JSCAPE SECURE FTP SERVER HOSTING AGREEMENT
This JSCAPE Secure FTP Server Hosting Agreement ("Agreement") is by and between JSCAPE, LLC., a Delaware corporation ("JSCAPE"), and you and your heirs, assigns, agents and contractors (collectively, "You") and is effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of JSCAPE Secure FTP Server Hosting services (collectively, the "Hosting Services") and represents the entire agreement between You and JSCAPE. By using JSCAPE's Hosting Services, You acknowledge and agree that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your agent, and transactions entered into by anyone who uses the account You have established with JSCAPE whether or not the transactions were on Your behalf.
1. Description of Hosting Services
JSCAPE currently provides JSCAPE Secure FTP Server Hosting services to its customers for a monthly and/or annual fee. As part of Hosting Services, JSCAPE will provide You an account on a JSCAPE managed server for the purposes of performing file transfers.
Availability of Hosting Services
Subject to the terms and conditions of this Agreement, JSCAPE shall use commercially reasonable efforts to provide the Hosting Services on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement. You agree that from time to time the Hosting Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that JSCAPE may undertake from time to time; or (iii) causes beyond the control of JSCAPE or that are not reasonably foreseeable by JSCAPE, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You agree that JSCAPE has no control of availability of the Hosted Services on a continuous or uninterrupted basis.
Server Content
You shall be solely responsible for providing, updating, uploading and maintaining Your account content and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your account, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text.
Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.
Unsolicited Bulk Email
Sending Unsolicited Bulk Email (“UBE”, “spam”). The sending of any form of Unsolicited Bulk Email through JSCAPE's servers is prohibited. Likewise, the sending of UBE from another service provider advertising a web site, email address or utilizing any resource hosted on JSCAPE's servers is prohibited. Hosting Services accounts or may not be used to solicit customers from, or collect replies to, messages sent from another Internet Service Provider where those messages violate either this Policy or that of the other provider.
Bandwidth
Depending on Your account configuration You may be allocated between 5GB and 100GB or more of data transfer per-month. You shall be solely responsible for all data-transfer utilized by Your account. To prevent accounts from exceeding allocated bandwidth accounts may be restricted from transferring data in the event that account bandwidth utilization is exceeded. Your account bandwidth statistics are reset every 30 days starting from the date of purchase or in the event additional bandwidth is purchased for your account.
Account Termination
Your Hosting Services account may be terminated without notice if any terms of this or associated agreements are violated by You or for non-payment or cancellation of Hosting Services. You acknowledge that revoking Your Hosting Services account will cause Your account to be inoperable and that JSCAPE will not be held liable for any damages resulting from account termination.
2. Storage and Security
At all times, You shall bear full risk of loss and damage to Your account content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of Your server content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your account content; (ii) maintain independent archival and backup copies of Your account content; (iii) ensure the security, confidentiality and integrity of Your account content transmitted through or stored on JSCAPE servers; and (iv) ensure the confidentiality of Your password. JSCAPEs servers and Hosted Services are not an archive and JSCAPE shall have no liability to You or any other person for loss, damage or destruction of any of Your content.
In the event You terminate this Agreement or Your use of the Hosted Services, then moving Your account content off of the JSCAPE dedicated servers is Your responsibility. JSCAPE will not transfer or FTP Your account content to another provider. In the event Your use of the Hosted Services is terminated, JSCAPE will not transfer or manage Your Hosted Services or Your account content.
3. HIPAA Compliance
For the purposes of HIPAA compliance, JSCAPE is NOT considered a "Business Associate". JSCAPE Hosting Services acts only to facilitate electronic delivery, similar to a courier service, therefore is not subject to HIPAA regulations. Your Hosting Services account when configured properly should meet your HIPAA compliance needs, however JSCAPE recommends that You consult with Your own attorney to address any compliance concerns.
4. Charges, Billing and Refunds
You agree that JSCAPE shall be permitted to charge You on monthly, quarterly or annual basis in advance of providing it's Hosting Services, for service fees, any applicable taxes, and any other charges You may incur in connection with Your use of Hosting Services. The subscription fee will be billed in full on the first day of your paid subscription and on each billing period anniversary thereafter, unless and until you cancel your subscription.
JSCAPE reserves the right to change it's fees, but will notify You in advance of such changes. You may cancel your Hosting Services account at any time for any reason. If You cancel in the middle of Your billing period, JSCAPE will not provide a refund for the unused portion of Your billing period.
Limitation of Liability; Waiver and Release
The Hosting Services are being provided “AS IS” and JSCAPE expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, JSCAPE expressly does not warrant that the Hosting Services will meet your requirements, function as intended, or that the use of Hosting Services will be uninterrupted or error free. In no event shall JSCAPE be liable for any or all direct, indirect, incidental, special, exemplary or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including, but not limited to, negligence or otherwise) arising in any way out of the use of the Hosting Services, even if JSCAPE is aware of or has been advised of the possibility of such damages.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge JSCAPE and all affiliates of JSCAPE, and all officers, agents, employees, and representatives of JSCAPE, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising there under, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Hosting Services and Your acquisition and use thereof, including, but not limited to, the provision of the Hosting Services by JSCAPE and its agents and employees.
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