Sobek Digital Hosting & Consulting
Hosting Digital Resources & Integrated Curation Workflows
Hosting Digital Resources & Integrated Curation Workflows
This Hosting Service Agreement (this “Agreement”) 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 (“Sobek Digital”) and the person (individual or legal person) who signs Sobek Digital’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of Sobek Digital’s Web hosting service.
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.
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 Customer’s account (the “Service Commencement Date”) and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the “Initial Term”). 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 “Renewal Term”) 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 “Term.”
(a) Fees.
Fees are payable in advance annually on the first day of each billing cycle. Customer’s 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 “AUP”), 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.
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 Customer’s use of the Services. Amendments to the AUP are effective on the earlier of Sobek Digital’s 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 Digital’s 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 Digital’s commercially reasonable interpretation of the AUP shall govern.
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 Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
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 Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.
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 “AS IS” BASIS.
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 CUSTOMER’S 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 USER’S FAILURE TO COMPLY WITH APPLICABLE LAW, AND ANY CONDUCT OR SPEECH, WHETHER ONLINE OR OFFLINE, OF ANY END USER.
Customer agrees that Sobek Digital may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s 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.
Customer agrees to maintain a current copy of all content hosted by Sobek Digital notwithstanding any agreement by Sobek Digital to provide backup services.
Upgrades and other changes in Sobek Digital’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s 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.
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.
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 Digital’s 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.
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.
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 party’s name or trade mark without the other party’s 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 Customer’s 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 party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s 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 Digital’s prior written consent. Sobek Digital’s approval for assignment is contingent on the assignee meeting Sobek Digital’s 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