Hosting Agreement

Hosting Agreement2016-11-30T04:08:31+00:00

This Hosting Agreement (the “Agreement”) is made by and between Luminys, Inc., a California corporation (“Luminys”) and you (“You”, “Your”, or “Customer”).

  1. General. This Agreement applies to your purchase of cloud services (the “Service”) ordered by You.
  2. Billing and Payment. This Agreement is month-to-month unless stated otherwise. All recurring charges are due Net-30 following the month of Services. All amounts due shall be paid in US Dollars. If Luminys’ invoice is not paid Net-30 following the month of Service: (1) the amount due and payable shall bear interest at the rate of one and one-half percent (1 1/2%) per month (or if less, the maximum permitted by applicable law); and (ii) Luminys may suspend the Services immediately until all amounts owed have been paid. To re-enable Services, Luminys may require a reconnection fee and other charges.
  3. Equipment. If Equipment is leased or loaned to you by Luminys the Equipment remains the property of Luminys. You may not sell, transfer, lease, encumber or assign all or part of the Equipment to any third party. You agree to pay the full retail cost for the repair or replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Equipment or part thereof, together with any costs incurred by Luminys in obtaining or attempting to obtain possession of any such Equipment. You hereby authorize Luminys to charge your credit card or other payment method authorized by you for any outstanding Service, Equipment, and repair and replacement costs described herein.
    1. Repair and Replacement. Luminys will repair or replace damaged equipment as Luminys deems necessary, for which you may incur a fee. You understand that repair or replacement of equipment may delete stored content, reset configuration settings or otherwise alter the functionality of Equipment.
    2. Return of Equipment. All Equipment must be returned to Luminys within fourteen calendar days after Service is terminated. If equipment is not returned within fourteen calendar days, or is returned damaged, you will be charged for the value of the Equipment. The return of equipment provisions also apply if your existing equipment is replaced or upgraded for any reason.
  4. Acceptable Use Policy. You are solely responsible and liable for your use of the Service and for all content that You display, upload, download, or transmit through the use of the Service. Violation of this Acceptable Use Policy is strictly prohibited and may result in the immediate termination or suspension of the Service. You agree you will NOT knowingly use the service, among other things, for:
    1. Illegal Activity. The Service may not be used for illegal purposes, or in support of illegal activities. Luminys reserves the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrongdoing.
    2. Offensive Materials. Use of the Service to transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable is prohibited.
    3. Threats or Harassment. Use of the Service to transmit any material by e-mail, uploading, posting, or otherwise, which threatens or encourages bodily harm or destruction of or harasses another, is prohibited.
    4. Fraudulent Activity. Use of the Service Upload, post, e-mail, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation is prohibited.
    5. Harm to Minors. Use of the Service to harm, or attempt to harm, minors in any way is strictly prohibited.
    6. Collection of Personal Data. Use of the Service to collect, or attempt to collect, personal information about third parties without their knowledge or consent is prohibited.
    7. Infringement of Copyright, Trademark, Patent, Trade Secret, or Other Intellectual Property Rights. Use of the Service to upload, post, e-mail, transmit, or otherwise make available any content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements) is prohibited.
    8. Unsolicited commercial e-mail (SPAM). Use of the Service to transmit any or collect responses from unsolicited bulk e-mail is expressly prohibited.
    9. E-mail/news bombing. Malicious intent to impede another person’s use of electronic mail services or news services is prohibited.
    10. Forgery or Impersonation. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service is prohibited.
  5. Confidential Information and Use of Name and Marks. Neither party will without the prior written consent of the other party, use any trademark, service mark, name, brand name, copyright, patent, or any other intellectual property of the other party or its respective affiliates, except that You agree that Luminys may identify you by name as a customer of Luminys in its marketing materials, including in its printed or electronic brochures, on its web site or in other marketing materials. The parties acknowledge that they will have access to certain confidential information of the other concerning business plans, customers, technology, and products (“Confidential Information”). Each party agrees that it will not use in any way, for its own account or the account of any third party, nor disclose to any third party, any of the other’s confidential information and will take reasonable precautions to protect the confidentiality of such information. The provisions of this Section 4 shall not apply, however, to any information that: (i) is already in the public domain or becomes available to the public through no breach of this Agreement; (ii) was lawfully in the receiving party’s possession prior to receipt from the disclosing party; (iii) is received independently from a third party free to lawfully disclose such information to the receiving party; (iv) is subsequently independently developed by the receiving party; or (v) is required to be disclosed in order to not commit a violation of law, provided that the disclosing party must promptly notify the other party in writing prior to such disclosure.
  6. Intellectual Property. Except for the rights expressly granted herein, this Agreement does not transfer from Luminys to You any Luminys developed, licensed, or owned technology, and all rights, title, and interest in and to such technology will remain solely with Luminys. The parties agree that they will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the other party.
  7. Digital Millennium Copyright Act. Luminys may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act, and you expressly authorize Luminys to comply with any and all lawful notices, subpoenas, court orders, or warrants without prior notice to You.
  8. Government Regulations. You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated items or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction You operate or do business.
  9. Taxes. You will pay any and all applicable foreign, federal, state and local taxes, including with limitation, all use, sales, value-added, surcharges, excise, franchise, property, commercial, gross receipts, license, privilege or other similar taxes, levies, surcharges, duties, fees, or other tax-related surcharges related to the Services, whether charged to Luminys or You, including any and all fees and taxes which may be imposed by any Internet registration authority, for the registration and maintenance of Your domain name(s) and/or Internet addresses.
  10. Disclaimer of Warranties.
    1. Warranties. ALL SERVICES ARE PROVIDED “AS IS”. LUMINYS MAKES NO WARRANTIES OF ANY KIND, AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR NON-INFRINGEMENT OF THE SERVICES OR ANY EQUIPMENT LUMINYS PROVIDES. NEITHER LUMINYS, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY PROVIDERS, MERCHANTS, LICENCSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ASSESSING YOUR OWN EQUIPMENT AND TRANSMISSION NETWORK NEEDS AND THE RESULTS TO BE OBTAINED THEREFROM AND THAT LUMINYS EXERCISES NO CONTROL WHATSOEVER OVER THE MERCHANDISE, INFORMATION AND SERVICES OFFERED OR ACCESSIBLE ON THE INTERNET.
    2. No Control over Content. You acknowledge and agree that Luminys exercises no control over, and accepts no responsibility for, the content of the information passing through Luminys’ network or the Internet. You assume responsibility for Your use of the Services or software provided by Luminys, if any, and the Internet. You understand and agree further that the Internet contains materials, some of which are socially inappropriate or may be offensive; and is accessible by persons who may attempt to breach the security of Luminys’ network or Your network. Luminys is not liable for the content of any data transferred either to or from You or stored by You.
    3. Disclaimer of Third Party Actions and Control. Luminys does not and cannot control connectivity, or the flow of data to or from the Internet. Such connectivity depends in large part on the performance of the Internet or access services provided by third parties. Luminys shall not be liable for situations where your connections to the Internet may be impaired, interrupted or disrupted.
  11. Indemnification. You agree to indemnify and hold harmless, and defend Luminys and all employees, officers, directors and agents of Luminys from any third party claims, damages, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or relating to this Agreement or the use of the Services by You or Your customers, including but not limited to claims alleging: (i) infringement of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the Acceptable Use Policy; (iv) disruption or interruptions in Service, or failure of the Service to perform as expected, or (v) any other damage arising from your breach of this Agreement or Your use of the Services.
  12. Limitation of Liability.
    1. Damages. EXCEPT FOR LIABILITY ARISING UNDER SECTION 8 ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCEDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LUMINYS’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES, LOSSES AND CAUSES OF ACTIONS WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU TO LUMINYS FOR THE AFFECTED SERVICE FOR THE ONE MONTH PERIOD PRIOR TO THE EVENT OR EVENTS GIVING RISE TO SUCH LIABILITY.
  13. Default and Termination. Luminys may terminate this Agreement immediately upon written notice to You for: (i) Your failure to perform or observe any term, covenant or condition of this Agreement, including payment obligations, (ii) if You become the subject of a voluntary petition in bankruptcy or relating to insolvency or become the subject of an involuntary petition in bankruptcy or proceeding related to insolvency (each, a “Default”). Either party may terminate this Agreement if the other party materially breaches any term or condition of this Agreement and fails to cure such breach, if capable of cure, within thirty (30) days after receipt of written notice of the same.
  14. Modification of Service/Pricing. All pricing and Services are subject to change immediately, upon written notice to You.
  15. Miscellaneous
    1. Luminys reserves the right, in its sole discretion, to change, modify, add, or remove all or part of these Terms, including but not limited to any term, applicable fee, policy, or guideline, at any time without notice.
    2. No failure to exercise and no delay in exercising any right, remedy, or power hereunder will operate as a waiver thereof.
    3. Luminys will not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, earthquake, or other acts of God, strike or other labor disturbance, cable cuts, interruption of or delay in transportation, unavailability of or interruption or delay in power supply, telecommunications or third party services, or failure of third party software or hardware (“Force Majeure Events”). This Agreement and the Services are not intended to provide disaster recovery services for You.
    4. This Agreement will be binding upon and inure to the benefit of You, Luminys, and either party’s successors, and assigns. Luminys may assign this Agreement without Your consent. You may not assign this Agreement without the prior written consent of Luminys, which consent will not be unreasonably withheld.
    5. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement will remain in full force and effect, provided that this Agreement, as modified, does not materially change the benefits and obligations of the parties.
    6. Any notice or communication required or permitted to be given hereunder may be delivered personally, deposited with an overnight courier, or mailed by registered or certified mail, in each case to the address of the receiving party indicated in this Agreement or at such other address as either party may provide to the other by written notice. Any notice will be deemed to have been given as of the date it is delivered.
    7. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and Luminys. Neither Luminys nor You will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
    8. This Agreement, and any other document or agreements specifically identified in this Agreement, contain the full agreement of the parties and supersede any and all previous representations, understandings or agreements whether oral or written and all contemporaneous oral representations, understanding or agreements.
    9. This Agreement will be governed by the laws of the State of California without regard to its conflicts of law provisions. Any action arising out of this Agreement shall be filed exclusively in the courts of Orange County, California.
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