You have engaged Strategic Systems Consulting, Inc., d/b/a eApps Hosting (eApps) to provide hosting services. The terms and conditions in this agreement (the Hosting Services Agreement) apply to all services to which you have subscribed (the Subscribed Services). Additionally, the terms and conditions of the Service Order, Operating Rules (Acceptable Use Policy), Privacy Policy, GDPR Compliance, Payment Policy, Cancellation Policy, Service Level Agreement (each an Ancillary Agreement) apply and are incorporated into this Hosting Agreement. For purposes of this Hosting Agreement, the Agreement or Agreements as used herein includes each of the Ancillary Agreements.
1. Services
Subject to the terms of the Service Level Agreement, eApps shall provide you the Subscribed Services. While the Ancillary Agreements do apply, the terms & conditions contained in the Server Hosting Agreement and Server Hosting Schedule apply to clients subscribing for dedicated hosting.
2. Use of Subscribed Services
eApps grants you non-exclusive access to its servers as is required to provide the Subscribed Services. Such use is subject to the Acceptable Use Policy as well as all applicable local, state, provincial, national and international laws. Your use of the Subscribed Services may not violate any such applicable laws, including, but not limited to, the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN SPAM Act, 18 U.S.C. §1037, 15 U.S.C. §7701); Child Online Privacy Protection Act (COPPA, 15 U.S.C. §6501); Health Insurance Portability and Accountability Act (HIPPA, 42 U.S.C. §1320d) and the Gramm-Leach-Bliley Act (12 U.S.C. §78).
You are responsible for all services and equipment required to access the Subscribed Service over the Internet. You understand that the use of remote access technologies such as Telnet, SSH, PCAnywhere, or other access methods by you or anyone on your behalf imposes a responsibility to ensure that the access method is only used for your benefit, and that only your files and data may be accessed using the access method, and that such usage must be for legal purposes that relate to your use of the Subscribed Services. eApps shall provide a means for you to update and manage your Subscribed Services online (the Control Panel) hosted at its website.
You are entitled to technical services as defined in the Service Order and on the eApps Support Center at http://support.eapps.com as may be revised from time to time subject to the Notice provision herein. You may also subscribe to specific services in addition to those initially subscribed.
You agree to institute reasonable security measures to prevent any unauthorized third-party access to eApps servers through your account. You are solely responsible for the security of any materials, including those which may contain financial or other identifiable information, from your site to eApps, and you will take reasonable precautions to secure the transmission of such materials.
You are solely and exclusively responsible for (1) all web site content and activity; (2) obtaining permission from the right holders for the display of any material or activity on the web site; and (3) ensuring that the content of the web site does not violate any laws of the jurisdiction where the content is displayed. You shall not use the Subscribed Services to send unsolicited emails with similar content, or posting messages with similar content in bulk, in a manner that violates the CAN SPAM Act.
You agree to provide, upon registration for the Subscribed Service, accurate account information, including the name of the administrative contact, email address of administrative contact, complete mailing address, and phone number. You also agree to update your account information in the Control Panel whenever it changes. Additionally, you shall configure all email addresses provided for contact to receive electronic correspondence from eApps.
Subject to the provisions of our Acceptable Use Policy, the Subscribed Services may not be used for any criminal activity including, but not limited to, theft of trade secrets, fraud, child pornography, trafficking in obscene material, violation of US export provisions, drug dealing, gambling, harassment, defamation of character, maligning of individuals or organizations, stalking, spamming, hacking, sending of viruses or other harmful files, or illegal posting of computer passwords or computer code for the purpose of circumventing copyright security measures. Nor may the Subscribed Services be used for infringing activity, including, but not limited to, the unauthorized display of confidential, secret or other proprietary material, trademark infringement, copyright infringement or patent infringement.
Your use of the Subscribed Services is subject to the resources to which you have subscribed, including, but not limited to, the amount of CPU, memory, disk space, bandwidth and data transference. If your use of the services continually spikes to the maximum amount of or exceeds, the resources allocated to you, eApps may, in its sole discretion, quarantine or suspend your Subscribed Services.
Notwithstanding any other provisions of this Agreement, eApps reserves the right in its sole discretion and without prior notice to suspend or terminate any and all of your online activities at any time if used for, or operates in, a manner that violates this Agreement.
3. Data Transfer
eApps has several methods of accounting and billing for data transfer (traffic). For those customers with services that do not specify a total quantity of traffic allowed per month (expressed in Gigabytes), a “Fair Use” policy is used. Under the Fair Use policy, your service(s) will be assigned a traffic port of at least 100 Mbps. The size of the port (port speed) will allow for the efficient transfer of data into and out of your service(s), with sufficient capacity for spikes in transfers. In the event that in any given month your service(s) have a traffic spike of at least 50% of the size of your port speed on five (5) separate days during that month, your account will be subject to traffic overage fees according to the following formula.
1. Obtain the maximum port speed usage percentage for the five (5) days with the highest spikes
2. Exclude the maximum port speed usage for the highest two (2) days
3. Take an average of the next three highest day’s spikes, expressed as an integer
4. Subtract 50 from the average to obtain the Overage Factor
5. Multiple the Overage Factor times the Traffic Overage Rate to yield the Traffic Overage Fee for the month
In the event that more than one of the customer’s services have a Traffic Overage Fee, only the largest of these overage fees will be billed to the customer’s account for that month. Customers that are subject to the Fair Use policy for data transfer can see the port speed of their service(s) in their customer portal. Contact sales@eapps.com with questions or to obtain the current Traffic Overage Rate.
4. Self Installed Applications
You are entitled to install applications that may either be proprietary to you or licensed directly to you (the Self Installed Applications). Any costs incurred in the development, licensing, installation and support of Self Installed Applications are your responsibility. You are responsible for any and all support and maintenance for Self Installed Applications.
Unless you have specifically subscribed to eApps for service and support for Self Installed Applications, eApps does not offer support or any assistance for Self Installed Software. Additionally, even if a Self Installed Application is otherwise available from eApps, you are responsible for any fees you incur to have eApps service and/or support the Self Installed Applications.
You will be responsible for any liabilities eApps incurs as a result of the Self Installed Applications, including, but not limited to, any security breaches or system insecurities. Furthermore, if Self Installed Applications cause problems in your hosting environment, you will be liable for any assistance required from eApps to fix or restore your hosting environment.
Self Installed Applications may expose you, eApps, and others hosted by eApps to vulnerabilities to hackers and other malicious third parties which can result in an outage of your and others' service, damage to the hosting environment, and general mayhem to Internet users outside of the eApps network. You are responsible for updating and maintaining Self Installed Applications, including any security patches issued for the programs. You will be responsible financially for any costs eApps incur preventing hackers from accessing your hosting, fixing the hosting environment or otherwise resolving any security issues resulting from the Self Installed Applications.
EAPPS IS AUTHORIZED TO SUSPEND OR TERMINATE YOUR SERVICE OR TAKE ANY ACTIONS OTHERWISE REASONABLY REQUIRED, IN THE EVENT THAT SELF INSTALLED APPLICATIONS HAVE COMPROMISED THE SECURITY OR PERFORMANCE OF YOUR ACCOUNT, OTHER EAPPS HOSTING CUSTOMERS, OR OTHER INTERNET USERS.
5. Backup Policy
Backups are your responsibility. Unless otherwise stated, you must ensure that you have made the proper provisions to create and store backups of your data and programs in a secure location off-site from the eApps data center. In the case where eApps provides backup services on a fee basis or included with your service and described as such in the features of the service, such backups are not intended as disaster recovery or business continuity purposes and eApps is not responsible for lost content. Upon your request, and subject to any applicable fees, eApps may provide you an electronic copy of any backups that are contained within the eApps network as part of a subscribed backup service or specifically included backup service. eApps does not provide disaster recovery backup services unless specifically subscribed. Copies of the backups from a subscribed backup service or specifically included backup service will be available for a limited time only. If a customer’s Subscribed Service is removed due to cancellation or termination, eApps cannot guarantee full access to the backup.
6. Proprietary Rights
eApps owns or has a license to, all rights, title, and interest in its trade names, service marks, inventions, copyrights, trade secrets, patents and know-how relating to the design, function, and operation of plans and the hardware and software systems and resources necessary to provide the individual elements of the Subscribed Services. This Agreement does not constitute a license to you of eApps™ trade names or service marks.
You retain all rights in any data or other materials, including Self Installed Software, you install on the Service (the Customer Content), including without limitation copyrights, trademarks, patents trade secrets or any other proprietary rights related to the Customer Content. However, you grant eApps a non-exclusive, worldwide royalty-free license during the term of this Agreement to modify, adapt, transmit, reproduce, distribute, perform, display or otherwise use Customer Content only as is required to render the Subscribed Services under this Agreement.
7. Confidential Information
We each acknowledge that we will both have access to certain confidential information and materials of the other party concerning the other party's business, plans, customers, technology, pricing, and products, including the terms and conditions of the Service Order (Confidential Information). Confidential Information will also include each party's proprietary software and customer information. Materials and content you transmit to or from, or hosted on eApps' Servers shall be Confidential Information. Neither party will use the Confidential Information for any purpose other than those intended in Service Order.
Neither party shall disclose the Confidential Information to any third parties, except:
a) as is required by law.
b) in response to a subpoena or other legal instrument, provided, however, that the receiving party shall notify the other of the request in a reasonable amount of time prior to the disclosure to allow the other to respond to any disclosure if such advance notice is feasible and allowable under the law. In the event that advance notice is not feasible but allowed under the law, then the disclosing party shall give prompt notice in a reasonable manner. In the event that disclosure is not allowable under the law or eApps is instructed to withhold disclosure by the requirements of the subpoena or legal instrument, eApps is not obligated to provide disclosure.
c) as is reasonably necessary to the other professional and technical service providers, as long as such third parties are bound to confidentiality provisions at least as stringent as those of this Agreement.
8. Data Security
You agree and acknowledge that you are responsible for the security of your hosting environment. You must take precautions to control access to passwords and security mechanisms of the Subscribed Services. You are responsible for the use of the Subscribed Services, whether or not the usage has been authorized by you. eApps will not be liable for unauthorized access to your data or the unauthorized use of the Subscribed Services unless such unauthorized access or use is a result of eApps’ failure to maintain reasonable security precautions, including firewalls or other undisclosed security measures.
9. Personal Data Use and Retention
You agree and consent that eApps must collect personal data in order to provide the Subscribed Services. These data are limited to what is required to verify the identity, location, address, contact information of users of the Subscribed Services to ensure proper use of the service, for billing purposes, for communication purposes, and legal and tax compliance purposes as required by law and regulations. You acknowledge that eApps has the right and legal obligation to retain these personal data for seven (7) years after the termination of any Subscribed Services.
10. Obligations under the EU General Data Protection Regulation (GDPR)
You understand that eApps has personal data on individuals in the EU, and as such must comply with GDPR. These data may be yours, if you are an individual in the EU, but also extends to any of your customers that is an individual in the EU. To comply with GDPR, eApps has a process that includes terms and policy statements as described in this Hosting Services Agreement. You agree that if you have personal data of individuals in the EU in your Subscribed Services that you will comply with GDPR. Furthermore, you understand that under GDPR eApps is a Data Controller and you are a Data Processor under GDPR for the Subscribed Services. You agree that you will comply with the GDPR requirement that you notify eApps within 72 hours in the event that you have a data breach of any personal data of individuals in the EU. Likewise, in the event that eApps becomes aware of a breach of eApps systems that has, or may have resulted, in the disclosure of personal data that eApps will notify you of the breach within 24 hours, and provide a detailed report within 72 hours.
You also acknowledge and consent that in the event that you are subject to a complaint of a GDPR violation, and that eApps is petitioned to resolve the complaint that you have not satisfactorily resolved, that under GDPR eApps is obligated to take action on behalf of the complainant, which may impact the operation of your Subscribed Services. eApps agrees that such action will only be taken as a last resort after every reasonable effort has been made to work with you to resolve the complaint.
11. Account Access, Ownership and Ownership Disputes
You hereby agree and acknowledge that the individual listed as the administrative contact shall be presumed to have access to and ownership of the Subscribed Services. You may update the administrative contact through the online method as proscribed by eApps on the Control Panel, or as eApps may otherwise provide. The administrative contact must always be up to date.
In the event that eApps is made aware of any dispute as to who either owns or has access to the Subscribed Services, you agree to present eApps authoritative documentation that establishes your right to the Subscribed Services. Such authoritative documentation may include a court order recognizing your right to the Subscribed Services. In the event that you fail to provide materials that reasonably assure eApps that you have authority, it may in good faith suspend the account until such time as the ownership issues have been resolved. EAPPS WILL NOT BE LIABLE FOR ANY LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, LOSS OF YOUR DOMAIN NAME, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS).
12. Regulatory Matters
You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business. Additionally, you will comply with any privacy regulations that may be imposed by any jurisdiction in which you operate or do business, including the European Union Data Privacy Directive. You will agree to adhere to all applicable rules and regulations related to the ownership of Domains and other intellectual property, including but not limited to rules requiring accurate and complete information regarding the ownership of domains and other intellectual property.
13. Copyright and Trademark Infringement
eApps has designated with the Register of Copyrights as an agent (Agent) to receive notices of claimed copyright infringements. The designation and other information filed with the Register of Copyrights are published on eApps' site. In the event that eApps receives a notice of alleged copyright infringement through its Agent, based solely on that notice eApps will expeditiously remove or disable access to the allegedly infringing material in accordance with the procedures and timetables set forth in the Digital Millennium Copyright Act (the DMCA) or other laws as applicable. On the Service Order, you will designate an address and e-mail address for the purpose of receiving notices from eApps in this event.
14. System Maintenance
From time to time, maintenance will be required on the eApps server network. eApps will make its best efforts to provide reasonable notice to you if the server network will be offline for scheduled maintenance. You are responsible for taking the steps necessary to have your service restart properly and/or cleanly after a system maintenance event.
As part of eApps’ ongoing efforts to maintain high-level services, we may have to update or upgrade applications and equipment used to provide the Subscribed Services. An update is a transition from one version to another through a patch or point release, e.g. replace Version 4.1 with Version 4.2. Generally, an update will not result in major changes to applications. An upgrade is a transition from one major release to another, e.g. replace Release 4 with Release 5. An upgrade often involves changes in data structures and program processes which may impact the functioning of an application. The Service Level Agreement addresses eApps responsibilities for non-scheduled outages.
In the event that eApps discontinues support for an application on a particular platform due to an upgrade, or for any other reason, it will make its best efforts to notify you in a reasonable manner to provide you an opportunity to verify that your applications will run on the new platform. If the platform is being discontinued, you will be responsible for transferring all files and data to an application that can be configured for the new platform. You may engage eApps to transfer your files and data to the new platform at your cost and expense. In such an event, eApps assumes no liability for the data or files it transfers for you.
15. Suspension
In the event that your use of the Subscribed Services violates any of the terms of the Agreements, or adversely impacts one or more other customers using the Subscribed Services, eApps may suspend your account for an indefinite period of time. If suspended, you are responsible for all fees up until the date of suspension and may incur a restoration fee in the event that you want to restore service for an amount not to exceed the monthly subscription fee for the Subscribed Services.
16. Payments
Payment in U.S. currency is due in advance of activating, or use of, the Subscribed Services. The subscription fee (the Subscription Fee) is due in advance prior to the first day of service, or the next subscription period unless otherwise designated at eApps’ sole discretion (Enterprise Mail service; usage based model for Cloud). Additionally, fees incurred for purchases of SSL certificates, domains, software, hardware or any other expense must be paid for in advance unless otherwise agreed upon by eApps in writing.
The Subscription Fee does not include any applicable sales, use, utility or other taxes, or regulatory or governmental taxes, however designated. eApps may charge you, and you will pay as invoiced by eApps, all applicable taxes that eApps may be required or permitted to collect or pay (other than taxes based on eApps's net income). eApps may also pass-through to you for payment or reimbursement any regulatory or government taxes. Any delay by eApps in charging or collecting any such tax shall in no way release you of your obligations under this Section.
In the event that your use of the Subscribed Services consumes more resources than have been allocated to you under the Service Order, you will be responsible for the costs of the additional resources at the rates in effect when the charges are incurred (the Additional Costs). Such Additional Costs shall be billed to you. Failure to pay for these Additional Costs within a reasonable period of time may result in possible suspension and termination of your account.
eApps shall provide to our Cloud and VPS hosted customers a grace period during which their service will remain operational in a limited function. Domain, SSL certificate, and Enterprise Mail subscriptions do not have a grace period and service for these subscriptions may be suspended immediately following a failure to make proper payment. eApps will not be liable for any loss of business or information resulting from the suspension of service due to nonpayment.
Failure to pay the Subscription Fee and/or Additional Costs due within your Service’s grace period may result in eApps in its sole discretion suspending or terminating your account without notice to you. If your Service is suspended or terminated due to nonpayment, eApps reserves the right to engage in third parties, including collection agencies, to recoup our losses. In this event, the customer will be fully responsible for any fees charged by such third parties.
If you wish to dispute a charge that has been made for payment using your credit card, you must contact customer service at eApps directly to resolve the matter prior to filing a dispute with the credit card company. If you are not satisfied with the resolution at the customer service level, the claim may be escalated to the President or another officer of the Company. Chargebacks are not the appropriate method for resolving a dispute. You will be responsible for a $25 penalty in the event that a chargeback is made (1) while eApps Customer Service is working with you on the dispute OR (2) the bill is found to be accurate and consistent with eApps billing terms.
17. Representations and Warranties
You represent and warrant that you have the full legal authority to enter into this Agreement and entering into this agreement does not violate any federal, state or local law. You represent and warrant that you have the ability to legally bind the entity on whose behalf the Subscribed Services have been engaged. You have executed the Service Order honestly and without misrepresentation as to the purpose of the Subscribed Services and engagement of eApps services.
Furthermore, you represent and warrant that you have the legal right and authority, and will maintain the legal right and authority during the term of this Agreement, in the jurisdictions in which you conduct business to use any Self Installed Software and the content on your website, or through the Subscribed Services, without infringing, misappropriating or otherwise violating any intellectual property rights of any third party.
18. Limitation of Liabilities
eApps will use its best efforts to maintain acceptable performance of the Subscribed Services contracted for under this Agreement, but EAPPS MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING A WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. eApps does not and cannot guarantee continuous service, or service at a particular time, or the integrity of the data stored or transmitted via the Internet. eApps shall not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system unless specifically stated otherwise by eApps with regard to certification by eApps under official programs for the protection of customer's data.
eApps shall not be liable to you for any claims or damages which may be suffered by you or users of your website, or through the Subscribed Services, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access the Internet, or inability to transmit or receive information, caused by or resulting from delays, non-deliveries or service interruptions whether or not caused by the fault or negligence of eApps.
eApps shall not be liable to you for any claims or damages which may be suffered by you or users of your website, or through the Subscribed Services, which result from the loss of a domain name or SSL certificate. It is the customer’s responsibility to ensure that domain names and SSL certificates are renewed prior to their expiration date. Failure to do so can result in additional fees from the issuing company which the customer shall be solely responsible for.
Notwithstanding anything to the contrary in this Agreement or any Ancillary Agreement, eApps, or its employees, agents or representatives, liability to you, either directly or indirectly, for any claim arising out of or relating to this Agreement or the Subscribed Services, or any claim related to eApps certification under official programs protecting customer's data, shall be limited to the amount of fees paid by you to eApps under this Agreement within one year preceding the date you contend the claim arose. IN NO EVENT SHALL EAPPS BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER, OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, HOWEVER, CAUSED AND REGARDLESS OF THEORY OF LIABILITY. This limitation applies even if eApps has been advised of, or is aware of, the possibility of such damages.
19. Indemnification
You agree to defend, indemnify and hold harmless eApps, its employees, officers, suppliers, licensors, affiliates, shareholders, directors, agents, representatives, from and against any and all claims brought against eApps, as well as all costs, liabilities, losses, and expenses arising out of any claim, suit, action or proceeding alleging that your use of the Subscribed Services whether based on claims of infringement or misappropriation of any intellectual property rights, negligence, willful misconduct, violation of law or the Acceptable Use Policy, or failure to meet the security requirements of this Agreement. Additionally, you agree to defend, indemnify and hold harmless eApps, its employees, officers, suppliers, licensors, affiliates, shareholders, directors, agents, representatives, from and against any and all claims against eApps by a third-party alleging that Self Installed Applications infringe on that third-party's rights or any intellectual property rights.
Additionally, you are responsible for any costs eApps incurs, including reasonable attorney fees, in connection with any dispute between persons claiming control of the website(s), or through the use of the Subscribed Services, hosted by us. Likewise, you are responsible for any costs eApps incurs if we are implicated in any claims your end users might have against you.
eApps will indemnify and hold you, your affiliates, shareholders, officers, directors, employees, agents, and representatives, harmless from and against any and all reasonable costs, liabilities, losses, and expenses including but not limited to reasonable attorney fees arising out of either its actual or alleged gross negligence or willful misconduct, violation of law or claim of intellectual property infringement of any third party resulting from the provision of the services pursuant to this Agreement. You will give eApps prompt written notice upon the existence of any such event of which it becomes aware of, and an opportunity to participate in or, at eApps' option, to control the defense thereof at its defense.
20. Term and Termination
This Agreement shall be effective as of the date set forth on the Service Order (the Effective Date). The Service Order shall specify the term of the Agreement (the Initial Term). Unless you notify eApps prior to the last day of the Initial Term, or any continuation term thereof, of the cancellation of the Subscribed Services on the Control Panel, or as eApps may otherwise provide, this Agreement shall automatically renew for a period to equal that of the Initial Term at the Subscription Fee in effect as of the renewal.
Subject to the terms and conditions set forth in this paragraph, where you have subscribed to services that are offered with a thirty (30) day money-back guarantee, you may terminate the Subscribed Services within the first thirty (30) calendar days following activation for a full refund of the actual amount of fees you paid for the set up of your plan and initial Subscription Fee (the Money Back Guarantee). However, there is no refund for any expenditures eApps have incurred on your behalf, including, but not limited to, domain purchases, SSL certificates, software, hardware or customer service expenses billable to you. Additionally, you are responsible for fees incurred for any and all excess resource charges consumed during your use of the Subscribed Services, including, but not limited to, disk space and data transfer. Therefore, any refund you are due will be decreased by any amount you owe. The Money-Back Guarantee applies only to three Subscribed Services purchased in any one (1) month period. At any time after the expiration of the thirty (30) day money-back guarantee, if applicable, the Subscription Fee is non-refundable.
Regardless of when you terminate the Subscribed Services, you shall follow the procedures set forth in the Request Termination on the eApps Control Panel, or per those procedures as eApps directs. The customer acknowledges that failure to pay for renewal will not constitute a cancellation of service, nor will notification of intent to cancel given by email, telephone, chat, or other methods of communication. Additionally, you shall be responsible for any extraordinary costs, including shipping and handling, eApps may incur upon the termination of the Subscribed Services.
eApps may terminate your service immediately, at its option, if we determine that you did or do not have: (a) the authority to establish the account on behalf of the company in whose name the account has been established; (b) the legal right to use the domain name under which you have established service; (c) you fail to comply with any provision of this Agreement. We also reserve the right to terminate or suspend your service immediately for breach of the Acceptable Use Policy or the copyright infringement provision of this agreement. eApps reserves the right to terminate your service for any reason provided that you are sent a notification of termination at least 30 days in advance of the termination date.
Upon termination of this Agreement, regardless of the reason, you agree to release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Service. In the event that you do not promptly make the release, you authorize eApps to change or remove any such addresses. This condition does not apply to URL, top-level domain, or domain names.
21. Dedicated Equipment Services
(a) Applicability of Section
The terms and conditions of this Section shall apply to you if you have opted to have eApps provide physical space within its service center for equipment owned or rented by you (Dedicated Equipment). The Dedicated Equipment and related services shall be identified with specificity in the Dedicated Equipment Services Schedule. Both parties must execute the Dedicated Equipment Services Schedule before eApps commences the services anticipated in this Section and in the Dedicated Equipment Services Schedule.
(b) Dedicated Equipment Hosting
eApps shall host the Dedicated Equipment in its data center (Dedicated Equipment Services Hosting). Where you are identified as the owner of Dedicated Equipment on the Dedicated Equipment Services Schedule you shall retain all title and interest in the Dedicated Equipment. You warrant that you fully own the Dedicated Equipment and that there are no third party interests in the Dedicated Equipment that may interfere with eApps' management of the Dedicated Equipment or the provision of the services as set forth in the Hosting Services Agreement.
In the event that you are leasing the Dedicated Equipment from eApps full right and ownership remains with eApps subject to the terms set forth in the Dedicated Equipment Services Schedule.
eApps shall maintain and operate the Dedicated Equipment on your behalf. eApps shall take reasonable steps to maintain the Dedicated Equipment in working order. The maintenance of any hardware purchased or leased through eApps is included unless specified otherwise in the Dedicated Equipment Services Schedule. You shall be responsible for any costs incurred as a result of the upgrade of the Dedicated Equipment to provide the services set forth in the Hosting Services Agreement.
For Dedicated Equipment you own, you shall fully insure it against all risk of loss, including without limitation, theft, fire, water, and earthquake damage. All clients for whom eApps hosts Dedicated Equipment should acquire business interruption insurance to protect against any lost revenue in the event that there is a prolonged disruption of services or catastrophe.
(c) Payment for Dedicated Equipment Services Hosting
In addition to the Subscription Fee due for other services for which you have subscribed, payment in U.S. currency is due in advance of the commencement of the Dedicated Equipment Services Hosting anticipated herein (the Dedicated Equipment Management Fee) as set forth in the Dedicated Equipment Services Schedule. Additionally, you shall pay any fees eApps may incur on your behalf for the acquisition of any hardware, software, networking equipment, or other materials unless otherwise agreed upon by eApps in writing.
Failure to pay the Dedicated Equipment Management Fee, or any other payment, when due grants eApps the right to retain possession of the Dedicated Equipment until such delinquency is cured, and in the event that payment is not made within ninety (90) days, eApps shall be authorized to sell the Dedicated Equipment, retain the payments necessary to satisfy the amount owed eApps and return the balance to you. By execution of this Agreement, and the Dedicated Equipment Services Schedule, you waive any and all rights you may have to the Dedicated Equipment or redemption thereof if you fail to make the payments required herein.
All payments required in this Section are exclusive of taxes unless included in your hardware purchase price. You are responsible for any taxes, including property taxes, due on the Dedicated Equipment or for the services provided hereunder.
(d) Term, Termination, Removal of Dedicated Equipment
The Term of this Section shall commence as of the date set forth in the Dedicated Equipment Services Schedule, and continue for the period specified therein. Upon expiration of the Dedicated Equipment Services Schedule, the Subscribed Services will continue on a month to month basis unless otherwise terminated or extended.
Upon termination of the Dedicated Equipment Services Schedule or this Agreement, you shall notify eApps as to where Dedicated Equipment owned by you shall be delivered. eApps shall transfer the Dedicated Equipment to you only after they have confirmed that there are no payments due under the Dedicated Equipment Services Schedule or this Agreement. You are responsible for all costs incurred for such transfer, and the costs shall be paid in advance. eApps' delivery of the Dedicated Equipment may not violate any law of the United States, including the export control laws and regulations.
22. Microsoft Windows Services
(a) OWNERSHIP OF PRODUCTS.
The Products are licensed to you from an affiliate of the Microsoft Corporation (collectively “Microsoft”). All title and intellectual property rights in and to the Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products) are owned by Microsoft or its suppliers. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
(b) LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.
You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
(c) NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT.
ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY CUSTOMER AND NOT BY MICROSOFT, ITS AFFILIATES OR SUBSIDIARIES.
(d) PRODUCT SUPPORT.
Any support for the Products is provided to you by eApps and is not provided by Microsoft, its affiliates, or subsidiaries.
(e) NOT FAULT TOLERANT.
THE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND is NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
23. Governing Law, Venue
This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflict of laws, and the laws of the United States of America, as applicable. The exclusive venue for all disputes arising out of this Agreement shall be in the state or federal courts in Gwinnett County, Georgia, United States of America. This Agreement is not governed by the United Nations Convention on the International Sale of Goods.
The parties will make a reasonable attempt to resolve any disputes relating to the terms, interpretation, or performance of this Agreement (other than claims for preliminary injunctive relief or other prejudgment remedies) through mutual consultation before resorting to any other dispute resolution mechanisms.
24. Force Majeure
Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including an act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
25. Relationship of the Parties
This Agreement is a services agreement and is not intended to, and will not, constitute a lease of any real or personal property unless specifically provided in the Server Hosting Agreement or Server Hosting Services Schedule. The relationship between the parties is that of vendor and vendee. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between eApps and you. Neither eApps nor you have the power to bind the other or inquire obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
26. Entire Agreement and Waiver
This Agreement, including the Ancillary Agreements, which are incorporated herein by reference, constitute the complete and exclusive agreement between you and eApps with respect to the subject matter hereof and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings, and agreements, written or oral, regarding such subject matter. Any failure of either party to exercise or enforce its rights under this Agreement or the Ancillary Agreements shall not act as a waiver of a subsequent breach or a release
27. Assignment
Any assignment of this Agreement shall be void unless you have notified eApps of the assignment of the Subscribed Services.
28. Notices
All notices from eApps to you shall be sent to you at the email address provided as the administrative contact when the Services are subscribed. Notices from you to eApps may be made either by email (billing@eapps.com) or by first-class mail to eApps at the address listed on the Contact Us section of eapps.com.
29. Newsletter and Marketing Correspondence
By registering an account with eApps, you agree to receive a periodic Newsletter and marketing correspondence. You may unsubscribe to this correspondence by following the unsubscribe instructions which are included at the end of all marketing-related messages.
30. Modification
This Agreement may be modified anytime at eApps sole discretion. Such modifications shall be effective thirty (30) days after the amended/revised Agreement has been posted on the eApps Support Center Announcement Area.
Edited: March 1, 2021
