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Web Hosting Terms of Service Agreement
This Web Hosting Terms of Service Agreement ("Agreement") is by and between ZYON.com ("ZYON" or “Company”) and you, your heirs, assigns, agents and contractors ("You") and is effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of ZYON's Web Site and hosting Services (collectively, the "Services") and represents the entire agreement between You and ZYON. By using the Services, You acknowledge that You have read, understand and agree to be bound by all the terms and conditions of this Agreement. In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions and use of this Web Site entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with ZYON, whether or not the transactions were in Your behalf.
1. DESCRIPTION OF SERVICES and USAGE: Company currently provides the Services to its customers for a fee. ZYON will host Your Web Site on ZYON's servers, provided, however, You abide by the terms and conditions set forth herein and in each of ZYON's policies and procedures. ZYON's Unlimited Hosting is to be used only for your own personal websites, the hosting service may not be resold or host websites that do not belong to You. Pornographic, obscene or excessively profane content or content intended to advocate or advance computer hacking or cracking, gambling, illegal activity, drug paraphernalia, hate, or violence including racial, ethnic, sexual or gender identity intolerance is strictly prohibited. License of Your Web Site content ZYON grants to You, and You accept from ZYON, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Your website content in connection with ZYON's performance or enforcement of this Agreement. Availability of Services Subject to the terms and conditions of this Agreement, ZYON shall attempt to provide the Services for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. You agree that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that ZYON may undertake from time to time; or (iii) causes beyond the control of ZYON or that are not reasonably foreseeable by ZYON, including, without limitation, interruption or failure of network communications, hostile network attacks, network congestion or other failures. You agree that ZYON has no control of availability of the Services on a continuous or uninterrupted basis. Service Availability Guarantee. ZYON offers a service uptime guarantee for the Services of 99% ("Service Uptime") of available time exclusive of interruptions caused by (i) periodic scheduled maintenance or repairs that ZYON may undertake from time to time; (ii) errors caused by You from custom scripting or coding; (iii) outages that do not affect the appearance of the Web Site but merely affect access to the Web Site such as FTP and email; (iv) causes beyond the control of ZYON or that are not reasonably foreseeable by ZYON ; and (v) outages related to the reliability of certain programming environments. Total Service Uptime shall be solely determined by ZYON and shall be calculated on a monthly basis. Web Site Content. You shall be solely responsible for providing, updating, uploading and maintaining Your website and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your Web Site, including, without limitation, trade or service marks and related audio/visual media.
2. YOUR OBLIGATIONS: You agree not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis, provided, ZYON, in its sole discretion, may permit You, if You have a legitimate purpose and after request, to send more email than ZYON's standard STMP relay limit; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; (viii) engage in any other activity deemed by ZYON to be in conflict with the spirit or intent of this Agreement or any ZYON policy; or (ix) use Your server as an "open relay" or similar purposes. ZYON prohibits the running of a public recursive DNS service on any ZYON server. All recursive DNS servers must be secured to allow only internet network access or a limited set of IP addresses. ZYON actively scans for the presence of public DNS Services and reserves the right to remove any servers from the network that violate this restriction. You represent and warrant to ZYON that: Your Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or Services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person and that You own Your website content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your Web Site. You also warrant that the Web Site being hosted by ZYON will not be used in connection with any illegal activity. Upon the expiration of Your initial hosting service term, Your hosting service shall automatically renew for the same period of time and Your payment method shall be charged for the renewal term on the renewal date. You acknowledge and agree that in the event You do not desire to automatically renew Your hosting Services for the same period of time, it is Your responsibility and obligation to contact ZYON via facsimile to turn off the default renewal. Your failure to advise ZYON via facsimile shall be deemed acceptance of the renewal term unless otherwise noted. If You are hosting Your Web Site on ZYON's servers, You are responsible for ensuring that there is no excessive overloading on ZYON's DNS or servers. In the event that You exceed Your allotted bandwidth or disk space and thereby overload ZYON's DNS or servers, You shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use ZYON's servers and Your Web Site as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and ZYON reserves the right to remove sites that contain information about hacking or links to such information. Use of your Web Site as an anonymous gateway is prohibited. ZYON prohibits the use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by ZYON. You agree that ZYON reserves the right to remove Your Web Site temporarily or permanently from its virtual dedicated servers if ZYON is the recipient of activities that threaten the stability of its network. Further, if You are using ad-supported hosting, You acknowledge and agree that ZYON has the right to terminate Your Services in its sole discretion and for any reason, including, but not limited to, Your failure or unwillingness to comply with the terms and limitations of this Agreement, specifically, the content and material restrictions set forth in this Agreement. You shall not use the Service in any way, in ZYON's sole discretion, that shall impair the functioning or operation of ZYON's Services or equipment. Specifically by way of example and not as a limitation, You shall not use the Services as a repository or instrument for placing or storing archived files and/or material that can be downloaded through other Web Sites. You acknowledge and agree that ZYON has the right to execute an comprehensive analysis and examination in the event of a compromise to your server or account. In the event You terminate, moving your Web Site off of the ZYON virtual dedicated servers is Your responsibility. ZYON will not transfer or FTP Your Web Site to another provider. In the event Your use of the Services is terminated, ZYON will not transfer or manage Your Services or Your website content. ZYON reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against ZYON or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. ZYON may review every account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels. You agree ZYON may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay ZYON liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise You agree to pay ZYON 's actual damages.
3. MODIFICATIONS: You agree that ZYON may modify this Agreement and the Services from time to time. You agree to be bound by any changes ZYON may reasonably make to this Agreement when such changes are made. If You have purchased Services or Software from ZYON, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your service, it will remain ZYON’s sole discretion as to whether or not any refunds will be made. You agree that ZYON shall not be bound by any representations made by third parties who You may use to purchase Services from ZYON, and that any statement of a general nature, which may be posted on ZYON ’s Web Site or contained in ZYON ’s promotional materials, will not bind ZYON. ZYON may, at times, offer certain promotions with different charges and features.
4. INTELLECTUAL PROPERTY: You agree that ZYON or its licensor holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.
You understand and agree that all content and materials contained in this Agreement, other policies, the ZYON Web Site, and any affiliated Web Sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that ZYON or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of ZYON or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
5. FEES and PAYMENTS: If for any reason ZYON is unable to charge Your Payment Method for the full amount owed ZYON for the Services provided, or if ZYON is charged a penalty for any fee it previously charged to Your Payment Method, You agree that ZYON may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason ZYON is unable to charge Your credit card with the full amount of the Services provided, or if ZYON is charged back for any fee it previously charged to the credit card You provided, You agree that ZYON may pursue all available remedies in order to obtain payment. You agree that among the remedies ZYON may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any domain names or Services registered or renewed on Your behalf. ZYON reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, including PayPal, C2O.com, and other affiliated payment processors, and disputes that require legal Services. These charges will be billed to the Payment Method we have on file for You. You may change Your Payment Method at any time by logging into the ZYON Client Area. When using ZYON’s Pay by PayPal option, You agree to allow PayPal to debit the full amount of this transaction from Your PayPal account balance or the Preferred Funding Source You established with PayPal, which is non-refundable. It is Your responsibility to keep Your PayPal Account current, and to have available funds in it. You agree that PayPal and ZYON will not be responsible for payments that fail to go through as a result of Your Funding Source no longer existing, or holding insufficient funds. If for any reason PayPal is unable to withdraw the full amount owed for the Services provided, You agree that PayPal and ZYON may pursue all available remedies in order to obtain payment. You agree that if the transaction is returned unpaid, You will pay a service charge of $10.00 or the maximum amount allowed by law, which may be debited from Your account by PayPal or charged to Your Preferred Funding Source. You authorize the information provided to be used for the creation of an electronic funds transfer (EFT), and You authorize a debit of THE FULL AMOUNT of Your order from Your PayPal Account or Preferred Funding Source.
6. REPRESENTATIONS and WARRANTIES: You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.
7. LIMITATION OF LIABILITY: IN NO EVENT SHALL ZYON BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF ZYON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, ZYON ’s liability is limited to the full extent permitted by law. You agree that in no event shall ZYON ’s maximum aggregate liability exceed the total amount paid by You for the Service in dispute purchased from ZYON.
8. DISCLAIMER OF WARRANTIES: ZYON expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Services are provided on an "As Is" and "As Available" basis. ZYON makes no warranty that its Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, or error free, or that defects will be corrected. ZYON does not warrant, nor make any representations regarding the use, or results of, any of the Services it provides, in terms of their correctness, accuracy, reliability, or otherwise. Some jurisdictions do not allow the disclaimer of implied warranties, in which event that foregoing disclaimer may not apply to You.
9. INDEMNIFICATION: You agree to defend, indemnify and hold harmless ZYON and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys' fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or Services with ZYON whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from ZYON or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold ZYON harmless from any loss, liability, damages or expense, including reasonable attorneys' fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should ZYON be notified of a pending law suit, or receive notice of the filing of a law suit, ZYON may seek a written confirmation from You concerning Your obligation to indemnify ZYON. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that ZYON shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify ZYON of any such claim promptly in writing and to allow ZYON to control the proceedings. You agree to cooperate fully with ZYON during such proceedings. You agree to cooperate fully with ZYON during such proceedings. You agree You will not be entitled to a refund of any fees paid to ZYON if, for any reason, ZYON takes corrective action with respect to Your improper or illegal use of its Services. You also agree that if ZYON is notified that a complaint has been filed with a governmental, administrative or judicial body, that ZYON, in its sole discretion, may take whatever action ZYON deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
10. GOVERNING LAW, VENUE; WAIVER OF TRIAL BY JURY: This agreement shall be deemed entered into in the State of Minnesota. Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. You agree that the laws and judicial decisions of Scott County, Minnesota, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement subsequent to arbitration shall be brought in the courts of Scott County, Minnesota. You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement. If any litigation or arbitration is necessary to enforce the terms of this Agreement, ZYON will be entitled to reasonable attorneys' fees and costs.
11. NOTICES: You agree that all notices (except for notices concerning breach of this Agreement) from ZYON to You may be posted on our Web Site. Notices concerning breach will be sent either to the email or postal address You have on file with ZYON. In either case, delivery shall be deemed to have been made five (5) days after the date sent. Notices from You to ZYON shall be made either by email, sent to the address provided on the ZYON Web Site, or first class mail to ZYON.
12. HEADINGS: The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
13. ENTIRE AGREEMENT: You agree that this Agreement including the policies and agreements it refers to constitute the complete and only Agreement between You and ZYON regarding the Services contemplated herein.
14. SEVERABILITY: You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
15. WAIVER: The failure of ZYON to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of ZYON thereafter to enforce such provisions.
16. FORCE MAJEURE: ZYON will make every effort to keep its Web Site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold ZYON liable for any of the consequences of such interruptions.
17. NO THIRD PARTY BENEFICIARIES: Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
18. INCOME and EARNINGS DISCLAIMER: ANY EARNINGS OR INCOME STATEMENTS, OR EARNINGS OR INCOME EXAMPLES, ARE ONLY ESTIMATES OF WHAT YOU COULD EARN. THERE IS NO ASSURANCE YOU'LL DO AS WELL. IF YOU RELY UPON ZYON’S FIGURES, YOU MUST ACCEPT THE RISK OF NOT DOING AS WELL. INTERNET BUSINESSES AND EARNINGS DERIVED THERE FROM, HAVE UNKNOWN RISKS INVOLVED, AND ARE NOT SUITABLE FOR EVERYONE. MAKING DECISIONS BASED ON ANY INFORMATION PRESENTED IN ZYON’S SERVICES OR WEB SITE, SHOULD BE DONE ONLY WITH THE KNOWLEDGE THAT YOU COULD EXPERIENCE SIGNIFICANT LOSSES, OR MAKE NO MONEY AT ALL. YOU AGREE TO HOLD HARMLESS ZYON FOR FAILURE OF YOUR BUSINESS DECISIONS RELATING TO ANY INFORMATION PRESENTED.
19. AFFILIATES: Affiliate agrees that an ZYON Affiliate is an independent contractor and not an employee, agent, partner, legal representative, or franchisee of ZYON. Affiliate further agrees not to incur any debt, expense, obligation on behalf of, for, or in the name of ZYON. Affiliate must be of the age of majority in his/her state or country. Affiliate agrees to receive ZYON e-mail, including but not restricted to sales reports, training, and newsletter(s). A maximum of ONE affiliate per household is allowed. However, you may apply to be granted an exception for children or other relative(s). In all cases, the affiliates must reside in the network of the Sponsor. Affiliate agrees to present the ZYON Compensation Plan and ZYON products and Services as set forth at the official ZYON Website. Affiliate will make no claims regarding potential income, earnings, products, or Services beyond what is stated at the official ZYON Website. Affiliate further agrees not to reproduce commission checks or distribute commission checks in any form or by any means. Affiliate agrees not to disparage ZYON, other ZYON Affiliates, ZYON products, the ZYON compensation plan, ZYON employees, or ZYON Independent Contractors. Affiliate understands that disparagement may result in the immediate suspension or termination of Affiliate account with a cancellation of any pending commissions. e agrees that registering new affiliates through automated machine entry, manual entry, or advancing your affiliates' ranks without their approval or with the primary intent to advance in rank, is strictly forbidden and is grounds for suspension or termination of your account. Affiliate agrees to not utilize SPAM in promoting ZYON. This action may result in the immediate suspension or termination of Affiliate account with a cancellation of any pending commissions. Affiliate will also be in violation of the ZYON Affiliate Agreement and subject to legal action and be held liable for any financial loss incurred by ZYON. Although the ZYON Affiliate Program is not limited to the United States of America, all payments will be made in U.S. dollars within 90 days of each qualifying purchase. Affiliate commissions shall normally be paid by company check or PayPal and sent out twice monthly on or about the 1st and 16th of each month for the previous month's sales. To cover ZYON processing costs of Affiliate commission check, ZYON will deduct $3 (three dollars). If a sale is canceled or refunded, the related commission will be deducted from a subsequent payment. The minimum commission check that will be sent out is $50 (after processing fee). Some exceptions may apply. ZYON is not responsible for technical problems, acts by third parties, or other events outside our reasonable control which may temporarily disrupt or diminish service. ZYON shall not be held liable for any indirect, incidental, special, or consequential damages or any loss of revenue or profits arising under or with respect to this Agreement or program, even if ZYON has been advised of the possibility of such damages. No action shall be commenced by Affiliate against ZYON for breach of contract, nor shall any counterclaim or set off be interposed by Affiliate by reason thereof, including without limitation, for monies due or to become due hereunder, or for the amount of any fees, discounts, allowances, or other deductions from remittances made on account of qualifying purchases (as determined soley by ZYON) hereunder unless such action is commenced or counterclaim or set off interposed within (1) month after the same accrues. If either party terminates this Agreement for any reason, Affiliate Partner and the Affiliate Partner Site shall be prohibited from participating in the ZYON affiliate program without the express written consent of ZYON. Upon the effective date of termination or expiration of this Agreement, (i) each party shall return to the other party any confidential information of the other party, and shall immediately cease to use any of the other party's trademarks and copyrighted materials, and (ii) the rights and obligations of each party hereunder shall terminate; provided, however, that all terms of this Agreement which by their nature extend beyond the termination of this Agreement. Furthermore, ZYON may relay such termination to any ZYON Affiliate or Hosting after the effective time of such termination.
20. CONFIDENTIALITY: Except as otherwise provided in this Agreement or with the consent of the other party hereto, You and ZYON each agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists and pricing and sales information, concerning the You or ZYON, or any of their respective affiliates, provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by the party receiving such information for its own business purposes or for any other purpose, except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (i) to any person pursuant to a subpoena issued by any court or administrative agency, (ii) to its accountants, attorneys or other agents on a confidential basis and (iii) otherwise as required by applicable law, rule, regulation or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
We invite you to contact us if you have questions about this policy.
COPYRIGHT ZYON.COM - UPDATED OCTOBER 18, 2011