Sobek Digital Hosting & Consulting

Hosting Digital Resources & Integrated Curation Workflows

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Service Agreement

This Hosting Service Agreement (this ďAgreementĒ) is between SOBEK DIGITAL HOSTING AND CONSULTING, an LLC formed under the laws of the State of Florida with its principal office at 8550 Touchton Road Unit 932, Jacksonville FL 32216 (ďSobek DigitalĒ) and the person (individual or legal person) who signs Sobek Digitalís service order and set up form (the ďOrderĒ) incorporating this Agreement by reference (ďCustomerĒ). This Agreement governs Customerís use of Sobek Digitalís Web hosting service.

Table of Contents

  1. Services
  2. Term
  3. Payments
  4. Credits
  5. Law/AUP
  6. Customer Information
  7. Indemnification
  8. Disclaimer of Warranties
  9. Limitation of Damages
  10. Suspension of Services/Termination
  11. Request for Customer Information
  12. Back Up Copy
  13. Changes to Sobek Digitalís Network
  14. Notices
  15. Force Majeure
  16. Governing Law/Disputes
  17. Miscellaneous

1. Services.

Subject to the terms of this Agreement Sobek Digital agrees to provide the web hosting services described in the Quote for the fees stated in the Order.

2. Term.

The initial service term of the Agreement shall begin on the date that Sobek Digital generates an e-mail message to Customer announcing the activation of the Customerís account (the ďService Commencement DateĒ) and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the ďInitial TermĒ). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of having the same number of full calendar months as the Initial Term (each a ďRenewal TermĒ) unless Sobek Digital or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the ďTerm.Ē

3. Payments.

(a) Fees.

Fees are payable in advance annually on the first day of each billing cycle. Customerís billing cycle shall be twelve calendar months, as indicated on the Quote. Sobek Digital requires payment in full of the first fee before beginning service. Sobek Digital will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 30th day following invoice date.
Payments must be made in United States dollars. Sobek Digital may suspend the service without notice if payment for the service is sixty (60) days overdue.

(b) Fee Increases.

Sobek Digital may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least sixty (60) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term). Fee increases will be capped at a 10% increase in the base cost annually for the first three years of this contract.

(c) Early Termination.

Customer acknowledges that Sobek Digital may terminate this Agreement at any time if Customer violates this Agreement or the Acceptable Use Policy (the ďAUPĒ), which is hereby incorporated by reference in this Agreement. If Sobek Digital terminates the contract the remaining prorated portion of the annual payment will be refunded to the customer.

4. Credits.

  1. Hourly and Daily Outages. Customerís account shall be credited the prorated amount for any confirmed outage of services resulting from hardware or software hosted by Sobek Digital or as a result of local power or internet issues. Any day with an outage of more than an hour shall result in a credit to the customerís account.
  2. Any month in which an outage lasts over 72 hours shall be fully credited, as this will result in less than 99% availability annually.
  3. Credits can be utilized by customers on the next annual contract.
  4. Sobek Digital will determine outage times and causes and reserves the right to not credit the customer in accordance to Section 14.

5. Law/AUP.

Customer agrees to use the service in compliance with applicable law and the AUP. Customer agrees that Sobek Digital may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customerís use of the Services. Amendments to the AUP are effective on the earlier of Sobek Digitalís notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Sobek Digitalís reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Sobek Digital and Customer regarding the interpretation of the AUP, Sobek Digitalís commercially reasonable interpretation of the AUP shall govern.

6. Customer Information.

Customer represents and warrants to Sobek Digital that the information he, she or it has provided and will provide to Sobek Digital for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Sobek Digital that he or she is at least 18 years of age. Sobek Digital may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customerís account until Customer has provided a written notice changing the Primary Customer Contract.

7. Indemnification.

Customer agrees to defend, indemnify and hold harmless Sobek Digital, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, , demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customerís services in violation of applicable law or the AUP by Customer or any person using Customerís log on information, regardless of whether such person has been authorized to use the services by Customer.

8. Disclaimer of Warranties.

SOBEK DIGITAL DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW SOBEK DIGITAL DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN ďAS ISĒ BASIS.

9. Limitation of Damages.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF SOBEK DIGITAL AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR INTERACTIONS WITH END USERS OF CUSTOMERíS SITE OR SERVICE. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, CUSTOMER HEREBY RELEASES SOBEK DIGITAL FROM ANY AND ALL CLAIMS OR LIABILITY RELATED TO ANY PRODUCT OR SERVICE OF AN END USER, ANY ACTION OR INACTION BY AND END USER, INCLUDING END USERíS FAILURE TO COMPLY WITH APPLICABLE LAW, AND ANY CONDUCT OR SPEECH, WHETHER ONLINE OR OFFLINE, OF ANY END USER.

10. Suspension/Termination.

  1. Suspension of Service. Customer agrees that Sobek Digital may suspend or terminate services to Customer without notice and without liability if: (i) Sobek Digital reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Sobek Digital reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Sobek Digitalís reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
  2. Termination. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Sobek Digital fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customerís written notice describing the failure in reasonable detail. The Agreement may be terminated by Sobek Digital prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Sobek Digital describing the violation in reasonable detail; (ii) upon one (1) days notice if Customerís Service is used in violation of a material term of the AUP more than once, or (iii) upon one (1) days notice if Customer violates Section 6 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

11. Requests for Customer Information.

Customer agrees that Sobek Digital may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customerís customers or end users that Sobek Digital reasonably and in good faith believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

12. Back Up Copy.

Customer agrees to maintain a current copy of all content hosted by Sobek Digital notwithstanding any agreement by Sobek Digital to provide backup services.

13. Changes to Sobek Digitalís Network.

Upgrades and other changes in Sobek Digitalís network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customerís hosted content and/or applications. Sobek Digital reserves the right to change its network in its commercially reasonable discretion, and Sobek Digital shall not be liable for any resulting harm to Customer.

14. Notices.

Notices to Sobek Digital under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.sobekdigital.com/contact.html. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Quote. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

15. Force Majeure.

Sobek Digital shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Sobek Digitalís control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

16. Governing Law/Disputes.

The Agreement shall be governed by the laws of the State of Florida, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN ALACHUA COUNTY, FLORIDA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

17. Miscellaneous.

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other partyís name or trade mark without the other partyís prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customerís purchase order or other business forms are not binding on Sobek Digital unless they are expressly incorporated into a formal written agreement signed by both parties. A partyís failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that partyís rights with respect to that provision or any other provision of the Agreement. A partyís waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Sobek Digitalís prior written consent. Sobek Digitalís approval for assignment is contingent on the assignee meeting Sobek Digitalís credit approval criteria. Sobek Digital may assign the Agreement in whole or in part.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.



Inquiries regarding this policy should be directed to support@sobekdigital.com

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