Terms
This Hosting Agreement governs your purchase and use, in any manner, of all hosting services, ordered by you and accepted by OpenPortal and describes the terms and conditions that apply to such purchase and use of the Services. You AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. OpenPortal reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers, OpenPortal may make changes or modifications to referenced policies and guidelines without notice to you.
Your continued use of the Services following OpenPortal posting of any changes or modifications will cottstitute your acceptance of such changes or modifications.
1. Payment. As consideration for OpenPortal providing the Hosting Services hereunder, Customer agrees to pay OpenPortal the aggregate monthly fee based on the monthly hosting services and the terms selected.
2. Provision of Services. OpenPortal will provide Customer with the Services ordered that are described in the Hosting Package Features. Customer understands and agrees that OpenPortal will provide the services solely in accordance with the information provided by Customer.
3. Limited License to the Background Technology. "Background Technology" means software, computer programming/formatting code or operating instructions licensed for, developed by or for OpenPortal and used to host or operate the custormers' systems in connection with the services provided. Background Technology includes, but is not limited to, any operating systems, server-side and client-side software and services provided by OpenPortal to the client. Background Technology does not include any Customer Content. Customer may not duplicate or distribtlte any Background Technology to any third party without the prior written consent of OpenPortal. All rights to the Background Technology not expressly granted to Customer hereunder are retained by OpenPortal. Without limiting the foregoing, Customer agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of the Background Technology, except as allowed by law.
4. Content Standards. Customer agrees not to provide Customer Content, and OpenPortal will not intentionally provide to Customers any content, that (a) infringes on any third pat1y's intellectual property or publicity/privacy rights; (b) violates any applicable law or regulation; (c) is intended of related to bulk e-mailing or e-mail advertising, solicited or unsolicited (d) is defamatory, violent, clearly harmful, or obscene or pornographic or infringes on citizens rights; or (e) contains any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage or interfere with any system, data, or person information. If customer is international, then Customer agrees to comply with all applicable local and national laws. OpenPortal reserves the right to refuse any other subject matter it deems inappropriate.
5. Support. OpenPortal agrees to provide reasonable technical support by email to Customer during OpenPortal's normal technical support hours. Additional support services are provided in accordance with the terms of a purchased support service level, if any.
6. Term and Termination. a) This Agreement is effective as of the Effective Date and shall continue unless terminated; (b) OpenPortal may terminate this Agreement after five (5) days written notice to Custonier if customer materially breaches this Agreement, including, without limitations, failure to pay, and fails to cure such breach during such five (5) day period; and (c) upon the termination of this Agreement, Customer will pay OpenPortal for all Services provided to Customer by OpenPortal prior to termination. Sections 2, 3, 4, 5, 7, 8, 9 will survive termination of this Agreement.
7. Warranty Disclaimer, Except as expressly provided in this Agreement, the Services are provided "as is," and OpenPortal expressly disclaims all warranties and conditions of any kind, express, implied, or statutory, including, without limitation, the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.
Interruption of Service: You hereby acknowledge and agree that OpenPortal will not be liable for any temporary delay, outages or intermptions of the Services, Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specitically set forth herein. Unless an approval process is specified herein or in a Statement, all Hosting provided by OpenPortal to a Customer will be deemed accepted when delivered.
8. Indemnity. (a) Customer Indemnity. Customer will defend OpenPortal against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section , Subject to Section 11, Customer shall indemnify OpenPortal for all losses, damages, liabilities, and all reasonable expenses and costs incurred by OpenPortal as a result of any such third-party claim, action, suit, or proceeding. (b) OpenPortal Indemnity. OpenPortal will defend Customer against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section 5. Subject to Section 10, OpenPortal shall indemnify Customer for all losses, damages, liabilities, and all reasonable expenses and costs incurred by Customer as a result of any such third party claim, action, suit, or proceeding. (c) Mechanics of Indemnity. The indemnifying party's obligations are conditioned upon the indemnitied party: (i) giving the indemnifying party promtpt, written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; iii) granting control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperating with the indemnifying party at the indemnifying party's expense.
9 . Limitation of Liability. OpenPortal's LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO OpenPortal DURING THE THREE (3) MONTH PERIOD BEFORE THE ACTION AROSE. OpenPortal SHALL NOT BE LIABLE FOR (A) ANY LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF OpenPortal HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, OpenPortal WOULD NOT ENTER INTO THIS AGREEMENT.
Your continued use of the Services following OpenPortal posting of any changes or modifications will cottstitute your acceptance of such changes or modifications.
1. Payment. As consideration for OpenPortal providing the Hosting Services hereunder, Customer agrees to pay OpenPortal the aggregate monthly fee based on the monthly hosting services and the terms selected.
2. Provision of Services. OpenPortal will provide Customer with the Services ordered that are described in the Hosting Package Features. Customer understands and agrees that OpenPortal will provide the services solely in accordance with the information provided by Customer.
3. Limited License to the Background Technology. "Background Technology" means software, computer programming/formatting code or operating instructions licensed for, developed by or for OpenPortal and used to host or operate the custormers' systems in connection with the services provided. Background Technology includes, but is not limited to, any operating systems, server-side and client-side software and services provided by OpenPortal to the client. Background Technology does not include any Customer Content. Customer may not duplicate or distribtlte any Background Technology to any third party without the prior written consent of OpenPortal. All rights to the Background Technology not expressly granted to Customer hereunder are retained by OpenPortal. Without limiting the foregoing, Customer agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of the Background Technology, except as allowed by law.
4. Content Standards. Customer agrees not to provide Customer Content, and OpenPortal will not intentionally provide to Customers any content, that (a) infringes on any third pat1y's intellectual property or publicity/privacy rights; (b) violates any applicable law or regulation; (c) is intended of related to bulk e-mailing or e-mail advertising, solicited or unsolicited (d) is defamatory, violent, clearly harmful, or obscene or pornographic or infringes on citizens rights; or (e) contains any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage or interfere with any system, data, or person information. If customer is international, then Customer agrees to comply with all applicable local and national laws. OpenPortal reserves the right to refuse any other subject matter it deems inappropriate.
5. Support. OpenPortal agrees to provide reasonable technical support by email to Customer during OpenPortal's normal technical support hours. Additional support services are provided in accordance with the terms of a purchased support service level, if any.
6. Term and Termination. a) This Agreement is effective as of the Effective Date and shall continue unless terminated; (b) OpenPortal may terminate this Agreement after five (5) days written notice to Custonier if customer materially breaches this Agreement, including, without limitations, failure to pay, and fails to cure such breach during such five (5) day period; and (c) upon the termination of this Agreement, Customer will pay OpenPortal for all Services provided to Customer by OpenPortal prior to termination. Sections 2, 3, 4, 5, 7, 8, 9 will survive termination of this Agreement.
7. Warranty Disclaimer, Except as expressly provided in this Agreement, the Services are provided "as is," and OpenPortal expressly disclaims all warranties and conditions of any kind, express, implied, or statutory, including, without limitation, the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.
Interruption of Service: You hereby acknowledge and agree that OpenPortal will not be liable for any temporary delay, outages or intermptions of the Services, Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specitically set forth herein. Unless an approval process is specified herein or in a Statement, all Hosting provided by OpenPortal to a Customer will be deemed accepted when delivered.
8. Indemnity. (a) Customer Indemnity. Customer will defend OpenPortal against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section , Subject to Section 11, Customer shall indemnify OpenPortal for all losses, damages, liabilities, and all reasonable expenses and costs incurred by OpenPortal as a result of any such third-party claim, action, suit, or proceeding. (b) OpenPortal Indemnity. OpenPortal will defend Customer against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section 5. Subject to Section 10, OpenPortal shall indemnify Customer for all losses, damages, liabilities, and all reasonable expenses and costs incurred by Customer as a result of any such third party claim, action, suit, or proceeding. (c) Mechanics of Indemnity. The indemnifying party's obligations are conditioned upon the indemnitied party: (i) giving the indemnifying party promtpt, written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; iii) granting control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperating with the indemnifying party at the indemnifying party's expense.
9 . Limitation of Liability. OpenPortal's LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO OpenPortal DURING THE THREE (3) MONTH PERIOD BEFORE THE ACTION AROSE. OpenPortal SHALL NOT BE LIABLE FOR (A) ANY LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF OpenPortal HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, OpenPortal WOULD NOT ENTER INTO THIS AGREEMENT.
