Hosting Agreement & Terms of Service

Hosting Agreement

1.                 Definitions.

1.1 “Customer” means the persons, entity or agents and authorized representatives accepting this agreement.

1.2 “Content” means all text, pictures, sound, graphics, video, links, and other data stored by Customer on GendyXpro's server computers.

1.3  “Website” means pages presenting the Content stored by Customer on GendyXpro's server computers.

1.4  “User” means users of Customer’s Website.

1.5  “User Content” means all text, pictures, sound, graphics, video, links, and other data stored by Users on GendyXpro's server computers.

1.6  “Confidential Information” means information that Customer takes reasonable steps to maintain in confidence and identifies in writing to GendyXpro  as confidential.

2.                 Web Hosting.

2.1      Hosting.  GendyXpro will provide dedicated or shared server computers, as specified in Exhibit A, with an Internet address for storage and access of Content, User Content, and the Website.  The Website, Content, and User Content must be “server-ready.”  GendyXpro will provide bandwidth and storage as specified in Exhibit A.  If Customer requires additional bandwidth or storage, GendyXpro will negotiate in good faith to amend this Agreement unless GendyXpro's server computers cannot accommodate the requested bandwidth or storage.

2.2      Website Backup.  GendyXpro will backup the Website in a commercially reasonable manner.  However, Hosting is not responsible for lost Content or lost User Content.  Website backups will be stored by GendyXpro  for no longer than 14 days.  GendyXpro  will provide, at Customer’s expense, an electronic copy of the backup Website to Customer upon written request by Customer.  Backups are intended for disaster recovery, not the restoration of individual files.

2.3      Server Logs.  As requested by Customer, GendyXpro  will deliver to Customer in electronic form the Server Log of Website activity.  Customer will be entitled to one month of log storage free of charge.  GendyXpro  may, at its option, charge a fee to Customer for additional space required to store oversized logs.

2.4      Standards.  GendyXpro's services will conform to the following:

2.4.1      Availability of Website.  GendyXpro  will provide hosting services for the Website that meet reasonable commercial standards for, among other matters, packet loss, accessibility, latency, availability, and throughput.

2.4.2      Security.  GendyXpro  will take commercially reasonable steps to prevent unauthorized access to the Website, Content, User Content, and Confidential Information stored on GendyXpro's server computers.

2.4.3      Server/Network Computer Outages.  GendyXpro  will employ best efforts in providing advance notice to Customer of scheduled server computer/network outages.

2.4.4      Disclaimers.  GendyXpro  provides no equipment, software, or communication connections to Customer.  GendyXpro  makes no representations, warranties or assurances that the Customer’s equipment, software, and communication connections will be compatible with GendyXpro's hardware and service.

3.                 Ownership of Content.  All Content and User Content stored by Customer on GendyXpro's server computers shall at all times remain the property of Customer.  Customer grants to GendyXpro  a non-exclusive, worldwide license to the Content and User Content only to the extent necessary for GendyXpro  to host the Website.

4.                 Content Control.

4.1  Lawful Purpose.  Customer will only use GendyXpro's hardware and services for lawful purposes and Customer will not store or provide any Content or User Content or link to any material that violates foreign, federal, state or local law, the Terms of Service of Exhibit B and any modifications thereof, GendyXpro's posted Acceptable Use Policy, or any other GendyXpro  policy.

4.2  Remedy for Violation.  Should GendyXpro  become aware that Customer has violated Part 4.1, GendyXpro  may, at its option, remove the Content or User Content in violation, immediately terminate hosting Customer’s Website under Part 6.3, and/or notify authorities.  If hosting is terminated, GendyXpro  may, in its sole discretion, reinstate hosting upon adequate showing of Customer’s right to use the Content or User Content.

5.                 Payments.

5.1  Fees. Customer shall pay fees agreed upon during account signup.  GendyXpro  will invoice monthly (unless otherwise agreed in writing), and payment is due fourteen (14) days from invoicing.  In the case of credit card payments GendyXpro  will automatically charge Customer Credit Card on file all fees associated with the account on the due date. GendyXpro  may, at its option, charge a 1½ % fee for late payments.

5.2  Returned Checks and Declined Credit Cards may incur a fee.

5.3  Account Updates. It is the responsibility of the customer to maintain accurate billing information with GendyXpro . This may include updated credit card information, email address and mailing address.

5.4  Taxes.  Customer is solely liable for any taxes or fees payable for products or services sold by Customer on the Website.

6.                 Term and Termination.

6.1  Term.  The initial term is agreed upon during account signup. After the initial term, this Agreement will automatically renew on a month-to-month basis until terminated.

6.2  Termination by Customer.  During the initial term, Customer may terminate this Agreement upon the material breach of GendyXpro , if such material breach remains uncured for thirty (30) days following written notice to GendyXpro .  This cure period shall be extended by delay caused by events beyond the control of GendyXpro  including, but not limited to, natural disasters, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of GendyXpro , or technical faults of GendyXpro's service providers or vendors.  After the initial term, Customer may terminate this Agreement upon thirty (30) days written notice to GendyXpro .

6.3  Termination by GendyXpro .  GendyXpro  may immediately terminate this Agreement for cause at any time without penalty.  Causes justifying immediate termination include, but are not limited to:  violation of any foreign, federal, state, or local law; non-payment of fees due under Part 5 of this Agreement; breach of this Agreement; violation of the Terms of Service found at http://www.GendyXpro.com/User agreement.htm and any written modifications thereof; and violation of any other GendyXpro  policy.  GendyXpro  may terminate this Agreement without cause at any time upon thirty (30) days written notice to Customer.

7.                 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GendyXpro , AND ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH GendyXpro's HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INGRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

8.                 LIMITATION OF LIABILITY.  GendyXpro , ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE GendyXpro's HARDWARE OR SERVICES.  CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO GendyXpro .

9.                 Customer Indemnity. Customer shall defend GendyXpro  against any third party claim, action, suit or proceeding arising as a result of Customer’s use GendyXpro's hardware or services and indemnify GendyXpro  for all losses, damages, expenses, and costs incurred by GendyXpro  as a result of a final judgment entered against GendyXpro  in any such claim, action, suit or proceeding.

10.              General Provisions.

10.1  Governing Law.  This Agreement will be governed and construed in accordance with the laws of The Netherlands.  Both parties agree to submit to personal jurisdiction in Netherlands and further agree that any cause of action arising under this Agreement will be brought in a court in Netherlands.

10.2  Severability and Waiver. If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

10.3  Relationship of Parties.  No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.

10.4  Attorneys Fees and Costs. In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorneys’ fees, expert witness fees and legal expenses as may be fixed by a court of competent jurisdiction.

   
Terms of Service

1.                 GendyXpro  may only be used for lawful purposes.  Customer will not store or provide any Content or User Content that:  (a) violates any federal, state, or local law, statute, ordinance, or regulation (including, without limitation, export control, consumer fraud, unfair competition, antidiscrimination, gambling, or false advertising laws); (b) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (c) is obscene, child pornographic, or indecent; (d) violates any third party’s right of publicity or right of privacy; or (e) contains any IRC application, bots, egg drops, viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

2.                 Customer will not store or provide any Content or User Content, practice any software or business methods, or use a domain name that infringes any party’s Intellectual Property.  “Intellectual Property” means any and all property rights under copyright, moral right, trademark, patent, trade secret, or right of publicity law, or any other rights in works of authorship, inventions, designations of source, persona, or economically valuable information.  

3.                 GendyXpro  exercises no control over the Content, User Content, or other information passing through GendyXpro .

4.                 GendyXpro  does not monitor and is not obligated to monitor the Content and User Content and has not been informed by Customer of the Content, User Content, or nature of the Content on Customer’s Website.

5.                 Customer will not use GendyXpro's hardware or service to misrepresent Customer’s identity.

6.                 Customer will not attempt to undermine the security or integrity of, or gain unauthorized access to, GendyXpro's hardware, operating systems or any other computing systems or networks.

7.                 Customer will not attempt to use IP Address not directly assigned by GendyXpro  staff. Attempting to use unauthorized IP Addresses may result in IP Conflict. Any server found using IPs, which was not officially assigned, will be suspended from network access until such time as the IP address conflict can be corrected.

8.                 Customer will use GendyXpro's hardware and services in accord with GendyXpro's Acceptable Use Policy. The Acceptable Use Policy and any modifications thereof  will be posted at GendyXpro's website at:  http://www.GendyXpro.com/Acceptable_Use_Policy Customer’s continued use of GendyXpro's hardware and services constitutes Customer’s acceptance of the Acceptable Use Policy and any modifications thereof.

9.                 If GendyXpro  becomes aware of a violation of the Terms of Service, GendyXpro  will investigate and may, in its sole discretion, terminate hosting under the Hosting Agreement.

10.              These Terms of Service may be modified at any time.  Any modifications will be delivered to Customer in written form or posted at GendyXpro's website.  Customer’s continued use of GendyXpro's hardware and services after modification of these Terms of Service constitutes Customer’s acceptance of the modifications.

11.              Customer will require Users and, if Customer is a reseller, repurchasers to agree to and abide by these Terms of Service or substantially equivalent terms.