The Web
Hosting General Terms and Conditions Agreement
("Agreement") governs the terms of use of the web hosting
service ("Service") described on this website
("http://www.mediatemple.net")
and ("https://accountcenter.mediatemple.net")
for use by
Customers ("Customer")
offered
by (mt) Media Temple, Inc ("Provider").
The Agreement is made between
Customer and Provider whenever Service is requested or
ordered by Customer. The Agreement is maintained
independently of any other agreement between Provider
and Customer, even if Provider and Customer are engaged
in other Service Agreements or arrangements such as professional
services, software development, or web development.
Setup fee. Customer agrees to pay
in full the amount of any non-recurring one-time
setup fees listed in the Service description prior
to any server provisioning, equipment acquisition
or installation by Provider.
Recurring fee. Customer agrees
to pay any recurring fees listed in the Service
description one term in advance each anniversary date.
Domain Registration. New customers may receive a discounted rate for their first domain registration when activating new hosting service. If hosting service is cancelled and customer wishes to retain domain registration service only, customer is required to pay full recurring price for individual domain registration service.
Network Transfer overage fee. Should
Customer exceed the total amount of combined network
transfer as described in the Service description,, Customer
agrees that overage fees will apply and be due immediately.
Current pricing for bandwidth overage fees are maintained
at the following URL: http://www.mediatemple.net/go/netflow/
Additional Resource Utilization fees.
Should Customer exceed the total amount of included hosting resource utilization as described in Service Definitions. Customer agrees that overage fees will apply and be
due immediately. Current pricing for additional resource utilization is resource specific and maintained in the AccountCenter and the following Sales FAQ pages;
http://www.mediatemple.net/webhosting/gs/faq.htm#63 and http://www.mediatemple.net/webhosting/gs/faq.htm#65.
Term. This Agreement shall be effective
as long as Customer or Customer's contacts continue
to use Provider's Service. Customer shall pay any applicable
federal, state or local use, franchise, excise, sales
or privilege taxes, duties, fees or similar liabilities
chargeable to or against Provider resulting from the
services furnished by Provider.
Acceptable Use . Customer’s
use of Provider’s services is further governed
by the Provider’s Web
Hosting “Acceptable
Usage Policy” ("AUP") which promotes
safe computing practices. Provider may at its sole
discretion change, update and revise the
AUP. Notice of change will
be sent to the primary email address contacts in Provider’s
Customer database. Notification will not be delivered
by phone or US Mail. The AUP is maintained at the following
URL: http://www.mediatemple.net/company/legal/aup_general.php
Compliance with Law. Customer will
use the Services offered by Provider in a manner
consistent with all applicable local, state and federal
laws and regulations.
Common Carrier. Provider and Customer
agree that Provider is solely acting as a common
carrier in its capacity of providing services hereunder,
is not a publisher of any material or information and
has no right to edit or censor the material at the Servers
in use by the Customer. Provider is not responsible nor
pre-approves any of Customer’s website
content. A All material submitted by Customer
for publication will be considered publicly accessible.
Provider does not screen in advance Customer's
material submitted to Provider for publication.
Provider's publication of material submitted
by Customer does not create any express or implied
approval by Provider of such material, nor does
it indicate that such material complies with
the terms of this Agreement.
Availability of service. Customer
understands and agrees that interruptions of Web Hosting
Services may occur due to scheduled maintenance and repair
by Provider, or by strikes, riots, vandalism, fires,
inclement weather, third-party provider outages, cable
cuts , power crisis shortages, acts of terrorism, and
or uncontrollable acts of God, or other causes beyond
Provider's control, as defined by standard practices
in the industry. Customer agrees that under no circumstances
will Provider be held liable for any financial or other
damages due to such interruptions. In no event shall
Provider be liable to Customer or any other person for
any special, incidental, consequential or punitive damages
of any kind, including, without limitation, refunds of
fees, loss of profits, loss of income or cost of replacement
services. Such failure or delay shall not constitute
a default under this Agreement.
Limitation/Disclaimer of Liability. Provider
is not liable for protection or privacy of electronic
mail or other information transferred through the Internet
or any other network provider or services its customers
may utilize.
DISCLAIMER OF WARRANTIES. PROVIDER'S
SERVICE IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS.
PROVIDER SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY,
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
SPECIAL OR INCIDENTAL DAMAGES, EVEN IF PROVIDER HAS
BEEN ADVISED BY CUSTOMER OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE. IF PROVIDER'S SERVICE TO
CUSTOMER IS DISRUPTED OR MALFUNCTIONS FOR ANY REASON,
PROVIDER SHALL NOT BE RESPONSIBLE FOR LOSSES OF INCOME
DUE TO DISRUPTION OF SERVICE, BEYOND THE FEES PAID
BY CUSTOMER TO PROVIDER FOR SERVICES, DURING THE PERIOD
OF DISRUPTION OF MALFUNCTION.
Indemnity. (a) Customer agrees to
defend, indemnify and hold Provider harmless from
and against any and all claims, obligations, losses, liabilities
and expenses (including reasonable attorneys' fees
and costs) incurred by Provider arising from or due to
claims made by third parties (including customers of Customer)
that are related to or arising out of: (a) false
advertising claims against Customer (or customers of Customer),
(b) liability claims for products or services sold by Customer
(or Customer’s customers) any other transactions
between Customer and third parties, or (c) any content
submitted by Customer for publication by Provider.
The preceding sentence excludes any third party claims
due to the negligence of Provider in connection with
providing products or services to Customer under
this Agreement.
(b) Provider agrees to defend, indemnify and hold
Customer harmless from and against any and all claims,
losses, liabilities and expenses (including reasonable
attorneys' fees and costs ) incurred by Customer
arising from or due to claims made by third parties
(including customers of Customer) relating to (a)
claims alleging Provider’s infringement of the proprietary
rights of third parties; or (b) Provider’s contractual relationship
with any third party providers of services or products to Provider in
connection with the services and products provided under this Agreement.
The preceding sentence excludes any third party claims due to the negligence
of Customer in connection with the transactions contemplated by this
Agreement.
Force Majeure. Provider shall not
be liable to Customer or any other person, firm or entity
for any failure of performance under this Agreement if
such failure is due to any cause or causes including,
but not limited to strikes, riots, vandalism, fires,
inclement weather, third-party provider outages, cable
cuts , power crisis shortages, acts of terrorism, and
or uncontrollable acts of God, or other
similar occurrences; any law, order, regulation, direction,
action or request of the United States government or
of any other government (including state and local governmental
agency, department, commission, court, bureau, corporation
or other instrumentality of any one or more of said governments)
or of any civil or military authority; national emergencies,
insurrections, riots, wars; or strikes, lockouts, or
work stoppages or other labor difficulties; failures,
shortages, breaches or delays.
Liability of Customer. Any mistakes,
accidents, omissions, interruptions, delays,
errors or defects in transmission or Service which are
caused or contributed to, directly or indirectly, by
an act or omission of the Customer or by the use of Customer-provided
facilities or equipment, or by the use of
facilities or equipment furnished by any other person
using Customer's facilities which are connected to Provider’s
facilities, shall not result in the imposition of any
liability upon Provider and Customer shall pay to Provider
any reasonable costs, expenses, damages, fees or penalties
incurred by Provider as a result thereof, including costs
of local exchange company, labor and materials.
Nondisclosure. Provider and Customer
shall use their best efforts to keep the provisions
(including price) of the Agreement from the public, competitors,
or others who may gain benefit from such knowledge
unless required by law to divulge such information to
regulatory authorities or unless required in connection
with enforcing that party's rights hereunder.
Governing Law/Venue. This Agreement
shall be governed by the laws of the State of California.
Venue for any action hereunder shall be in Los Angeles
County, California.
Relationship of the Parties. The
parties intend that an independent contractor relationship
will be created by this Agreement, and that no additional
partnership, joint venture or employee/employer relationship
is intended – unless otherwise specific in a special
agreement.
Taxes. If any federal, state or
local governmental entity with taxing authority over
the services provided under this Agreement imposes a
tax directly on the services provided by Provider to
Customer under this Agreement (excluding any income,
business and occupation, capital gain, death or inheritance,
or other indirect taxes), then Provider may pass the
direct amount of such cost on to Customer, and Customer
shall promptly pay such cost.
Waiver. Any party's failure to insist
on compliance or enforcement of any provision of this
Agreement shall not affect its validity or enforceability
or constitute a waiver of future enforcement of that
provision or of any other provision of this Agreement.
Attorneys' Fees. If a legal proceeding
is commenced to enforce or obtain a declaration of rights
under this Agreement, the prevailing party in such proceeding
shall be entitled to recover its reasonable attorneys'
fees and costs incurred in the proceeding from the non-prevailing
party, as well as any reasonable attorneys' fees and
costs that the prevailing party incurred prior to commencing
the proceeding.
Notices . Any notice under this Agreement
may be e-mailed, delivered personally or mailed by registered
mail to the addresses written below, or to such other
places as the parties may designate in writing.
Data Back-up. Customer is responsible
for independent backup of data stored on
Provider's servers; unless the Customer’s Web Hosting
Service Order includes backup services in which case
data backup will be performed under the terms of the
specific data backup plan chosen by Customer.
Domain Names. Throughout the course
of service rendered to Customer by Provider, Customer
will remain the full owner and controlling entity for
the Customer's established domain name. Registration
and modification of domain name status, including name
server location is handled by independent domain name
registrars.
