Hostly Web Hosting Service Agreement

By using the website hosting services (hereinafter the "Services," defined further below), you signify your agreement to the terms and conditions contained in this Hostly Website Hosting Agreement (hereinafter, the "Agreement"). This Agreement is between you, your organization (if you are entering into this Agreement on behalf of an organization), collectively referred to herein as "you" or "your" (and appropriate formatives) and Hostly ("Hostly").

These terms and conditions may be modified from time to time. Modifications made to this Agreement will become effective 30 days after the modifications are posted. This Agreement shall be posted through the interface which you use to configure and/or otherwise order the Services (the "Services Interface"). You agree that you will check the terms and conditions periodically and that, if you no longer agree to the terms and conditions of this Agreement, that you will stop using the Services and that you will terminate the Services as described below in paragraph 4.
The Services consist of the website hosting package with the specific configuration which you selected or are going to select through the Services Interface as you use the Services. You acknowledge and understand that important service limitations (including bandwidth limitations and other capacity matrices), pricing (including pricing for optional Services, such as automatic capacity upgrade in the event of overage), the term of the Service, payment terms, and other conditions relating to the Services are conveyed through the Services Interface and are hereby incorporated into this Agreement. All service limitations are subject to your normal use of Hostly. “Normal” means that you operate a personal website which is limited to website files, website content and email, and that your operation of such website is not excessive in comparison to average usage patterns of other websites hosted by Hostly.
If you use a credit card to pay for the Services, the charge for the Services may appear under a name other than Hostly (the name being generally descriptive of the Services) and that, prior to contacting your credit card company in relation to such charges, you will first contact Hostly to verify the charges and the manner of billing. You agree that any chargeback by a credit card company (or similar action by another payment provider) of a charge related to the Services, for whatever reason, is a material breach of this Agreement and is grounds for termination. You further agree that, upon a chargeback by you, Hostly may suspend your access to any account you have with Hostly and your use of any domain names, websites, website content, email, or other data hosted on Hostly systems. We will reinstate your rights solely at our discretion, and subject to our receipt of the fee owed and our then-current reinstatement fee, currently set at US$200.
The Services shall be provided for the term you selected through the Services Interface. Unless you terminate the Services THROUGH THE SERVICES INTERFACE prior to the end of the then extant Services term, the Services may be renewed for another term of equal duration to the immediately preceding term and the resulting fees shall be charged to the credit card associated with your account. You hereby waive any requirement which might otherwise be imposed by law which would require that Hostly obtain your affirmative consent for on-going billings and your continuing consent to be billed for such renewal(s) may be presumed until such time as you terminate the Services through the Services Interface. Attempts to terminate the Services other than through the Services Interface (such as by sending an email to a general email address of Hostly) are not reliable means of communication and such a termination attempt shall not binding until accepted and acknowledged by Hostly. In relation to renewals, it is your obligation to keep the credit card information associated with your account current and Hostly shall not be obligated to contact you to update such information in the event that the charges are denied.
You may not downgrade (reduce) the bandwidth or other capacity matrices of the Services below the level of actual use of the Services which you experienced in the current or previous month.
Your use of the Services may be suspended and/or this Agreement may be terminated if Hostly determines that you are or are alleged to be violating the terms and conditions of this Agreement or any other agreement entered into by you and Hostly. In the event of termination or suspension of Services under such circumstances, a) no pre-paid fees will be refunded to you; and b) Hostly may take control of any domain name associated with the terminated Services, provided such domain name was registered through the domain name registration services of Hostly. You understand that taking control of a domain name includes, without limitation, acts such as listing such controlling party as the "registrant" and/or "administrative contact" for the domain name and controlling the DNS settings for the domain name.
Hostly may elect to terminate this Agreement without cause and discontinue the Services upon 30 days notice, whereupon any pre-paid fees for an unused portion of a service term shall be refunded to you within a reasonable period of time. Within 30 days of your initial enrolment to receive the Services, Hostly may elect to terminate this Agreement without cause and, in such event, the termination shall take effect immediately and any pre-paid fees for an unused portion of your service term shall be refunded to you within a reasonable period of time.
The Services are provided through an infrastructure which is shared by all users of the Services. Your use of the Services may be throttled or suspended indefinitely if your use of the Services degrades the ability of Hostly to provide the Services to other users of the Services.
Email and/or online communication systems (chat, account notices, etc.) will be the primary means of communication between yourself and Hostly. It is your responsibility to maintain a current email address and physical mailing address in your contact information. You are required to regularly login to your account to obtain any notices posted through the Services Interface. Your failure to respond to a communication from Hostly may result in suspension or cancellation of Services without any refund of pre-paid fees, if any.
You acknowledge that Hostly is not obligated to return any data to you upon termination of this Agreement. It is your responsibility to download, make copies of, and/or backup all data residing on the servers and other equipment which provide the Services and to do so within the bandwidth limitations of the Services. Any loss or corruption of data which occurs due to an interruption in the Services, regardless of the cause of the interruption, shall not be the responsibility of Hostly and you may, following an interruption in the Services, be required to upload the data to the servers and other equipment which provide the Services.
Any personally identifying information provided by you shall be used by Hostly according to the privacy policy posted at Hostly’s Privacy Policy.
You represent and warrant as follows: that a) you are lawfully entitled to use, display, posses, or access the data uploaded, linked to, framed, or otherwise posted on your website by you and/or by the users of your website; b) that your website and your use of the Services will not infringe the intellectual property rights of any third party; c) that your website and your use of the Services will not violate any laws, including, without limitation, laws relating to unsolicited commercial email, child pornography, collection of identifying information, consumer protection, and privacy; d) that neither you nor those who access your website will upload any worms, virus, or malicious code to the servers which provide the Services; and e) that your website and your use of the Services will not subject Hostly to any claims by any third party, including claims relating to infringement of intellectual property rights or claims relating to the products or services which you may provide or offer through the website hosted through the Services.
You further represent and warrant that you will not allow any unauthorized third party to access the account which you use to access the Services.
EXCLUSIVE REMEDIES FOR UNPLANNED SERVICE INTERRUPTIONS: Any unplanned or unannounced interruptions in the Services shall not require a remedy unless such unplanned or unannounced interruptions exceed 24 hours in any 30 day period, in which case the exclusive remedy shall be a credit toward 24 hours of hosting for each 24 hour period of unplanned or unannounced interruptions, and such credit shall exclusively be applied against the fees owed for your next period of hosting, if any, or shall be exclusively be accomplished by adjusting the end of your then-current Service term.
LIMITATION OF LIABILITY: Hostly WILL NOT BE LIABLE FOR ANY (A) SUSPENSION OR LOSS OF THE SERVICES, EXCEPT TO THE LIMITED EXTENT THAT A REMEDY IS PROVIDED UNDER THIS AGREEMENT; (B) INTERRUPTION OF BUSINESS; (C) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEB SITE(S) PROVIDED THROUGH OR BY THE SERVICES; (D) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD; (E) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (F) EVENTS BEYOND THE CONTROL OF Hostly; (G) THE PROCESSING OF YOUR APPLICATION FOR THE SERVICES; OR (H) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD. Hostly WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER Hostly HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF Hostly EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES FOR A ONE-MONTH PERIOD, BUT IN NO EVENT GREATER THAN ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, THE LIABILITY OF Hostly SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
INDEMNIFICATION: YOU HEREBY RELEASE, INDEMNIFY, AND HOLD Hostly, ITS CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES AND COURT COSTS, FOR THIRD PARTY CLAIMS RELATING TO YOUR USE OF THE SERVICES OR ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, INFRINGEMENT BY YOU OR SOMEONE ELSE USING YOUR COMPUTER, OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY PERSON OR ENTITY, OR FROM THE VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT. WHEN Hostly MAY BE INVOLVED IN A SUIT INVOLVING A THIRD PARTY AND WHICH IS RELATED TO THE SERVICES UNDER THIS AGREEMENT, Hostly MAY SEEK WRITTEN ASSURANCES FROM YOU IN WHICH YOU PROMISE TO INDEMNIFY AND HOLD Hostly HARMLESS FROM THE COSTS AND LIABILITIES DESCRIBED IN THIS PARAGRAPH. SUCH WRITTEN ASSURANCES MAY INCLUDE THE POSTING OF PERFORMANCE BONDS OR OTHER GUARANTEES. YOUR FAILURE TO PROVIDE SUCH ASSURANCES MAY BE CONSIDERED A BREACH OF THIS AGREEMENT BY YOU.
DEALINGS WITH MERCHANTS; LINKS

Advertisements and Links. This website may contain advertisements, offers, or other links to websites of third parties that Hostly does not control. Advertisements and other information provided by third parties may not be wholly accurate. Hostly does not endorse or recommend any of the products or services advertised on this website. Hostly is not responsible or liable for (i) the availability or accuracy of such sites or advertisements; or (ii) the content, products or services available from such sites. The inclusion of any link on this website does not imply that Hostly endorses the linked site. You use the links at your own risk. Hostly’s Privacy Policy is applicable only when you are on its website. Once you link to another website, its privacy statement applies to any personal information you supply.
Transactions with Third Parties. Your transactions and other dealings with third party merchants or advertisers that are found on or through Hostly’s website, including "click to purchase," "co-registration," and other similar programs, including payment and delivery of related goods or services, are solely between you and such merchant or advertiser.

DISCLAIMER OF WARRANTIES: Hostly DOES NOT MAKE ANY REPRESENTATIONS NOR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Hostly SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
COPYRIGHT INFRINGEMENT/DMCA/TRADEMARK:

Hostly respects the intellectual property rights of others. If you believe that your work is being used on Hostly in a way that constitutes copyright infringement, you may notify Hostly by providing Hostly’s copyright agent with the following information in writing:

the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner's behalf;
identification of the copyrighted work that you claim has been infringed;
identification of the material that is claimed to be infringing and information reasonably sufficient to permit Hostly to locate the material (for example, by providing a URL to the material);
your name, address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

Hostly’s designated agent to receive notification of claimed infringement can be reached at copyright@Hostly.com.
It is our policy to terminate in appropriate circumstances any account or user for repeated infringement of intellectual property rights, including copyrights, and we also reserve the right to terminate an Account or user for even one instance of infringement.
Hostly may access, preserve and disclose to third parties any of your information or data (including personally identifiable information and private communications) related to a written complaint of copyright infringement if we believe in our sole discretion that such access, preservation, or disclosure is necessary or useful to respond or otherwise address such complaint.

ADDITIONAL TERMS

No Agency; No Third Party Beneficiary. This Agreement does not create any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship. Except for the indemnified persons, there are no third party beneficiaries of this Agreement.
Severance. If any part of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full effect, provided that the allocation of risks described in this Agreement is given effect to the fullest extent possible.
Assignment. This Agreement is personal to you and you may not transfer, assign or delegate it to anyone without the express written permission of Hostly. Any attempt by you to assign, transfer or delegate this Agreement without the express written permission of Hostly will be null and void. Hostly has the right to transfer, assign and delegate this Agreement to one or more third parties without your permission.
GOVERNING LAW: this Agreement, your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of Washington, as if the Agreement was a contract wholly entered into and wholly performed within the State of Washington. You agree that any action to enforce this Agreement or any matter relating to your use of the Services shall be brought exclusively in the United States District Court for the Western District of Washington, or if there is no jurisdiction in such court, then in a state court in King County, Washington state. You consent to the personal and subject matter jurisdiction of any state or Federal court in King County, Washington state in relation to any dispute arising under this Agreement. You agree that service of process on you by Hostly in relation to any dispute arising under this Agreement may be served upon you by first class mail to the address listed by you in your contact information or by electronically transmitting a true copy of the papers to the email address listed by you in your contact information.

Limitations on Actions. Any action concerning any dispute with respect to the Services must be commenced within one year after the cause of the dispute arises, or the cause of action is barred.

Interpretation. The paragraph headings in this Agreement are included to help make the Agreement easier to read and have no binding effect. As used in this Agreement, the words "include" and "including" are meant to be illustrative and not exhaustive.

Entire Agreement. This Agreement (including terms incorporated into it, e.g., the Privacy Policy) comprise the entire agreement (the "Entire Agreement") between you and Hostly with respect to the use of the Services and supersede all contemporaneous and prior agreements between the parties regarding the subject matter contained herein, and neither party has relied on any representations made by the other that are not expressly set forth in the Entire Agreement.

No Waiver. The failure of any party to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or that party's right to act with respect to subsequent or similar breaches. We suggest that you print out a copy of these Terms for your records.