This Hosting Agreement governs your purchase and uses, in any manner, of all website hosting and related services, ordered by you or on your behalf (via Pure Ecommerce associates) and accepted by Earth Girl Hosting 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. Earth Girl Hosting 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. Earth Girl Hosting may make changes or modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following Earth Girl Hosting’ posting of any changes or modifications will constitute your acceptance of such changes or modifications.
1. Payment. As consideration for Earth Girl Hosting providing the Hosting Services hereunder, Customer agrees to pay Earth Girl Hosting the aggregate monthly fee based on the monthly hosting services and the terms selected. Should Customer account become in default, suspension, or otherwise unpaid status, Earth Girl Hosting reserves the right to restrict access to any/all services provided, including domain names attached to Customer name or account, without notice, until the monies owed on services rendered but not paid to Earth Girl Hosting have been satisfied, including any added interest and collection fees in full. Clients who have a credit card on file authorize Earth Girl Hosting to charge that card for monies due, even if that is not listed as the preferred payment method. Clients may remove credit card details at any time. Any account left unpaid after suspension and/or termination will be sent to collections – with the client being responsible for any additional fees associated with collecting any unpaid debt owed to Earth Girl Hosting.
1a. Terms of Suspension and Termination. Invoices that are 30 days unpaid will incur a $5 late fee, and a $5 late fee for each subsequent past due invoice. Accounts 30 days past due will be automatically suspended. Because the account is still using hosting resources, the customer will be charged up to 90 days of usage, even when suspended. After 90 days past due, websites will be terminated due to non-payment. Payment in full, including the late fees, will restore a suspended service; however, terminated sites cannot be restored. Unpaid invoices after termination will be referred to collections. See section 1.
1b. Policies. By use of Earth Girl Hosting services, the customer agrees to adhere to all policies surrounding Cancellation, Termination, and Overage Charges found on our Policies Page.
1c. Automatic Package Upgrades. In an effort to keep customer costs down, Earth Girl Hosting will upgrade accounts that incur a minimum of $5/mo. in overage charges for three consecutive months. Accounts will be upgraded to the next package in succession unless usage is more than the limits of that package. In this case, the account will be upgraded to the package that will suitable for the usage of the account. Before these upgrades, each account is manually reviewed to ensure that there are no other options. Customer may downgrade at any time if their usage limits fall within the limits of the desired package.
1d. Non-Payment of Hosted Domain Name. Should a domain name remain unpaid when a hosting account for the same domain is active, any payments applied to the account will be first applied to the domain name renewal. This is a measure to prevent clients from losing rights to the domain name attached to their hosting account.
1e. Non-Payment on Inaccessible Hosting Accounts. After 30 days of non-payment, Earth Girl Hosting reserves the right to terminate hosting accounts that are inaccessible. This includes hosting accounts connected to expired domain names, or whose domain nameservers are pointed to an outside host.
1f. Chargeback Fraud. If you feel you were charged in error, please contact our billing department for a resolution. Any charge that is disputed via your bank or credit card issuer will be treated as chargeback fraud if you have not followed our cancellation policies. Earth Girl Hosting reserves the right to terminate all services on accounts associated with fraudulent chargebacks immediately and without notice. All fraudulent chargebacks will be referred to collections with the appropriate fees.
1g. Domains on Auto-Renewal. Domain names set to auto-renew will be renewed upon payment. If a payment method is on file, it will be used to pay for the domain renewal. The customer must disable auto-renew if they do not wish to have their domain renewed. There are no refunds on renewed domains (nor on domain registrations and nor on domain transfers).
2. Provision of Services. Earth Girl Hosting will provide Customer with the Services ordered that are described in the Hosting Package Features elsewhere in this document. Customer understands and agrees that Earth Girl Hosting will host the website solely in accordance with the information provided by Customer.
3. Rights to the Web Site and Content. With the exception of any Third-Party Materials and Background Technology as set forth in Section 4, Customer owns the Customer Content. “Customer Content” means all content or information (including, without limitation, any text, music, sound, photographs, video, graphics, data, or software), in any medium, provided by Customer to Earth Girl Hosting. “Third-Party Materials” means any content, software, or other computer programming material that is owned by an entity other than Earth Girl Hosting, and licensed by Earth Girl Hosting or generally available to the public, including Customer, under published licensing terms, and that Earth Girl Hosting will use to display or run a web site.
3a. Earth Cart eCommerce Solution. (Installations Discontinued July 2014) Earth Cart software licensing is available for clients to purchase from Earth Girl Hosting. When the Customer purchases the license for Earth Cart, the system is assigned a ‘key’ to make it operational, and give permission to the end-user to use the software. Upon purchase the software license, the Customer agrees that the following applies:
Earth Girl Hosting Will install Earth Cart on approved hosting systems and perform the initial setup of the system, but is not responsible for customization past the point of setup.
Will provide reasonable support for Earth Cart for the duration of the website’s existence using this software. Cart support relates only to Earth Cart software, and will not be extended to hosting, third party software, scripts or changes made by the end-user.
All materials provided in the system are presented with the belief that they are in good working order, and that the structure is valid. Earth Girl Hosting will not guarantee the completeness or functionality of any page or structure in the files or installation. The source scripts are provided by Small Biz Community, LLC “as is” and “with all faults”. No warranties or guarantees are provided for the Earth Cart software.
May offer updated scripts, but it is the responsibility of the Customer to pay for implementation or alteration charges.
Will not provide source files for updates.
Customer Agrees to use the software on one domain only. The domain applied to the license may be changed within 180 days of the license purchase free of charge, as far as the product line remains similar.
May request the license key for the script at any time from Earth Girl Hosting.
Will have full access to the OPEN SOURCE shopping cart script by way of the hosting system it is installed on. Earth Cart, LLC does not provide original installation files via archive or otherwise.
May make changes or alterations to the script, but Earth Girl Hosting will not be responsible for keeping original files, assisting with script changes or reverting files back to the original. Customer agrees that these services will incur a charge.
Agrees not to copy or distribute Earth Cart software.
May choose to host Earth Cart software with any provider but will be responsible for custom configurations required by the respective hosting company, and any compatibility issues that arise. Earth Cart, LLC will assist with hosting issues related to Earth Girl Hosting only.
Agrees that the license is only transferrable in the event of the sale of the entire website in which it is housed. The software may not be transferred/resold as a standalone.
4. Limited License to the Background Technology. “Background Technology” means computer programming/formatting code or operating instructions developed by or for Earth Girl Hosting and used to host or operate the web site or a web server in connection with a web site. Background Technology includes, but is not limited to, any files necessary to make forms, buttons, checkboxes, and similar functions and underlying technology or components, such as style sheets, animation templates, interface programs that link multimedia and other programs, customized graphics manipulation engines, and menu utilities, whether in database form or dynamically driven. Background Technology does not include any Customer Content. Customer may not duplicate or distribute any Background Technology to any third party without the prior written consent of Earth Girl Hosting. All rights to the Background Technology not expressly granted to Customer hereunder are retained by Earth Girl Hosting. 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.
5. Limited License to Content. Customer hereby grants to Earth Girl Hosting the limited, nonexclusive right and license to copy, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use and exploit web site, any Customer Content, or any Customer Marks provided to Earth Girl Hosting hereunder, solely for the purpose of rendering Earth Girl Hosting’ Services under this Agreement. Such limited right and license shall extend to no other materials or for any other purpose and will terminate automatically upon termination of this Agreement for any reason. 6. Content Standards. Customer agrees not to provide Customer Content, and Earth Girl Hosting will not intentionally provide to Customers any content, that (a) infringes on any third party’s intellectual property or publicity/privacy rights; (b) violates any applicable law or regulation; (c) is defamatory, violent, clearly harmful, or obscene or pornographic or infringes on citizens’ rights; or (d) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage or interfere with any system, data, or personal information. If Customer is international, then Customer agrees to comply with all applicable local and national laws. Earth Girl Hosting reserves the right to refuse any other subject matter it deems inappropriate.
7. Support. Earth Girl Hosting agrees to provide reasonable technical support by email and help desk to Customer during Earth Girl Hosting’s normal technical support hours.
8. Term and Termination. (a) This Agreement is effective as of the Effective Date and shall continue unless terminated; (b) Earth Girl Hosting may terminate this Agreement after five (5) days’ written notice to Customer if Customer materially breaches this Agreement, including, without limitation, failure to pay, and fails to cure such breach within such five (5) day period; and (c) upon the termination of this Agreement, Customer will pay Earth Girl Hosting for all Services provided to Customer by Earth Girl Hosting prior to termination. Sections 2, 3, 4, 5, 9, 11, and 12 will survive termination of this Agreement.
9. Warranty Disclaimer. Except as expressly provided in this Agreement, the Services are provided “as is,” and Earth Girl Hosting 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 Earth Girl Hosting will not be liable for any temporary delay, outages or interruptions of the Services. Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein. Unless an approval process is specified herein or in a Statement, all Hosting provided by Earth Girl Hosting to a Customer will be deemed accepted when delivered.
10. Indemnity. (a) Customer Indemnity. Customer will defend Earth Girl Hosting 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 Earth Girl Hosting for all losses, damages, liabilities, and all reasonable expenses and costs incurred by Earth Girl Hosting as a result of any such third-party claim, action, suit, or proceeding. (b) Earth Girl Hosting’ Indemnity. Earth Girl Hosting will defend Customer against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section 6. Subject to Section 11, Earth Girl Hosting 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 indemnified party: (i) giving the indemnifying party prompt, written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; (ii) 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.
11. Limitation of Liability. Earth Girl Hosting’s LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO Earth Girl Hosting DURING THE THREE (3) MONTH PERIOD BEFORE THE ACTION AROSE. Earth Girl Hosting 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 Earth Girl Hosting 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, Earth Girl Hosting WOULD NOT ENTER INTO THIS AGREEMENT.