CloudPeak.Net, INC
Web Site hosting Service agreement

This Web Site Hosting Service Agreement ("Agreement") is by and between CloudPeak.Net, INC Software, Inc. ("CloudPeak.Net, INC"), an Arizona Corporation, and you, your heirs, assigns, agents and contractors ("You") and is effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of CloudPeak.Net, INC's Web Site Hosting ("Web Hosting") services and represents the entire agreement between You and CloudPeak.Net, INC. By using CloudPeak.Net, INC's Web Hosting services, You acknowledge that You have read, understand and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies which CloudPeak.Net, INC may establish from time to time. You may view the latest version of this Agreement online.

In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with CloudPeak.Net, INC, whether or not the transactions were in Your behalf. You acknowledge that CloudPeak.Net, INC's acceptance of any application made by You for services provided by CloudPeak.Net, INC will take place at CloudPeak.Net, INC's offices located in Scottsdale, Arizona, USA.

1. fees

As consideration for the services purchased by You and provided to You by CloudPeak.Net, INC, You agree to pay CloudPeak.Net, INC a monthly fee. Your monthly billing date will be determined based on the day of the month You establish Your Web Hosting relationship with CloudPeak.Net, INC unless that date falls after the 28th of the month in which case Your billing date will be the 28th of each month. Payment is to be made by You providing either a valid credit card, an online check, or using "Good As Gold" to establish a cash reserve for charge by CloudPeak.Net, INC (collectively, the "Payment Method"). Personal checks and money orders may only be used only to fund "Good As Gold" (GAG) accounts, must be for payments of $100 or more, and issued in U.S. dollars for the full amount required at that time. Personal checks under $1,000 are subject to the same processing fees as wire transfers. All personal checks will be delayed fourteen (14) days until the money is credited, which may delay Your usage of the product or service, and any check that bounces will result in a $25 bounced check fee. If You purchase an automatically renewing service or product by personal check, it is Your responsibility to make payment arrangements for each renewal payment. Payments are non-refundable. If for any reason CloudPeak.Net, INC is unable to charge your Payment Method, You agree that CloudPeak.Net, INC may pursue all available remedies in order to obtain payment.

In the event that You exceed the scope of the Services as set forth in Your Agreement (for example, available bandwidth, CPU or disk utilization space), You shall pay CloudPeak.Net, INC for such additional services not within the scope of Your Agreement as specified. CloudPeak.Net, INC reserves the right to charge a reasonable service fee for administrative tasks outside the scope of its regular services. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, and disputes that require legal services. These charges will be billed to the Payment Method we have on file for You. You may change your Payment Method at any time by logging into your Account Manager.

2. terms of agreement; terms, termination, modifications

Term

The term of this Agreement shall commence on the date You purchase the Web Hosting services, and will continue in full force and effect as long as CloudPeak.Net, INC is providing Web Hosting services to You.

Termination

You agree that You will be responsible for notifying CloudPeak.Net, INC should you desire to terminate Your use of CloudPeak.Net, INC's Web Hosting services. Notification of Your intent to terminate must be provided to CloudPeak.Net, INC no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date. In the absence of notification from You, CloudPeak.Net, INC will automatically continue Web Hosting services indefinitely and will charge the credit card You have on file with CloudPeak.Net, INC, at CloudPeak.Net, INC's then current rates. It is Your responsibility to keep your Payment Method information current, including the expiration date of any credit cards you have on file. In the event You terminate, moving your web site off of the CloudPeak.Net, INC hosting servers is Your responsibility. CloudPeak.Net, INC will not transfer or FTP Your web site to another provider. CloudPeak.Net, INC reserves the right, in its sole discretion and without notice, at any time and for any reason, to suspend Your access to or use of the Server, services or any portion thereof. In the event Your Web Hosting service is terminated, CloudPeak.Net, INC will not transfer or manage Your Web Hosting or Your website content.

You agree that CloudPeak.Net, INC may modify this Agreement from time to time. CloudPeak.Net, INC may also discontinue services it provides under this Agreement. You agree to be bound by any changes CloudPeak.Net, INC may reasonably make to this Agreement when such changes become effective.

3. description of service

CloudPeak.Net, INC currently provides Web Hosting services to its customers for a monthly fee. CloudPeak.Net, INC will host Your web site on CloudPeak.Net, INC's Web Hosting servers, provided, however, You abide by the terms and conditions set forth herein and in each of CloudPeak.Net, INC's policies and procedures.

License of Your website content

CloudPeak.Net, INC grants to You, and You accept from CloudPeak.Net, INC, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Your website content in connection with CloudPeak.Net, INC's performance or enforcement of this Agreement.

Availability of Services

Subject to the terms and conditions of this Agreement, CloudPeak.Net, INC shall attempt to provide Web Hosting for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. You agree that from time to time the Web Hosting service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which CloudPeak.Net, INC may undertake from time to time; or (iii) causes beyond the control of CloudPeak.Net, INC or which are not reasonably foreseeable by CloudPeak.Net, INC, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. You agree that CloudPeak.Net, INC has no control of availability of Web Hosting on a continuous or uninterrupted basis.

Service Availability Guarantee. CloudPeak.Net, INC offers a service uptime guarantee for its Web Hosting service of 99.9% ("Service Uptime") of available time. If CloudPeak.Net, INC fails to maintain this level of service availability, You may contact CloudPeak.Net, INC and request a credit of 5% of Your monthly hosting fee from CloudPeak.Net, INC for that month. The credit may be used only for the purchase of further products and services from CloudPeak.Net, INC, and is exclusive of any applicable taxes. The credit does not apply to service interruptions caused by (i) scheduled maintenance; (ii) errors caused by You from custom scripting or coding; or (iii) outages that do not affect the appearance of the web site but merely affect access to the web site such as FTP and email. Total Service Uptime shall be solely determined by CloudPeak.Net, INC and shall be calculated on a monthly basis.

Web Site Content

You shall be solely responsible for providing, updating, uploading and maintaining Your website and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your web site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. Your web site content shall also include any registered domain names provided by You or registered on behalf of You in connection with the Web Hosting services.

Shared SSL Certificates

Any SSL certificate You purchase from CloudPeak.Net, INC or its affiliates to use in conjunction with a shared hosting plan provided by CloudPeak.Net, INC, is intended for its specific use as described in the Subscriber Agreement and will not be exported from the hosting server to be used with any other web hosting service. If You are using an SSL certificate on a web site hosted by CloudPeak.Net, INC, CloudPeak.Net, INC will generate and securely store a corresponding private key.

For security reasons, at no time will CloudPeak.Net, INC release Your private key, even if You request it. If You wish to export Your SSL certificate for use on a non CloudPeak.Net, INC hosting server, You will need to make a request to CloudPeak.Net, INC no earlier than 30 days after Your initial SSL subscription began. After Your hosting account with CloudPeak.Net, INC has been canceled, You will have thirty (30) days to follow the Starfield Secure Certificate Registration Process and request a re-key of the SSL certificate, or Your SSL certificate will become invalid.

4. your obligations

You agree that You have provided accurate, current and complete information in the application process and that You will notify CloudPeak.Net, INC within five (5) business days when any of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by CloudPeak.Net, INC to determine the validity of information provided by You, will constitute a material breach of this Agreement. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if CloudPeak.Net, INC has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, CloudPeak.Net, INC has the absolute right, in its sole discretion, to terminate its Web Hosting services and close Your account.

You represent and warrant to CloudPeak.Net, INC that: (i) You have the power and authority to enter into and perform Your obligations under this Agreement; (ii) Your Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) You own Your website content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your web site. If Your web site includes GIF images and you are not using CloudPeak.Net, INC's WebSite Complete or WebSite Tonight software, you must ensure that your GIF images are licensed with Unisys or were created with Unisys Authorized Software. You also warrant that the web site being hosted by CloudPeak.Net, INC will not be used in connection with any illegal activity.

If You are hosting Your web site on CloudPeak.Net, INC's servers, You are responsible for ensuring that there is no excessive overloading on CloudPeak.Net, INC's DNS or servers. You may not use CloudPeak.Net, INC's servers and Your web site as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and CloudPeak.Net, INC reserves the right to remove sites that contain information about hacking or links to such information. Use of your web site as an anonymous gateway is prohibited. CloudPeak.Net, INC prohibits the use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by CloudPeak.Net, INC. You agree that CloudPeak.Net, INC reserves the right to remove Your web site temporarily or permanently from its hosting servers if CloudPeak.Net, INC is the recipient of activities that threaten the stability of its network.

You agree not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; or (viii) engage in any other activity deemed by CloudPeak.Net, INC to be in conflict with the spirit or intent of this Agreement or any CloudPeak.Net, INC policy.

Storage and Security

At all times, You shall bear full risk of loss and damage to your web site and all of Your web site content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You agree that you are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the Site or any of Your web site content displayed, linked, transmitted through or stored on the Server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your web site content; (ii) maintain independent archival and backup copies of Your web site content; (iii) ensure the security, confidentiality and integrity of all your web site content transmitted through or stored on CloudPeak.Net, INC servers; and (iv) ensure the confidentiality of Your password. CloudPeak.Net, INC's servers and hosting services are not an archive and CloudPeak.Net, INC shall have no liability to You or any other person for loss, damage or destruction of any of Your content. If Your password is lost, stolen or otherwise compromised, You shall promptly notify CloudPeak.Net, INC, whereupon CloudPeak.Net, INC shall suspend access to Your web site by use of such password and issue a replacement password to You or Your authorized representative. CloudPeak.Net, INC will not be liable for any loss that You may incur as a result of someone else using Your password or account, either with or without Your knowledge. However, You could be held liable for losses incurred by CloudPeak.Net, INC or another party due to someone else using Your account or password.

5. CloudPeak.Net, INC's rights

CloudPeak.Net, INC explicitly reserves the right and sole discretion to: (i) Censor any web site hosted on its Web Hosting servers that, in CloudPeak.Net, INC's sole discretion, is deemed inappropriate; (ii) Review every Web Hosting account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels; (iii) Modify its pricing through email notification; (iv) Terminate Your Web Hosting service for unsolicited, commercial e-mailing (i.e., SPAM); illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; non-payment of Web Hosting fees; and other activities whether lawful or unlawful that CloudPeak.Net, INC determines to be harmful to its other customers, operations, or reputation; (v) Terminate Your Web Hosting service if the contents of Your web site result in, or are the subject of, legal action or threatened legal action, against CloudPeak.Net, INC or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. CloudPeak.Net, INC has no obligation to monitor the Site or any of Your content, but reserves the right in its sole discretion to do so.

No Spam; Liquidated Damages

CloudPeak.Net, INC will immediately terminate any Web Hosting service which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay CloudPeak.Net, INC liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your website hosted with us, otherwise you agree to pay CloudPeak.Net, INC's actual damages.

6. dispute resolution policy

You agree to be bound by CloudPeak.Net, INC's current Dispute Resolution Policy. You agree that if a dispute arises as a result of one or more web sites CloudPeak.Net, INC is hosting for You, You will indemnify, defend and hold CloudPeak.Net, INC harmless for damages arising out of such dispute. You also agree that if CloudPeak.Net, INC is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a web site hosted by CloudPeak.Net, INC, that CloudPeak.Net, INC, in its sole discretion, may take whatever action CloudPeak.Net, INC deems necessary regarding further modification, assignment of and/or control of the web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled

7. limitation of liability

IN NO EVENT SHALL CloudPeak.Net, INC BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EVEN IF CloudPeak.Net, INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT CloudPeak.Net, INC'S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO CloudPeak.Net, INC HEREUNDER FOR THE ONE (1) YEAR PERIOD PRIOR TO ANY ACT OR OMISSION GIVING RISE TO ANY POTENTIAL LIABILITY.

8. indemnity

You agree to release, defend, indemnify and hold harmless CloudPeak.Net, INC and its contractors, agents, employees, offices, directors, shareholders and affiliates from and against any action, claim, demand, dispute, liability, losses, damages or costs, including reasonable attorney's fees and costs, resulting from or related to (i) a dispute over one or more web sites CloudPeak.Net, INC is hosting for you, (ii) Your breach of this Agreement, (iii) any negligence, willful or improper misconduct by You; (iv) any allegation that Your site or content infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets; or (v) any action or conduct of CloudPeak.Net, INC's undertaken pursuant to this Agreement. You shall defend and settle at Your sole expense all proceedings arising out of the foregoing. You agree that CloudPeak.Net, INC shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify CloudPeak.Net, INC of any such claim promptly in writing and to allow CloudPeak.Net, INC to control the proceedings. You agree to cooperate fully with CloudPeak.Net, INC during such proceedings. You agree You will not be entitled to a refund of any fees paid to CloudPeak.Net, INC if, for any reason, CloudPeak.Net, INC takes corrective action with respect to Your improper or illegal use of its Web Hosting services. You also agree that if CloudPeak.Net, INC is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a web site hosted by CloudPeak.Net, INC, that CloudPeak.Net, INC, in its sole discretion, may take whatever action CloudPeak.Net, INC deems necessary regarding further modification, assignment of and/or control of the web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.

9. disclaimer of warranties

CloudPeak.Net,INC expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, concerning any subject matter of this agreement.

10. severability

You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.

11. venue; waiver of trail by jury

This agreement shall be deemed entered into the state of Arizona. the laws and judicial decisions of Maricopa county, Arizona, shall be used to determine the validity, construction, interpretation and legal effect of this agreement. You agree that any action relating to or arising out of this agreement, shall be brought in the courts of Maricopa county, Arizona.

You agree to waive the right to trial by jury in any proceeding that takes pace relating to or arising out of this agreement.

12. notices

You agree that all notices (except for notices concerning breach of this Agreement) from CloudPeak.Net, INC. to You may be posted on our web site. Notices concerning breach will be sent either to the email or postal address You have on file with CloudPeak.Net,Inc. In either case, delivery shall be deemed to have been made five (5) days after the date sent.

Notices from You to CloudPeak.Net,Inc. shall be made either by email, facsimile, or mailed to the address we provide on our Web site, or first class mail to our address below. They shall be deemed to be delivered when received by CloudPeak.Net, Inc. through first class mail the date they are received, or when sent by facsimile.

Revised: 10/02/2004
Copyright © 2005 - 2004 CloudPeak.Net, INC   All Rights Reserved.