These Terms and Conditions govern the performance of web hosting services supplementary to the General Terms and Conditions.
1.1 The following definitions apply in this Agreement:
|Company||Means ILMIGO LLC, a Florida Limited Liability Company ;|
|Services||Means the Web Hosting Services to be provided by the Company under this Agreement;|
|Customer||Means the organization or the person Services will be purchased for;|
2.1 The Company shall render memory and computing capacity available, on a server operated by the Company, for the storage of websites and for the operation of applications that can be utilized via the internet.
2.2 The Company shall create, grant and maintain the connection between the server and the internet so that the data stored on the server can be transmitted to the calling computer without disruption and whenever required by external computers in the internet (clients) by means of the common internet protocols.
2.3 The Company shall endeavor to render the data, stored by the contract partner in accordance with the Terms and Conditions of the agreement, available to the global public via the internet 24 hours a day, seven days a week. Company does not accept liability for successful access to the respective website, insofar as networks are used that are not exclusively operated by Company or its direct contractors including their interfaces to third-party networks.
2.4 The Company shall schedule maintenance times for the optimization and improvement of performance of the systems providing the services, which are, on principle, outside the usual business hours, generally on Sunday between 2 am and 3 am and are only utilized as required. During these maintenance times Company may shut down its technical facilities as necessary and to a scope that is restricted to a minimum. The customer shall be informed of the execution of maintenance outside the above-mentioned maintenance times by e-mail in a timely manner.
2.5 The Company shall endeavor to render the systems available via internet for at least 98.5% of the annual operating time (availability).
3. Obligations of the Customer
3.1 The Customer is responsible for maintaining its data on the server. The customer will be given a password and the internet address to alter and update the data upon request.
3.2 The Customer is obliged not to disclose the login information to unauthorized third parties. Customer shall inform Company immediately if they obtain knowledge that unauthorized third parties are aware of the password. Unauthorized third parties are not such persons who utilize storage, which forms the subject matter of the agreement, with the knowledge and agreement of the Customer.
3.3 The Customer shall provide assurance that they do not enter any contents, which infringe legal regulations, third party personal rights and trademark rights or morality. Customers must in particular heed the data protection provisions to the benefit of the users.
3.4 In the event of an infringement of the above condition, Customer is obliged to refrain from all further infringements, to compensate Company for the resultant or resulting loss and to indemnify and exempt Company from third party claims for damages and the reimbursement of expenses caused by the infringement. The exemption obligation also extends to the obligation to fully exempt Company from all legal defense costs (costs for courts, lawyers, etc.).
3.5 This does not affect Company’s right to take further measures, in particular to bar the contents and to issue an extraordinary notice of termination.
4. Temporary Bar
4.1 Company is entitled to disrupt the connection between the stored data and the internet on a temporary basis (barring of the system) if sufficient indications in respect of illegal contents of the stored data exist, in particular as the result of a warning by a supposed infringed party, unless this is obviously unfounded, or as the result of investigations by state authorities. The bar shall be restricted to the supposed infringing contents, if possible. The Customer shall be informed of the bar and should be given the reason. The Customer shall also be requested to remove the supposed illegal contents or to present their legality and prove it, if necessary. The bar shall be removed as soon as the suspicion has been invalidated.
4.2 If the Customer operates programs on the rented storage space, which could negatively impact or, due to known security flaws, threaten the operating characteristics of the systems of Company or its agents, Company is entitled to immediately bar the offer of the customer. The bar shall, if possible, be restricted to the programs causing the negative impact. The Customer shall be informed immediately of the bar and should be given reasons.
4.3 The Company is further entitled to temporarily disrupt the connection between the stored data and the internet if the customer, on two successive occasions, defaults in paying the agreed fee or a significant part thereof. The Company shall inform the customer that it intends to execute a bar at least 48 hours prior to actual execution. After payment of the arrears, the Company shall immediately remove the bar.
4.4 Despite the bar of an offer for one of the above mentioned reasons, the customer is obliged to pay the agreed fee, even for the period where the bar applies.
5. Disruption of Availability, Other Defects
5.1 If disruptions of system availability occur, the customer shall inform the Company of this immediately. The Company shall attempt to remove the disruption of availability immediately.
5.2 In the event of long-term, substantial defects of storage, the Company is entitled to remove the defects within a period of grace of 14 days granted by the customer. If a substantial defect cannot be removed within the period of grace, the contract partner can reduce the fee payable.
6. Additional Liability Provisions
6.1 The Company is not responsible for the content of the customer’s saved data or the saved contents. The Company also does not accept liability for damage suffered by the customer due to alterations of the saved data by the customer or other internet users.
6.2 In addition, the Company is not liable for any damages caused by the circumvention of password protection and similar protection facilities through “hacking” on the server used by the customer. The Company and the customer are both informed of the fact that a binding assurance regarding the security of these protection facilities is not possible due to the manifold opportunities of unauthorized third parties to influence the system in and via the internet.
7.1 The web hosting fees are payable by the customer in advance each month.
7.2 The agreed flat rate comprises an individually agreed volume of storage and monthly data transfer volume. In the event that the agreed volumes are exceeded, the customer shall pay an additional fee. The Company shall inform the customer that the volumes have been exceeded immediately after determining this, at the latest, however, before next invoice. If such information is not provided, the obligation to pay the additional fee no longer applies.
17. LIMITATION OF LIABILITY.
17.1 IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY.
17.2 IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE SERVICES PROVIDED EXCEED THE AMOUNTS PAID TO THE COMPANY BY THE CUSTOMER FOR THAT PARTICULAR SERVICE.
18. Customers’S Indemnification
18.1 The Customer agree to indemnify and hold the Company harmless from and against any and all claims, lawsuits, costs (including reasonable attorney Fee and expenses), liabilities, damages, fines, settlements or any other expense that may be incurred or asserted against the Company, arising out of any breach by the Customer of any term or representation or warranty given by Customer in this Agreement, or Customer’s own negligence or the negligence of Customer’s employees, agents, or representatives or subcontractors.
19. Jurisdiction and Venue
19.1 This Agreement shall be governed by and construed in accordance with the internal substantive and procedural laws of the State of Florida without regard to conflict of laws principles. The sole and exclusive venue for all disputes arising out of or relating in any way to this Agreement shall be the Courts of the State of Florida only. The parties consent to the personal jurisdiction and venue of such courts. Both Parties shall attempt to settle any dispute by Mediation prior to filing a lawsuit.
20. Binding Arbitration
20.1 In the event of a conflict that cannot be resolved by the parties, the Company and the Customer agree that at the written request of either of them the dispute will be submitted to binding arbitration under the most expeditious arbitration method then proposed by the American Arbitration Association or by any other arbitration body on which they may both agree, with each party to pay its own legal fees and with the cost of the arbitration itself to be paid by the parties in the proportion determined by the arbitrator(s). The decision of the arbitrator(s) may be entered as a judgment at the request of either party in any court of competent jurisdiction.
21.1 All the Notices and other communications given under these Terms shall be in writing and delivered through Mail, Courier at the registered office of the parties or via electronic mail at the designated Email Addresses of the parties.
23.1 The agreement is concluded for an indefinite period. The agreement can be terminated by both parties at any time.
23.1 This Agreement constitutes and contains the entire understanding between the parties and supersedes all other prior agreements, whether oral or written, with respect to its subject matter. No representation or affirmation of fact, course of prior dealings, promise or usage of the trade will be binding on the parties, except as explicitly provided herein.
23.2 The Company shall have the right to assign or transfer any of the rights or obligation under this Agreement to any third party. The Customer shall not assign or transfer any of the rights or obligations under this Agreement without the prior written consent of the Company (such consent not be unreasonably withheld or delayed).
23.3 Any delay or nonperformance of any provisions of this Agreement caused by conditions beyond the reasonable control of the performing party, including delay due to acts of God, war, natural disasters, riots, shall not constitute a breach of this Agreement.
23.4 No waiver of a breach of any part of this Agreement shall affect a party’s right to enforce that part or any other part of the Agreement for a later breach. The failure of a party to insist upon strict performance of any part of this Agreement shall not be construed as a waiver of any prior or later default of the same or similar nature.