WEB HOSTING TERMS & CONDITIONS
Please read the following Web Hosting Agreement.


ECMS WEB SERVICES HOSTING AGREEMENT

This Web Hosting Agreement (this "Agreement") sets forth the terms and conditions of your use of ECMS WEB SERVICES, LLC. ("ECMS WEB SERVICES ") for web hosting services. You certify that you are at least 18 years of age. To become a ECMS WEB SERVICES accountholder, you must read and agree to be bound by all terms and conditions of this Agreement, the fee schedules on the Online Order form and any policies that are or may be published by ECMS WEB SERVICES. This Agreement will become effective when accepted by ECMS WEB SERVICES. By posting notice 30 days in advance at a web page linked to your web-based control panel, ECMS WEB SERVICES may modify the terms and conditions of this Agreement or the prices of its services, as well as discontinue or change the services offered. You will be bound by the modified Agreement, prices and/or policies if you continue to use the services.

1. Scope of Services and Your Obligations

1.1. This Agreement defines the terms and conditions of ECMS WEB SERVICES's as offered by ECMS WEB SERVICES and used by you, including the provision of web hosting services on ECMS WEB SERVICES's dedicated servers and connectivity to the Internet (the "Services"). ECMS WEB SERVICES will provide the Services for the amount of server storage space selected in exchange for payment of fees and full compliance with the terms and conditions of this Agreement. In performing the Services, ECMS WEB SERVICES maintains control and ownership of any and all Internet protocol ("IP") numbers and addresses that may be assigned to you and reserves the right to change or remove any and all IP numbers and addresses at its sole discretion.

1.2. As part of the Services, ECMS WEB SERVICES will also provide your own web-based control panel (the "Control Panel"). Your Control Panel permits access to your website for uploading and modifying the contents.

1.3. You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets and applications (the "Upload Materials") to your website, and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials will function properly and as intended. You are responsible for all activity originating from your website, unless proven to be a victim of outside hacking or address forgery. You assume responsibility for all material on your website that may be put on by a third party (such as the usage of Free For All links pages). Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols, and software, which can vary depending on your anticipated use and desired content of your website, and includes, but is not limited to, the following: web publishing requires knowledge of HTML, properly locating and linking documents, FTPing web contents, graphics, text, sound, image mapping, etc.; FrontPage web publishing requires knowledge of the FrontPage tools; CGI-scripts requires knowledge of the UNIX environment, Perl, permissions, etc.; and mail requires knowledge of use of mail clients to receive and send mail, etc. You acknowledge that you have the necessary knowledge to create, modify and maintain your website. ECMS WEB SERVICES assumes no responsibility to provide you with such knowledge.

1.4. In connection with the Services, ECMS WEB SERVICES may provide for your use certain tools and software, including, but not limited to, certain specialty scripting software and/or certain programming language software for designing websites (collectively, the "Tools"). Access to these Tools may be via your Control Panel. These Tools are copyrighted and proprietary property owned by ECMS WEB SERVICES. To the extent that such Tools are provided to you, you are granted a nonexclusive, nontransferable license to use the Tools in object-code form only for your internal use, solely in connection with the Services provided under this Agreement

1.5. During the period that ECMS WEB SERVICES provides the Services to you, you hereby grant to ECMS WEB SERVICES a nonexclusive, royalty-free, worldwide right and license to digitally display and host your website and its content, and to use its trademarks, service marks, trade names, logos and other commercial or product/service designations in connection with the website and such Services.

1.6. For server restoration purposes only, ECMS WEB SERVICES makes full back-ups of websites weekly, and backups of new/changed data nightly; however, ECMS WEB SERVICES makes no guarantees of any kind, either expressed or implied, as to the integrity of these back-ups. You are responsible to maintain local copies of your website. If loss of data occurs due to an error of ECMS WEB SERVICES, ECMS WEB SERVICES will attempt to recover the data for no charge. Otherwise, ECMS WEB SERVICES will attempt to recover the data from the most recent archive for a $50 fee. Use of the File Restoration feature in the control panel is at the clients risk. restoring files will overwrite and remove current files.

1.7. ECMS WEB SERVICES reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its accountholders or for any other reason it in good faith deems necessary. ECMS WEB SERVICES will fully cooperate with law enforcement authorities in investigating suspected lawbreakers and reserves the right to report to law enforcement any suspected illegal activity it becomes aware of. It is not ECMS WEB SERVICES's intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (the "CDA") or any other applicable law.

1.8. You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the "DMCA") and acknowledge that ECMS WEB SERVICES is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. ? 512. Consistent with the DMCA, ECMS WEB SERVICES will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, ECMS WEB SERVICES has a policy of terminating accountholders who are repeat copyright infringers.

1.9. Websites are unmodified forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics. Neither the content of websites located on ECMS WEB SERVICES's nor the links to other websites are screened, approved, reviewed or endorsed by ECMS WEB SERVICES. ECMS WEB SERVICES is not a publisher of any of the content of websites, or of any content that may be available through the links to and from them unless otherwise specified under a website design agreement, and is acting solely as an Internet web-hosting service provider. The text and other material on such websites are the opinion of the specific author and are not ECMS WEB SERVICES's statements of advice, opinion or information.

2. Limited Warranty; Limitation of Liability; Indemnification

2.1. Limited Warranty. You acknowledge that the Services are provided "as is." Neither ECMS WEB SERVICES, nor any of its employees or agents, warrants that the Services will be uninterrupted, error free or free from viruses or other harmful components. ECMS WEB SERVICES is not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or completeness, non-infringement, merchantability or fitness for a particular purpose of information available on its SERVERS or residing on or passing through its interconnecting networks. Use of information obtained from or through the Services is at your risk. Under no circumstances will ECMS WEB SERVICES be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the Services.

2.2. Limitation of Liability. IN NO EVENT SHALL ECMS WEB SERVICES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE ECMS WEB SERVICES's (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF ECMS WEB SERVICES's SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ECMS WEB SERVICES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ECMS WEB SERVICES's MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO ECMS WEB SERVICES FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE STATE LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, ECMS WEB SERVICES's LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

2.3. Indemnification. You agree to indemnify, defend and hold ECMS WEB SERVICES and its affiliates, directors, officers, employees and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, dispute or demand related to your use of the Services, your violation of any of the provisions of this Agreement or from your placement or transmission of any materials or content onto ECMS WEB SERVICES's servers. Such liabilities may include, but are not limited to, those arising from the following: (a) with respect to your business, (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable uses described herein or anti-spam policy; (b) any damage or destruction to ECMS WEB SERVICES's equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees; (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by ECMS WEB SERVICES's gross negligence or willful misconduct; and (d) any other damage arising from your equipment or your business.

3. Payment of Fees

3.1. ECMS WEB SERVICES will publish a notice of fee increases 30 days before such increases take effect.

3.2. You agree to provide ECMS WEB SERVICES with accurate and complete billing information, including your legal name, address, telephone number, e-mail address and applicable payment date and to update this information immediately if any change occurs. You must secure your account with a valid credit card, debit card, checking account or paypal account. Payments must be submitted in advance of receiving the Services.

3.3. You acknowledge that ECMS WEB SERVICES will bill your credit card prior to the Payment Interval you have chosen. You authorize automatic billing by ECMS WEB SERVICES on an on-going basis during the term of this Agreement. Customer will pay to ECMS Web Services the service fees for the Services in the manner set forth in the Order Form.

Unless otherwise specified, all fees and related charges shall be due and payable within seven (7) days after the date of the invoice. If any invoice is not paid within seven days the account will be suspended. There is a $100 fee for any illegitimate chargebacks placed against us. Any illegitimate chargebacks or threatened illegitimate chargebacks are grounds for immediate account cancellation.

If ECMS Web Services collects any payment due at law or through an attorney at law or under advice there from or through a collection agency, or if ECMS Web Services prevails in any action to which the Customer and ECMS Web Services are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and ECMS Web Services reasonable attorneys' fees.

If any check is returned for insufficient funds ECMS Web Services may impose a processing charge of $25.00.

In the event that any amount due ECMS Web Services remains unpaid thirty (30) days after such payment is due the unpaid services will be terminated.

Customer acknowledges and agrees that ECMS Web Services may pre- charge Customer's fees for the Services to its credit card supplied by Customer during registration for the Initial Term.

YOU ACKNOWLEDGE, AGREE AND AUTHORIZE ECMS WEB SERVICES TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BEFORE PAYMENT IS DUE.

3.4. Delinquent accounts are those that remain unpaid at the beginning of the next Payment Interval. The Services will be suspended if your account is delinquent, and ECMS WEB SERVICES will insert a message at your website indicating your suspension that visitors to your website will see. Notwithstanding any other rights ECMS WEB SERVICES may have in this Agreement, all of your website contents will be destroyed if your account is delinquent for 15 days. ECMS WEB SERVICES accounts continue to accrue charges while they are delinquent or if the Services are suspended.

3.5. You acknowledge responsibility for your account until payment in full is made.

4. Acceptable Uses

5. ECMS WEB SERVICES's Right to Terminate Agreement
(a) ECMS WEB SERVICES reserves the right to suspend or terminate the Services to you and remove or prevent access to any material from your website at any time, without prior notice or liability, for any conduct that ECMS WEB SERVICES, in its sole discretion, believes violates this Agreement or is otherwise harmful to ECMS WEB SERVICES's interests or the interests of other accountholders.

(b) ECMS WEB SERVICES also reserves the right to comply with the take-down provisions of the DMCA and to seek injunctive, declaratory, interpleader or other judicial or equitable relief (and, pending such action, to suspend all access to your website) if any third-party claim is made that your website content or use violates any of the acceptable uses or your obligations or representations described in this Agreement.

6. Cancellation of Accounts

6.1. To cancel your account you must fill out the form at http://www.ecmswebservices.com/cancel.htm. Any attempts to cancel by telephone, email, live chat, or our ticket system will be rejected and billing will continue until the cancellation form is filled out.

We have a 30 day unconditional money back guarantee. To cancel your account and receive a refund please go to http://www.ecmswebservices.com/cancel.htm and fill out the form to request in writing a refund and cancellation. To cancel your account you must fill out the form at http://www.ecmswebservices.com/cancel.htm. All cancellations must be received within 30 days of account activation to receive a refund. After cancellation notice is received refunds will be processed within 15 days. Refunds are not given on domain name registrations for any reason. Dedicated servers and setup fees (ie. stacking domains, dedicated, etc.) are non-refundable.

6.2. All ECMS WEB SERVICES accounts must be paid in full before the cancellation will be considered complete.

6.3. If your account is suspended or terminated for any reason permitted by this Agreement, ECMS WEB SERVICES may, at its sole discretion, permanently delete your website contents from ECMS WEB SERVICES servers, and ECMS WEB SERVICES will not be able to reopen or restore such content.

7. Arbitration; Governing Law

7.1. Except for ECMS WEB SERVICES's compliance with take-down provisions of the DMCA or injunctive or other equitable actions initiated by ECMS WEB SERVICES pursuant to Section 5(b), if any controversy or dispute arises in connection with this Agreement, the Services or your use of ECMS WEB SERVICES's servers, such controversy or dispute shall first be presented for resolution by ECMS WEB SERVICES and you. If no resolution is reached within 7 days thereafter, then such controversy or dispute shall be resolved by binding arbitration in San Diego, California, under the then-current rules of commercial arbitration of the American Arbitration Association. Each party shall select an arbitrator with expertise in computer law and the Internet, and these two arbitrators shall select the third arbitrator with such expertise. The validity, terms, performance and enforcement of this Agreement shall be governed and construed by its provisions and in accordance with the laws of the State of California (without regard to conflicts of laws principles).

7.2 You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in San Diego, California, for any action, suit or proceeding arising out of or relating to Section 5(b) of this Agreement and the arbitration contemplated by this Section 7.

8. Miscellaneous

You may not assign your rights and obligations under this Agreement without the prior written consent of ECMS WEB SERVICES, which may be withheld at ECMS WEB SERVICES's discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of ECMS WEB SERVICES to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by ECMS WEB SERVICES of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, this Agreement must be commenced by you within one year after the alleged cause of action has accrued or after the date of termination of this Agreement, whichever is earlier. In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed or expressly assented to by ECMS WEB SERVICES. All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive. This Agreement and the Online Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and ECMS WEB SERVICES and supersede and govern all prior proposals, agreements, or other communications.

TESTIMONIALS
As a start up company, it is very important to have all of our information technology tools running in a timely and precise manner. You made that happen for us. I was able to launch my businesses in an effective manner, servicing all of our clients in the most efficient and timely basis. I have no hesitation recommending ECMS Web Services,. You are responsive and efficient. ECMS is a true example of excellence. - Walter Wong - DRG Corporation
 
 
 
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