CAP5 HOSTING Agreement
(Form 2112 03-13-08)
1. Provision of Services
CAP5 agrees to provide services to the customer in accordance with the CAP5 Hosting Package Pricing herein, and the CAP5 Web Hosting Service Level Agreement (below) in return for customer’s payment, execution and compliance with an applicable CAP5 Hosting or Colocation Agreement, and customer’s compliance with CAP5's Acceptable Use Policy (below) and Anti-Spam Policy (below), all incorporated by reference herein. Provision of CAP5's services shall commence once CAP5 has received both customer payment and a duly executed copy of an applicable CAP5 Hosting or Colocation Agreement. The customer warrants and represents that the customer shall use CAP5's services only for lawful purposes.
2. Hosting Services
CAP5 agrees to lease to Customer, and Customer agrees to lease from CAP5, during the Term, shared server hosting space on one or more CAP5 Servers. Customer shall pay CAP5 during the Term a recurring fee and non-recurring installation fee as set forth in the Hosting Agreement. Customer accepts the hosting services and hereby covenants and agrees to use the hosting services for the purposes herein set forth and for no other purpose and in strict accordance with the terms and conditions of this Agreement.
3. Technical Support and Response
If desired, CAP5 will provide technical services “Remote Hands” for Customer to repair or maintain Customer provided applications on a per hour basis at CAP5’s standard billable rates. The rate shall apply to all Customer technical requests and is subject to a two (2) hour minimum charge. Emergency repairs on the CAP5 equipment and facilities will take precedence over technical services which may cause lengthening of response time. CAP5 shall respond to a Customer request for service as follows: (a) For emergency situations: within (i) two (2) hours when notified by Customer from 8:00 am - 5:00 pm, Monday through Friday only, holidays excluded; and (ii) within four (4) hours when notified by Customer at any other time. (b) For non-emergency situations: (i) within twenty-four (24) hours when notified by Customer from 8:00 am - 5:00 pm, Monday through Friday only, holidays excluded; and (ii) within seventy-two (72) hours when notified by Customer at any other time.
4. Permits, Fees, and Other Approvals
Customer will be responsible for any permits, fees, and other approvals, if required, for the customer’s web application.
5. Notices
Any notices or communications required or desired to be given in connection with this Agreement shall be in writing and shall be delivered to the applicable party by hand or by U.S. Certified Mail, return receipt requested, or by reputable overnight courier service addressed to the Parties as reflected in this agreement with all notices deemed received upon delivery or first attempted delivery.
6. Suspension of Service/Facilities
CAP5 may limit the use of the services hereunder when necessary because of conditions beyond its reasonable control. In addition, CAP5 reserves the right at all times during the term to suspend any and all services and/or facilities to be provided hereunder without notice, if CAP5 deems, in its discretion, that such action is necessary to protect the public or CAP5 personnel, its agents and CAP5 facilities or services from damages or injury of any kind or in the event Customer application(s) interferes with the operations of CAP5 or any third party. Where possible, CAP5 will notify Customer promptly of such suspension and will cooperate with Customer to reinstate any and all services and/or facilities.
7. Default
The non-defaulting Party may terminate their Agreement upon the occurrence of any of the following events which shall constitute a default hereunder: (a) any amount payable by Customer to CAP5 remains unpaid for thirty (30) days following written notice to Customer that such amount is past due; (b) material breach of any other provision of this Agreement after written notice of such breach and failure of the breaching Party to cure such breach within thirty (30) days of receipt of such notice; (c) a final determination by any governmental entity having jurisdiction over the facilities and/or services provided under this Agreement that the relationship of CAP5 and Customer, and/or the facilities and/or services provided hereunder, are contrary to then existing laws; (d) the filing of an involuntary bankruptcy action against either Party under any federal, state or municipal bankruptcy or insolvency act which is not discharged or stayed within sixty (60) days following such filing or (e) the filing of bankruptcy by either Party under any federal, state or municipal bankruptcy or insolvency act, or the appointment of a receiver or any act or action constituting a general assignment by either Party of its properties and interest for the benefit of its creditors.
CAP5 may terminate Hosting and Colocation Agreements at any time for customer’s violation of CAP5's Acceptable Use Policy (attached). Termination by CAP5 does not exclude the customer from obligation to fulfill all financial commitments for the entire contract term. Upon the occurrence of a default by either Party, the non-defaulting Party may exercise the following remedies: (i) terminate this Agreement as aforesaid; and/or (ii) exercise any other rights or remedies which may be available at law or in equity. Upon the occurrence of a default, the non-defaulting Party shall have all reasonable expenses (including court costs and reasonable attorneys’ fees) paid by the defaulting Party.
8. Payments
Customer agrees to prepayment of recurring fees and one-time charges. Other fees, if applicable, including but not limited to labor, late fees and termination charges, will be invoiced monthly or upon completion. Payment for invoiced services is due upon receipt. Failure to provide timely payment may result in suspension or termination of services at CAP5’s discretion. Suspension or termination of services due to non-payment does not invalidate payment obligations of the customer under the terms of this Agreement.
Late fees, penalties and interest may apply to the extent permitted by law. All charges for services provided hereunder that remain unpaid for a period of thirty (30) days or more after invoice date shall be subject to interest thereon at a rate of the lesser of eighteen percent (18%) per annum or the maximum rate allowable by applicable law. The charges for service provided hereunder are exclusive of any applicable sales, use, excise and like taxes which will be separately stated and included on each applicable invoice.
9. Taxes
CAP5 shall not be liable for any taxes and other governmental fees to be paid that are related to purchases made by the customer. The customer agrees that they shall be fully responsible for all taxes in the State of Texas and fees of any nature associated with products or services sold through the use of or with the aid of services provided to the customer by CAP5.
10. Inability to Perform
Neither Party shall be responsible for delays in the performance of its obligations hereunder caused by events beyond its reasonable control.
11. Data and Products
Any data the customer provides to CAP5 to place in its data center in connection with CAP5's web hosting services shall be in a condition requiring no additional manipulation on the part of the CAP5. CAP5 shall make no effort to validate this data for content, correctness, or usability. CAP5 may, in its sole discretion, reject material or data that the customer has placed or is attempting to place on CAP5's data servers. CAP5 agrees to notify the customer immediately of its rejection of the data, and provide the customer with an opportunity to amend or modify the data to meet the requirements of CAP5. The customer’s failure to amend or modify the data or material as directed by CAP5 within a reasonable time shall be a breach of this agreement. CAP5 will exercise no control over the content of the information passing through CAP5's network except those controls expressly provided herein.
12. Limited Warranty; Limitation of Damages.
CAP5, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that CAP5's services will not be interrupted or error free; neither do they make any warranty as to the results that may be obtained from the use of CAP5's services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through the CAP5's services, unless otherwise expressly stated in this Agreement.
To the fullest extent permitted by law, CAP5, its officers, agents, or anyone else involved in providing CAP5's services shall not be liable for any incidental, special, or consequential damages that result from the use of CAP5's services; or for any damages that result from acts of God, communication failure, theft, destruction, or unauthorized access to CAP5's records, programs, or services. The Customer agrees that the liability limit of CAP5 shall in no event be greater than the aggregate dollar amount which the customer paid during the term of this agreement, exclusive of any reasonable attorneys’ fees and court costs.
CAP5 DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO FACILITIES OR SERVICES, OR TO ANY EQUIPMENT PLACED THEREIN AND OTHER SERVICES, MATERIALS AND EQUIPMENT PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE.
CAP5 shall not be responsible for any damages that may be suffered by the customer, including loss of data resulting from delays, non-deliveries, or service interruptions due to the customer’s errors or omissions. Use of any information obtained by way of CAP5 is to be used at the customer’s own risk, and CAP5 specifically denies any responsibility for the accuracy or quality of information obtained through its services. t.
12. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights
Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to the customer. the customer agrees that all right, title, and interest in any product or service provided to the customer is solely the property of the CAP5. These products and services are only for the customer’s use in connection with CAP5's services provided to the customer as outlined in this Agreement. The customer expressly warrants to CAP5 that the customer has the right to use any patented, copyrighted, or trademarked material which the customer uses, posts, or otherwise transfers to the customer’s servers.
13. Age
The customer expressly represents and warrants that the customer and any person to whom the customer grants access to the customer’s CAP5 facilities and equipment shall have reached the age of eighteen years old.
14. Indemnification
The customer agree that they shall defend, indemnify, save, and hold CAP5 harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys' fess, asserted against CAP5, its agents, servants, officers, and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the customer, it’s agents, employees, or assigns. The customer agrees to defend, indemnify, and hold harmless CAP5 against liabilities arising out of:
i. any injury to person or property caused by any products sold or otherwise distributed in connection with CAP5 services provided to the customer;
ii. any material supplied by the customer infringing or allegedly infringing on the property or proprietary rights of a third party;
iii. copyright infringement; and
iv. any defective product which the customer sold or distributed by means of CAP5 services.
15. Governing Law; Jurisdiction; Forum
CAP5 Hosting Agreements shall be governed by and construed in accordance with the laws of the State of Texas without regard to its conflicts of laws principles. The customer agrees, in the event any suit is brought in connection with CAP5's provision of services to the customer, to submit to the jurisdiction of Harris County in the State of Texas, and agree to the courts of State of Texas as the appropriate forum.
16. Severability
In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
17. Waiver
No waiver by CAP5 of any breach by the customer of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver shall be effective unless it is in writing and then only to the extent expressly set forth in such writing. No failure or delay of CAP5 to take action on a breach event by the Customer prohibits CAP5 from taking future actions regarding that event.
SERVICE LEVEL Agreement
1. Technical Support
CAP5 provides technical support with setup of CAP5 servers, access, and other contracted services upon payment of setup fee by Customer. CAP5 does not provide support for web applications, scripts, or components from third parties or developed by Customer unless provided for under separate contract with CAP5. CAP5's standard response time to datacenter technical support issues is two hours or less during normal working hours; however, response time depends upon the complexity of the inquiry and general workload. The Technical Support Department assigns highest priority to issues involving server unavailability. Customer will be notified by phone or email with information regarding issue status or closure. The issue’s status or closure can also be tracked in TIM.
CAP5's Technical Support Department may be contacted by submitting an online request to the CAP5 Ticket and Issue Management (TIM) tool: https://webapps.capfive.com/
2. Billing and Account Inquiries
All inquiries regarding reselling CAP5's services, purchase of new accounts, and available discounts should be addressed to: sales@capfive.com
3. Escalation
If the Customer is dissatisfied with CAP5's service under this agreement, please contact CAP5's Customer Support group. A CAP5 manager will review the concern, investigate, and reply within one business day. Some issues may require detailed investigation and more than one day for resolution: techmgrs@capfive.com
4. Network Availability
CAP5 guarantees 99.999% monthly average scheduled availability of its network. Network availability is defined as CAP5’s ability to pass incoming and outgoing TCP/IP traffic. Server unavailability caused by network unavailability is not included in uptime calculations if such network unavailability is caused by factors beyond CAP5's control. Interruptions of service due to problems on the internet backbone or on Customer's portion of the network are beyond CAP5's control. Interruptions of service caused by denial of service or similar attacks are beyond the CAP5's control and are not included in uptime calculations.
5. Scheduled Maintenance
To guarantee optimal performance of the network, CAP5 will perform routine maintenance on a regular basis. Such maintenance may require taking service off-line. CAP5 reserves one hour of network unavailability per month for maintenance purposes. The maintenance typically is performed during off-peak hours. CAP5 provides Customers with advance notice whenever possible.
6. Penalty for Non-Compliance
Upon the Customer’s notice to CAP5, if network availability for the month is below the guaranteed level, CAP5 will provide one free day of collocation for each hour of network unavailability. To receive the credit, the Customer must specifically request it within 30 days following the month for which the refund is requested. The Customer must provide all dates and times of network unavailability along with the Customer’s account information. CAP5 will compare information provided by Customer to the network availability monitoring data. Information on outages should be submitted to: accounting@capfive.com
The total days provided free of charge to Customer for any account may not exceed 50% of the days in the month charged to that account unless otherwise negotiated.
7. Ownership of Data
All data created by the Customer and/or stored by the Customer within CAP5's data center are the Customer’s property and are for the Customer’s exclusive use unless access is permitted by the Customer. CAP5 shall allow access to such data only by authorized CAP5 personnel and shall provide access in compliance with CAP5's Privacy Policy. CAP5 makes no claim of ownership of any web server content, e-mail content, or any other type of data contained within the Customer's service space.
8. Privacy Statement
CAP5 values the privacy of its customers and will ensure to the best of it’s ability that all information regarding the scope and content of services contracted will remain confidential unless approved by Customer.
ACCEPTABLE USE POLICY
This Acceptable Use Policy ("Policy") describes the proper and prohibited use of CAP5’s Web Hosting and Collocation services ("Service") as subscribed to under a CAP5 Service Agreement. This Policy is designed as a guideline and is not exhaustive as such.
1. Services
Services may allow the customer to develop, publish, and display a web site, store data in a database, send and receive e-mail messages, maintain a bulletin board through which you can interact with the Internet users, and send and retrieve various information. CAP5 does not monitor or censor the information the customer makes available or collect through the use of the Services with the exception of systems and network resources monitoring. However, CAP5 will act upon Policy violations when such are discovered during regular monitoring processes or reported to CAP5. CAP5 expects the customer, and all other users of the Services, to take responsibility in using the Internet with courtesy and responsibility, and be familiar with and to practice good Internet etiquette. As consideration for CAP5’s provision of Services, the customer agrees to abide by the following provisions relating to the acceptable use of the customer’s CAP5 Service.
CAP5 reserves the right in its sole discretion to revise this Acceptable Use Policy; and remove or restrict access to/from any content from any site for any reason, including but not limited to, the customer’s violation of any conditions of this Acceptable Use Policy. CAP5’s right to remove or restrict access to/from inappropriate content under this Policy shall not place an obligation on CAP5 to monitor or exert editorial control over the content of your account.
2. Restrictions on Use of Services
Customer agrees not to use or allow access to CAP5 services to:
1. Create or maintain software download or distribution sites or sites created for the purpose of mass distribution of software products. A software distribution site is defined as a site on which 50% or more of total bandwidth (data transfer) is used for programs or binary code downloads.
2. Create or maintain sites that generate system errors or exceptions that disrupt servers' performance or cause server-wide outages. This includes overriding or avoiding system settings and restrictions imposed by the terms of Services.
3. Exceed allowed bandwidth by transferring amounts of data greater than allowed by the terms of purchased Service.
4. Violate any applicable laws, regulations, or other provisions having the force of law, either intentionally or unintentionally.
5. Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
6. Employ misleading e-mail addresses or falsify information in any part of any communication.
7. Upload, transmit, disseminate, post, store or post links to any content that:
- Prohibited from transmitting or posting by law, or by contractual or fiduciary relationship;
- Facilitates hacking or unauthorized access or use of data, systems, servers or networks including any attempt to probe, scan or test for vulnerabilities, or to breach security or authentication measures;
- Falsifies origin by forging TCP/IP packet headers, e-mail headers, or any part of a message header, unauthorized monitoring of data or traffic;
- Interferes with service to any user, system or network by using flooding techniques, overloading a system or a network, staging or broadcasting an attack, or any other means resulting in a crash of a host either deliberately or by negligence;
- Infringes or contributes to any infringement of any intellectual property, material protected by copyright, trademark, patent, trade secret or proprietary right of any party;
- Is or may be considered unsolicited or unauthorized advertising, promotional materials, or any junk mail, spam, spamvertisements, make money fast schemes, chain letters, pyramid schemes, or any other form of solicitation;
- Contains viruses, worms, Trojan horses, time bombs, trap doors, or any other computer code, files, or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Is unlawful, harmful, threatening, abusive, tortuous, libelous, defamatory, vulgar, obscene, or invasive of privacy;
- Is of adult nature, pornographic, or harmful to minors;
- Promotes illegal activity, including providing instructions for illegal activity, or transmitting, disseminating or offering fraudulent goods, services, schemes or promotions, or furnishing false data on any signup form, contract or online application or registration, or the fraudulent use of any information obtained through the use of the Services including use of credit card numbers.
- Exploits the images of children or discloses personally identifiable information belonging to children.
ANTI-SPAM POLICY
CAP5 Technology Solutions, LLC. (CAP5) prohibits the use of CAP5 Services in any manner associated with the transmission, distribution or delivery of any unsolicited bulk or unsolicited commercial e-mail ("Spam"). You may not use any CAP5 services to send Spam. You also may not deliver Spam or cause Spam to be delivered to any of CAP5 Technology Solutions, LLC.'s Services or CAP5 customers.
In addition, e-mail sent, or caused to be sent, to or through CAP5 Services may not:
- use or contain invalid or forged headers;
- use or contain invalid or non-existent domain names;
- employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path or use other means of deceptive addressing;
- use a third party's internet domain name, or be relayed from or through a third party's equipment, without permission of the third party;
- contain false or misleading information in the subject line or otherwise contain false or misleading content;
- fail to comply with additional technical standards described below;
- otherwise violate CAP5 Technology Solutions, LLC.'s Terms of Use.
CAP5 Technology Solutions, LLC. does not authorize the harvesting, mining or collection of e-mail addresses or other information from or through CAP5 Services. CAP5 Technology Solutions, LLC. does not permit or authorize others to use CAP5 Services to collect, compile or obtain any information about its customers or subscribers, including but not limited to subscriber e-mail addresses, which are CAP5 Technology Solutions, LLC.'s confidential and proprietary information.
CAP5 Technology Solutions, LLC. does not permit or authorize any attempt to use the CAP5 Services in a manner that could damage, disable, overburden or impair any aspect of any of the CAP5 Services, or that could interfere with any other party's use and enjoyment of any CAP5 Service.
If CAP5 Technology Solutions, LLC. believes that unauthorized or improper use is being made of any CAP5 Service, it may, without notice, take such action as it, in its sole discretion, deems appropriate, including terminating network access and blocking messages from a particular internet domain, mail server or IP address. CAP5 Technology Solutions, LLC. may immediately terminate any account on any CAP5 Service which it determines, in its sole discretion, is transmitting or is otherwise connected with any e-mail that violates this policy.
Nothing in this policy is intended to grant any right to transmit or send e-mail to, or through, CAP5 Services. Failure to enforce this policy in every instance does not amount to a waiver of CAP5 Technology Solutions, LLC.'s rights.
CAP5 Technology Solutions, LLC. maintains computer equipment in Texas (among other states), and unauthorized use of CAP5 Services will lead to use of equipment in these states. Unauthorized use of CAP5 Services in connection with the transmission of unsolicited e-mail, including the transmission of e-mail in violation of this policy, may result in civil and criminal penalties against the sender and those assisting the sender, including those provided by the Computer Fraud and Abuse Act (18 U.S.C. §1030, et seq.); Texas Business & Professions Codes and other state and federal laws.
If CAP5 determines that the customer has violated the terms of this Acceptable Use Policy, that determination, made at CAP5’s sole discretion, is grounds for immediate termination of the customer’s CAP5 account without notice or penalty to CAP5. Termination by CAP5 does not exclude the customer from obligation to fulfill all financial commitments for the entire contract term.