Hagen Hosting Terms of Service
IMPORTANT-READ CAREFULLY: This User Agreement ("Agreement") is a legal agreement between you (either an individual or a single entity, hereinafter referred to as "you" or "customer") and Hagen Software Inc. (hereinafter referred to as "Hagen Software" or "Hagen Hosting"), the parent company of Hagen Hosting. The SERVICES covered by this Agreement include all web hosting services, application hosting services, and all other services provided by Hagen Software to you, including but not limited to domain name registrations, installation services, customization services, technical support services, e-commerce services, secure certificates, web site design services, marketing services, consulting services, and any other services or add-ons that may be provided to you in the future. By purchasing, utilizing, accessing or otherwise using these SERVICES, you agree to be bound by the terms of this Agreement.
a. Terms of Service
This User Agreement shall be known interchangeably as the User Agreement or the Terms of Service. Both terms shall refer to this Agreement.
b. Web Hosting
Web Hosting refers to the creation of an account and/or the storage of files by Customer on the servers or other facilities of Hagen Hosting.
c. Application Hosting
Application Hosting refers to the provision of software applications that are made available for use by Customer and licensed to Customer, but without providing the actual binaries or source code to Customer, while being stored and executed on the servers of Hagen Hosting.
2. INCORPORATION BY REFERENCE
Customer agrees that the Hagen Hosting Acceptable Use Policy (currently located on the World Wide Web at http://www.hagenhosting.com/about/aup.html) shall be incorporated by reference into this Agreement and further agrees to comply with and be bound by all of its provisions, as modified from time to time. Customer further agrees that, if at any time, Customer signs up for any of the hosted applications provided by Hagen Software, including but not limited to e-Classifieds, the End User License Agreement for such hosted applications shall also be incorporated by reference into this Agreement.
You agree that Hagen Hosting shall retain the right to add, delete, or modify any provision of this Agreement at any time without prior notice. Hagen Hosting agrees to post any such modifications on its web site by updating the text of the User Agreement as it is posted in the usual location where the Terms of Service are contained (currently http://www.hagenhosting.com/about/tos.html). Hagen Hosting further agrees that if it ever moves this location to a different URL, it shall update its web site links in order to direct users to the new location of this Agreement. You agree that Hagen Hosting is required only to update the posted text of the Agreement when it changes, that Hagen Hosting is not required to separately identify any changes that have occurred, that you are solely responsibile for monitoring this Agreement periodically for any such changes, and that if you no longer can agree to all of the terms contained in this Agreement as posted on the Hagen Hosting web site, your sole and exclusive remedy is to discontinue your usage of all SERVICES from Hagen Hosting, subject to the terms of this Agreement for doing so, including but not limited to the terms regarding early cancellations and the no refunds policy.
You also agree that all of the above provisions regarding amendments to this Agreement shall be equally applicable to the Acceptable Use Policy, which currently can be found at http://www.hagenhosting.com/about/aup.html. You further agree that, if you are running any hosted applications on your account with Hagen Hosting, all of the above provisions regarding amendments to this Agreement shall be equally applicable to the End User License Agreement for said hosted versions.
4. PROVISION OF SERVICES
In consideration for your acknowledgement and assent to the terms of this Agreement, and under the terms of the specific SERVICES that you rent or purchase from Hagen Hosting, Hagen Hosting agrees to make all reasonable efforts to provide you the services that you have contracted for, subject to the terms of this Agreement and the specific limitations of the SERVICES that you have contracted for. Those limitations may relate to the amount of disk space provided, the amount of bandwidth allocated, or other specific criteria. You agree that the service and its subcomponents, including but not limited to domain registrations, third party scripts, and other subcomponents, will not necessarily be available 100% of the time, due to the need for periodic server maintenance, updates, reboots, issues with third party domain registrars, security issues and exploits with third party scripts, and other such issues that commonly arise as a normal part of web hosting and application hosting services. Hagen Hosting will make reasonable efforts to restore the service and/or its subcomponents as quickly as security and reliability requirements will allow when such situations occur, but you agree that this confers no right to immediate restoration of said service or subcomponents, and that Hagen Hosting reserves the right to charge extra fees for workarounds, priority service, or emergency service in such cases, as the normal published fees for our web hosting and application services do not include and are not intended to cover the costs of 100% availability of the service and all subcomponents at all times. You agree that in the event of any disputes regarding the nature of the services that you have contracted for, Hagen Hosting shall be the sole and final arbiter of the exact nature of those services.
5. USER CONDUCT
Hagen Hosting's services may only be used for lawful purposes. Any use of these services that violates any local, state, federal, or international laws that may apply to Hagen Hosting, your local jurisdiction, or any jurisdiction that you or your site may be subject to is strictly prohibited. While using the service, you may not:
A. Restrict or inhibit any other user from using and enjoying the Internet.
B. Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, patent, misappropriation and anti-dilution laws.
C. Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component.
D. Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material).
You agree to indemnify, defend, and hold harmless Hagen Hosting from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting indirectly from your use of the service which damages either you, Hagen Hosting, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with your account, including but not limited to domain name selection and Web site content.
7. REFUSAL OR DISCONTINUANCE OF SERVICE
Hagen Hosting reserves the right to refuse or discontinue service to anyone at Hagen Hosting's sole discretion. Hagen Hosting may deny you access to all or part of the service without notice if you engage in any conduct or activities that Hagen Hosting in its sole discretion believes violates any of the terms and conditions in this agreement. Hagen Hosting shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. You agree that Hagen Hosting has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. Hagen Hosting reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement.
8. DISCLAIMER OF WARRANTY
Hagen Hosting makes no warranties or representations of any kind for the services being offered. The service is provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title, noninfringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by Hagen Hosting or its agents or employees shall create a warranty. Hagen Hosting provides no warranty that the service will be uninterrupted or error free or that any information, software or other material accessible on the service is free from viruses or other harmful components. Under no circumstances shall Hagen Hosting be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the service, or for third parties' use of the service to access your Web space, or to access the Internet or any part thereof, or your or any third parties' reliance on or use of information, services, or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance. If you are dissatisfied with Hagen Hosting service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the service.
You understand that by placing information on Hagen Hosting's servers, such information becomes available to all Internet users and that Hagen Hosting has no way of limiting or restricting access to such information or protecting such information from copyright infringement. You assume total responsibility and risk for your use of Hagen Hosting's servers and the Internet. It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise provided through Hagen Hosting or on the Internet generally.
9. LIMITATION OF LIABILITY
You agree that Hagen Hosting will not be responsible for any losses that may occur where Services are accessed by third-parties through illegal or otherwise unauthorized means, including but not limited to situations where data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Hagen Hosting at the time) that may exist in the Services or in Hagen Hosting's equipment used to provide the Services.
Under no circumstances will Hagen Hosting be liable for any consequential, indirect, incidental, special or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, or of any other third party, whether in an action in contract or tort or strict liability or other legal theory. Hagen Hosting will not be liable to Customer, any of its customers, or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Hagen Hosting's records, programs, equipment or services.
Notwithstanding anything to the contrary in this Agreement, Hagen Hosting's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) will not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this Section will survive any termination of this Agreement.
10. ECPA NOTICE
Hagen Hosting reserves the right to monitor any and all communications through or with our facilities. You agree that Hagen Hosting is not considered a "secure communications medium" for the purposes of the Electronic Communications Privacy Act (ECPA), and that no expectation of privacy is afforded.
Customer hereby represents that he, she, or it, is either an individual entering this Agreement for his or her personal use and is over 18 years of age, or is a corporation, partnership, organization, or other legal corporate entity, duly organized, validly existing and in good standing under the laws of the state, province, or country of its organization, and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.
12. IDENTIFICATION INFORMATION
You agree that you, as the person legally responsible for use of this account, are at least 18 years of age. You agree to supply Hagen Hosting with a current and truthful name, postal address and telephone number for our records, and you have a continued obligation to keep this information current. You also agree that you are an authorized user of any credit card that you supply to us and agree that we have an obligation to fully investigate any possible fraudulent credit card use.
13. NO INTERFERENCE WITH OPERATION OF SYSTEM
You agree not to maliciously or intentionally interfere with the proper operation of the system, including but not limited to defeating identification procedures, obtaining access beyond that which you are authorized for, and impairing the availability, reliability, or quality of service for other customers. You further agree not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. You agree to follow the Acceptable Use Policy of any network or service you connect to.
You agree to adhere to system policies as published online by Hagen Hosting, including restrictions on services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of service at Hagen Hosting. You agree to abide by any and all future Hagen Hosting policy decisions.
You agree that the security of your account is solely your own responsibility. You further agree that if you believe the security of your account has been compromised in any way, you will notify Hagen Hosting immediately in writing by registered mail, return receipt requested, to Hagen Hosting, 730 24th Street, NW, Suite 14, Washington, DC 20037, USA. You shall be held fully responsible for any misuse or compromise to your account for which Hagen Hosting is not properly notified. You agree that if any security violations are believed to have occurred in association with your account, Hagen Hosting has the right to suspend access to the account pending an investigation and resolution. You also agree that Hagen Hosting has the right to cooperate in any government or legal investigation regarding any aspect of our services, including services sold to you. You agree that any use of our system to engage in software piracy or other violations of law will result in account suspension and be immediately reported to the appropriate authorities.
15. BACKUP OF DATA
You acknowledge and agree that your use of the service is at your sole risk. Hagen Hosting is not responsible for files and data residing on your account. You agree to take full responsibility for files and data transferred to or created on your account and to maintain all appropriate backups of files and data stored on Hagen Hosting servers. You further agree that Hagen Hosting has the right to periodically prune old e-mail messages, access logs, or other data so as to maintain the reliability of the web hosting service for all customers by preventing the servers from running out of disk space, slowing down due to excessive numbers of files, or incurring any other problems related to the storage of these old e-mail messages, access logs, or other data files. You agree that you shall be solely responsible for maintaining backups of any such e-mail messages, access logs, or other data that you maintain on Hagen Hosting servers.
16. TRANSMITTAL OF MATERIALS
You agree not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. The use of Hagen Hosting or any other service with reference to services obtained through Hagen Hosting for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as "spamming", is strictly prohibited and may cause your services to be terminated immediately and without warning, and you will be held fully responsible for any damages to you, Hagen Hosting, or any other party or parties resulting from any such conduct.
You agree to supply appropriate payment for the services received from Hagen Hosting in advance of the time period during which such services are provided. You agree that all fees are non-refundable. You agree that until and unless you officially notify Hagen Hosting of your desire to cancel any or all services received through the appropriate channels as prescribed in this Agreement, those services will be billed on a recurring basis and Hagen Hosting shall have no obligation to send reminders or other notices of such recurring payments. You agree that if you are paying by credit card, prepayments will be billed and charged automatically, and that Hagen Hosting may apply the amount due to the provided card at any time. You agree that Hagen Hosting may post such charges against any card that you have listed on the account, regardless of what the current billing preferences are on the account, and regardless of whether the card is enabled or the primary card on that account at the time. You further authorize Hagen Hosting to charge any amounts due and owing under any provision of this Agreement to your credit card at any time, with this contract and your ongoing usage of our services serving as your explicit authorization for us to do so and with the understanding that it would be administratively impossible for us to provide these services to you and other customers on an ongoing basis if we were required to separately obtain a new authorization each time a charge was posted to a customer's credit card. You agree that there shall be absolutely no refunds whatsoever for unused time periods in the event of account termination or for any other reason. You agree that this policy shall be applicable for all payment plans and periods.
18. DISCLOSURE OF BILLING INFORMATION TO THIRD PARTIES
Customer acknowledges and agrees that any credit card and related billing and payment information that Customer provides to Hagen Hosting may be shared by Hagen Hosting with companies who work on Hagen Hosting's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Hagen Hosting and servicing Customer's account. Hagen Hosting may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Hagen Hosting shall not be liable for any use or disclosure of such information by such third parties.
Customer will not have the right to assign this Agreement without the prior written consent of Hagen Hosting.
20. FORCE MAJEURE
Hagen Hosting will not be liable for failure or delay in performing its obligations if such failure or delay is due to circumstances beyond its reasonable control, including but not limited to acts of any governmental body, acts of terrorism, acts of God (including but not limited to earthquakes, tornadoes, hurricanes, blizzards, ice storms, extreme cold, extreme heat, or wind or storm damage), war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in or unavailability of transportation services, interruption of or delay in or unavailability of telecommunications or third party services (including but not limited to data connections to upstream bandwidth providers or DNS propagation), failure of third party software or hardware, or inability to obtain raw materials, supplies, water, or power used in or equipment needed for provision of the SERVICES.
The Parties agree that in the event of a material breach by Customer, the failure of Hagen Hosting to enforce its rights at any given time shall not constitute a waiver of its right to enforce its rights against such material breach at a later time.
22. ENFORCEMENT: RECOVERY OF COSTS
The Parties agree that in the event that Customer breaches any portion of this agreement, including but not limited to non-payment of any fees when due, Customer shall reimburse Hagen Hosting for all costs and expenses that it incurs in enforcing this Agreement, including but not limited to court costs, attorney fees, administrative and staffing costs, collection costs, and all other costs related to the enforcement of this Agreement.
23. IP ADDRESS OWNERSHIP
The Parties agree that Hagen Hosting may, at its option, assign one or more Internet Protocol (IP) addresses for Customer's use, but that Hagen Hosting shall have no obligation to do so. If Hagen Hosting assigns to Customer an IP address for Customer's use, the right to use that IP address shall belong only to Hagen Hosting, and Customer shall have no right to use that IP address except as permitted by Hagen Hosting in its sole discretion in connection with the SERVICES, during the term of this Agreement. Hagen Hosting shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Hagen Hosting, and Hagen Hosting reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. In the event that Hagen Hosting changes or removes such IP addresses, Hagen Hosting shall have no obligation to notify customer of such changes. Since Hagen Hosting provides DNS services for domains, and since Hagen Hosting has no control over and no responsibility for outside DNS services, if Customer utilizes outside DNS servers to point to an IP address that Hagen Hosting has used for Customer's web site, Hagen Hosting shall have no obligation to notify Customer if said IP address is changed or deleted, and it shall be Customer's responsibility to ensure that such outside DNS services point to Hagen Hosting's servers in the proper manner and using the proper IP addresses, if any, that are currently provided to Customer by Hagen Hosting.
Customer expressly grants to Hagen Hosting a license to cache the entirety of Customer's web site that is hosted by Hagen Hosting, including all content contained therein, whether supplied by Customer or by third parties. Customer further agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.
25. CPU USAGE
Customer agrees that Customer shall not use excessive amounts of CPU processing on any of Hagen Hosting's servers. Any violation of this policy may result in corrective action by Hagen Hosting, including assessment of additional charges, disconnection or discontinuance of any and all services, or termination of this Agreement, which actions may be taken in Hagen Hosting's sole and absolute discretion. If Hagen Hosting takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
26. BANDWIDTH AND DISK USAGE
Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes or gigabytes per month for the services ordered by Customer on the Order Form (the "Agreed Usage") and that such usage will be in compliance with the terms of the Acceptable Use Policy incorporated by reference into this agreement above. Hagen Hosting will monitor Customer's bandwidth and disk usage. Hagen Hosting shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage or is not in compliance with the terms of the Acceptable Use Policy. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all services, or termination of this Agreement, which actions may be taken in Hagen Hosting's sole and absolute discretion. If Hagen Hosting takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
27. PROPERTY RIGHTS
Hagen Hosting owns all right, title and interest in and to the SERVICES and Hagen Hosting's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the SERVICES and the related hardware, software and systems ("Marks"). Nothing in this Agreement constitutes a license to Customer to use or resell the Marks.
This Agreement shall continue in full force and effect in perpetuity unless terminated earlier in accordance with this or another section of this Agreement. This Agreement will terminate automatically if you breach any provision of it. In such event, you must discontinue all usage of the SERVICES. You agree that Hagen Software shall have the sole discretion of determining whether you are in material breach of this agreement. You further agree that Hagen Software has the right to use any and all means necessary to enforce its rights if you are in material breach of this agreement, and that termination will not entitle you to a refund of any amounts paid under any circumstances whatsoever. Termination will have no effect on your obligation to safeguard and protect proprietary rights of Hagen Software, disclaimers and warranties, the Conflict of Law Provisions, the Nondisclosure Agreement, the Enforcement section, the Copyright Infringement section, or the Refund Policy.
29. NONDISCLOSURE AGREEMENT
As additional consideration for the SERVICES provided to you under this Agreement, and due to the proprietary and confidential nature of the SERVICES and the valuable trade secrets of Hagen Software contained therein, you specifically agree not to disclose or divulge any information whatsoever about the SERVICES or the related business practices of Hagen Software, or to post or print any reviews, ratings, comments, articles or other information of any kind about the SERVICES or the related business practices of Hagen Software on or within any web sites, newsgroups, chat rooms, e-mail messages, newsletters, newspapers, magazines, correspondence, oral commentary, presentations, audio or video recordings, or any other media of any kind, whether printed, electronic, or other formats either now known or hereafter developed, or to cause or direct any other individual, company, organization, or other entity to undertake the activities outlined above, without the prior express written consent of Hagen Software, if such reviews or comments are intended to slander Hagen Software or to harm its reputation for failure to accede to demands or requests by you that are outside the scope of the legal rights and obligations of the parties under this Agreement. You further stipulate that in the event that you (or any other individual, company, organization, or other entity that you cause or direct to engage in the activities outlined above) post any such reviews, ratings, comments, articles, or other information about the SERVICES or the related business practices of Hagen Software that are, in the sole judgment of Hagen Software, intended to slander Hagen Software or to harm its reputation for failure to accede to demands or requests by you that are outside the scope of the legal rights and obligations of the parties under this license agreement, you shall automatically be liable to Hagen Software in the amount of $25,000 (U.S. Dollars) per incident, and that you shall pay Hagen Software $10,000 per day for each additional day that the review, rating, comment, article, or other communication remains displayed in any electronic, print, or other medium. The parties understand that these amounts are intended to compensate Hagen Software for its damages and thus constitute a remedy and not a penalty. In the event that you violate this section, you hereby agree to waive all rights to any judicial appeal of this section and this determination, and you hereby stipulate that a court of competent jurisdiction shall enter judgment against you in the relevant amounts as determined above. You further acknowledge and agree that this section shall in no way infringe upon the rights of Hagen Software to pursue other legal remedies against you or to collect other damages for additional causes of action, including but not limited to libel, defamation, tortious interference with business, fraud, theft, copyright infringement, trademark infringement, or other legal causes of action, and that this section shall be applicable and enforceable regardless of whether Hagen Software pursues any other such legal remedies, and regardless of the outcome of any such actions.
You hereby grant to Hagen Software the right to mention you, your company, your organization or other entity, and/or your web site(s) as a customer site in its marketing materials, such as on Hagen Software web sites, in product brochures, or in other media. Such usage may include, among other things, listing your web site(s), linking to your web site(s), and/or displaying your company's logo as part of such listings or links. This authorization shall continue in perpetuity, regardless of how, when, or even whether you ever use Hagen Software products or services, and shall continue in perpetuity even if you stop using Hagen Software products or services.
31. REFUND POLICY
THE SERVICES ARE PROVIDED TO YOU "AS IS" AND WITHOUT WARRANTIES AS TO PERFORMANCE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHETHER EXPRESSED OR IMPLIED. BY PURCHASING OR USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT THERE SHALL BE ABSOLUTELY NO REFUNDS FOR ANY REASON WHATSOEVER, INCLUDING A CHANGE IN MARKET CONDITIONS, A CHANGE IN BUSINESS OR WEB SITE STRATEGY, A CLAIM THAT THE SERVICES DO NOT SUIT YOUR NEEDS OR ARE NOT WHAT YOU EXPECTED, THE UNAVAILABILITY OF HAGEN SOFTWARE FOR CUSTOMIZATIONS OR OTHER ADDITIONAL SERVICES, SUSPENSION OR TERMINATION OF YOUR ACCOUNT BY HAGEN HOSTING DUE TO VIOLATIONS OF THIS AGREEMENT, OR FOR ANY OTHER REASON.
BY PURCHASING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE EXERCISED DUE DILIGENCE IN ASCERTAINING THAT THE SERVICES WILL MEET YOUR NEEDS.
Customer agrees that Hagen Hosting shall have the right to charge interest on overdue payments in the amount of one percent of the outstanding balance, beginning ten days after the account first became overdue. Hagen Hosting shall have the right to continue to charge interest at the rate of one percent per month if the account continues to have an outstanding balance.
33. COLLECTION AGENCY/NEGATIVE CREDIT REPORT
Customer agrees that if Hagen Software is unsuccessful in collecting any debts or liabilities owed to it under any section of this Agreement, Hagen Software shall have the right to turn over Customer's account to a collection agency for collection, and that said collection agency may use any and all means necessary in order to collect payment on this account, including but not limited to filing negative credit reports for Customer that will permanently and negatively impact Customer's credit rating. Customer agrees that if Hagen Software refers Customer to a collection agency under this Agreement, Customer will automatically owe Hagen Software an additional $1,000, which amount shall be added to Customer's outstanding balance with Hagen Software to be collected by said collection agency. Customer further agrees that Hagen Software and/or the collection agency shall have the right to add any collection costs to the amount owed by Customer to Hagen Software, and that Customer shall be obligated to pay such costs.
34. RETURNED CHECKS
Customer agrees that if any check that Customer remits to Hagen Hosting is returned by the bank for any reason, Hagen Hosting shall be authorized to immediately and without notice post a $50 debit to Customer's account, at the option of Hagen Hosting. Customer further agrees that if Hagen Hosting is unable to collect such charges or Customer disputes such charges, Customer will be liable to Hagen Hosting in the amount of $1,000, plus all enforcement costs as enumerated in the Enforcement section above. Customer further agrees that Hagen Hosting is authorized to suspend Customer's account, terminate said account, or take any other such actions that Hagen Hosting, in its sole discretion, deems necessary should Customer violate this provision, and that Customer shall not be entitled to any refunds for prepaid portions of the service.
Customer agrees to pay all debits posted to Customer's account by Hagen Software that are authorized under this Agreement. Customer further agrees that attempting to avoid payment of amounts posted to Customer's account by Hagen Software under this Agreement or for any other products or services provided by Hagen Software, including but not limited to its e-Classifieds products, is not only a violation of this Agreement, but also fraudulent. Customer agrees that in the event that Customer attempts to avoid payment of any such charges posted by Hagen Software, Hagen Hosting shall be authorized to immediately and without notice post a $500 debit to Customer's account, at the option of Hagen Hosting. Customer further agrees that if Hagen Software is unable to collect such charges or Customer disputes such charges, Customer will be liable to Hagen Hosting in the amount of $1,000, plus all enforcement costs as enumerated in the Enforcement section above. Customer further agrees that Hagen Hosting is authorized to suspend Customer's account, terminate said account, or take any other such actions that Hagen Hosting, in its sole discretion, deems necessary should Customer violate this provision, and that Customer shall not be entitled to any refunds for prepaid portions of the service.
Customer agrees that due to the egregious nature of spamming and the grave damage that it can cause to Hagen Hosting and the other customers of Hagen Hosting, if, in the sole discretion of Hagen Hosting, Hagen Hosting determines that Customer has engaged in spamming of any kind, regardless of whether such spamming was done through or to promote any of Customer's web sites or other SERVICES obtained through Hagen Hosting, and regardless of whether such spamming originated from inside or outside of Hagen Hosting's network, Hagen Hosting shall have the right to charge an administrative fee of $500 immediately and without notice by posting said amount as a debit to Customer's account, at the option of Hagen Hosting. Customer further agrees that if Hagen Hosting is unable to collect such charges or Customer disputes such charges, Customer will be liable to Hagen Hosting in the amount of $1,000, plus all enforcement costs as enumerated in the Enforcement section above. Customer further agrees that Hagen Hosting is authorized to suspend Customer's account, terminate said account, or take any other such actions that Hagen Hosting, in its sole discretion, deems necessary should Customer violate this provision, and that Customer shall not be entitled to any refunds for prepaid portions of the service.
37. CUSTOMER INFORMATION
Hagen Hosting agrees to take reasonable steps to safeguard Customer's information in accordance with the terms of this Agreement and Hagen Hosting's posted Privacy Statement. Customer agrees that Hagen Hosting shall not be liable for any failures to adequately safeguard Customer's information. Customer further agrees that in the event that Hagen Hosting or its parent company, Hagen Software, is sold, Hagen Hosting shall have the right to include all relevant customer information as part of the sale and to provide this to the new purchaser.
Customer agrees that all cancellations must be submitted in writing by filling out in its entirety and submitting the official Account Cancellation form located in the Hagen Hosting Control Panel, and that all other methods, whether via e-mail, telephone, fax, regular support tickets, or any other method, shall be considered null and void and of no effect in cancelling Customer's account. Customer further acknowledges and agrees that Hagen Software shall have the right to automatically bill Customer in advance for each hosting period until Hagen Software receives an official cancellation request via the method outlined above, and that all such billings are absolutely nonrefundable. Customer agrees that if Customer requests a cancellation at any time after a particular billing, Customer will not be eligible for a refund of that billing or of any other prepaid services under any circumstances, regardless of whether Customer claims that he or she did not intend to renew for another billing period. The Parties agree that Customer's intent to cancel is demonstrated only when Customer provides official notification to Hagen Software of his or her intent to cancel the account by following the procedure outlined above, and that the sole evidence of such a cancellation for each party shall be, respectively, for Hagen Hosting, the cancellation ticket in Hagen Hosting's database, and for Customer, the e-mail acknowledgement of said cancellation that Customer receives from the Hagen Hosting Account Cancellation system or a printout of the cancellation request posted by customer through the Account Cancellation form. Customer understands and agrees that, since Customer has access to the Account Cancellation form and can print out any account cancellation requests immediately as evidence that they were posted, Customer shall not make any claims that he or she cancelled his or her account without providing the required documentary evidence of either this printout of the submitted account cancellation acknowledgement receipt or the e-mail acknowledgement of said cancellation from Hagen Hosting. Customer understands and agrees that no cancellation will be deemed to have occurred if Customer cannot or will not provide such documentary evidence, and that if Customer claims not to have received the acknowledgement e-mail or to be able to print out the cancellation ticket, it is Customer's responsibility to contact Hagen Hosting immediately and obtain the necessary verification and documentation of the alleged cancellation. Customer further agrees that it is solely Customer's responsibility to monitor Customer's account and billing status and to notify Hagen Hosting via the official method listed above once Customer decides to cancel the account.
39. RECURRING FEES AFTER NOTICE OF CANCELLATION AND PRIOR TO ACCOUNT TERMINATION DATE
Customer agrees that any recurring fees for items such as domain mappings, domain renewals, hosted applications, or any other items that become due and payable after the Customer has provided written notice of his or her intent to cancel his or her account but prior to the stated account cancellation date shall be the responsibility of Customer and shall be billed to Customer accordingly by Hagen Hosting. Customer agrees that all such fees are nonrefundable and that Customer may avoid fees for such recurring billings by cancelling said domain mappings, domain renewals, hosted applications, or other items through the normal methods available in the Control Panel. The Parties agree that this policy is in place because many customers cancel their accounts several months before the expiration of the current service period and wish to keep their domains and hosted applications during this time period, and because customers who no longer wish to keep these other services can easily cancel them through the Control Panel.
Customer agrees that any credits that it may carry on its account with Hagen Hosting may be applied only against future charges (debits) posted by Hagen Hosting to Customer's account and cannot be retrieved through credit card refunds, checks, or other methods of payment.
41. DOMAIN REGISTRATIONS
Customer acknowledges and understands that domain registrations and transfers involve many parties and factors outside of the control of Hagen Hosting. Customer agrees that Hagen Hosting shall not be liable for any failure on its part to register or transfer a domain as requested by Customer, or for any delays that may occur in such domain name registrations or transfers. Customer further agrees that there shall be no refunds of any domain registration or transfer fees paid to Hagen Hosting or other entities if Hagen Hosting is unable to register or transfer the requested domain because it has already been taken by another entity, because the registrar refuses Customer's application for that domain, because of noncooperation by Customer's previous web hosting company or another entity, or for any other reason.
Customer acknowledges and agrees that Hagen Hosting shall not be obligated to provide any support for the SERVICES provided. All support provided by Hagen Hosting is on an "as is", "as available" basis through the online trouble ticket system. Customer further acknowledges and agrees that Hagen Hosting does not offer any type of telephone support, and that if Customer calls the offices of Hagen Hosting demanding such support, this shall constitute a material breach of this Agreement. Customer agrees that in the event of such material breach, Hagen Hosting shall have the right to charge an administrative fee of $100 immediately and without notice by posting said amount as a debit to Customer's account, for each such telephone call, at the option of Hagen Hosting. Customer further agrees that if Hagen Hosting is unable to collect such charges or Customer disputes such charges, Customer will be liable to Hagen Hosting in the amount of $1,000, plus all enforcement costs as enumerated in the Enforcement section above. Customer further agrees that Hagen Hosting is authorized to suspend Customer's account, terminate said account, or take any other such actions that Hagen Hosting, in its sole discretion, deems necessary should Customer violate this provision, and that Customer shall not be entitled to any refunds for prepaid portions of the service.
43. ABUSIVE BEHAVIOR
Customer acknowledges and agrees that insulting or abusive behavior, including but not limited to harassing, insulting, threatening, or intimidating the administrative or technical support staff of Hagen Hosting, or engaging in foul language at any time with said staff, or sending multiple e-mails, faxes, or phone calls to Hagen Hosting instead of using the proper support channels, or repeatedly re-opening or posting new tickets on the same issue and continuing to argue about it even after it has been addressed, or making threats of legal action against Hagen Hosting or any other divisions of Hagen Software Inc., or making threats of fraudulently and illegally attempting to avoid payment for amounts due to Hagen Software Inc., or otherwise engaging in any other behavior that, in the sole discretion of Hagen Hosting constitutes an abuse of resources, shall constitute a material breach of this Agreement. Customer agrees that in the event of such material breach, Hagen Hosting shall have the right to charge an administrative fee of up to $500 immediately and without notice by posting said amount as a debit to Customer's account, for each such incident, at the option of Hagen Hosting. Customer further agrees that Hagen Hosting shall be the sole and final arbiter of what actions are deemed to constitute abusive behavior under this section. Customer further agrees that if Hagen Hosting is unable to collect such charges or Customer disputes such charges, Customer will be liable to Hagen Hosting in the amount of $1,000, plus all enforcement costs as enumerated in the Enforcement section above. Customer further agrees that Hagen Hosting is authorized to suspend Customer's account, terminate said account, or take any other such actions that Hagen Hosting, in its sole discretion, deems necessary should Customer violate this provision, and that Customer shall not be entitled to any refunds for prepaid portions of the service.
44. MULTIPLE ACCOUNTS
Customer acknowledges and agrees that if Customer maintains more than one account with Hagen Hosting, and if Customer violates the terms of this Agreement in any way, Hagen Hosting shall have the right to apply any monetary fees, suspensions, terminations, or other remedies that are reserved to Hagen Hosting under this Agreement to any or all accounts that Customer may have with Hagen Hosting, even if said violations of this Agreement were incurred under only one of these accounts.
45. ACCESS TO DATA
Customer acknowledges and agrees that Customer shall have no right to retrieve data placed on Hagen Hosting servers if Customer's account is suspended or terminated for any reason under this Agreement, nor shall Hagen Hosting have any obligation to keep such data. Customer further agrees that, if Customer's account is suspended or terminated for any reason under this Agreement, Customer shall have no right to retrieve the data that was used or accessed in any way by the hosted applications or services provided by Hagen Software to Customer, even if such data was stored on outside servers not belonging to Hagen Hosting, and regardless of whether the data was originally created by the Hagen Software hosted application or service. Customer agrees that in the event of account suspension or termination under this Agreement, all such data shall be the exclusive property of Hagen Software, and that Hagen Software shall have no obligation to keep such data or to assist Customer in retrieving such data, regardless of where it is stored.
46. SERVICES SUBJECT TO CHANGE
Customer acknowledges and agrees that all hosting plans and other SERVICES are subject to change both in terms of their pricing and their features at any time at the discretion of Hagen Hosting. In the event of such changes, Customer's continued usage of the SERVICES shall constitute Customer's affirmative assent to the changes. If Customer disagrees with such changes, Customer's sole and exclusive remedy is to discontinue usage of the SERVICES, subject to the terms of this Agreement.
47. PRIOR AGREEMENTS
This agreement constitutes the complete and total agreement between the parties, and supersedes all previous representations, understandings, agreements, versions of this agreement, or written, electronic, or oral communications you may have had with Hagen Hosting or any agent or representative thereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are void.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, all other provisions of this Agreement shall remain in full force and effect, and said provision shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of the parties and reformed only to the extent necessary to make it enforceable.
49. JOINT AUTHORSHIP
The parties agree that this Agreement must be construed as if both parties jointly wrote it.
50. APPLICABLE LAW, JURISDICTION, AND SERVICE
This agreement is governed by the applicable laws of the District of Columbia ("DC") and the United States of America. Customer agrees that all services provided by Hagen Hosting shall be deemed to have been requested and provided in the District of Columbia. Customer further agrees that the Courts of the District of Columbia shall have personal jurisdiction over Customer and exclusive subject matter jurisdiction over any and all controversies or claims arising from or relating to this agreement or the services provided by Hagen Hosting. Customer agrees to accept service of process related to this agreement by ordinary mail, postage prepaid, to the most recent address provided by Customer. Customer further agrees that if Customer attempts to initiate or transfer any legal proceeding to any jurisdiction other than the District of Columbia, Customer shall be liable to Hagen Hosting in the amount of $10,000, and that such liability will be independent from and in addition to any other liabilities that Customer may have to Hagen Hosting under this Agreement.
51. NATURE OF SERVICES PROVIDED
The parties agree that all SERVICES provided by Hagen Software, including but not limited to web hosting and application hosting services, are business services provided by one business entity (Hagen Software) to another (Customer), and that these are not consumer services.
Customer agrees to pay all sales, use, value added, GST, personal property, or other governmental taxes or levies associated with the purchase of these SERVICES (including interest and penalties thereon).
Headings are for reference purposes only and have no substantive effect.
By placing and continuing to maintain or place information on Hagen Hosting's servers or by utilizing any of the SERVICES provided by Hagen Hosting, you are stating and acknowledging that you have read the aforementioned terms and conditions and that you understand such terms and conditions and agree to be bound by them.