Waxwing Interactive, Inc. Website Hosting Terms and Conditions
Revision Date: March 23rd, 2015
ChiroHosting is a registered trademark owned by Waxwing Interactive, Inc.
This Hosting Agreement governs your purchase and use, in any manner, of all Website hosting, products, or services (collectively, Services) ordered by you and accepted by Waxwing Interactive, Inc. 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: Waxwing Interactive, Inc. 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 Clients. Waxwing Interactive, Inc. may make changes or modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following Waxwing Interactive, Inc.'s posting of any changes or modifications will constitute your acceptance of such changes or modifications.
- Payment: As consideration for Waxwing Interactive, Inc. providing the Hosting Services hereunder, Client agrees to pay Waxwing Interactive, Inc. the aggregate monthly fee based on the monthly hosting services and the terms selected. If an alternate payment schedule is agreed upon by both parties (e.g., annually), payment will be due on the agreed upon date for the full amount.
- Provision of Services: Waxwing Interactive, Inc. will provide Client with the Services ordered that are described in the Hosting Package Features within the ChiroHosting Website. Client understands and agrees that Waxwing Interactive, Inc. will host and create the Website solely in accordance with the information provided by Client.
- Rights to the Website and Content: With the exception of any Third-Party Materials and Background Technology as set forth in Section 4, Client owns the Client Content. "Client Content" means all content or information (including, without limitation, any text, music, sound, photographs, video, graphics, data, or software), in any medium, provided by Client to Waxwing Interactive, Inc.. "Third-Party Materials" means any content, software, or other computer programming material that is owned by an entity other than Waxwing Interactive, Inc., and licensed by Waxwing Interactive, Inc. or generally available to the public, including Client, under published licensing terms, and that Waxwing Interactive, Inc. will use to display or run a Website. Waxwing Interactive, Inc. owns the rights to the design of the Website. If a Client stops paying the monthly fee for the Website upon cancellation the Client is not entitled to use the Website for any purposes whatsoever.
- Limited License to the Background Technology: "Background Technology" means computer programming/formatting code or operating instructions developed by or for Waxwing Interactive, Inc. and used to host or operate the Website or a Web server in connection with a Website. 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 Client Content. Client may not duplicate or distribute any Background Technology to any third party without the prior written consent of Waxwing Interactive, Inc.. All rights to the Background Technology not expressly granted to Client hereunder are retained by Waxwing Interactive, Inc.. Without limiting the foregoing, Client 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.
- Limited License to Content: Client hereby grants to Waxwing Interactive, Inc. the limited, nonexclusive right and license to copy, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use and exploit Website, any Client Content, or any Client Marks provided to Waxwing Interactive, Inc. hereunder, solely for the purpose of rendering Waxwing Interactive, Inc.'s 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.
- Content Standards: Client agrees not to provide Client Content, and Waxwing Interactive, Inc. will not intentionally provide to Clients 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, cancel bots, or other computer programming routines that are intended to damage or interfere with any system, data, or personal information. If Client is international, then Client agrees to comply with all applicable local and national laws. Waxwing Interactive, Inc. reserves the right to refuse any other subject matter it deems inappropriate.
- Support: Waxwing Interactive, Inc. agrees to provide reasonable technical support by both phone and email to Client during Waxwing Interactive, Inc.'s normal technical support hours.
- Term and Termination: (a) This Agreement is effective as of the Effective Date and shall continue unless terminated; (b) Waxwing Interactive, Inc. may terminate this Agreement after ten (10) days' written notice to Client if Client materially breaches this Agreement, including, without limitation, failure to pay, and fails to cure such breach during such ten (10) day period; (c) Clients operating under a separate Service Agreement are bound by the cancellation policy of that agreement; all other Clients, by default, have the right to terminate this Agreement with Waxwing Interactive, Inc by giving at least thirty (30) days’ notice in writing. Sections 2, 3, 4, 5, 9, 11, and 12 will survive termination of this Agreement.
- Warranty Disclaimer: Except as expressly provided in this Agreement, the Services are provided "as is," and Waxwing Interactive, Inc. 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 Waxwing Interactive, Inc. 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 Waxwing Interactive, Inc. to a Client will be deemed accepted when delivered.
- Indemnity: (a) Client Indemnity. Client will defend Waxwing Interactive, Inc. against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section . Subject to Section 11, Client shall indemnify Waxwing Interactive, Inc. for all losses, damages, liabilities, and all reasonable expenses and costs incurred by Waxwing Interactive, Inc. as a result of any such third-party claim, action, suit, or proceeding. (b) Waxwing Interactive, Inc. Indemnity. Waxwing Interactive, Inc. will defend Client against any third-party claim, action, suit, or proceeding alleging any breach of the covenants contained in Section 6. Subject to Section 11, Waxwing Interactive, Inc. shall indemnify Client for all losses, damages, liabilities, and all reasonable expenses and costs incurred by Client 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.
- Limitation of Liability: WAXWING INTERACTIVE, INC.’S LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY Client TO WAXWING INTERACTIVE, INC.’S DURING THE THREE (3) MONTH PERIOD BEFORE THE ACTION AROSE. WAXWING INTERACTIVE, INC. 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 WAXWING INTERACTIVE, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Client ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, WAXWING INTERACTIVE, INC. WOULD NOT ENTER INTO THIS AGREEMENT.