Hosting Agreement
1. Definitions
1.1 "Customer" means the persons, entity or agents and authorized representatives accepting this agreement.
1.2 "Content" means all text, pictures, sound, graphics, video, links, and other data stored by Customer on Morgansoft’s server computers.
1.3 "Website" means pages presenting the Content stored by Customer on Morgansoft’s server computers.
1.4 "User" means users of Customer's Website.
1.5 "User Content" means all text, pictures, sound, graphics, video, links, and other data stored by Users on Morgansoft’s server computers.
1.6 "Confidential Information" means information that Customer takes reasonable steps to maintain in confidence and identifies in writing to Morgansoft as confidential.
2. Web Hosting
2.1 - Hosting.
Morgansoft will provide dedicated or shared server computers, as specified in Exhibit A, with an Internet address for storage and access of Content, User Content, and the Website. The Website, Content, and User Content must be "server-ready." Morgansoft will provide bandwidth and storage as specified in Exhibit A. If Customer requires additional bandwidth or storage, Morgansoft will negotiate in good faith to amend this Agreement unless Morgansoft’s server computers cannot accommodate the requested bandwidth or storage.
2.2 - Website and Database Backup.
Morgansoft will backup the Website and database in a commercially reasonable manner. However, Morgansoft is not responsible for lost Content or lost User Content. Website backups will be stored by Morgansoft for no longer than 60 days. Morgansoft will provide, at Customer's expense, an electronic copy of the database upon written request by Customer. Backups are intended for disaster recovery, not the restoration of individual files.
2.3 - Server Logs.
As requested by Customer, Morgansoft will deliver to Customer in electronic form the Server Log of Website activity. Customer will be entitled to one month of log storage free of charge. Morgansoft may, at its option, charge a fee to Customer for additional space required to store oversized logs.
2.4 - Standards.
Morgansoft’s services will conform to the following:
2.4.1 - Availability of Website.
Morgansoft will provide hosting services for the Website that meet reasonable commercial standards for, among other matters, packet loss, accessibility, latency, availability, and throughput.
2.4.2 - Security.
Morgansoft will take commercially reasonable steps to prevent unauthorized access to the Website, Content, User Content, and Confidential Information stored on Morgansoft’s server computers.
2.4.3 - Server/Network Computer Outages.
Morgansoft will employ best efforts in providing advance notice to Customer of scheduled server computer/network outages.
2.4.4 - Disclaimers.
Morgansoft provides no equipment, software, or communication connections to Customer. Morgansoft makes no representations, warranties or assurances that the Customer's equipment, software, and communication connections will be compatible with Morgansoft’s hardware and service.
3. Ownership of Data and Privacy
All data and User Content stored by Customer on Morgansoft’s server computers shall at all times remain the property of Customer. Customer grants to Morgansoft a non-exclusive, worldwide license to the Content and User Content only to the extent necessary for Morgansoft to host the Website and database. Morgansoft will not discuss or disclose details of clients’ data with third parties, nor use it any way shape or form.
4. Content Control.
4.1 - Lawful Purpose.
Customer will only use Morgansoft’s hardware and services for lawful purposes and Customer will not store or provide any Content or User Content or link to any material that violates foreign, federal, state or local law, the Terms of Service of Exhibit B and any modifications thereof, Morgansoft’s posted Acceptable Use Policy , or any other Morgansoft policy.
4.2 - Remedy for Violation.
Should Morgansoft become aware that Customer has violated Part 4.1, Morgansoft may, at its option, remove the Content or User Content in violation, immediately terminate hosting Customer's Website under Part 6.3, and/or notify authorities. If hosting is terminated, Morgansoft may, in its sole discretion, reinstate hosting upon adequate showing of Customer's right to use the Content or User Content.
5. Payments.
5.1 - Fees.
Customer shall pay fees agreed upon during account signup. Morgansoft will invoice annually in advance (unless otherwise agreed in writing), and payment is due twenty eight (28) days from invoicing. In the case of credit card payments Morgansoft will automatically charge Customer Credit Card on file all fees associated with the account on the due date. Morgansoft may, at its option, charge a 10% fee for late payments.
5.2 - Returned Checks and Declined Credit Cards may incur a fee.
5.3 - Account Updates.
It is the responsibility of the customer to maintain accurate billing information with Morgansoft. This may include updated credit card information, email address and mailing address.
5.4 - Taxes.
Customer is solely liable for any taxes or fees payable for products or services sold by Customer on the Website.
6. Term and Termination.
6.1 - Term.
The initial term is agreed upon during account signup. After the initial term, this Agreement will automatically renew on an annual basis until terminated.
6.2 - Termination by Customer.
During the initial term, Customer may terminate this Agreement upon the material breach of Morgansoft, if such material breach remains uncured for thirty (30) days following written notice to Morgansoft. This cure period shall be extended by delay caused by events beyond the control of Morgansoft including, but not limited to, natural disasters, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of Morgansoft, or technical faults of Morgansoft’s service providers or vendors. After the initial term, Customer may terminate this Agreement upon fourteen (14) days written notice to Morgansoft.
6.3 - Termination by Morgansoft.
Morgansoft may immediately terminate this Agreement for cause at any time without penalty. Causes justifying immediate termination include, but are not limited to: violation of any foreign, federal, state, or local law; non-payment of fees due under Part 5 of this Agreement; breach of this Agreement; violation of the Terms of Service found at http://www.morgansoft.co.uk/termsofservice.aspx and any written modifications thereof; and violation of any other Morgansoft policy. Morgansoft may terminate this Agreement without cause at any time upon thirty (30) days written notice to Customer.
6.4 - Termination Procedures
Upon termination, Morgansoft will extract all client content and data into excel files and email the files to the client within 14 days, free of charge. All client data will be removed from Morgansoft servers and permanently deleted. Website will be deactivated and all user accounts will be deleted.
7. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MORGANSOFT, AND ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH MORGANSOFT HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INGRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. MORGANSOFT, ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE MORGANSOFT HARDWARE OR SERVICES. CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO MORGANSOFT.
9. Customer Indemnity.
Customer shall defend Morgansoft against any third party claim, action, suit or proceeding arising as a result of Customer's use Morgansoft’s hardware or services and indemnify Morgansoft for all losses, damages, expenses, and costs incurred by Morgansoft as a result of a final judgment entered against Morgansoft in any such claim, action, suit or proceeding.
10. General Provisions.
10.1 - Governing Law.
This Agreement will be governed and construed in accordance with United Kingdom Law. Both parties agree to submit to personal jurisdiction in Maidstone, Kent, and further agree that any cause of action or dispute arising under this Agreement will be litigated or arbitrated in Maidstone, Kent, United Kingdom.
10.2 - Severability and Waiver.
If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
10.3 - Relationship of Parties.
No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.
10.4 - Legal Fees and Costs.
In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorneys' fees, expert witness fees and legal expenses as may be fixed by a court of competent jurisdiction.