Web Hosting Terms of Service Agreement

Authorization

The Client authorizes Green Egg Media (“GEM”) to host the Client’s website on servers maintained, sourced, or otherwise managed by GEM.

Term

Web hosting is provided solely as part of a separate agreement between the parties. The term of all hosting services is subject to the term of the underlying agreement. In case of expiration or termination of the underlying agreement, GEM’s responsibility to continue providing web hosting services shall be suspended.

Alternate Email

The Client is advised to provide GEM with at least one alternate email address using a domain other than the hosted domain in the event that a DNS error prevents correct email routing.

Managed Web Hosting

All hosting provided by GEM is managed hosting. This means that GEM is responsible for administration of the hosting platform. The Client will not be able to sign in directly to any server managed by GEM using FTP, Telent, SSH, or other similar means. This prohibition against server access shall not prevent the Client from signing in to their Content Management System administration panel.

Email Hosting

Email servers are not provided by GEM and the Client is prohibited from using GEM web servers as an email server.

Content and Acceptable Use

The Client represents and warrants that the Client will comply with, and refrain from violations of, any right of any other person, entity, law, or contractual duty, including without limitation the laws of the United States, the laws of New York, and the laws of Colorado, and including without limitation those laws forbidding: (a) distribution of child pornography, (b) forgery, identity theft, misdirection or interference with electronic communications, (c) invasion of privacy, (d) unlawful sending of commercial electronic messages or other marketing or electronic communications, (e) collection of excessive user data from children, or other improper data collection activities, (f) securities violations, wire fraud, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. The Client also represents and warrants compliance with the affirmative requirements of law governing use of the networked services, including but not limited to: (i) disclosure requirements, including those regarding notification of security breaches, (ii) records maintenance for regulated industries, and (iii) financial institution safeguards.

All servers managed under this agreement are subject to the trade and economic sanctions maintained by the Office of Foreign Assets Control (“OFAC”). The Client represents and warrants compliance with these laws and regulations. Specifically, the Client represents and warrants that the Client is not (a) located in any country that is subject to OFAC’s trade and economic sanctions, currently Cuba, Iran, North Korea, Syria, and the Crimea region of the Ukraine, or (b) an individual or entity included on any U.S. lists of prohibited parties including: the Treasury Department’s List of Specially Designated Nationals List (“SDN List”) and Sectoral Sanctions List (“SSI List”).

Resource Consumption

GEM managed hosting is on a shared system. While total site visits and bandwidth are not restricted, the Client may not use any shared system provided by GEM in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. GEM may require the Client to remedy abnormalities in usage if it unnecessarily conflicts with other customers' use of the system. The Client agrees that GEM may throttle or otherwise restrict traffic to Client’s host if GEM believes traffic is nefarious, or if GEM believes that any DigitalOcean policies are being violated. The Client agrees that GEM may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.

Unless separately agreed to, file system storage is restricted to 5GB for Tier 1 maintenance plans, 20GB for Tier 2 maintenance plans, and 50GB for Tier 3 maintenance plans. Additional storage is available by upgrading to a higher plan level or by separate agreement.

Backups

Unless otherwise agreed to in an underlying agreement, GEM will take a backup of Client’s file system and database once per week. GEM offers this service as a convenience to the Client; however, the Client’s use of GEM’s managed hosting service is at the Client’s sole risk. GEM shall not be liable for any data loss that might occur from a failure of backups to be taken timely or a failure of backups to be maintained.

Third Party Providers & Client’s Responsibilities

GEM currently uses DigitalOcean for all underlying web hosting infrastructure and DigitalOcean and/or Wasabi Technologies for backup storage. DNS service is provided by AWS.

The Client acknowledges that the Client’s data may be stored with and/or processed by these third parties.

The Client acknowledges that Client has read, understands, and agrees to the Wasabi Technologies Customer Agreement (https://wasabi.com/legal/customer-agreement/), the DigitalOcean Terms of Service Agreement (https://www.digitalocean.com/legal/terms-of-service-agreement/), and the DigitalOcean Acceptable Use Policy (https://www.digitalocean.com/legal/acceptable-use-policy/). The Client further acknowledges that these agreements may change from time to time and Client agrees to be bound by those agreements as they are in force from time to time. The Client’s sole remedy should Client not agree to the terms imposed by these third parties will be to discontinue the use of those third party services. GEM shall not be deemed to be in breach of GEM’s obligations in the event that the Client chooses to discontinue use of such third party services.

GEM may elect to impose stricter requirements than those of the listed third parties.

The Client agrees to indemnify, defend, and hold harmless GEM from any claims resulting from the use of GEM’s managed web hosting services, including any violation of third party requirements.

GEM shall have no obligation to restore services under this agreement in the event that any third party provider (e.g., DigitalOcean, Wasabi Technologies, Apple, Google, Vimeo, YouTube, Stripe, Foxy, etc.) disables, suspends, removes, blacklists, censors, or in any way adversely impacts the Client’s website operations. The Client represents and warrants that the Client is aware of the risks associated with working with third party providers, including the fact that restoration with that provider may be impossible.

Failure to Pay

In the event that the Client fails to pay in full on the underlying agreement GEM shall have the right to suspend all hosting services until payment has been made.

Service Level Agreement

GEM provides a 99.9% uptime SLA for both servers and block storage. This SLA is measured in physical server or storage downtime per year. In the event that one of GEM’s managed servers or block storage devices is physically offline for more than 8.76 hours in a single calendar year, GEM will refund lost time back to the Client account at the rate of $0.015 per additional hour of downtime. This SLA is provided on a per-resource basis; downtime across multiple servers or block storage devices is measured separately, not cumulatively.

A server or block storage device is determined to be down only if it is completely inaccessible due to failure of the underlying hardware or failure of the network interface in the resource’s data center. The uptime of a physical or virtual server is defined as the reported uptime from the operating system and the Apache or Nginx web server which may differ from the uptime reported by external monitoring services. In the case of failure of the network interface, uptime will be defined as the uptime reported by DigitalOcean. Inaccessibility due to failure of intermediate networks or due to a firewall block does not qualify for the SLA. Downtime due to monitored reboots (during upgrades or monthly maintenance, for instance) of servers or block storage devices is not considered down time for the purpose of calculating annual availability.

This SLA applies only to the physical availability of servers and block storage devices. It does not apply to Client applications (e.g., a Content Management System or website) that may be running on those servers or block storage devices.

Copyrights & Trademarks

The Client represents to GEM and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to GEM are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend GEM and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.

GEM represents and unconditionally guarantees that all elements provided by GEM are owned by GEM or that GEM has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the Client and its subcontractors from any claim or suit arising from the use of such elements furnished by GEM.

Legal Limits

While all work will be conducted in a workmanlike manner, GEM provides no warranty, express or implied, that web hosting services will meet the Client's ongoing requirements or that the operation of plan deliverables will be uninterrupted or error-free. GEM is unable to test all work product under every possible use case that might exist. All servers will have occasional bugs or show unexpected performance under various conditions that were not foreseen or tested. Except as expressly provided for in GEM’s server SLA, in no event will GEM be liable to the Client or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to use or operate any web hosting components, even if GEM has been advised of the possibility of such damages.

GEM provides no warranty as to the performance of any third parties, including external software developers, API providers, web hosts, email hosts, or database hosts. Failure on the part of any third party to provide adequate service shall not be cause for termination of this agreement without full payment to GEM.

In no case shall GEM's liability for any web hosting deliverables exceed fifteen dollars ($15) per month of service.

Electronic Commerce Laws

From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend GEM and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client's exercise of Internet electronic commerce.

Benefit of Services

The benefit of all services provided by GEM are received by the Client in the State of Colorado.

Choice of Law

The enforcement, performance, discharge, lack of performance and formation of this Agreement is governed by, and construed and enforced in accordance with, the law of the State of Colorado of the United States of America, regardless of any applicable conflict-of-law rules to the contrary. The law of the State of Colorado shall prevail in any disputes between the parties.

Dispute Resolution

GEM and the Client agree to attempt to resolve any disputes directly. If the parties are unable to resolve such disputes within thirty (30) calendar days, the parties agree to participate in at least four hours of mediation in Arapahoe County, Colorado. The parties agree to share equally in the direct costs of the mediation. Mediation involves each side of a dispute sitting down with an impartial person, the mediator, to attempt to reach a voluntary settlement. Mediation involves no formal court procedures or rules of evidence, and the mediator does not have the power to render a binding decision or force an agreement on the parties.

The parties recognize that mediation proceedings are settlement negotiations, and that all offers, promises, conduct and statements, whether written or oral, made in the course of the proceedings, are inadmissible in any arbitration or court proceeding. The parties agree to not subpoena or otherwise require the mediator or the mediator's employees and associates to testify or produce records, notes or work product in any future proceedings, and no recording or stenographic record will be made of the mediation session. Evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation session. In the event the parties do reach a settlement agreement, the terms of that settlement will be admissible in any court or arbitration proceedings required to enforce it, unless the parties agree otherwise. Information disclosed to the mediator in a private caucus shall remain confidential unless the party authorizes disclosure.

In the event that the parties are not able to resolve the dispute during mediation, it is hereby agreed that the dispute shall be referred to a single, neutral arbitrator in Arapahoe County, Colorado. The arbitrator will be selected from the American Arbitration Association or the National Arbitration Forum. No third party involved in previous mediation sessions may act as the arbitrator. The arbitrator's decision shall be final and legally binding and judgment may be entered thereon. Each party shall be responsible for its share of the arbitration fees in accordance with the applicable Rules of Arbitration. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with the arbitrator's award, the other party is entitled to costs of suit, including a reasonable attorney's fee for having to compel arbitration or defend or enforce the award.

Mutual Nondisclosure

Both parties agree to protect the confidentiality of any information provided to the other party in a manner consistent with the way they would protect the confidentiality of their own information, but in no event with anything less than reasonable care. Information that each party considers confidential shall be expressly declared or marked as such. Unless expressly permitted in writing, neither party will use, distribute, display, or otherwise share in any way either 1) information marked or declared as confidential, or 2) material provided to the other party during the course of any work that would not otherwise be available to the general public.

Changes to Web Hosting Terms of Service

GEM reserves the right to amend these Terms of Service at any time. We will notify the Client of any changes to these Terms of Service by posting the updated Terms of Service to this website.

Severability

If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.