Hosting services agreement

Updated April 12, 2019

PLEASE READ THIS HOSTING SERVICES AGREEMENT CAREFULLY. By using the hosting services (the “Hosting Services”) made available by Marcaria via its Website, you agree to the following provisions governing such use (the “Hosting Services Agreement”).  The Hosting Services Agreement is a binding legal contract entered into by you and Marcaria.  Both you and Marcaria may be referred to herein individually as a “Party”, and collectively as the “Parties”.  You may be referred to herein as “you”, the “User”, and “Client”.

  1. INCORPORATION BY REFERENCE.  The terms of the Marcaria Terms of Use are hereby incorporated by reference herein.  Should any conflict arise between the Marcaria Terms of Use and this Hosting Services Agreement, this Hosting Services Agreement shall control solely with respect to the Hosting Services.  With regard to any such conflict, in all other respects other documents shall prevail.  As incorporated herein, all references to “Agreement” within the Marcaria Terms of Use shall be interpreted to include this Hosting Services Agreement.
     
  2. THE SERVICE.
     
    1. Web Hosting. Subject to your payment of all applicable fees Marcaria shall provide web hosting on one or more servers owned or otherwise controlled by Marcaria.  Your site will be given a unique DNS address.
       
    2. Domain Host Management. All domain host management shall be performed solely by Marcaria or at Marcaria’s direction.
       
    3. Multiple Sites per Server. Marcaria may, at its sole discretion, host the sites of multiple customers on the same physical and/or virtual servers.
       
    4. Client Obligations. You shall be solely responsible for submitting any necessary documentation required for domain name registration.  You shall be solely responsible for obtaining any authorizations necessary for the use of Marcaria’s DNS as domain hosts.  Your failure to meet the obligations of this Section 2.4 within six (6) months of your order date shall result in the termination of the Hosting Services without refund of any kind.
       
  3. ADDITIONAL TERMS.
     
    1. Migration of Servers. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers.  As a result, even if you have a dedicated IP, you may be periodically assigned a new IP address.  We do not warrant that you will be able to consistently maintain your IP address.
       
    2. Third-Party Software. We reserve the right to modify, change, or discontinue any Third-Party Software (as defined below) at any time, and you agree to cooperate in performing such steps as may be necessary to do so, including but not limited to as necessary to install any updates to the Third-Party Software.

      The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services.  You may not use the Third-Party Software outside of the Services.  We may provide your personal information to third-party providers as required to provide the Third-Party Software.  You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers.  In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement.  You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement.  You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software.  You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law.  You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software.  You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).

      “Third-Party Software” means any software or application developed and owned by a third-party provider that we may contract with from time to time.
       
    3. Operating Software. The Services are available in both Linux® and Windows® environments.  Each time you commission a server, we will provision the server with the operating system you choose.
       
    4. Purpose of Use. You acknowledge and agree that we shall have the right to seek, and you shall be obligated to provide, justification in connection with your use of the Services, including but not limited to your reason for the purchase of IP addresses.  You shall be obligated to provide any and all information reasonably sought by us pursuant to such justification.  In connection with such purchase, you acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries, and such information may be displayed publicly on the Whois database.
       
    5. Storage and Security. You shall be solely responsible for undertaking measures to:  (1) prevent any loss or damage to your content; (2) maintain independent archival and backup copies of your content; and (3) ensure the security, confidentiality and integrity of all your content transmitted through or stored on our servers.

      Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content.  The Services are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be considered as one.  You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment.  Specifically by way of example and not as a limitation, you shall not use the Services as:  (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
       
    6. Website/Server Content. You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text.  You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product.  Your content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.          
       
    7. Abusive Activities. You acknowledge and agree that you may not use our servers and/or your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities.  Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information.  Use of your website as an anonymous gateway is prohibited.  We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us.  You agree that we reserve the right to remove your website temporarily or permanently from our servers if we receive activities that threaten the stability of our network.  In addition to what is specified in our General Terms and Conditions, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to:  (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.

      We prohibit the running of a public recursive DNS service on any of our servers.  All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses.  We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.

      You understand that Marcaria assumes no responsibility for any deficiency, inaccuracy, illegality or other defect in a hosted website.

      The Customer understands and accepts that the Hosting Service must be associated with a domain name to be operational.  The Customer further understands that due to sheer technical limitations, the Hosting Service may only be provided for domain names registered with Marcaria.

      As a result, should the Domain Name associated to the Web Hosting not to be renewed, be transferred to another Registrar, traded to another person, be deleted pursuant to a court order or a settlement, or more generally ceases to be linked to the Customer and/or to Marcaria, the Customer will no longer be entitled to benefit from the Hosting Service and they will automatically be terminated.  The Customer will be solely responsible for taking all necessary measures regarding their domain name before such termination and Marcaria, will not be held liable for any loss and/ or shortfall incurred because of such.
       
  4. TERMINATION.
     
    1. Cancellation. You may cancel the Service at any time.  If you cancel the Services within thirty (30) calendar days of purchase, you will receive a refund of all fees paid in the form of store credit, less the one year cost of registration of any domain name registered as part of a free domain name promotion, at the then current value.

      If you cancel the Services any time after thirty (30) calendar days from the date of purchase, you will receive a pro-rated refund of the remaining portion of fees paid for the Services in the form of store credit, less the one year cost of registration of any domain name registered as part of a free domain name promotion, at the then current value.
       
    2. Obligations Upon Termination of the Services. You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from Marcaria servers.  Prior to termination of the Services, you are responsible for moving your website or server content off our servers.  We will not transfer or FTP your website or server content to another provider.  If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and we will not be able to provide a copy of such content.
       
    3. Free Products/Ad Credits. Upon termination of the Services, all free products and ad credits provided as part of the Services will be cancelled or revoked.
       
  5. SERVICE LEVELS.
     
    1. SLA. Marcaria shall provide the Hosting Services on a best efforts basis for the duration of your subscription, 24/7/365.  Marcaria does not warrant Hosting Services availability, uptimes, or response times in any manner.

      Customer accepts that the Hosting Service may be unavailable or not functioning from time to time due to several causes, such as but not limited to periodic maintenance, repair or replacement operations of equipment necessary for the provision of the Hosting Service, and the improper use of the Hosting Service by Customer.  Marcaria shall have no liability due to Hosting Services unavailability.