Introduction.
This Hosting Agreement governs your purchase and use, in any manner, of all Web
site hosting services (the "Services") for you (the "Customer") and accepted by
Software Tailor (HK) Limited, owner of HostTailor.com. ("Software Tailor") and describes
the terms and conditions that apply to such purchase and use of the Services. Customer
must register and accept the terms of this Agreement in order to use the Services.
BY CLICKING ON THE "AGREE" BUTTON BELOW, AND REGISTERING FOR AND USING THE SERVICES,
CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY
THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL POLICIES AND GUIDELINES
INCORPORATED BY REFERENCE. Software Tailor reserves the right to change or modify
any of the terms and conditions contained in this Agreement and any policy or guideline
incorporated by reference 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 and future
customers. Should Software Tailor feel customer notification is warranted due to
a significant change to the Agreement (such significance being the sole discretion
of Software Tailor), customers will receive such notification no less than 15 days
prior to the changes going into effect. IF THE CUSTOMER DOES NOT AGREE TO THE TERMS
OF THIS AGREEMENT (OR THE ADDENDUM IF THEY APPLY TO CUSTOMER), DO NOT CLICK THE
"AGREE" BUTTON. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO
NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY SOFTWARE TAILOR OF CUSTOMER
TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 1.4 BELOW.
1. Term and Payment for Services
1.1 Acceptance and Term. All orders for Services are subject to acceptance by Software
Tailor. All orders will be deemed accepted by Software Tailor upon written (e-mail)
confirmation of the order to Customer.
1.2 Prepaid Hosting Plan Agreement Term. Prepaid Hosting Plans are defined as plans
that prepay for more than one month of service fees in advance. For prepaid hosting
plans, the Agreement Term is the period between the Agreement Term Begin Date, which
is the day of your initial payment or execution of this Agreement, whichever is
later, or at the end of your prior Agreement Term if the Agreement is auto-renewing,
and the Agreement Term End Date, which is the day before the same date as the Begin
Date the following calendar year.
1.3 Automatic Renewal. Unless the Agreement is earlier terminated in accordance
with its terms or unless a specific new Agreement term is requested by Customer,
this Agreement shall automatically renew at the end of each prior Agreement Term,
either for the same period of time period as the prior Agreement Term or for one
calendar month, whichever is longer. When a new Agreement term begins, the then
current Terms of Use shall apply.
1.4 Termination Policy. TERMINATION OF CUSTOMER ACCOUNT WILL NOT CANCEL OR WAIVE
ANY FEES OR OBLIGATIONS OWED TO SOFTWARE TAILOR PRIOR TO OR AT ACCOUNT TERMINATION.
CUSTOMER'S DATA, CONTENT, AND ACCOUNT SETTINGS ARE IRREVOCABLY DELETED AFTER ACCOUNT
TERMINATION, INCLUDING BUT NOT LIMITED TO, WEB SITE CONTENT, DATABASES, AND EMAIL
MESSAGES. SECURING ALL NEEDED DATA FROM CUSTOMER'S ACCOUNT PRIOR TO ACCOUNT TERMINATION
SHALL BE SOLELY YOUR RESPONSIBILITY.
You may terminate this Agreement at any time without cause by following the termination
procedure located within the Account section of the HostTailor.com Control Panel
or via contact@hosttailor.com prior to the beginning of any Renewal Term. If Customer
terminate a prepaid hosting account effective prior to the end of the Agreement
term, Software Tailor shall not be required to refund to Customer amounts hosting
fees already paid. In other words, Customers can cancel service but no refund of
payment will be paid.
Software Tailor may terminate this Agreement without cause by providing written
or electronic mail notice of termination to Customer HostTailor.com email contact
address not less than fifteen calendar days prior to the effective termination date.
Prepaid hosting plans are divided into a number of Periods, which are equal to the
number of months of the Agreement Term plus one. These periods consist of the remainder
of the calendar month in which the Agreement Term begins, the full calendar months
in the Agreement Term, and the remainder, if any, of the calendar month in which
the Agreement Term ends. A refund equal to the prepaid hosting fees attributable
to the remaining Period(s) PLUS the fee for the Period in which the contract is
terminated LESS any unpaid fees shall be issued within thirty (30) calendar days
of account termination to the credit card on record at time of termination. This
refund shall be Customer sole remedy for Software Tailor's early termination of
the Agreement. In no event shall the refund be greater than the hosting fees paid
during the Agreement Term in effect at termination.
1.5 Liability and Obligations on Termination. Should the Agreement expire or be
terminated for any reason, Software Tailor will not be liable to Customer because
of such expiration or termination for compensation, reimbursement or damages on
account of the loss of prospective profits, anticipated sales, goodwill or on account
of expenditures, investments, leases or commitments in connection with Customer
business, or for any other reason whatsoever flowing from such termination or expiration.
Any termination of this Agreement shall not relieve Customer of any obligations
to pay fees and costs accrued prior to the termination date and any other amounts
owed by Customer to Software Tailor as provided in this Agreement.
1.6 Charges. Customer agrees to pay for all charges attributable to Customer's use
of the Services at the then current Software Tailor prices (listed in U.S. dollars
and available at http://www.hosttailor.com/services.aspx), which shall be exclusive
of any applicable taxes. Customer shall be responsible for the payment of all federal,
state, and local sales, use, value added, excise, duty and any other taxes assessed
with respect to the Services, where applicable.
1.7 Payment. Payment shall be made in U.S. dollars to Software Tailor. All charges
for Services must be paid in advance due upon account activation and any future
renewal. If Customer chooses to pay by credit card, Customer thereby authorizes
Software Tailor to charge Customer's credit card to pay for any charges that may
apply to Customer's account. Customer agrees that Software Tailor may accumulate
any supplemental charges incurred by Customer in Customer's use of the Services
("Supplemental Charges") until such charges exceed $3.00 and then charge Customer's
card. Customer must notify Software Tailor of any changes to Customer's card account,
including, without limitation, applicable account number or cancellation or expiration
of the account), Customer's billing address or any information that may prohibit
Software Tailor from charging Customer's account. If Customer chooses to be invoiced,
Software Tailor will send an invoice via email to Customer for the Services for
which Customer has registered. Software Tailor may also send, via email, periodic
invoices to Customer for any applicable Supplemental Charges associated with Customer's
use of the Services. Customer agrees to pay to Software Tailor the amount indicated
in each invoice by the due date reflected on the invoice. If Customer fails to pay
any fees and taxes within seven (7) days from applicable due date for credit or
invoice payments, late charges of the lesser of one and one-half per cent (1.5%)
per month or the maximum allowable under applicable law shall also become payable
by Customer to Software Tailor, at the discretion of Software Tailor. In addition,
Customer's failure to fully pay any fees and taxes within seven (7) days after the
applicable due date will be deemed a material breach of this Agreement, in which
event Software Tailor may suspend performance of the Services and/or termination
of this Agreement. Customer is responsible for any fees associated with reinstatement
of Services. Any such termination would not relieve Customer from paying past due
fees plus interest. If Software Tailor collects any payment due at law or through
an attorney at law or under advice from a collection agency, or if Software Tailor
prevails in any action to which the Customer and Software Tailor are parties, Customer
will pay all costs of collection, arbitration and litigation, including, without
limitation, all court costs and Software Tailor's reasonable attorney and collect
agency fees.
2. Use of Services
2.1 Material and Product Requirements. Customer must ensure that all material and
data placed on Software Tailor's equipment is in a condition that is "server-ready"
which is in a form requiring no additional manipulation by Software Tailor. Software
Tailor will make no effort to validate any of this information for content, correctness
or usability. In the event that Customer's material is not "server-ready", Software
Tailor has the option at any time to reject this material. Software Tailor will
notify Customer of its refusal of the material and afford Customer the opportunity
to amend or modify the material to satisfy the needs and/or requirements of Software
Tailor.
2.2 Custom Software Installation. The Customer has the ability to install custom
software on the server they lease from Software Tailor as long as the Customer has
the proper licensing in place for the use of said software. In most cases, Software
Tailor will request proof of ownership and licensing of said software prior to approving
the software for installation. Should the Customer send Software Tailor original
copies of licensing and/or software in any form (paper, compact disc, etc.), Software
Tailor shall not be held responsible for the storage and/or safekeeping of the licensing
and/or software. In addition, should the Customer send to Software Tailor media
required for the installation of software, in any form, the Customer is responsible
for paying for any and all postage and/or shipping fees associated with the shipment
and return of said media.
2.3 Bandwidth, Storage, and Email Usage. Customer agrees that use of the Services
hereunder will not exceed the bandwidth, storage and email usage limits, where applicable,
set out in detail on the Dedicated Hosting Plan page, located at http://www.hosttailor.com/services.aspx.
If Customer uses any bandwidth or storage space in excess of the agreed upon number
of megabytes per month or if Customer exceeds email storage and attachment size
limitations, Software Tailor may, at its sole discretion, assess Customer with additional
charges, suspend the performance of the Service, or terminate this Agreement. In
the event that Software Tailor elects to take any corrective action, Customer will
not be entitled to a refund of any unused pre-paid fees.
2.4 Unmanaged Hosting. For unmanaged hosting plan, Software Tailor will setup an
initial operating system and setup the corresponding configuration so that Customer
can remote access to the server. Software Tailor will then send out a Activation
Notification electronic mail to Customer HostTailor.com email contact address with
the remote access information. In case of any malfunction of the server operating
system or unable to remote access to the server, Customer must notify Software Tailor
by using the Support section of the HostTailor.com Control Panel or via support@hosttailor.com
within 7 calendar days after Software Tailor sent out the Activation Notification.
Software Tailor will not install or upgrade any software or operating systems on
the server after the said 7-day period.
3. Intellectual Property Rights
3.1 Customer License Grant to Software Tailor. Customer hereby grants to Software
Tailor a non-exclusive, worldwide and royalty-free license for the Initial Term
and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit,
publish, transmit, participate in the transfer of, reproduce, create derivative
works from, distribute, perform, display and otherwise use Customer content as necessary
for the purposes of rendering and operating the Services to Customer under this
Agreement. Customer expressly (a) grants to Software Tailor a license to cache materials
distributed or made available for distribution via the Services, including content
supplied by third parties, and (b) agrees that such caching is not an infringement
of any of Customer intellectual property rights or any third party's intellectual
property rights.
3.2 Customer Warranties and Representations to Software Tailor. Customer warrants,
represents, and covenants to Software Tailor that
- (a) Customer is at least eighteen (18) years of age;
- (b) Customer possesses the legal right and ability to enter into this Agreement;
- (c) Customer will use the Services only for lawful purposes and in accordance with
this Agreement and all applicable policies and guidelines as defined in this Agreement;
- (d) Customer will be financially responsible for the use of Customer account;
- (e) Customer has acquired or will acquire all authorization(s) necessary for hypertext
links to third-party websites or other content;
- (f) Customer has verified or will verify the accuracy of materials distributed or
made available for distribution via the Services, including, without limitation,
Customer content, descriptive claims, warranties, guarantees, nature of business
and address where business is conducted, and
- (g) Customer content does not and will not infringe or violate any right of any
third party (including any intellectual property rights) or violate any applicable
law, regulation or ordinance.
3.3 Materials and Intellectual Property. All materials, including but not limited
to any computer software (in object code and source code form), data or information
developed or provided by Software Tailor or its suppliers or agents pursuant to
this Agreement, and any know-how, methodologies, equipment or processes used by
Software Tailor to provide the Services to Customer, including, without limitation,
all copyrights, trademarks, patents, trade secrets and any other proprietary rights
inherent therein and appurtenant thereto shall remain the sole and exclusive property
of Software Tailor or its suppliers. Software Tailor shall also maintain and control
ownership of all Internet protocol ("IP") numbers and addresses that may be assigned
to Customer by Software Tailor. Software Tailor reserves, in its sole discretion,
the right to change or remove any and all such IP numbers and addresses.
Conversely, all materials, including but not limited to any computer software (in
object code and source code form), data or information developed or provided by
the Customer or their suppliers pursuant to this Agreement, and any know-how, methodologies,
equipment or processes used by the Customer or their suppliers including, without
limitation, all copyrights, trademarks, patents, trade secrets and any other proprietary
rights inherent therein and appurtenant thereto shall remain the sole and exclusive
property of the Customer or their suppliers.
3.4 Copyright Dispute Policy. Software Tailor reserves the right to remove any and
all materials on a website hosted by Software Tailor which infringe on copyrighted
work, in accordance with the Digital Millennium Copyright Act. Should any dispute
arise in regards to an alleged copyright infringement on a website hosted by Software
Tailor, the following procedures must be followed.
The third party, who henceforth shall be referred to as "Complainant,〃 must submit
written communication (by fax or regular mail, email only through prior arrangement)
to Software Tailor's designated agent which substantially includes the following:
- (i) A physical or electronic signature of a person authorized to act on behalf of
the owner of an exclusive right that is allegedly infringed.
- (ii) Identification of the copyrighted work claimed to have been infringed, or,
if multiple copyrighted works at a single online site are covered by a single notification,
a representative list of such works at the Customer's site.
- (iii) Identification of the material that is claimed to be infringing or to be the
subject of infringing activity and that is to be removed or access to which is to
be disabled and information reasonably sufficient to permit Software Tailor to locate
the material. For example, should a particular page contain material that is allegedly
infringing a copyrighted work, Complainant will need to provide the Software Tailor
Agent with a link to that page and a description of the alleged infringing material
as follows:
On http://www.some-domain.com, there are several uses of a logo belonging to Company
X, and the owner of some-domain.com does not have the permission of Company X to
use said logos.
- (iv) Information reasonably sufficient to permit Software Tailor to contact the
Complainant, such as an address, telephone number and, if available, an email address.
- (v) A statement that the Complainant has a good faith belief that use of the material
in the manner complained of is not authorized by the copyright owner, its agent
or the law.
Software Tailorˇs Agent for claims of copyright infringement can be contacted at:
SoftwareTailor (HK) Limited
ATTN: Copyright Agent
Room 1919
Nan Fung Centre
264-298 Castle Peak Road
Tsuen Wan NT
Hong Kong
Upon receipt of written notification containing the above information from the Complainant,
and only upon receiving such notice, Software Tailor will:
- (i) Remove or disable access to the infringing material(s) immediately or within
a reasonable time frame.
- (ii) Take reasonable steps to contact the Customer that the material(s) in question
has been removed or disabled.
In response, the Customer may send a written counter notification (by fax or regular
mail, email only through prior arrangement) to Software Tailor's designated agent.
The counter notification must include the following:
- (i) A physical or electronic signature of the Customer.
- (ii) Identification of the material(s) that have been removed or to which access
has been disabled and the location at which the material(s) appeared before it was
removed or access to it was disabled.
- (iii) A statement, under penalty of perjury, that said Customer has a good faith
belief that the material was removed or disabled as a result of mistake or misidentification
of the material to be removed or disabled.
- (iv) The Customer's name, address and telephone number, and a statement that the
Customer consents to the judicial district of Software Tailor's principal place
of business, and the Customer will accept service of process from the Complainant
who provided the original notification or an agent of such person.
Upon receipt of the written counter notification containing the above information
from the Customer, and only upon receiving such notice, Software Tailor will:
- (i) Provide the Complainant with a copy of the counter notification from the Customer.
- (ii) Inform the Complainant that Software Tailor will replace the removed material
or cease disabling access to it in 10 business days.
- (iii) Replace the removed material and cease disabling access to it not less than
10, nor more than 14, business days following receipt of the counter notice, unless
Software Tailor's designated agent receives notice from Complainant that an action
has been filed, seeking a court order to restrain the Customer from engaging in
infringing activity relating to the material referenced in the original notification.
4. Enforcement
4.1 Investigation of Violations. Software Tailor may investigate any reported violation
of this Agreement, its policies or any complaints and take any action that it deems
appropriate and reasonable under the circumstance to protect its systems, facilities,
customers and/or third parties. Software Tailor reserves the right to access or
review the contents of any e-mail or similar stored electronic communications as
required or permitted by applicable law or legal process.
4.2 Actions. Software Tailor reserves the right and has absolute discretion to restrict
or remove from its servers any content that violates this Agreement or related policies
or guidelines, or is otherwise objectionable, infringes on any third party's rights
or is in potential violation of any laws. In the event of becoming aware of any
possible violation of this Agreement, any related policies or guidelines, or any
third party rights or laws, Software Tailor may immediately take corrective action,
including, but not limited to, (a) issuing warnings, (b) suspending or terminating
the Service, (c) restricting or prohibiting any and all uses of content hosted on
Software Tailor's systems, and/or (d) disabling or removing any hypertext links
to third party websites, any Customer content distributed or made available for
distribution via the Services or other content not supplied by Software Tailor which,
in Software Tailor's sole discretion, may violate or infringe any law or third-party
rights or which otherwise exposes or potentially exposes Software Tailor to civil
or criminal liability or public ridicule.
It is Software Tailor's policy to terminate repeat infringers. The above stated
rights of action, however, do not obligate Software Tailor to monitor or exert editorial
control over the information made available for distribution via the Services. In
the event Software Tailor takes corrective action due to such possible violation,
Software Tailor shall not be obligated to refund to Customer any fees paid in advance
of such corrective action. The following activities are specifically not allowed
by Software Tailor and will result in IMMEDIATE account termination: running adult
web sites, hate web sites or gambling web sites; participation in undirected bulk
email delivery (Spamming) either through the use of our mail servers or other servers;
or any sites promoting or participating in illegal activities.
Customer may not utilize, enable, upload or publicly store source code, executable
code or programs on the Software Tailor network or servers that are designed to
perform the following activities which will result in IMMEDIATE account termination
and possible liability, including, without limitation: (a) performing local/remote
security vulnerability scans, (b) simulating local shell/OS access by means of a
tunneled/encapsulated connection to a remote host, (c) circumventing firewall restrictions,
(d) connecting to any IRC/Peer to Peer file sharing server/network, (e) providing
tracker services to BitTorrent clients, (f) running any kind of proxy server (including
anonymous proxies), and/or (g) exploiting any other vulnerabilities, as determined
by Software Tailor in its sole discretion.
4.3 Disclosure Rights. To comply with applicable laws and lawful governmental requests,
to protect Software Tailor's systems and customers, or to ensure the integrity and
operation of Software Tailor's business and systems, Software Tailor may access
and disclose any information it considers necessary or appropriate, including, without
limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing
and traffic information, usage history and content residing on Software Tailor's
servers and systems.
5. Disclaimed Warranties
5.1 Customer acknowledges and agrees that Software Tailor exercises no control over,
and accepts no responsibility for, the content of the information passing through
Software Tailor's host computers, network hubs and points of presence, or the Internet.
ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST
FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER
HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
SOFTWARE TAILOR DOES NOT MAKE AND HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES ALL
RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING
THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING,
COURSE OF PERFORMANCE OR USAGE IN TRADE.
6. Limitation and Exclusion of Liability
6.1 Limitations. IN NO EVENT SHALL SOFTWARE TAILOR OR ITS SUPPLIERS HAVE ANY LIABILITY
FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED
OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT
MEANS OR DEVICES. NEITHER SOFTWARE TAILOR NOR ITS SUPPLIERS SHALL HAVE LIABILITY
WITH RESPECT TO SOFTWARE TAILOR'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE
FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF SOFTWARE
TAILOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW
THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES
SO THE FOREGOING LIMITATION OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN ANY EVENT,
THE LIABILITY OF SOFTWARE TAILOR AND ITS SUPPLIERS TO CUSTOMER FOR ANY REASON AND
UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO SOFTWARE
TAILOR BY CUSTOMER UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY
PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES
OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS.
THE FEES FOR THE SERVICES SET BY SOFTWARE TAILOR HEREUNDER HAVE BEEN AND WILL CONTINUE
TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, CUSTOMER HEREBY RELEASES
SOFTWARE TAILOR AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND
CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION.
6.2 Interruption of Service. Customer hereby acknowledges and agrees that Software
Tailor and its suppliers will not be liable for any delay, outages or interruptions
of the Services. Software Tailor shall not be liable for any delay or failure to
perform its obligations under this Agreement, where such delay or failure results
from any act of God or any other cause (including, without limitation, any mechanical,
electronic, communications or third party supplier failure). Software Tailor shall
also not be liable for any losses or other damages Customer may suffer in conjunction
with Customer use of Software Tailor's web hosting services.
6.3 Denial of Service. Software Tailor may, at its sole discretion, limit or deny
access to its servers, including the blocking of certain ports and/or the denial
of certain services, if, in the judgment of Software Tailor, such limitations or
denials of access are required to assure the security of the network, the integrity
of the network structure, or to prevent damage to the network, the software or the
data stored on the Software Tailor servers.
6.4 Total Liability. The total liability of Software Tailor shall not exceed the
maximum dollar amount paid to Software Tailor by the customer claiming liability.
7. Indemnification
7.1 Customer hereby releases and holds harmless, and agrees to indemnify, Software
Tailor and its affiliates and suppliers (and their respective employees, directors
and representatives) against any and all claims, actions, proceedings, suits, liabilities,
damages, settlements, penalties, fines, costs or expenses (including, without limitation,
reasonable attorneys' fees and other litigation expenses) incurred by Software Tailor
or its suppliers, arising out of or relating to (a) Customer violation or breach
of any term, condition, representation or warranty of this Agreement or any applicable
policy or guideline; (b) Customer improper or illegal use the Services; or (c) Customer
violation, alleged violation, or misappropriation of any intellectual property right
(including, without limitation, trademark, copyright, patent and trade secrets)
or non-proprietary right of a third party (including, without limitation, defamation,
libel and violation of privacy or publicity).
Customer further agrees to indemnify Software Tailor against any losses which arise
out of, or relate to the domain names used and/or any content stored on the Software
Tailor network that is provided by the Customer and/or their agents, employees or
assigns, and Customer agrees to reimburse Software Tailor for any and all legal
expenses, including reasonable attorneys' fees and other legal costs, incurred by
Software Tailor in connection with any such losses.
The Microsoft Windows software, the Red Hat Enterprise Linux software and the SUSE
Linux Enterprise Server software Software Tailor provides to customers as part of
their Dedicated Server Hosting Plans is licensed. Software Tailor does not provide
any additional Microsoft software for customers' dedicated servers. Licensing for
any software that may be installed by a customer on a Software Tailor Dedicated
Server is the sole responsibility of the customer. This Agreement supersedes any
additional Agreements a customer or Software Tailor may have with any other vendor.
Once a Dedicated Server is released to the customer, use of the Dedicated Server
represents acceptance of any and all licensing agreements Software Tailor has in
place, and future installation of custom software, regardless of software vendor,
is solely the responsibility of the customer.
8. Miscellaneous Provisions
8.1 Entire Agreement. This Agreement, in conjunction with all policies and guidelines
incorporated herein by reference, constitutes the entire agreement between Customer
and Software Tailor with respect to the subject matter hereof and there are no representations,
understandings or agreements which are not fully expressed in this Agreement and
the related policies and guidelines.
8.2 Amendments. Software Tailor reserves the right to change or modify any of the
terms and conditions contained in this Agreement and any policy or guideline incorporated
by reference 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 and future customers. Should
Software Tailor feel customer notification is warranted due to a significant change
to the Agreement (such significance being the sole discretion of Software Tailor),
customers will receive such notification no less than 15 days prior to the changes
going into effect.
8.3 Choice of Law and Forum. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF HONG
KONG, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO
THIS AGREEMENT MUST BE BROUGHT IN THE COURTS LOCATED IN HONG KONG, AND CUSTOMER
IRREVOCABLY CONSENTS TO THE JURISDICTION OF SUCH COURTS.
8.4 Compliance With Laws. Customer shall at all times comply with all applicable
laws and regulations and shall indemnify and save Software Tailor harmless from
Customer failure to so comply. Customer agrees that Software Tailor shall not have
to perform any obligations set forth in this Agreement if such performance would
violate any present or future law, regulation or policy of any applicable government.
8.5 Assignment. Customer may not assign this Agreement or any right or obligation
hereunder, by operation of law or otherwise, without Software Tailor's prior written
consent. Software Tailor may assign its rights and obligations under this Agreement,
and may utilize affiliate and/or agents in performing its duties and exercising
its rights hereunder, without Customer consent. Subject to that restriction, this
Agreement will be binding on, inure to the benefit of and be enforceable against
the parties and their respective successors and assigns.
8.6 Survival. All provisions of this Agreement relating to Customer warranties,
intellectual property rights, limitation and exclusion of liability, Customer indemnification
obligations and payment obligations shall survive the termination or expiration
hereof and thereof.
8.7 Relationship of Parties. The parties are independent contractors bound by the
provisions hereof. Software Tailor is under the control of Customer only as to the
result of the services to be provided by Software Tailor and not as to the means
by which such result is accomplished. This Agreement shall not be construed to create
any kind of agency, franchise, employment, partnership, joint venture or other form
of joint enterprise, it being understood that Software Tailor shall conduct its
business at its own risk and expense and for its own account, in the status of an
independent contractor and completely independent entity. Except as expressly provided
herein, Customer shall have and exercise no right, control or direction over the
conduct, management, operation, form or affairs of Software Tailor's business. Software
Tailor and Customer shall each be responsible for paying their own taxes applicable
taxes and shall be responsible to maintain all applicable licenses, workers' compensation
and all other coverages required by law for Software Tailor and Customer.
8.8 Control Center Service. Software Tailor installs its Control Center Service
on any dedicated server that is released to the Customer. This service submits internal
communication with the Software Tailor Control Center Server through incoming port
743 and outgoing port 52155. As all communication is internal to the Software Tailor
network, any bandwidth utilization by the service does not count against the bandwidth
allocation given for any particular dedicated server. Customer is subject to termination
if this service is disabled or uninstalled as it may significantly reduce the performance
of the server and Software Tailor's ability to provide such service and monitor
the server and the network for malicious activity. In addition, should the customer
utilize any firewall solution (regardless of whether it is the solution offered
by Software Tailor or any similar service or application), it is up to the Customer
to ensure that the ports used by the Control Center Service are left open and perform
uninterrupted communication back to the Control Center server.
8.9 Domain Registrations. Software Tailor may acquire an internet domain name on
behalf of the Customer as specified in the Customer's request for services. Any
costs incurred by Software Tailor in the process of obtaining or maintaining a domain
name for the Customer shall be immediately reimbursed to Software Tailor upon receipt
of invoice for said services and fees. Should the Customer acquire the domain name
on their own, without the assistance of Software Tailor, the Customer is responsible
for any and all fees necessary for the acquisition of the domain name.
8.10 Domain Registration through Software Tailor. The Customer is responsible for
checking on the availability of any domain name associated with any of the services
offered by Software Tailor. The Customer is also responsible for correctly entering
any and all domain information (this includes, but is not limited to, the spelling
of the domain, proper domain extension, etc.) during the course of ordering any
services offered by Software Tailor. Software Tailor is not responsible for domain
name availability. If a Plan is built by Software Tailor using an unavailable or
incorrect domain name, the Customer will be charged a US$20.00 fee for any resulting
corrections made by Software Tailor. Software Tailor does not, in any way, alter
any domain information when building sites for the Customer. Domain information
is entered solely by the Customer, and is, therefore, the sole responsibility of
the Customer.
8.11 Domain Corrections. If a domain name is ordered by the Customer with incorrect
information, the Customer will be invoiced for any and all fees incurred by Software
Tailor in the proper registration/correction/completion of the Customer's order.
These fees may include, but are not limited to, any administrative costs, domain
registration costs and costs incurred in the correction of domain registration information
charged by the domain Registrar.