostway’s Intellectual Property
In no way will any license granted by Hostway in this MSA be an assignment of rights, title, or ownership in any of Hostway’s Intellectual Property, including any of the Hostway Systems, and Hostway retains sole and exclusive right, title and ownership in and to all of Hostway’s Intellectual Property. As between Hostway and Client, all Internet Protocol addresses provided to Client by Hostway belong exclusively to Hostway. Client acknowledges that Client has no right to use such Internet Protocol addresses except as permitted by Hostway in connection with the Hostway Services and in accordance with this MSA. Hostway may change or remove Internet Protocol numbers and addresses at its sole discretion. Except as otherwise expressly permitted in this MSA, Client may not use Hostway’s Intellectual Property without obtaining the prior written consent, in each instance, of Hostway. Hostway’s Intellectual Property includes any data relating to Hostway, the Hostway Services, or Hostway Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by Hostway regarding Client’s use of Hostway Services, and (e) all other data owned or controlled by Hostway.
1.17 Other Restrictions
Client will not take any action or use any of Hostway’s Intellectual Property or any Third Party Vendor’s Intellectual Property in a manner that (a) acquires, or may reasonably acquire, any rights, title, or interest in or to Hostway’s Intellectual Property or any Third Party Vendor’s Intellectual Property by Client or a third party, or (b) compromises or diminishes Hostway’s rights, title, or interest in or to Hostway’s Intellectual Property or any Third Party Vendor’s rights, title, or interest in or to their Intellectual Property. If Client does acquire any rights, title, or interest in or to any of Hostway’s Intellectual Property, by operation of law or otherwise, then Client will immediately assign such rights, title, or interest to Hostway at Client’s sole cost. Client will not, and will not permit any third party, including its resellers, customers or End Users, to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any of the Hostway Services, Hostway Systems, and Third Party Products to ascertain, derive, or appropriate for any reason or purpose the source code or source listings thereof or trade secrets contained therein.
1.18 Resellers, Customers & End Users
Client is solely responsible, and Hostway is not responsible, for the activities of any End User and for the activities of Client’s resellers and customers. Client will ensure that the use of Hostway Services by Client’s customers and End Users will not be in contravention this MSA. If Hostway receives complaints about Client’s customers or End Users (including complaints about infringement of a third party’s Intellectual Property), subject to Hostway’s rights in this MSA to suspend Hostway Services, Hostway may at its sole discretion (a) send a notice directly to the reseller, customer or End User requesting them to cease, remedy, and resolve the matter, or (b) forward the complaint to Client whereupon Client will take immediate action to ensure that the matter is resolved to Hostway’s satisfaction. If the particular activity continues or the complaint is otherwise unresolved, then Client may be subject to termination or other action as Hostway may deem appropriate.
1.19 Domain Name Proxy Services
If the Hostway Services provided to Client includes domain name registration services where Hostway or a third party provider is named as the Registrant or Admin Contact in Client’s place (“Proxy Services”), Client agrees that if Hostway or the third party provider does not receive a response to a communication sent to Client within 48 hours of such communication being sent, then Hostway or the third party provider, as applicable, may suspend the Proxy Services or terminate all services (including, as applicable, all Hostway Services) at its sole discretion.
1.20 Other Representations & Warranties
Client represents and warrants to Hostway as follows:
- 1. Client has the full authority to execute, deliver, and perform under the MSA, the MSA is valid, binding, and enforceable against Client in accordance with the terms herein, and no provision requiring Client's performance is in (a) conflict with Client’s obligations under any other agreement, (b) violation of any law applicable to Client, or (c) contravention of Client’s by-laws or other governing rules, as applicable;
- 2. Client is duly organized, authorized, and in good standing under the laws of the jurisdiction of its organization and is duly authorized to do business in all other jurisdictions in which Client’s business makes such authorization necessary or required; and
- 3. Client’s purpose for entering into this Agreement and using or delivering the Hostway Services is not to engage in, or be part of, any activity that is, or may reasonably be deemed, objectionable in the Internet community, unethical, unlawful or illegal.
1.21 Disclaimer
Notwithstanding anything to the contrary in this MSA, Hostway (a) makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, completeness, non-infringement, or validity of the Hostway Services, Hostway Systems, or Third Party Products, and (b) provides all aspects of the Hostway Services, Hostway Systems, and Third Party Products “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Client acknowledges that Client uses the Hostway Services, Hostway Systems, and Third Party Products at Client’s sole risk. No verbal advice or written information given by Hostway, its employees, licensors or the like, will create a warranty and Client will not rely on any such advice or information as a warranty.
Furthermore, Hostway disclaims all representations and warranties, including those of function, usability, accuracy, uptime, integration with the Hostway Services, related to the Santa Barbara Tax Products Group LLC Marketplace and any other application, product, or service that Client may procure through the Santa Barbara Tax Products Group LLC Marketplace.
1.22 Force Majeure
Hostway will not be liable for delays in its performance of this MSA caused by circumstances beyond Hostway’s reasonable control including natural disasters and other “acts of God”, fire and other destruction, sabotage, terrorism, war, insurrection, embargo and other acts of any governmental body, or strikes and other labor disturbances (“Force Majeure”). If Hostway is affected by a Force Majeure, Hostway will (a) promptly give written notice to Client, and (b) make reasonable efforts to reduce to a minimum and mitigate the effect of the Force Majeure.
1.23 Limitation of Liability
Under no circumstances will Hostway be liable to Client for any consequential, indirect, special, general, incidental, reliance, exemplary, or punitive damages arising out of or relating to this MSA or the Hostway Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if Hostway has been advised of the possibility of such damages. Hostway’s aggregate liability to Client, if any, arising out of or relating to this MSA or the Hostway Services will not exceed the aggregate amount of Service Fees paid hereunder during the 3 calendar months immediately preceding the event giving rise to the liability. No Claim by Client against Hostway, relating to this MSA or the Hostway Services, will be effective after 1 calendar year (12 calendar months) from the time the event or cause of action comprising the basis of the Claim first occurred regardless of any statutory limitation period allowing for a longer period.
1.24 Indemnification
If Hostway, or any Representative of Hostway, incurs any Losses because of any Claim arising out of or in connection with the acts or omissions of Client or its employee, contractor, or agent which amount to (a) breach of this MSA (including a breach of any representations or warranties made by Client herein), (b) gross negligence or willful misconduct, (c) misrepresentation, or (d) alleged or actual violations by Client of any law, regulation or rule, then Client will indemnify, reimburse, and compensate Hostway and, as applicable, Hostway’s Representatives, for all Losses, as they accrue and become payable by Hostway, and defend, hold harmless, and protect Hostway, including Hostway’s Representatives, from and against all Claims. “Representatives” means, collectively, shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders. In addition, if Hostway (including Hostway’s Representatives) incurs Losses because of any Claim arising out of, or in connection with, the acts or omissions of any of Client’s customers or End Users, then Client will indemnify, reimburse, and otherwise compensate Hostway for all Losses related thereto, as they accrue and become payable by Hostway, and defend, hold harmless, and protect Hostway from and against all Claims related thereto.
1.25 Abuse of Services
Client will use the Hostway Services, and access the Hostway Systems, only in a manner that is legal, lawful, ethical, and generally acceptable in the Internet community. Client will not engage in, and will ensure that Client’s customers and End Users do not engage in, any Abuse of Services. Without limiting the generality and scope of the definition of Abuse of Services in this MSA, Abuse of Services include (i) infringement of a person’s Intellectual Property or other rights, (ii) publishing or transmitting material which is threatening, obscene, or defamatory, (iii) non-compliance with applicable anti-spam legislation, including the U.S. Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act), as amended, and Canada’ Anti-Spam Legislation (CASL), as amended, (iv) violation of applicable import or export control laws, regulations, and policies, and (v) system or network security violations. System or network security violations include the following: (A) unauthorized access to or use of data, systems or networks, including any attempt to ping, probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network); (B) interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system, denial of service attacks, and broadcast attacks; (C) forging any TCP-IP packet header or any part of the header information in an email or a newsgroup posting; (D) creating or sending Internet viruses, worms or Trojan horses; (E) engaging in any other activity which is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Hostway Services and Hostway Systems (or any connected network, system, service or equipment) or conduct their business over the Internet. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Hostway Services) is not engaged in any activity which is, or may reasonably be deemed, an Abuse of Services.
1.26 Executive Order 13224
Client will not use the Enterprise Services, in whole or in part, to do business with any person who has been determined to have committed or supported, or who poses a risk of committing or supporting, acts of terrorism or who otherwise is subject to the prohibitions of Executive Order 13224. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Hostway Services) is not, and has not been designated, (a) a “suspected terrorist” as defined in Executive Order 13224, (b) owned or controlled by a “suspected terrorist” as defined in Executive Order 13224, or (c) a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all amendments thereto.
1.27 Sanctions
Client will not use the Hostway Services, in whole or in part, to do business with any country, person or group sanctioned by the United Nations, U.S.A., or Canada, including those identified by the Office of Foreign Assets Control, as updated from time to time. Client will not export the Hostway Services, in whole or in part, to any country, person or group sanctioned by the United Nations, U.S.A., or Canada. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Hostway Services) is not, and has not been designated, (a) a resident of a country sanctioned by the United Nations, U.S.A., or Canada, or (b) a person or member of a group sanctioned by the United Nations, U.S.A., or Canada. Client further represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Hostway Services) is not engaged in any activity which is, or may reasonably be deemed, in contravention of any of the abovementioned sanctions.
1.28 Suspension
Hostway may, at its sole discretion and without prior notice, immediately suspend the Hostway Services and the Client Account if Hostway determines that Client is engaging, or has engaged, in any Abuse of Services or if the Client Account is involved in any way, whether directly or indirectly, in an attack on another person’s server or system (“Third Party Server”) or Hostway Systems. Upon a suspension of Hostway Services pursuant to this section of the MSA, Hostway will promptly notify Client in writing. A suspension based on an Abuse of Services or an attack on a Third Party Server may be implemented until the Abuse of Services or threat has been remedied to Hostway’s sole reasonable satisfaction. Service Fees will continue to accrue during the suspension and Client will ensure timely payment of all Service Fees due. If Client engages in any Abuse of Services, or Client’s Account is connected to any Abuse of Services, Client will be responsible for all costs, including labor and other resources, to remedy any damage done to Hostway Systems or attend to complaints received by Hostway.
1.29 Revocation of Domain Name
If Client purchase a domain through Hostway, Hostway may exercise its suspension and termination rights in this MSA against such domain name registration for reasons including (a) Client’s Abuse of Services or other breach of this MSA, or (b) Hostway's receipt of an arbitration award or order from a court of competent jurisdiction instructing the suspension, termination or transfer of ownership of the domain name. Client acknowledges that Client will not receive any refund whatsoever for any such suspension, termination, transfer, or modification to Client’s domain name registration.
1.30 Termination
Client may terminate this MSA, a particular Order Form, or the Client Account by requesting cancellation of given Hostway Services. Client acknowledges that (a) termination of this MSA or the applicable Order Form does not automatically cancel the registration of any of the domain names associated with the Client Account, and (b) the cancellation or expiration of one, all, or some of Client’s domain names that are associated with the Client Account does not automatically terminate this MSA or the other Hostway Services. To cancel any particular Hostway Service, Order Form, or the Client Account in its entirety, Client will need to contact Santa Barbara Tax Products Group LLC by email at support@vcita.com and specify the cancellation. Each Client Account will automatically renew in its entirety, with all current Services, until cancelled.
Hostway may terminate this MSA or a particular Order Form for convenience upon 30 calendar days’ written notice to Client. Hostway may also terminate this MSA or a particular Order Form for Client’s material breach upon 2 business days’ written notice to Client if such material breach is uncured within such time. Client acknowledges that (a) termination of this MSA or the applicable Order Form does not automatically cancel the registration of any of the domain names associated with the Client Account, and (b) the cancellation or expiration of Client’s domain names associated with the Client Account does not automatically terminate this MSA or the other Hostway Services. This MSA, and all Order Forms, will automatically terminate if Client makes a general assignment for the benefit of Client’s creditors, Client appoints or has appointed on its behalf a receiver, trustee in bankruptcy or similar officer to take charge of all or part of its assets, Client files or has a petition filed against Client for bankruptcy, or Client is otherwise adjudicated insolvent or bankrupt. Upon any termination of this MSA or the Client Account, Hostway may delete all of Client Data residing on Hostway Systems. It is Client’s sole responsibility, and not the responsibility of Hostway, to ensure that all Client data is either retrieved prior to termination or otherwise backed up on systems other than Hostway Systems or using Hostway Services.
Hostway does not monitor, and will not automatically cancel, plans for any problems arising out of or related to domain name transfers, non-usage, InterNIC, Client’s ISP, or any other secondary issues not directly related to the Hostway Services
1.31 Survival Clauses
The provisions of this MSA which by their nature continue beyond the termination of this MSA will survive such termination, including the provisions of this MSA relating to ownership, Intellectual Property, representations and warranties, disclaimer, limitation of liability, indemnification, and governing law and jurisdiction.
1.32 Minimum Age Requirement
Client must be at least 18 years of age or the age of majority in the state, province, or country of Client’s residence in order to agree to this MSA and submit an Order Form. If the person wishing to use Hostway Services is under such age of majority (a “Minor”), then such person must have a parent or legal guardian accept this MSA, and submit the Order Form, in the name of the parent or legal guardian in order for the Minor to use Hostway Services. If Client is a parent or legal guardian who accepts this MSA and submits an Order Form on behalf of a Minor, then Client will be the legal owners of the Client Account and primarily liable for (a) the use of Hostway Services by the Minor, and (b) for the Minor’s compliance with this MSA, including timely payment of all Service Fees. Client will remain primarily liable for (a) and (b) mentioned above even after the Minor has reached the age of majority unless Client executes a valid assignment of the Client Account to transfer ownership to the Minor. Any agreement to this MSA or submission of an Order Form by a Minor will be deemed null and void to the extent that Hostway will not be liable in any way as a result of the Minor's age or legal incapacity or the Minor's use of the Hostway Services.
1.33 Assignment
Client may not assign or otherwise transfer Client’s respective rights or obligations under this MSA without the prior written consent of Hostway, which will not be unreasonably withheld. Without requiring Client’s prior consent, Hostway may assign or otherwise transfer this MSA, and Hostway’s rights and obligations hereunder, to (a) any of its Affiliates, or (b) to any third party who succeeds to all or substantially all of Hostway’s business, stock or assets. Any assignment or transfer in violation of this MSA will not have any effect against Hostway. This MSA will be binding and have effect upon Hostway and Client and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than Hostway and Client and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities in connection with this MSA. Notwithstanding the foregoing, Client acknowledges that Hostway may, at its sole option, perform any of its duties or obligations hereunder, by itself or with or through any of Hostway’s Affiliates, which will not be deemed an assignment of this MSA.
1.34 Amendments
Client acknowledges that the Internet and information technology industries (and the laws, regulations, policies, and risks associated with them) are constantly and rapidly changing. As such, Client acknowledges that Hostway, at its sole discretion, may update this MSA from time to time to address the changes affecting this MSA and the Hostway Services. If Hostway makes any amendment to this MSA or any portion thereof, such as the Supplemental Terms, Hostway may post a notice online at https://marketplace.hostway.com/legal/msa.html Client’s continued use of Hostway Services following notice of the amendment constitutes Client’s agreement and acceptance of the amendments.
1.35 Waiver; Severability; Cumulative Rights
No waiver by Hostway of a breach of any provision of this MSA will take effect or be binding upon Hostway unless expressly waived in writing, and such waiver will extend and apply only to the particular breach so waived and will not limit or affect the rights of Hostway in respect of any future breach or in respect of a breach of any other provision hereof. If any portion of this MSA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability will not affect the validity of the remainder of this MSA. Any specific right or remedy provided in this contract will not be exclusive but will be cumulative of all other rights and remedies.
1.36 Non-Solicitation and Relationship of Parties
Client will not, individually or in association or in combination with any other person or entity, directly or indirectly solicit for employment, entice away from Hostway, induce, or procure services directly from any employee of Hostway. Nothing in this MSA will be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between Hostway and Client. Each of Hostway and Client will be deemed an independent contractor at all times and will not have any right or authority to assume or create any obligation on behalf of the other party except as may be expressly permitted herein. This MSA is for the sole benefit of Hostway and Client only and does not create any rights on the part of any third party, including Client’s customers or End Users.
1.37 Non-Exclusivity
Hostway and Client each acknowledge that the relationship between them in connection with the Hostway Services and this MSA is non-exclusive and that Hostway may grant a license to use, market, sublicense, or distribute the Hostway Services, including providing access to the Hostway Systems, to other parties who may engage in the same or similar activities as Client, or who may compete with Client or Client’s goods or services.
1.38 Governing Law
This MSA will be governed and construed in accordance with the laws of the State of Illinois without giving effect to any rule of conflicts of law. Any Claim against a Party in connection with the subject matter of this MSA (or the MSA itself) will be brought in Chicago, Illinois. This MSA will not be governed by or construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods.
1.39 Dispute Resolution
All Claims arising out of or relating in any way to this MSA (including requests for specific performance) will be submitted to mandatory binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted pursuant to the AAA’s then current Commercial Arbitration Rules. The arbitration hearing will be conducted in the English language and will take place in Chicago, Illinois before a single arbitrator selected in accordance with the Commercial Arbitration Rules. The parties will each bear the costs of the arbitration in equal shares. The parties will also bear their own legal fees (including lawyer fees and witness costs) in connection with the arbitration and the arbitrator may not reallocate the legal fees in conjunction with the award. Any award rendered by the arbitrator will be confirmed in a state or federal court of competent jurisdiction in Chicago, Illinois and each of Hostway and Client hereby irrevocably submits and consents to, and waives any objection to, personal jurisdiction and venue in such court.
1.40 Complete Agreement
This MSA, which includes the Order Forms, Supplemental Terms, and all other agreements, policies, and documents referenced herein, constitutes the complete agreement between Hostway and Client relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto – whether verbal, written, or otherwise.
2. Privacy Policy
This Privacy Policy describes Hostway’s general principles for the collection and use of information from Clients, and also describes the choices available to Clients regarding the use of, access to, and how to update and correct Client’s personal information.
2.1 What type of information does Hostway collect?
Upon signing up for the Hostway Services, Client will be required to provide Hostway with certain Client Data, such as Client’s name, address, phone number, and email address. Hostway will also collect information with regard to Client’s account status, choice of Hostway Services, and Client logs. In addition, Hostway may store Clients' electronic mail and other communications as a necessary incident to the transmission and delivery of those communications.
2.2 How Does Hostway Use a Client’s Information?
Hostway uses Client Data to establish and provide the Hostway Services to Client, such as creating and maintaining the Client Account and provisioning Client’s choice of the Hostway Services. Hostway may also create and maintain Client logs in the normal course of providing the Hostway Services. Hostway will not disclose Client Data that is personal contact information unless Hostway has reason to believe that disclosing such information is necessary to identify, make contact with, or bring legal action against someone who may be causing harm or interfering with the rights or property of Hostway, our Clients, or others. Hostway may provide information to regulatory authorities and law enforcement officials in accordance with applicable laws, respond to legal process, or where Hostway has a good faith belief that the law requires such disclosure.
Hostway also will not disclose to third parties the contents of any electronic mail or other electronic communications that Hostway stores or transmits for its Clients except where: (a) it is a matter of public safety or policy; (b) it is in connection with the transfer of other business assets; (c) it is required to cooperate with orders, warrants, or other legal process that Hostway determines in its sole discretion to be valid and enforceable; and (d) it is necessary to provide to a law enforcement agency when the contents are inadvertently obtained by Hostway and appear to pertain to the commission of a crime.
Hostway disclaims any intention to censor, edit, or engage in ongoing review or surveillance of communications stored on or transmitted through its facilities by Clients or others. Hostway will, however, review, delete, or block access to communications that may harm Hostway, its Clients or third parties. The grounds on which Hostway may take such action include, but are not limited to, actual or potential violations of this MSA.
2.3 Client Interactions
Hostway will use Client’s contact information to notify Client of important information regarding the Client Account or Hostway Services ordered, and Client may not opt out of receiving such service related email communications. It is Client’s responsibility to ensure that Client’s contact information is up to date. In addition, Hostway may use Client Data to direct general service notices to Client, such as system information or upgrade and update notifications, well as to provide Client with general information regarding other Hostway Services that may be of interest to Client.
2.4 Newsletters or Promotional Communications
If applicable Clients may opt out of receiving newsletters and/or promotional emails from Hostway by using the unsubscribe instructions included in each promotional communication, or by changing Client’s email preferences in the Client Portal. If making a request to Hostway by email, Clients must identify their domain name and specific contact information. Clients may not opt out of receiving information from Hostway which is essential for maintaining or updating Clients’ Account or system information.
2.5 How Can Client Access or Delete Personal Information?
Client can access Client’s personal information, such as address and contact information, through the Client Portal at any time to correct, change or delete any of the data shared with Hostway. If Client needs assistance or has questions about correcting information in the Client Portal, Client can contact Hostway via email at support@websitemanager.com.
2.6 How Long Does Hostway Keep Personal Information?
Hostway will retain Client’s personal information for as long as the Client Account is active or as needed to provide Client with the Hostway Services. Notwithstanding the foregoing, Hostway may retain and use Client’s personal information after termination of the Client Account only as necessary to comply with Hostway’s legal obligations, resolve disputes, and enforce Hostway’s agreements.
3. Supplemental Terms For Web Hosting and
E-Commerce Services
These Supplemental Terms are in addition to the General Terms above and apply only to those Clients using Hostway Services relating to Web Hosting and E-Commerce.
3.1 CGI Scripts
Any script that poses a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. Hostway does not permit CGI script sharing with domains not hosted by Hostway or scripts which may be abused for UCE purposes.
3.2 Chat Rooms
Client is not permitted to install any chat rooms because chat rooms tend to require significant system resources.
3.3 Background Running Programs
Hostway may allow programs to run in the background, which programs will be considered by Hostway on a case-by-case basis.
3.4 Software Distribution
Client is not configured for the purposes of distributing software or multimedia products.
3.5 Multimedia Files
Client is not permitted to use Client’s Web Hosting and E-Commerce Client Account to distribute or store unusual amounts of graphics, audio, or video files (collectively “Multimedia Files”). If the Client Account’s disk space usage for storing Multimedia Files exceeds 70% of its total usage, in terms of total size or number of files, Hostway may suspend or cancel the Client Account.
3.6 Databases
If Client stores any database on Hostway’s Web Hosting and E-Commerce servers, Client must limit the size to 10% of the total disk space allotted for the particular domain name associated with the Client Account.