Created: June 17, 2002
Last Updated: July 10, 2016
452Hosting is a dba of 452 Impact, Inc which is an A+ rated company by the BBB of Miami, FL. 452 thru it's corporate dba's and agents have been in the web hosting services business since 2002. The company agrees to provide the web services stated for the price agreed at any given time. We do not miss lead customers with hidden costs unlike many other web hosting companies.
This Website provides information and material of a general nature about 452Hosting, which is a web hosting company, and the services it offers. We provide this information for informational purpose only. You should not rely on this Website for advice of any nature. In no way is the owner of this Website responsible for the actions, decisions, or other behavior taken or not taken by you in reliance on this Website. You act at your own risk in reliance on the contents of this Website. 452 may change or modify these terms, and any policies or agreements incorporated in these terms, on one or more occasions. Any changes or modifications will become effective immediately on posting to the Website. Your use of this Website after we have made the changes or modifications will constitute your acceptance of these terms as last revised. If you do not agree to be bound by these terms as last revised, please do not use (or continue to use) this Website. For more information about modifications, please see section 24.3, below.
Scope of The Terms
These terms apply to the Website located at www.452hosting.com and all 452 Impact, Inc owned or operated websites that are linked to www.452hosting a dba of 452 Impact, Inc and all of its affiliates. These terms also apply to any online resources, materials, download areas, tools, and interactive venues provided on the Website, including blogs, community forums, chat rooms, discussion websites, knowledge centers, service offerings information, both now and in the future. 452 may also publish specific terms, such as the MSA, in which event, these terms will remain in effect to the extent that they do not conflict with the specific terms. If these terms conflict with the MSA, the MSA controls.
1 - Eligibility
This Website and the services are available only to users who can form legally binding contracts under applicable law.
By using this Website or the services, you state that you are:
(a) at least 18-years old,
(b) otherwise recognized as being able to form legally binding contracts under applicable law, and
(c) are not a person barred from purchasing or receiving the services under the laws of the United States or other applicable jurisdiction.
(d) if you have a life time web hosting membership account you understand and agree that the life time web hosting membership account is non transferable.
The definations of Life are:
(1) the life time of the hosting account holder.
(2) as long the account remains in good standing; meaning all fees paid, no over the limit charges, all personal account contact information, phone numbers and credit cards on file are up to date, the free domain or transfered in domain must be renewed each year.
Life instantly ends and the hosting account will be put on hold - The Moment The Hosting Account Is Found To: owe fees for non paid services, products or overages not a part of the origional hosting plan and becomes subject to cancellation. The account may be restarted by the billing office at the normal listed monthly rate on the web site for a comparable web hosting plan.
2 - Limited License Use of Website 452 grants you a limited, nonexclusive, nontransferable license to access the Website and its content according to these terms and any additional terms, such as the MSA. By “access,” we mean visit the Website, use its services, and view or download its content.
You must comply with all applicable laws when accessing the Website.
452 reserves the right to change, limit, or cancel your access if you fail to comply with these terms or any other applicable terms, such as the MSA. You may only access the Website for your personal, noncommercial use, and you may not copy or post it on any network computer or broadcast in any media.
You will not use any content that you access on the Website for further distribution, display, or sale. 452 provides this Website solely for the use of current and future customers of 452 to provide you with information about our company, to permit you to place orders for our products and services, and to enable you to contact us with any questions or comments that you may have. Any other use of this Website is prohibited.
You should not use any features on this Website that permit communications or postings to post, transmit, display, or otherwise communicate (a) any defamatory, threatening, obscene, harassing, or otherwise unlawful information; (b) any advertisement, solicitation, spam, chain letter, or other similar type of information; (c) any encouragement of illegal activity; (d) unauthorized use or disclosure of private, personally identifiable information of others; or (e) any materials subject to trademark, copyright, or other laws protecting any materials or data of others in the absence of a valid license or other right to do so.
3 - Password Protected Areas Access to and use of password-protected areas of the Website is restricted to authorized users only. You agree that you: (1) will provide current, complete, and accurate identification, contact, and other information about you as you may be prompted by the Website; (2) are responsible to maintain, keep current, and update any registration data and other information you provide to 452; (3) are entirely responsible for maintaining the security of your password, identification, and account and for all activity that occurs under your account; and (4) will notify 452 immediately of any unauthorized access or use of your account or password or any other breach of security. You understand that any person with your password will be able to access your account and any registration data, including access to your servers and applications accessible through your account. You accept sole risk of unauthorized access to your account.
452 will not be liable to you for any loss you may incur because of someone else using your password or account regardless of your knowledge. You may be held liable for losses incurred by 452 or any other user or visitor to the Website due to someone else using your password or account. You may not use anyone else’s account at any time, without the permission of the account holder.
All customers are responsible for monitoring their storage space and bandwidth transfer each month. Customers who go over the limit of their account will be sent an email with the option to either upgrade their account or reduce store and or storage. If customers continue to go over we will do everything possible to fix the problem. We do hold to right to ban accounts for continuous problems.
Customers must acknowledge that the amount of the services bought is based on customers agreement to pay the fee for the initial term or renewal term.
Renewal notices are emailed three days before the actual renew date in your account. If your using a credit card you will not have to worry about manual payments. All accounts are set up on a pre-pay basis.If payment is not received within 5 days a $10 fee will be added. 452 reserves the right to change prices at any time, unless other terms have been agreed upon.
Any account not brought current within a week (7 days) of e-mail notice or exceeding this time frame in any way is subject to suspension. YOU are responsible for all fees owed on the account from the time it was established to the time that YOU notifie 452Hosting to request for termination of services.
Although we are based in the USA with office in the UK and we sell INERNATIONALLY our websites official currency is USD.
Cancellation of Service and Early Termination
A customer can cancel a Web Hosting account at any time via the provided customer account billing control panel. There is no penality to cancel or terminate your Web Hosting account.
YOUR particular billing cycle corresponds to the contract length that was initially chosen at setup. YOUR account will automatically renew at this length unless cancelled before hand.
The Company reserves the right to cancel a service at any time. All fees paid in advance of cancellation will be pro-rated and paid by 452Hosting if we institute our right of cancelation. Any violation of policies which results in extra costs billed to YOU and no refund will be given.
REFUNDS / Money Back Guarantees
452 offers a ninety-nine (99) and thirty (30) Day Money Back Guarantee. *(See Exceptions)
HERE are the Simplified Rules
The web hosting plan prices at signup are frozen and will not go up as long as the account remains current. Should the web hosting account be cancelled due to non payment the plans will renew at the current regular rate. Your satisfaction is our top priority and we're confident you'll be pleased with our services. Still, if you try us and decide your account does not sufficiently meet your needs, you can cancel at any time before the end of the plans Money Back Guarantee period for a refund as follows:
Refund requests must be within the stated Money Back Guarantee Period for the plan being cancelled via the contol panel service ticket system so it can be officially tracked and assured the cancellation was from the account owner. No exceptions!
If you cancel within the Money Back Guarantee Period for the plan you receive a refund on your hosting service minus a $19.95 admin/setup fee and appliciable *domain fees.
*If you registered a domain (paid or free with a plan) with 452Hosting when signing up, there is a domain registration fee for the domian of $15.95 that will be deducted from the refund. This not only covers our costs, but ensures that you won't lose your domain name. You'll be free to transfer it (after required lock periods) or simply point it elsewhere at your convenience. You retain ownership of your domain until the end of its registration period unless you elect to extend it.
Our Money Back Guarantees apply to hosting plans, but does not apply to most add-on products, such as domains, SSl, trust seals, logo design, web design, etc... given the unique nature of their costs.
There are no term commitments associated with your 452Hosting account. There are no hidden fees or penalties for ending your term early should you elect to do so.
If a customer wishes to cancel a Web Hosting account within ninety-nine (99) days or a VPS or Dedicated Web Hosting account with in thirty (30) days of the initial signup they shall be able to do so for any reason (aside from disablement for Terms of Service or Spam Policy violations) and have their money promptly refunded.
Billing will stop at end of term during which the service is canceled.
The ninety-nine (99) or thirty (30) Day Money Back Guarantee offer is only applicable to credit card payments. Other forms of payment are non-refundable. Refunds on Specials (like LifeTime Web Hosting plans) or refunds on reseller web hosting plans, VPS, Dedicated servers and Game Servers are all prorated. (Proration means dividing something proportionally, usually based on a unit of time. For example, if a service costs $200 a month but you only used it for half a month, the charge would be $100. You pay us the service provider for the amount of time the service was used compared to the cost for the entire time. Another example - You use 3 days and cancel, the refund wil be the remaining days left in the month not used less admin fees and or domain fees).
*Exceptions: The money-back guarantee does not apply to most add-on products, such as: SSL certificates and domains, given the unique nature of their costs. Example: If you cancel within the 99 or 30 days depending on the service or plan and your service or plan includes a free domain, 452Hosting will deduct a non-refundable domain fee of equal to cost of the domain from your refund. This not only covers our costs, but ensures that you won't lose your domain name. You may transfer it to another registrar or simply point it elsewhere at your convenience. (Please note newly registered domains cannot be transferred to another registrar during the first 60 days of the registration period) You retain ownership of your domain until the end of its registration period unless you renew it.
The value of any AdWords credit or other third-party add-ons are non-refundable. Downloaded products and Web templates once purchased are non-refundable. SEO work, custom work, logo design, web design, app design, mobile site design, marketing, once accepted and paid for are non-refundable.
No refunds on cancellations that occur after the plans money back guarantee has expired. No exceptions.
All types or services or accounts are non-refundable if your account does not follow the terms of service or the acceptable usage policy
After the first ninety-nine (99) days or thirty (30) days a canceled account will be canceled before the next payment is due and no more billing will occur nor will any payment be refunded, even for unused portions. If any non-refundable charges have already been incurred, they must be paid before the account may be cancelled.
Any attempt to undermine or cause harm to a server or customer of 452Hosting is strictly prohibited.
452 will strongly react to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include 'Internet scamming' (tricking other people into releasing their passwords), password theft, security hole scanning, etc.
Any unauthorized use of accounts or computers by YOU, whether or not the attacked account or computer belongs to 452, will result in action against YOU. Possible actions include warnings, account suspension or cancelation, as well as civil or criminal legal action, depending on the seriousness of the attack.
IMPORTANT NOTE - 452Hosting has the right to discontinue service, or deny access to anyone who violates our policies or the terms and conditions shown below WITHOUT WARNING or PRIOR NOTICE. No refunds of fees paid will be made if account termination is due to violation of the terms outlined below.
YOU may not run IRC, bots or clients on 452 shared servers. Unacceptable uses also include, but are NOT limited to: Bulk emailing, unsolicited emailing, newsgroup spamming, upload scripts (Rappidleach), pornographic content, illegal content, copyright infringement, trademark infringement, warez sites (including links to/from), cracks, software serial numbers, proxy-relaying, link farming (the act of or by use of scripts), link grinding, link-only sites, spamdexing, FFA (Free-For-All) and/or anything else determined by 452Hosting to be unacceptable use of our services including abuse of server resources.
WEB APPLICATIONS and WEB ACCESSIBLE SCRIPTS - All web applications that are out-of-date and actively being exploited will be shut down immediately without prior notice. YOU are responsible for and should evaluate YOUR web-based applications and scripts on a regular basis to ensure their security and orderliness.
452 hosting accounts may also be terminated if it includes the following content or have links to the following content: Providing material that is grossly offensive to the Web community including blatant expressions of bigotry, racism, hatred, or profanity; promoting or providing instructional information about illegal activities; promoting physical harm or injury against any group or individual; displaying material containing obscene nudity or pornographic material (not applicable to managed dedicated servers); displaying material that exploits children under 18-years of age; acts of copyright infringement including offering pirated computer programs or links to such programs; information used to circumvent manufacturer-installed copy-protect devices, including serial or registration numbers for software programs, or any type of cracker utilities.
Disk Space Abuse
452 will be the sole arbiter as to what constitutes a violation of this provision. You are reponsable for monitoring your disk space usage. If you need extra disk space contact one of our staff and they will be happy to help out. You can also upgrade your hosting plan from inside your 452Hosting client account.
The intention of 452Hosting is to provide a large bandwidth to transfer web documents, and not an offsite storage area for electronic files. If YOU violate this condition, YOU will be notified and given 48 hours to remedy the problem. Failure to do so will result in YOU being billed for the overages.
Traffic will go unmonitored until YOU reach the amount of quota allocated to YOUR specific PLAN. 452Hosting will be the sole arbiter as to what constitutes a violation of this provision.
452 Website 452 grants you a limited, nonexclusive license to create a text hyperlink to www.452Hosting.com; you may not use the 452 corporate logo or any other brand feature to link to 452. 452 prohibits you from hyperlinking directly to any other webpage or content within the Website without its prior written permission. 452 Impact, Inc dba
452Hosting.com only consents to hyperlinks in which the hyperlink and the webpages that are activated by the hyperlink do not: (1) duplicate the content of the Website; (2) frame or create any other border around the content or any webpages on the Website or use other techniques that alter in any way the visual presentation or appearance of any content within the Website; (3) misrepresent your relationship with 452 or otherwise create a false affiliation, connection, or association with 452; (4) imply that 452 approves or endorses you, your website, or your services or product offerings; (5) present a false or misleading impression about 452 or otherwise damage the goodwill associated with the 452 name or trademarks; (6) use 452 trademarks in webpage text, metatags, or hidden text to gain higher rankings from search engines; or (7) use 452 name, trademarks, service marks, colors, logos, or any other brand features of 452. 452 may revoke this limited license—that is, permission to hyperlink—at any time. If 452 revokes this limited license, you will immediately remove all hyperlinks to the Website and stop using the 452 trademark. 452 will disable any unauthorized hyperlinks or frames, and disclaims any responsibility for the content available on any other website reached by hyperlinks to or from the Website.
Third-Party Websites - As a convenience to you, 452 may provide on this Website hyperlinks to websites owned or operated by other entities that are completely independent from 452. If you access any of these hyperlinked websites, you will leave this Website. If you decide to visit any hyperlinked website, you do so at your own risk and subject to any terms and privacy policies posted on the hyperlinked websites. 452 encourages you to review the terms and privacy policies posted on all hyperlinked websites. Regardless, it is your responsibility to take all protective measures to guard against viruses or other destructive elements.
452 does not maintain, control, or govern hyperlinked websites, regardless of the hyperlinking form (e.g., hotlinks, hypertext links, IMG links). 452 does not investigate, verify, monitor, or endorse the content, accuracy, opinions expressed, and other hyperlinks provided by hyperlinked websites. 452 does not endorse, make any representations regarding, or warrant any information, goods, or services appearing or offered on any hyperlinked website, other than linked information authored by 452.
Hyperlinks do not imply that 452 or this Website sponsors, endorses, is affiliated or associated with, or is legally authorized to use any service mark, trademark, trade name, logo, or copyright symbol displayed in or accessible through the hyperlinks, or that any hyperlinked website is authorized to use any service mark, trademark, trade name, logo, or copyright symbol of 452.
Except for hyperlinks to information authored by 452, 452 is neither responsible for nor will it be liable under any theory based on: (1) any hyperlinked website; (2) any information or content found on any hyperlinked website; or (3) any websites linked to or from any hyperlinked website. If you decide to visit any hyperlinked websites or transact any business on them, you do so at your own risk. 452 reserves the right to discontinue any hyperlinked website at any time without prior notice. Please contact the webmasters of any hyperlinked websites concerning any information, goods, or services appearing on them. 11 - Termination and Suspension Without limiting its other remedies, 452 may immediately discontinue, suspend, terminate, or block your and any user’s access to this Website.
You understand that others may read or intercept any message or information you send to the Website even if there is a special notice that a particular transmission (for example, credit card information) is encrypted. 452 may use software that automatically tracks performance and usage information to evaluate the Website. This software will not personally identify you.
Customers agree to use our services under the Acceptable Usage Policy which is here by incorporated with this agreement. Customers agree that 452Hosting hold the right to change their AUP at any time to meet web hosting standards and laws. Amendments to the AUP are effective on the earlier of 452Hosting 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 452Hosting reasonable investigation of any suspected violation of the AUP. In the event of a dispute between 452Hosting and Customer regarding the interpretation of the AUP, 452Hosting commercially reasonable interpretation of the AUP shall govern.
452 encourages you to provide feedback about the Website. However, 452 will not treat as confidential any suggestion or idea provided by you, and nothing in these terms will restrict 452’s right to use, profit from, disclose, publish, or otherwise exploit any feedback, without compensation to you.
Customer represents and warrants to 452Hosting that the information he, she or it has provided and will provide to 452Hosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to 452Hosting that he or she is at least 18 years of age. 452Hosting 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.
UNSOLICITED EMAIL & SPAMMING
Unsolicited commercial advertisements ('SPAM') are not allowed in e-mail, and will likely result in account cancelation. 452Hosting takes a zero-tolerance approach to SPAM originating from its servers or for spam advertising of domains hosted within our network. If found, YOUR account may be deleted.
The following activities are not allowed: SPAM, which includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts (such messages may only be sent to those who have explicitly requested it from your domain); Forging, altering or removing electronic mail headers - any domain sending stealth spam will be terminated without warning and without refund. Sending numerous copies of the same or substantially similar message with the intent to disrupt a server or account ('mail bombing'); Spamming Newsgroups: Commercial advertisements are unwelcome in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account cancelation. See the newsgroup or mailing list's charter for whether advertising is allowed or not. Sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such; Mail may not be used to harass or intimidate others. Harassment, whether through language, frequency of messages, or size of messages, is prohibited. Sending a single unwelcome message may be considered harassment. If a recipient asks to stop receiving e-mail, YOU must not send that person any further messages.
NOTE - If YOU use the services of another provider to promote a website hosted by or through 452Hosting ('spamvertising'), then the provisions of the above policy shall apply as if the SPAM were sent through our servers.
100% UPTIME GUARANTEE
(1.) COVERAGE - This 100% uptime guarantee applies to any Customer in good financial standing with 452Hosting at the time of a service outage.
(2.) SERVICE LEVEL AGREEMENT ('SLA') & SPECIFICATIONS - 452Hosting endeavors to have the content of YOUR website available for http access by any party in the world 100% of the time. Network downtime ('unavailability') is defined as 100% packet loss from 452Hosting to its backbone providers. Downtime is measured past 10 minutes after notification of network failure via 452Hosting's online ticketing system. If the ticketing system itself is unreachable, the ticket must be started by calling the 452Hosting NOC.
452Hosting's administrators will determine the end of the downtime by a traceroute to YOUR machine from outside the 452Hosting network.
(3a.) HOSTING CREDITS - In the event that YOUR website is unavailable for less than 100%, 452Hosting will credit the following month's service fee as follows. YOUR credit shall be retroactive and measured in 24 hours a day of a calendar month, with the maximum credit not exceeding 100% of the monthly service charge for the affected month.
- 99.9999% to 99.9% - YOUR account will be credited 10% of your monthly hosting fee
- 90% to 94.9% - YOUR account will be credited 20% of your monthly hosting fee
- 89.9% or below - YOUR account will be credited 50% of your monthly hosting fee (3b.)
Credit shall not be provided to YOU in the event that you have any outage resulting from:
- scheduled maintenance as posted from time to time at 452,
- your behavior or the performance or failure of your equipment, facilities or applications,
- circumstances beyond 452Hosting's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services, including DNS propagation, domain name registration/transfer, failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your web site,
- YOU breaking any agreement policy in 452Hosting's 'Terms & Conditions and AUP' causing a machine to fail as a result.
TECHNICAL SUPPORT BOUNDARIES
452 provides technical support for YOU that encompasses within our area of expertise only. Such expertise includes assistance, troubleshooting, and debugging of our cPanel control panel interface, servers within our immediate responsibility and any other hosting related issues.
Unlike many hosting companies We do our best to help with scripts, templates and programing languages. However, under no circumstances is 452Hosting obligated to help YOU in the installations of new application modules, templates and/or programming languages, nor in providing assistance for any errors produced by any applications that have been modified by YOU previously.
Each web hosting account comes with its own CGI-BIN. YOU are free to use any CGI scripts YOU wish, however we reserve the rights to disable any CGI script that effects normal shared server operation without prior notice.
Customer agrees to indemnify and hold harmless 452, the Company's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, 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.
YOU AGREE TO DEFEND,INDEMNIFY AND HOLD 452 HARMLESS AGAINST LIABILITIES ARISING OF:
(1) ANY INJURY TO PERSON OR PROPERTY CAUSED BY ANY PRODUCTS SOLD OR OTHERWISE DISTRIBUTED IN CONNECTION WITH 452'S SERVER.
(2) ANY MATERIAL SUPPLIED BY THE CUSTOMER INFRINGING OR ALLEGEDLY INFRINGING ON THE PROPRIETARY RIGHTS OF A THIRD PARTY
(3) COPYRIGHT INFRINGEMENT AND
(4) ANY DEFECTIVE PRODUCTS SOLD TO CUSTOMER FROM the Company'S SERVER.
Loss Payment (also known as Indemnification)
In General: You must pay us for any loss of ours that is caused by: (1) your use of the Website, (2) your violation of these terms, (3) your violation of rights of a third party, (4) your conduct in connection with the Website, or (5) your negligent or intentional misconduct. But you need not pay to the extent that the loss was caused by our gross negligence or intentional misconduct.
Definitions (a) Loss means an amount that we are legally responsible for or pay in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory or recovery; and includes incidental, direct, and consequential damages. (b) A loss is caused by an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
Our Duty to Notify. If we have your contact information, we will notify you before the 30th day after we know or should reasonably have known of a claim for a loss that you might be obligated to pay. Our failure to give you timely notice does not terminate your obligation, except if that failure prejudices your ability to defend the claim or mitigate losses (but this exception does not apply if we do not have your contact information or cannot obtain your contact information in a commercially reasonable manner). 18.4 Legal Defense of a Claim. We have control over defending a claim for a loss (including settling it), unless we agree otherwise in writing. You and we must cooperate with each other in good faith on a claim.
No Exclusivity. Our rights under this section do not affect other rights we might have.
All statements on the Website other than statements of historical fact are statements that could be deemed forward-looking statements, including: (1) any projections of financial information; (2) any statements about historical results that may suggest trends for our business; (3) any statements about operational improvements or third-party data that may suggest trends for our business or industry; (4) any statements of the plans, strategies, and objectives of 452 for future operations or service offerings; (5) any statements of expectation or belief regarding future events, potential markets, or market size; (6) any statements about technology developments; and (7) any statements of assumptions underlying any of the items mentioned. Risks, uncertainties, and assumptions include the possibility that expected benefits from our operational improvements or service offerings may not materialize. These statements are based on a number of assumptions and estimates, which are subject to significant uncertainties that involve risks, many of which are beyond our control and not guarantees of future performance.
If these risks or uncertainties materialize or these assumptions prove incorrect, the results of 452 could differ materially from our current expectations because of many factors, including: (1) the unpredictable nature of our rapidly evolving market and quarterly fluctuations in our business; (2) the effects of competition; and (3) any adverse changes in our indirect channel relationships. Except as required by law, 452 assumes no obligation to update these forward-looking statements publicly, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.
Disclaimer of Warranties
We provide you access to this Website and its content “as is,” “with all faults,” and “as available.” You assume the entire risk for satisfactory quality, performance, accuracy, and effort. 452 makes no representations or warranties of any kind—express or implied—regarding the operation of the Website, the content, information, or the materials on this Website. To the fullest extent permissible under applicable law, 452 expressly disclaims all warranties—express, statutory, or implied— regarding any of the materials, content, or information on this Website or any goods or other products or services offered, sold, or displayed on this Website or your use of this Website generally. This disclaimer includes any warranties of: (1) merchantability, (2) fitness for a particular purpose, (3) workmanlike effort, (4) accuracy, (5) completeness, (6) reliability, (7) suitability, (8) security, (9) privacy, (10) title, (11) exclusivity, (12) quiet enjoyment, (13) noninfringement, and warranties that your access to the Website will be (14) uninterrupted, (15) error-free, or that (16) content loss will not occur.
452 further makes no representations, warranties, or guarantees that the quality and reliability of any information and hosting services obtained from 452 will meet your needs, expectations, and requirements; be virus-free; or perform error- and damage-free. There are no warranties of any kind that extend beyond the face of these terms or that arise because of course of performance, course of dealing, or usage of trade. (a) We do not make any promise about the results that you may obtain from your use of this Website, or about the accuracy, completeness, reliability, security, or currency of the content. The Website may contain errors, omissions, inaccuracies, or outdated information. We do not warrant the reliability of any statement or other information displayed or distributed through the Website. We reserve the right to correct any errors or omissions in any portion of the Website. If you believe you have found errors or omissions on the Website, you may bring them to our attention by contacting us at email@example.com (b) You acknowledge that your use of this Website is at your sole risk and you alone will be responsible for any loss or damage that you may suffer from any content located on the Website. You assume all risk and responsibility for any loss or damages to your computer system, data, and business arising out of your use of the Website.
Disclaimer of Liability; Release We disclaim all liability to you for:
(1) any information, comments, or material you receive that is infringing, inaccurate, obscene, indecent, threatening, offensive, defamatory, invasive of privacy, or illegal; (2) any third party’s unauthorized access to or alterations of your account, transmissions, or data; (3) any viruses or other disabling code that may infect your computer or affect your access to (or use of) the Website and your other services, hardware, or software; (4) any incompatibility between the Website and your other services, hardware, or software; or (5) any delays or failures you may experience in initiating, conducting, or completing any transmissions to or transactions with the Website. You release us from all claims, demands, and damages (actual and consequential) of every kind and nature, known or unknown, disclosed or undisclosed, arising out of your use of the Website, including disputes with one or more other users or third parties.
Exclusion of Damages, Exclusive Remedy
(a) Unless caused by our gross negligence or our willful and wanton misconduct, we will not be liable to you for damages of any kind, including direct, indirect, special, consequential, incidental, punitive, reliance, or exemplary damages—whether in tort, contract, or any other legal theory—concerning your use of or your inability to use the Website or the content contained on or accessed through the Website. We are also not liable to you for any damages for loss of profits, loss or corruption of data, loss of goodwill, work stoppage, computer failure or malfunction, or interruption of business arising out of your use of or your inability to use the Website or the content contained on or accessed through the Website.
This exclusion includes damages caused by or resulting from your reliance on any information obtained from 452, or that results from mistakes, omissions, interruptions, deletion of files or emails, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether resulting from acts of god, communications failure, theft, destruction, or unauthorized access to 452’s records, programs, or the Website. This exclusion applies even if you advised us of the possibility of these damages or we knew or should have known about the possibility of these damages. (b) If you are dissatisfied with the Website or have any other complaint, your exclusive remedy is to stop using the Website. Our maximum liability arising from your use of the Website will not exceed the total amount you have paid to us to use the Website.
If you paid us nothing, we owe you nothing.
Scope of Disclaimers, Exclusions, and Limitations
The disclaimers, exclusions, and limitations contained in sections above apply to the maximum extent permitted by applicable law, but no more. They are not intended to deprive you of any mandatory protections provided to you under applicable law. Because some jurisdictions may prohibit the exclusion or limitation of certain warranties, liability for consequential damages, or other matters, some or all of the disclaimers, exclusions, or limitations may not apply to you.
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 possibility of such damages.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of 452Hosting and any of its employees, agents or affiliates, under any theory of the 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 the three months service.
Suspension of Services/Termination
Customer agrees that 452Hosting may suspend services to Customer without notice and without liability if: (i) 452Hosting 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) 452Hosting 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 452Hosting reasonable reinstatement fee if service is 452Hosting following a suspension of service under this subsection.
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 452Hosting 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 Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by 452Hosting prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon five (5) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) 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 452Hosting describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon five (5) 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.
If you break our terms of service/acceptable usage policy we hold the right to cancel any services. We will never cancel any services without trying our best to resolve the problem with you. However in extreme cases such as an account containing child pornography we hold the right to cancel services without any prior warning. We do not refund any accounts breaking our terms of service/acceptable usage policy. For example if we cancel your hosting account during your first month for breaching copyright, we will not refund you for the first month. This is to prevent people signing up for our services with the intention of breaching our terms.
Request For Customer Information
Customer agrees that 452Hosting 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 452Hosting 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.
Back Up Copy
Customer agrees to maintain a current copy of all content hosted by 452Hosting not with standing any agreement by 452Hosting to provide back up services.
Request For Restore Of Hosting Package
During any service term, customer may request up to one free restore for any reason of choice. If a customer should need to request a restore after this a $5 one time fee will be enforced.
Copyright, Ownership of Content, The Website
Its past, present, and future versions; all webpages found within the Website; the material and information on the Website; all graphics, text, images, audio, videos, webinars, designs, compilation, advertising copy, articles, user interfaces, artwork, any computer applications, any copyrightable material (including source and object code), and all other materials, including the design, structure, “look and feel,” and arrangement of the content contained on the Website (“content”); and trade names, trademarks, service marks, logos, domain names, and other distinctive brand elements, regardless of registration, are owned, controlled, or licensed by or to 452, and are protected by intellectual property laws, including copyright, trademark, trade dress, domain name, patent, trade secret, international treatises, and other proprietary rights and unfair competition laws. In using the Website or the content, you acknowledge and agree to abide by all applicable intellectual property laws, as well as any specific notices contained on the Website. All rights not expressly granted are reserved.
The Website and the content may not be copied, reproduced, modified, adapted, translated, transmitted, displayed, published, posted, resolved, or otherwise distributed in any way, without 452’s express prior written authorization. 452 grants you permission to display on your computer, print, and download the content on this Website solely for your own personal, noncommercial, and educational use. You must retain copyright and other notices on any copies of the content you make. Certain content and documents available on this Website may be open source content and documents subject to the applicable open source license and are so marked. Your use of those materials is governed by the individual applicable license.
Unauthorized use of the Website or the content contained on or available through the Website or any linked websites may violate applicable intellectual property laws or other laws. The Website may contain user or third-party submitted content, such as feedback and suggestions, posts or submissions, and other materials (“submissions”) intended for review by the general public, or by members of any public or private community. 452 does not claim ownership of third-party submitted content and will have no obligation or liability of any kind with respect to submissions.
452Hosting does not review, approve, or endorse submissions.
452 provides submissions solely for convenience to 452 customers and users. 452 reserves the right to monitor, restrict access to, edit, or remove any content available on the Website. Copyright Infringement Complaints. You may not use the Website or content for any purpose or in any manner that infringes the rights of any third parties. 452 encourages you to report any content on the Website that you believe infringes your copyright. If you would like to submit a copyright infringement complaint, please visit our DMCA webpage.
The trademarks, service marks, logos, slogans, and domain names (“marks”) referenced on the Website are either common-law service marks or trademarks, or registered service marks or trademarks of 452 Impact, Inc, a Florida corporation, and are protected by trademark laws in the United States and other countries, and international laws and treaties. Other names of actual companies and products mentioned on the Website may be the trademarks of their respective owners and reference to them does not suggest sponsorship, endorsement, or association with 452.
Nothing contained on the Website should be construed as granting, by implication or otherwise, any license or right to use any marks displayed on the Website, metatags, or any other “hidden text” using marks of 452 and its licensors, without prior written permission of 452 or the third party who may own the mark.
Changes To 452's Network
Upgrades and other changes in the Company'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. 452Hosting reserves the right to change its network in its commercially reasonable discretion, and 452Hosting shall not be liable for any resulting harm to Customer.
Notices to 452Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. 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.
452 shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond the Company'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 labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
1- The laws of the State of Florida, U.S.A. govern these terms without regard for any choice-of-law provisions that might direct the application of the laws of any other jurisdiction. The predominant purpose of these terms is providing services and licensing access to intellectual property and not a “sale of goods.” 2- Except for disputes subject to arbitration, all disputes arising under these terms or regarding your access to the Website will be subject to the exclusive jurisdiction and venue of the courts in the State of Florida, U.S.A. You agree to submit to the personal jurisdiction of the courts in the State of Florida to resolve all disputes not subject to arbitration. You waive any right to seek another forum or venue because of improper or inconvenient forum. 3- The parties deem this Website solely based in the State of Florida, U.S.A. and deem the Website a passive website that does not give rise to personal jurisdiction over the Website (or 452), either specific or general, in any other jurisdiction.
Dispute Resolution, Exception for Small Claims
In General. Each party will allow the other reasonable opportunity to comply before it claims that the other has not met the obligations under these terms. The parties will first meet and negotiate with each other in good faith to attempt to resolve all disputes between the parties relating to these terms. 20.2 Litigation Election. Either party may elect to litigate the following type of case or controversy: (1) an action seeking equitable relief, or (2) a suit to compel compliance with this dispute resolution provision.
Mediation. If the parties cannot settle a dispute through negotiation within a period of 30 days, then either party may, by notice to the other party and the American Arbitration Association, demand mediation under the Commercial Mediation Rules of the American Arbitration Association. The parties will conduct the mediation in Miami, Florida, U.S.A. Each party will bear its own costs in mediation and the parties will share equally between them all third-party mediation costs unless the parties agree otherwise in writing.
(a) If the parties fail to settle within 30 days after service of a written demand for mediation, the parties will settle any unresolved dispute arising out of or relating to these terms, or the breach of these terms, by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. A single arbitrator will preside over the arbitration and issue a final award on all issues submitted to the arbitrator. The parties will conduct the arbitration at a place located in Miami, Florida, U.S.A. The parties will equally bear the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case, subject to the nonbreaching party’s right to recover costs and fees under these terms.
This section and the arbitrator’s authority to grant relief are subject to: (1) the Federal Arbitration Act, 9 U.S.C. §§ 1–16, et seq.; (2) the provisions of these terms; and (3) the American Arbitration Association Code of Ethics for Arbitrators in Commercial Disputes. The arbitrator may not award punitive or exemplary damages, or damages otherwise limited or excluded in these terms, and the arbitrator’s decision will be final and binding. Any court of competent jurisdiction may confirm and enforce the arbitrator’s award. The Federal Arbitration Act will govern any post-award proceedings.
Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under these terms without the prior written consent of both parties. 1- Waiver of Jury Trial. Both parties agree that as part of their consideration for these terms, they waive the right to a trial by jury for any dispute arising between the parties related to the subject matter of these terms or the Website. The parties further agree that this waiver will be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this section are waived. 2- Exception for Small Claims. As an alternative to arbitration, you may pursue your claim in a small claims court in your jurisdiction of residence, if the claim meets all of the requirements for the small claims court. If you elect to file a small claims action, the matters raised in the small claims action will not be subject to arbitration.
Class Action Waiver
The parties must conduct any proceedings to resolve or litigate any dispute in any forum solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any arbitration or proceeding with another without the advanced written consent of all parties to all affected arbitrations or proceedings.
Right to Injunctive Relief
Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation if the other party violates these terms, and that an aggrieved party may seek injunctive relief if a violation occurs, in addition to seeking all other remedies available at law or in equity.
Limited Time to Bring Claims
A party to these terms must bring any claim arising out of these terms or the Website that party might have against the other party within 6-months after the claim arises. If a party fails to bring any claim that party might have against the other party within this 6-month period, the claim is permanently barred.
PROMOTIONAL RATES & SPECIAL OFFERS
452Hosting may offer subsequent promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for YOUR Services. Any such promotions or modifications shall not effect YOUR obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Different promotional fees and special offers may not be combined together.
We have various special promotions that include a domain name. The cost of this domain name is usually covered by the first month's payment. As a result of this our promotions are not refundable and are not covered by our 30-day money back guarantee.
INTELLECTUAL PROPERTY RIGHTS
Material accessible to you through 452Hosting's services may be subject to protection under the United States or other copyright laws, or laws protecting trademarks, trade secrets and proprietary information. Except when expressly permitted by the owner of such rights, YOU must not use 452Hosting or its servers and network in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material that you access or receive through the 452Hosting network. If YOU use a domain name in connection with 452Hosting or similar service, YOU must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.
Customers may not use the 452Hosting network with an attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for YOU, logging into a server or account YOU are not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy. YOU may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network. 452Hosting will cooperate fully with investigations for violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate system or network security may incur criminal or civil liability.
YOU will be solely responsible for the development, operation and maintenance of YOUR online store and products along with all content and materials appearing online or on YOUR products, including without limitation:
(a.) the accuracy and appropriateness of content and materials appearing within the store or related to YOUR products,
(b.) ensuring that the content and materials appearing within the store or related to YOUR products do not violate or infringe upon the rights of any third party, and
(c.) ensuring that the content and materials appearing within the store or related to YOUR products are not libelous or otherwise illegal. YOU will be solely responsible for the final calculation and application of shipping and sales tax. YOU will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising there from.
YOU are also responsible for the security of any customer credit card numbers and related customer information YOU may access as a result of conducting electronic commerce transactions through YOUR website. YOU will keep all such information confidential and will use the same degree of care and security as YOU use with your confidential information.
STATIC & DYNAMIC CONTENT CACHING
(i) grant to 452Hosting a license to cache the entirety of YOUR website, including content supplied by third parties, hosted by 452Hosting under this Agreement and
(ii) agree that such caching is not an infringement of any of YOUR intellectual property rights or any third party's intellectual property rights.
IP ADDRESS OWNERSHIP
452Hosting shall maintain and control ownership of all IP numbers and addresses that may be assigned to YOU by 452Hosting. 452Hosting reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
DOMAIN NAME REGISTRATION
YOU agree to pay 452Hosting prior to the effectiveness of the desired domain name registration, the then-current amount set forth in the 452Hosting price schedule for the initial registration of the domain name and, should YOU choose to renew the registration, subsequent renewals of the registration. All fees are non-refundable, in whole or in part, even if YOUR domain name registration is suspended, canceled or transferred prior to the end of YOUR then current registration term. 452Hosting reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. YOUR requested domain name will not be registered unless and until we receive actual payment of the registration fee, and have confirmed YOUR registration in an email from 452Hosting to the email address indicated in YOUR registration application. In the event of a chargeback by a credit card company (or similar action by another payment provider allowed by 452Hosting) in connection with the payments of the registration fee for YOUR domain name registration, YOU agrees and acknowledges that the domain name registration shall be transferred to 452Hosting as the paying entity for that registration to the registry and that we reserve all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. 452Hosting will reinstate YOUR domain name registration solely at 452Hosting's discretion, and subject to our receipt of the initial registration or renewal fee and our then-current reinstatement fee.
Transfer domain registrar to 452Hosting
YOU agree to pay 452Hosting prior to the effectiveness of the desired domain name transfer request, the then-current amount set forth in the 452Hosting price schedule for the initial transfer request of the domain name. YOU agree and acknowledge that the domain name transfer will fail, and all fees are non-refundable, for the following reasons, but not limited to:
- No response from the Registered Name Holder or Administrative Contact
- Domain name in Registrar Lock Status
- Domain name registration period time expires or other constraints, other than during the first 60 days of initial registration or during the first 60 days after a registrar transfer
452Hosting reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. YOUR requested domain name will not be registered unless and until we receive actual payment of the registration fee, and have confirmed YOUR registration in an email from 452Hosting to the email address indicated in YOUR registration application. In the event of a chargeback by a credit card company (or similar action by another payment provider allowed by 452Hosting) in connection with the payments of the registration fee for YOUR domain name registration, YOU agrees and acknowledges that the domain name registration shall be transferred to 452Hosting as the paying entity for that registration to the registry and that we reserve all rights regarding such domain name including, without limitation, the right to make the domain name available to other parties for purchase. 452Hosting will reinstate YOUR domain name registration solely at 452Hosting discretion, and subject to our receipt of the initial registration or renewal fee and our then-current reinstatement fee.
Transfer domain away from 452Hosting
452Hosting reserves all rights, without limitation, to reject the domain name transfer request for the following reasons, but not limited to:
- No response from the Registered Name Holder or Administrative Contact
- Domain name in Registrar Lock Status and there is no request from Registered Name Holder or Administrative Contact for the status change
- Domain name registration period time will be expiring in less than 60 days or other constraints, other than during the first 60 days of initial registration or during the first 60 days after a registrar transfer
YOU agree and acknowledge that the failure or success of a domain name transfer will be his/her sole responsibility, and 452Hosting will not be held liable for the failure of a domain name transfer for any reason.
Domain registrations are non-refundable. Please do not purchase the domain name until you are certain that it is exactly what you would like to buy.
452Hosting reserves the right to refuse service to anyone. YOU may only use 452Hosting server for lawful purposes and our services may not be used for illegal purposes or in support of illegal activities. We reserve the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrongdoing. If anything is not legal in the United States of America, it is not permitted to reside on our servers. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes but not limiting 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. Examples of non-acceptable content or links: 'Pirated Warez', OGG, AVI, MPEG, ISO, 'Hacker programs or archives', 'Copyrighted Digital Movie Copies (DIVX)' and 'Unlicensed MP3'. The designation of any materials as such described above is left entirely to the discretion of 452Hosting management.
If illegal content or usage is found, the account will be suspended and/or terminated. YOU agree that 452Hosting may disclose any and all YOUR information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification.
Regardless of the place of signing this agreement, YOU agree that for purposes of venue this contract is entered in Maimi, Florida, and any dispute will be litigated or arbitrated in Maimi, Florida. Defendants further waive all objections to venue and acknowledge that venue in any such litigation will be held in Miami courts. IN NO EVENT SHALL 452HOSTING'S MAXIMUM LIABILITY EXCEED FIVE HUNDRED ($200.00) US DOLLARS.
452Hosting follows the strict guidelines of our customer privacy statement. Please make sure you understand this statement fully.
Miscellaneous, General Provisions
THIS LAST SECTION PERTAINS ONLY TO AFFILIATES
1. Scope of - AFFILIATE TERMS OF SERVICE
PLEASE READ THIS AFFILIATE AGREEMENT (AGREEMENT) CAREFULLY. AT SIGNUP YOU WILL BE REQUIRED TO AGREEE BY CLICKING ON THE ACCEPT BUTTON YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD SIGNED THE AGREEMENT PERSONALLY. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK ON THE ACCEPT BUTTON TO APPLY FOR THE PROGRAM. BY ENTERING INTO THIS AGREEMENT YOU REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER AND LAWFULLY ABLE TO ENTER INTO LEGALLY BINDING AGREEMENTS. IF YOU ARE SIGNING THIS AGREEMENT ON BEHALF OF A COMPANY OR ENTITY, YOU HEREBY REPRESENT THAT YOU HAVE AUTHORITY TO BIND THAT COMPANY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
2. Defined Terms
a) Affiliate Site means any web site owned and/or operated by Affiliate and identified in Affiliate’s Program Application that Affiliate will link to the Program Site(s) in accordance with the terms and conditions of this Agreement. b) Approved Links means any link formats or toll free numbers provided or designated by 452 that 452 provides to Affiliate to allow Affiliate to generate Commissions. c) Clients(s) means the entities or companies who provide the Services that are promoted and sold via the Program Sites. d) Commission(s) means the payments made to Affiliate by 452 for Referral Sales, according to the Commissions schedule included in this Agreement. e) Content means any Approved Links, banners, email templates, numbers, marketing material and other content elements that 452 may provide to Affiliate to be used in connection with the advertising and marketing of the Services. f) Customers means, with respect to the Services, a person or entity that purchases the Services through 452 . g) Program Policies means related guidelines, directives, rules and procedures for any Services offered on the Program Site which may be updated from time to time as necessary. h) Program Site(s) shall mean 452hosting.com and any web site(s) affiliated with 452, the 452 Affiliates and/or the Clients that 452 has designated as part of the Program, and/or any successor web site(s) thereto. i) Referral Sales shall mean sales of Services to Customers by 452 as a result of a lead or referral from Affiliate. j) 452 Affiliated Company means any branch or entity controlling, controlled by or under common control with 452 Impact, Inc dba 452Hosting whether now existing or formed in the future, together with any branch or entity that may acquire such status in the future. k) Services means those products or services that are offered to consumers via the Program Sites. l) Tracking Mechanisms means those promotional codes, affiliate codes, Approved Links and toll-free telephone numbers that 452 provides to Affiliates to track Referral Sales in order to calculate Commissions.
3. Affiliate Enrollment and Appointment
a) Enrollment. In order to enroll in the Program, Affiliate must: (i) indicate Affiliate’s acceptance of the terms and conditions of this Agreement by executing this Agreement, and (ii) complete and submit the enrollment application (the Application) that is provided to Affiliate upon Affiliate’s acceptance of this Agreement. Affiliate’s enrollment in the Program is subject to (i) 452’s review and approval (Approval) of Affiliate’s Application. If Approval is granted, 452 will provide written notice (the Approval Notice) via email to the address Affiliate specified in the Application. Approval may be withheld or withdrawn by 452 in its sole discretion at any time. b) Appointment and Limited License. Upon Approval and subject to the terms and conditions set forth in this Agreement, 452 hereby appoints Affiliate to diligently market, promote and sell the Services listed on the Program Site as a non-exclusive, independent sales agent. Solely for the limited purpose of marketing, promoting and selling the Services, 452 grants Affiliate a limited, non-exclusive, non-assignable, non-transferable, and revocable right and license to copy and display the Content (i) on the Affiliate Sites; (ii) in e-mail sent via subscription e-mail services owned and operated by Affiliate, and (iii) in print advertisements and marketing material in order to direct potential Customers to the Program Sites. 452 also grants Affiliate a limited license to use and access the 452 site. c) Tax Information. Unless not required by applicable law, Affiliate must correctly complete, sign and submit to 452, an IRS Form W-9. If Affiliate fails to timely comply with this paragraph, 452 will withhold payment of Commissions until Affiliate has done so. Affiliate shall be responsible to ensure its compliance with all applicable tax and legal obligations that arise from its participation in the Program. d) Expenses. Affiliate is solely responsible for any and all marketing, advertising and other expenses incurred in connection with the exercise of the rights granted to Affiliate hereunder. e) Reservation of Rights. Except as expressly provided hereunder, 452 does not convey any intellectual property rights to Affiliate. For this purpose, intellectual property rights shall mean the intangible legal rights or interests in the Content, the Trademarks (as hereinafter defined) and the Program Sites, evidenced by or embodied in (1) any idea, design, concept, technique, invention, discovery, or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (2) any work of authorship, whether or not entitled to copyright protection and any moral rights recognized by law; and (3) any other similar rights, in each case on a worldwide basis. 452 reserves the right to discontinue the Program, in whole or in part including the termination of the participation by certain Clients at any time.
4. Affiliate Site(s)
5. Tracking Mechanisms
a) Tracking Mechanisms. Upon Affiliate’s acceptance to the Program, 452 will provide Affiliate with promotional codes, Affiliate codes and/or toll-free telephone numbers and Approved Links (Tracking Mechanisms) that Affiliate will include on the Affiliate Sites and in Affiliate’s marketing materials in order to allow 452 to track the Referral Sales generated by Affiliate’s participation in the Program for the purpose of calculating Commissions pursuant to Section 6a. Affiliate (and not 452 ) shall be responsible for deployment of the Tracking Mechanisms on the Affiliate Site and in marketing materials. b) Excluded Referral Sales. Referral Sales shall not include orders placed for the personal or business use of Affiliate, Affiliate’s immediate family, employees, directors, officers, affiliates, or any other parties whose relationship is deemed by 452 to constitute a self-referral by Affiliate. Commissions shall not be paid for self-referrals. c) Affiliate shall be responsible for any use or misuse of the Approved Links or other Tracking Mechanism, whether or not such access or use has been authorized by Affiliate and whether or not such person or entity is Affiliate’s employee or agent. Affiliate shall immediately notify 452 of any such unauthorized use, or any other breach of security. d) Affiliate hereby acknowledges and agrees that the Tracking Mechanisms provided by 452 are not error-free and that there may be Referral Sales that are not credited to Affiliate due to: (i) deliberate and/or accidental acts by Customers that disable or circumvent the Tracking Mechanisms; (ii) bugs, glitches, errors or crashes of the Tracking Mechanisms that render them unable to accurately track sales or leads for a period of time; and (iii) actions beyond the control of 452 that cause irretrievable data loss on computers and back-up disk media that store Commission information, and that 452 shall not be liable for any lost Commissions due to the foregoing.
6. Commissions and Payments
a) Commissions. Subject to the terms and conditions stated herein and any additional conditions posted on offers listed on the 452hosting.com website, Affiliate shall be entitled to the revenue listed per sale, or per other qualified action for each Referral Sale recorded by the Tracking Mechanisms. Other than Commissions, Affiliate shall not have any claims to any additional payments or other amounts in connection with this Agreement or the Program not agreed to at signup. Any additional revenue shall be kept by 452. Notwithstanding anything set forth herein or in any policies to the contrary, Affiliate shall not be eligible to receive Commissions in connection with any Referral Sale (i) resulting from actual or alleged fraud, misrepresentation, illegal action or any of the prohibited actions set forth in Section 12 of this Agreement, or (ii) placed for the business or personal use of Affiliate, Affiliate’s immediate family, employees, directors, affiliates, or any other parties whose relationship is deemed by 452 to constitute a self-referral by Affiliate. If 452 determines in its sole discretion that Affiliate has participated in any of the foregoing activities 452 may, without limiting any other available rights and remedies, withhold the payment of Commissions payable under this Agreement and/or terminate this Agreement with immediate effect. NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO THE CONTRARY, AFFILIATE ACKNOWLEDGES AND AGREES THAT: (I) AFFILIATE MAY NOT REALIZE ANY BUSINESS, REVENUE OR OTHER ECONOMIC BENEFIT AS A RESULT OF AFFILIATE’S PARTICIPATION IN THIS PROGRAM; AND (II) NOTHING CONTAINED IN THIS AGREEMENT, IN ANY POLICIES OR ON THE PROGRAM SITES SHALL BE CONSTRUED AS ANY GUARANTEE OF ANY MINIMUM AMOUNT OF COMMISSIONS OR ANY MINIMUM AMOUNT OF OTHER PAYMENTS, INCOME, REVENUE OR OTHER ECONOMIC BENEFIT WHATSOEVER. b) Payment of Commissions. Commissions for Referral Sales will accrue once the Customer has (i) been approved by 452 and the applicable Client, and (ii) the Client and 452 have determined that no chargebacks have been enacted by any Customers within a 28-31 day calendar month following payment by Client to 452 and pursuant to the payment method selected by Affiliate in the Application. 452 will pay to Affiliate the Commissions earned by Affiliate during that month, less any applicable fees deducted by 452; provided, however, that if the Commissions payable to Affiliate for any given month are less than $50 (fifty dollars), 452 may withhold payment until the total Commissions owed to Affiliate exceed $50. c) CHARGEBACKS. IF AFFILIATE IS PAID A COMMISSION TO WHICH AFFILIATE IS NOT ENTITLED PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, 452 SHALL HAVE THE RIGHT TO CHARGEBACK SUCH COMMISSION TO AFFILIATE. IN ADDITION TO (AND WITHOUT LIMITATION OF) THE FOREGOING, 452 SHALL HAVE THE RIGHT TO CHARGEBACK ALL OR ANY PORTION OF A COMMISSION: (I) WITH RESPECT TO A PARTICULAR CUSTOMER TO WHOM A REFUND OR CREDIT IS ISSUED FOR ANY REASON; AND (II) IN CONNECTION WITH AFFILIATE’S FRAUDULENT RECEIPT OF A COMMISSION. IF 452 DETERMINES THAT AFFILIATE COMMITTED FRAUD OR OTHER MISCONDUCT, 452 MAY HAVE THE RIGHT TO CHARGEBACK ALL OR ANY PORTION OF THE COMMISSION(S) PAID TO AFFILIATE ALONG WITH OUT-OF-POCKET EXPENSES (INCLUDING WITHOUT LIMITATION COLLECTION COSTS) INCURRED BY 452 AND/OR ANY CLIENTS, IN CONNECTION WITH SUCH FRAUD OR MISCONDUCT. THIS SECTION IS WITHOUT PREJUDICE TO ANY OTHER RIGHTS AND REMEDIES AVAILABLE TO 452 OR THE CLIENTS, WHETHER ARISING AT LAW, UNDER CONTRACT (INCLUDING WITHOUT LIMITATION THIS AGREEMENT), IN EQUITY OR OTHERWISE. THE PROVISIONS OF THIS SECTION 6D SHALL SURVIVE TERMINATION OF THIS AGREEMENT INDEFINITELY. d) Miscellaneous. In no event shall 452 have any liability under this Agreement for any Commissions not received by Affiliate as a result of an error in any way attributable to: (a) any bank or financial institution; or (b) any other person, entity or occurrence outside of 452’s direct control.
7. Reporting, Recordkeeping and Inspection Rights
a) Affiliate Access to 452 ’s Tracking System. Upon acceptance of the Application, Affiliate shall be provided monthly automated reports detailing the Commissions earned by Affiliate. Monthly Reporting. b)Promptly at the end of each calendar month, Affiliate shall be able to access the Affiliate control panel and see the results of the sales for that month.
8. Acceptable Marketing Activities
9. Intellectual Property
a) Trademarks. Affiliate acknowledge that certain 452 and/or Client trademarks (registered or otherwise), service marks or trade names, including without limitation 452 and 452 Impact, Inc dba 452hosting collectively, the Trademarks) may be incorporated into the Tracking Mechanisms and Content. Except as expressly set forth herein, Affiliate shall not acquire rights to the Trademarks and all goodwill now existing or hereafter created through the use of the Approved Links and the Trademarks hereunder shall inure to the benefit of 452 and the Clients. Affiliate agrees that it shall not: (i) assert any claim of ownership to the Trademarks; (ii) use, register or attempt to register with any agency or in any jurisdiction any of the Trademarks or any mark confusingly similar therewith; (iii) use, register or attempt to register any domain that includes (a) all or a portion of any Trademark, or (b) which may otherwise be confusingly similar to all or any portion of the Trademarks; or (iv) seek to purchase or register any keywords, search terms or other identifiers that include any trademark of 452, the 452 Affiliates or Clients, or variations or misspellings thereof (Trademarks) for use in any search engine, portal, sponsored advertising service or other search or referral service. However, nothing in this Agreement prohibits Affiliate from purchasing paid search advertisements that do not include the Trademarks. If 452 determines, in our sole discretion, that Affiliate has violated this provision, 452 may, without limiting any other available rights or remedies, withhold Commissions and/or terminate this Agreement. b) Content. Except for the limited license granted in Section 3b, 452 and its licensors reserve and retain all right title and interest in the Content. Affiliate shall not use the Content in any manner that would direct consumers to web sites other than the Program Sites or that would promote services other than the Services. Affiliate shall not edit or materially modify the Content except as necessary to post the Content on the Affiliate Sites or marketing materials prepared in accordance with this Agreement. Affiliate shall not post or redistribute the Content to any website, such as Social Media Outlets, that requires users to sublicense or assign their rights to any content posted on the Social Media Outlet to that Social Media Outlet or any third party. Promptly upon notice from 452, Affiliate shall remove any Content from the Affiliate Sites and delete and otherwise destroy any Content in Affiliate’s marketing materials that is no longer displayed on the Program Sites or as instructed by 452. c) Compliance with Policies. Affiliate shall strictly comply with any and all instructions from 452 concerning the Approved Links, Content and the Trademarks, including without limitation those set forth in the 452 program policies or other documents found on the 452 site. Affiliate shall not have the right to use any logos, service marks or trademarks of any Client other than the Trademarks that are contained in the Approved Links and Content, and shall only use Trademarks as part of the Approved Links and Content and not as a standalone. 452 may, at any time and in its sole discretion, change, alter, delete, add to or otherwise modify the Trademarks, the Approved Links, and the Content.
As between Affiliate and 452, consumers who purchase Services via the Tracking Mechanisms will be deemed to be Customers of 452. Affiliate agrees that 452 and the Clients have the right to reject any Customer orders at their sole discretion and Affiliate shall not be entitled to a Commission for such rejected order. Affiliate shall not enter into any contract with, invoice or accept or collect fees from Customers or prospective Customers with respect to the Services. With regard to any Customer information made available to Affiliate by 452, Affiliate shall only use such Customer information in accordance with any policies set forth by 452 or Client, and solely in connection with this Agreement and for no other purpose.
11. Affiliate Obligations
a) Standard of Care. Affiliate shall use its best efforts to market, promote and sell the Services. To protect and preserve the goodwill and image of the Clients and 452 Affiliate shall: (1) conduct its activities in a manner that reflects favorably at all times on the Services and the reputations of 452 and the Clients; (2) avoid deceptive, misleading, or unethical practices that are detrimental to 452, the Clients or the Services, including any disparagement of 452, the Clients or the Services; (3) make no false or misleading representations with regard to the Services; (4) refrain from publishing, posting to the Internet or employing any misleading or deceptive statements or advertising material; (5) ensure that any information provided to consumers, whether it be via the Internet, in printed materials or any other form, tangible or intangible, regarding the Services is accurate and the most recent version of said information available from 452 or the Clients; and (6) refrain from making any representations, warranties, or guarantees to the public with respect to the Services that are inconsistent with the warranties or guarantees provided by the Clients. b) Compliance with Program Policies. Affiliate shall comply with all Program Policies in force during the Term, including all related guidelines, directives, rules and procedures that 452 may implement in accordance with this Agreement, but only after Affiliate has been given reasonable opportunity to review such policies. c) Compliance with Applicable Laws. In performing this Agreement, Affiliate shall comply with all applicable laws, codes, directives, ordinances, rules, regulations, and other requirements now or hereafter in effect, of governmental or quasi-governmental authorities having jurisdiction over Affiliate that govern marketing via the Internet and email, including but not limited to, the CAN-SPAM Act of 2019 and all other anti-spam laws and the FTC Guidelines Concerning the Use of Testimonials and Endorsements.
12. Prohibited Activities
a) Telemarketing. Affiliate shall not directly or indirectly engage in any telemarketing activities (including without limitation making any outbound telephone calls) whatsoever in connection with the Program with the exception of businesses. Violation of this Section will result in the immediate termination, without notice, of this Agreement, and forfeiture of any accrued Commissions. b) Unsuitable Sites. Affiliate shall not place the Approved Links on Unsuitable Sites as listed in section 4b of this Agreement. Additionally, Affiliate shall not place any Approved Links on any sites that 452 has notified Affiliate are unsuitable. c) Unauthorized Rebates, Discounts and Warranties. Affiliate shall not (i) directly or indirectly offer any consideration or incentive (including without limitation payment of money or rebates), discount or other benefit to any person or entity for ordering Services using the Tracking Mechanisms (ii) read, intercept, record, redirect, interpret or fill in the contents of any electronic form or other materials submitted to 452 by any person or entity; (iii) take any action that could reasonably cause any consumer confusion as to the relationship between 452 and Affiliate or the Affiliate Sites and Program Sites; or (iv) attempt to circumvent the Tracking Mechanisms or artificially increase Commissions. Affiliate shall not make any promises, representations or warranties with respect to the Services other than those expressly set forth in the Content or on the Program Sites. d) Abuse of Program Sites and 452 Computer Network. Affiliate shall not use or attempt to use any Program Site with the intent to interrupt, disrupt, damage, disable, overburden, or impair that Program Site or any other Program Site, or interfere with any person’s use and enjoyment of any Program Site, including without limitation (i) sending mass unsolicited email messages, (ii) flooding servers with requests, or (iii) the use of spyware or similar programs that materially interfere with the Program Sites. Affiliate shall not attempt to gain access to the computer systems of 452 or any third party through the Program Sites. Affiliate shall not engage in spidering, screenscrapig, database scraping, harvesting of email addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of information from or through the Program Sites, including without limitation any information residing on any server or database connected to the Program Sites. e) Affiliate Site(s). Affiliate shall not include on the Affiliate Sites or otherwise use in connection with the Tracking Mechanisms and the Content any malware, spyware, virus, worm, Trojan horse or other harmful or malicious code that may be unknowingly downloaded by users or installed on their computers when they visit Affiliate Sites. Affiliate shall not frame any Program Site or a portion thereof within any Affiliate Site. f) Black Hat. Affiliate shall not implement black hat search engine optimization tactics that degrade the relevance of web search results on search engines, including, without limitation, keyword stuffing, hidden text and links, doorway and cloaked pages, and link farming. g) Parasite Ware. Affiliate shall not transmit any so-called interstitials, Parasiteware, Parasitic Marketing, Shopping Assistance Application, Toolbar Installations and/or Add-ons, Shopping Wallets or deceptive pop-ups and/or pop-unders to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Merchant’s site (i.e., no page from our site or any 452 content or branding is visible on the end-user’s screen). As used herein Parasiteware and Parasitic Marketing shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open 452’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
13. Term and Termination
a) The term of this Agreement (Term) commence upon the Affiliate enrollment Approval date. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. 452 may terminate this Agreement immediately without notice if it has discovered that Affiliate has breached any portion of this Agreement. Upon the termination or expiration of this Agreement, Affiliate shall immediately cease all marketing and promotion of the Services, discontinue all use of the Trademarks, delete all Tracking Mechanisms and Content from the Affiliate Site(s), disable all Approved Links and destroy all marketing materials that contain the Approved Links or Content. Additionally at 452’s option, Affiliate shall return to 452 or destroy all materials in printed or electronic form, including any and all notes, documents and physical or electronic copies derived therefrom pertaining to 452 and the Program that contain Confidential Information, as defined below. Upon 452 ’s request, an authorized representative of Affiliate shall certify in writing that Affiliate has complied with its obligations under this Section 13. b) Post-Termination Commissions. Except as otherwise set forth herein, Affiliate shall be entitled to Commissions on Orders installed and/or completed during the Term subject to the provisions of Section 6.
14. Confidential Information
Affiliate will maintain, in confidence, any non-public provisions of this Agreement, including the Commission information, Program Policies, and all data, summaries, reports, communications or information of all kinds, whether oral or written, pertaining to the Program and this Agreement, including without limitation any Customer lists and nonpublic personal Customer information that 452 may provide to Affiliate (Confidential Information). Affiliate agrees that it shall not disclose any Confidential Information or use such information other than to exercise its rights or perform its obligations hereunder and shall use the same degree of care, and in no event less than reasonable care, to protect the Confidential Information as it uses to protect its own information of like character and importance Affiliate shall not disclose the Confidential Information to any persons except: (i) at the written direction of 452 ; or (ii) to the extent necessary to comply with any applicable laws, the valid order of a court of competent jurisdiction or the valid order or requirement of a governmental agency or any successor agency thereto, in which event Affiliate shall notify 452 in writing of the information prior to making any disclosure, and shall seek confidential treatment of such information. Affiliate agrees that any breach or default of any of its obligations set forth in this Section 14 will cause substantial and irreparable harm and injury to 452 for which monetary damages alone would be an inadequate remedy, and which damages are difficult to accurately measure. Accordingly, Affiliate agrees that 452 shall have the right, in addition to (and without limitation of) any other rights and remedies available to 452 at law, in equity, under contract or otherwise, to obtain immediate injunctive relief (without the necessity of posting or filing a bond or other security) to restrain the threatened or actual violation hereof as well as any other equitable relief allowed by the federal or state courts. The provisions of this Section 14 shall survive termination of this Agreement indefinitely.
15. Disclaimer; Limitation of Liability
a) 452 makes no express or implied warranties or representations with respect to the Program, the Program Sites, the Content, the Tracking Mechanisms, the Trademarks or the Services (including without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing or trade usage). 452 makes no representation that the operation of the Program Sites or the Tracking Mechanisms will be uninterrupted or error- free, and will not be liable for the consequences of any errors or interruptions. b) NEITHER PARTY TO THIS AGREEMENT WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM SITES, TRACKING MECHANISMS, CONTENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS OR GOODWILL, BUSINESS INTERRUPTION, OR LOST DATA IN ANY MANNER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 14 HEREOF. THE CUMULATIVE LIABILITY OF EITHER PARTY WILL NOT EXCEED THE AMOUNT OF COMMISSIONS THAT AFFILIATE HAS RECEIVED UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEEDING THE DATE THE CAUSE OF ACTION ARISES OR SHOULD REASONABLY HAVE BEEN DISCOVERED.
16. Representations and Warranties
Each party represents and warrants to the other that: (i) it is duly organized and validly existing under applicable laws; (ii) this Agreement constitutes a legal, valid and binding obligation, enforceable against that party in accordance with its terms; and (iii) neither the execution, delivery or performance of this Agreement, will, directly or indirectly (with or without notice or lapse of time) breach any provision of that party’s governing documents, any resolution adopted by its equity holders or governing bodies, or violate, breach, or cause a default under any contract, instrument, or order to which it is a party or by which it is bound.
Affiliate shall indemnify 452, their respective affiliates and licensors, and any officers, directors, employees, agents or representatives of the foregoing, from and against all third party claims, costs, liabilities, judgments, expenses, and damages (including amounts paid in settlement and reasonable attorneys’ fees) that result, directly or indirectly, from: (i) any breach of any of the terms of this Agreement; (ii) any misrepresentation, fraud or negligence; (iii) any re-characterization of Affiliate employees as employees of 452 or a Client, including but not limited to any liability for premiums, contributions or taxes payable to any workers’ compensation, unemployment compensation, disability benefit or tax withholding; (iv) any amounts including, without limitation, taxes, interests and penalties assessed against 452 that are obligations of Affiliate; (v) the Affiliate Site(s); and (vi) any use by Affiliate of the Content, Approved Links, Tracking Mechanisms or other marketing materials and activities by Affiliate hereunder.div class="bigheader">
18. Governing Law and Dispute Resolution
a) Governing Law & Interpretation. This Agreement shall be construed and enforced under the substantive laws of the State of Florida without regard to conflicts of law principles. b) Dispute Resolution. In the event of any dispute or claim arising from or relating to this agreement, or the breach or termination thereof (Dispute), the parties hereto shall use their best efforts to negotiate in a good faith attempt to settle the Dispute within fifteen days of written notice of such Dispute. If the parties do not reach a solution through negotiation, both parties agree that all disputes or claims will be heard in a court of competent jurisdiction located in or nearest to Jacksonville, Fl or any city agreed to by both parties in writing.
a) Force Majeure. Neither party shall be liable for any failure to perform any of its respective obligations under this Agreement when such failure is caused by or results from any event beyond the control of that party; provided, that (a) the party who has suffered a force majeure event shall (1) immediately notify the other party of the occurrence and nature of such event and (2) use commercially reasonable efforts to continue performing its obligations under this Agreement. b) Notices. Any notice or other communication under this Agreement shall be in writing and shall be considered given when delivered personally, mailed by registered or certified mail, return receipt requested, delivered by overnight courier or faxed or sent via email (with confirmation receipt report) to the parties at the addresses specified in the Application. c) Entire Agreement. This Agreement, together with the Application, any Program Policies communicated to Affiliate by 452 and any modifications, exhibits or schedules hereto, contains the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral between the parties respecting the subject matter hereof. d) Modifications. No modifications of this Agreement shall be effective unless in writing and signed by both parties. e) Waiver. The failure of a party to insist upon strict adherence to any of the terms of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing. f) Sub-Affiliates. Affiliate may engage contractors, consultants or other agents (Sub-Affiliates) to exercise its rights and obligations under this Agreement, solely upon the prior written consent of 452 and provided that such Sub-Affiliates are party to a written Agreement with Affiliate on terms and conditions no less restrictive than those set forth herein. Affiliate shall be fully responsible for all acts and omissions of the Sub-Affiliates and shall indemnify and hold 452 harmless from any and all liabilities, claims and losses of any kind or nature (including but not limited to reasonable attorney’s fees and costs) arising from or in connection with the actions of any Sub-Affiliate whether such Sub-Affiliate has been approved by 452 or the actions of such Sub-Affiliate are known to or approved by 452. g) Assignment. This Agreement is binding upon the heirs, legal representatives and successors of the parties. This Agreement may not be assigned unless approved in writing by both parties with such consent not be unreasonably withheld. h) Relationship of the Parties. The parties are and shall be, with respect to the subject matter of this Agreement, independent contractors of one another and nothing herein shall be deemed to create an agency, partnership, employment, or joint venture relationship between the parties. Nothing in this Agreement precludes 452 from retaining the services of other persons or entities undertaking the same or similar services as those undertaken by Affiliate hereunder. i) Construction; Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. j) Interpretation. This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Agreement. k) Remedies Cumulative. The rights and remedies herein provided to 452 in case of default or breach of this Agreement by Affiliate are cumulative and without prejudice to any other rights or remedies that 452 may have by reason of such default or breach by Affiliate at law, in equity, under contract or otherwise (all of which are hereby expressly reserved). l) Consent to Receive Communications. Affiliate acknowledge that this Agreement serves as Affiliate’s express written consent to receive e-mail, facsimile or other communications from 452 and/or any of its affiliates, including without limitation, communications that contain unsolicited advertisements. This written consent shall include (without limitation) all such communications regulated by future Federal Communications Commission action. m) Survival. Following the termination of this Agreement, the parties shall remain obligated under all provisions of this Agreement which by their terms continue after the termination of this Agreement or are incidental to the performance of the obligations under such provisions, including, without limitation, Sections 6, 14, 15, 16 and 17.
20. Independent Investigation
AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT 452 MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMERS FOR THE SERVICES ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO THE AFFILIATE’S WEBSITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
21. Electronic Acceptance
Upon Signup the clicking of the Accept or I Agree button Affiliate has read and accepts the terms of this binding Agreement by and between 452 Impact, Inc dba 452Hosting, 452hosting, 452 and Affiliate.