BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY SKYLARK HOSTING, INC. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. Please read these terms and conditions carefully, as they describe your legal rights and obligations. This agreement shall become effective as of the date of (1) your electronic signature on or acceptance of this agreement, (2) the activation of your account or (3) your receipt of an e-mail from Skylark Hosting confirming your order, whichever happens first.
For the purposes of this Agreement:
1.1. “Acceptable Use Policy” shall mean Skylark Hosting’s policies regarding Your use of Skylark Hosting’s Services, as more fully set forth at
https://skylarkhosting.com/aup, and which is incorporated herein by reference.
1.2. “Bandwidth” shall refer to the rate of data transmission in bits per second using Skylark Hosting’s Equipment.
1.3. “Content” shall mean the downloadable files which are interpreted by a client web browser for display with or without plug-ins.
1.4. “Customer Service” shall refer to communication from us to You dealing with problems or questions relating to services provided by us to you.
1.5. “Fee” shall mean monies and other consideration You are obligated to pay to Skylark Hosting for the right to use the Skylark Hosting Services and Bandwidth subject to the terms and conditions of
this Agreement and of the particular Skylark Hosting Services for which you have registered, as outlined on the then-current schedule of fees.
1.6. “International Customers” shall mean customers residing in or accessing the Skylark Hosting Services from outside of the India.
1.7. “Laws” shall mean the laws, statutes, and regulations then in effect of the India and its various states and dependencies as well as the laws of Your country of residence or the country in which you use or access the Skylark Hosting Services and the laws of any provinces, states or dependencies thereof.
1.8. “Skylark Hosting’s Equipment” shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by Skylark Hosting and/or Skylark Hosting’ affiliates, agents, or assigns which provide the Skylark Hosting Services.
1.9. “Skylark Hosting, “us,” “we,” “our” and grammatical variants thereof shall collectively refer to Skylark Hosting, Inc. a corporation organized and existing under the laws of the Mumbai, India, and its assigns and successors in interest.
1.10. “Skylark Hosting Services” shall mean the products and services provided by Skylark Hosting and/or Skylark Hosting’s affiliates, agents, or assigns at any given time, including but not limited to web hosting, e-mail, domain registration, bulk IP address leasing or purchasing, and any associated support services, which services may be changed, amended, and/or otherwise altered at any time in Skylark Hosting’ sole discretion.
1.11. “Parties” shall collectively refer to Skylark Hosting and You.
1.12.“Payment Account” shall refer to the credit card or PayPal account provided by You upon registration to pay for Your Services. Skylark Hosting may add, delete, or modify the methods by which customers can pay for the Skylark Hosting Services at any time without prior notice, in its sole discretion. Payments processed by PayPal are subject to PayPal’s terms and conditions of service, and Skylark Hosting makes no representations or warranties with respect to those services.
1.13. “Suspend” or “Suspension” shall include the disabling of, releasing of, disabling of, and/or placing of a registrar lock on your domain name and the cessation of transmission of data to or from Your Web Site or via Your Services.
1.14. “Technical Support” shall refer to communications from us to You dealing with problems or questions relating to technical matters involving software or services provided by us to You.
1.15. “Web Site Space” shall mean a quantity of computer memory allocation, as outlined in the program description for Your Services, generally located on one or more computer storage devices and measured in units of megabytes (MBs) wherein data comprising Your Web Site is stored and is accessible by Skylark Hosting’s web server equipment.
1.16. “You”, “your” and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
1.17. “Your Data” shall mean any data, including but not limited to advertisements, documents, e-mails, images, movies, web pages, or other Content, related to your use of the Skylark Hosting Services and stored on or transmitted by the Skylark Hosting Equipment.
1.18. “Your Web Site” shall mean data transmittable via the Internet by Skylark Hosting which is stored in your Web Site Space.
1.19. “Your Services” shall mean the specific Skylark Hosting Services for which you have contracted, subject to the limitations and specifications of the particular service effective as of the date of contract and to the fees for those Skylark Hosting Services.
Subject to and conditioned upon Skylark Hosting’s retained rights and all other terms and conditions set forth in this Agreement, Skylark Hosting offers the Skylark Hosting Services as soon as practicable after registration for and payment of any and all fees due. You will receive a password, account and instructions upon completion of the registration process. You are responsible for maintaining the confidentiality of both your password and your account and are fully responsible for all activities that occur under your password and your account. You agree to immediately notify Skylark Hosting of any unauthorized uses of the account or any other breaches of security. Skylark Hosting cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Skylark Hosting be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The Skylark Hosting Services are subject to the following conditions and restrictions:
2.1. Web Hosting Services
2.1.1. Skylark Hosting shall provide to you a non-transferable, revocable, non-sub licensable, non-exclusive and limited license to use the amount of Web Site Space allocated to Your Services for your non-exclusive use for the exclusive purpose of storing Your Web Site data and disseminating said data via the Internet through the use of Skylark Hosting’s Equipment for purposes consistent with this Agreement.
2.1.2. Skylark Hosting, either directly or through its assignee or licensee, shall provide Customer Service relating to Your Web Site consisting of replying to customer questions or complaints regarding services provided by us to you relating to Your Web Site. Skylark Hosting is not obligated to provide any Customer Service except as specified in this Section 2. Any and all requests for additional Customer Service may be refused by Skylark Hosting with or without reason. Any additional Customer Service which Skylark Hosting may subsequently agree to provide to you shall be at Skylark Hosting’s sole discretion and once commenced, may be terminated at any time by Skylark Hosting without notice to you and without any liability to Skylark Hosting. Notwithstanding the foregoing, Skylark Hosting at its sole discretion may at any time alter or cease providing the Customer Service which it has agreed to provide to you relating to Your Web Site pursuant to this Agreement without any liability to Skylark Hosting.
2.1.3. Skylark Hosting, either directly or through its assignee or licensee, shall provide Technical Support relating to Your Web Site. Any and all requests for Technical Support may be refused by Skylark Hosting with or without reason, in its sole discretion. Any Technical Support which Skylark Hosting may subsequently agree to provide to you shall be at Skylark Hosting’ sole discretion and once commenced, may be terminated at any time by Skylark Hosting without notice to you and without any liability to Skylark Hosting.
2.1.4. All use of Web Site Space and provision of services to you by Skylark Hosting shall be subject to all terms and conditions set forth herein, including the Acceptable Use Policy. You may not attempt to expand or alter these rights or Skylark Hosting’s services by entering into multiple agreements.
2.1.5. Unless provided otherwise in the specifications for your Services, Bandwidth use, including but not limited to data retrieval from your Web Site, e-mail traffic, and downloads, shall not exceed ____ gigabytes per month. Your combined mailbox use per account shall not exceed ______ gigabytes per month. You are responsible for monitoring your Bandwidth and mailbox use, and agree to check your e-mail and download or delete your e-mail on a regular basis in order to ensure compliance with this paragraph. Should you exceed your mailbox use limits Skylark Hosting may return or reject any and all e-mails sent to you to the originating sender without liability to you. You agree that Skylark Hosting may debit the Payment Account for usage in excess of permitted amounts at Skylark Hosting’s then-current rates.
2.1.6. Some Skylark Hosting Services may not be available to International Customers, and Skylark Hosting reserves the right to alter, amend, or discontinue the provision of some or all of the Skylark Hosting Services to International Customers in a particular market at any time in Skylark Hosting’s sole discretion.
2.1.7. Skylark Hosting may suspend performance under or terminate this Agreement, cease transmission of data associated with your domain name immediately and without notice, permanently remove Your Data from the Skylark Hosting Equipment, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with the relevant Laws if it is informed or otherwise believes, in its sole discretion, that Your Web Site violates the intellectual property rights of any third party, violates the Acceptable Use Policy, or is otherwise the subject of a dispute. As more completely set forth in Sections 5, 6, and 9, you waive any and all claims you may have, now and forever, against Skylark Hosting relating to the content, use, and operation of Your Web Site and agree to indemnify and hold harmless Skylark Hosting from and against any such claims.
2.1.8. You are responsible for backing up Your Data on your own computer. Skylark Hosting does not warrant or otherwise guarantee that it will back up your data or that data which has been backed up can be retrieved, and will not be responsible for any archiving or backup of Your Data. If any of Your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable due to termination or suspension of your account pursuant to this Agreement, Skylark Hosting will have no obligation or liability to you.
2.1.9. Web host resellers who have sub-accounts that are suspended for more than 15 days may have those suspended accounts terminated (deleted) permanently without warning. It is your responsibility to back up any data for suspended accounts in that status for longer than 15 days.
2.2. Domain Name Registration
2.2.1. Should you choose to register a domain name through Skylark Hosting, Skylark Hosting will register a second level domain name on your behalf, provided such domain name is available for registration. Skylark Hosting acts only as an intermediary between you and the organization providing the domain name, and has no influence over the assignment of domain names. The registration of your domain name is subject to the terms and conditions of those third-party registrars, and is also subject to the terms of the Uniform Domain Name Dispute Resolution Policy. You agree that, if the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions of the UDRP in effect at the time of the dispute. Skylark Hosting assumes no liability in the event the domain name is unavailable or otherwise not assigned to you, and does not warrant or guarantee that assigned domain names do not infringe the rights of third parties, or that you will retain the rights to that domain name for any period of time. Upon payment in full of any and all registration fees, Skylark Hosting shall not own or otherwise legally control any domain name registered on your behalf. You agree that you are responsible for any and all fees and costs related to the registration of your domain name, and you authorize Skylark Hosting to debit the Payment Account for any such fees and costs. Unless terminated, at the end of each term your domain name will automatically renew for an additional term, and you further authorize Skylark Hosting to debit your Payment Account for the renewal fee associated with such renewal term and any related fees or charges. Should the Payment Account provider fail to honor such debit, Skylark Hosting may, in its sole discretion, release, cancel, or otherwise dispose of or utilize Your domain name as it sees fit, with no obligation to You whatsoever.
2.2.2. You acknowledge and agree that Skylark Hosting or its agents, assignees or licensees may associate any data of any kind, in Skylark Hosting’s sole discretion, with the Domain Name registered in association with Your Web Site or any URL incorporating said Domain Name until you replace such data with Your Web Site, at such times as Your Web Site is no longer available, and upon termination for any reason, for as long as Skylark Hosting or Skylark Hosting’s agent, assignee or licensee continue to be listed as the hosting entity with the domain name registry used to register such Domain Name. This paragraph shall apply to any and all web pages generated by Skylark Hosting or its affiliates, including but not limited to 404 error pages.
2.2.3. You represent and warrant that your domain name does not infringe the copyright, trademark, or any other intellectual property rights of any person or company and that your domain name is otherwise in compliance with the terms of this Agreement, in particular the provisions of Section 7.
2.2.4. You shall inform Skylark Hosting of any claim or potential claim against your domain name, including but not limited to the initiation of a dispute under the UDRP, within five days of notification of same. Should you lose your right to use a domain name which is used in connection with the Skylark Hosting Services, whether through expiration of the domain name, judicial decree, administrative decisions of the UDRP or otherwise, you agree to inform Skylark Hosting immediately of the party to whom the domain name is to be transferred and you authorize Skylark Hosting to take any and all action necessary to effect such transfer.
2.2.5. Skylark Hosting will accept the transfer of domain names from other registrars, provided however, that you will be required to pay for an initial year of registration fees upon transfer. Domain names which have been prepaid for a period of more than one year but with fewer than nine years remaining may also be transferred, subject to the payment of an initial year of registration fees. An additional year will be added on to the remaining term of any transferred domain. Domain names with more than nine years remaining on the registration period may not be transferred. Upon the expiration of the one-year extension you will be charged an annual renewal fee for any subsequent renewal period. By requesting the transfer of your domain name you authorize Skylark Hosting to debit your Payment Account for the one-year registration fee and any related fees or charges.
2.2.6. The Private Domain Registration Services offered by Skylark Hosting are subject to the terms and conditions of Skylark Hosting’s Private Registration Service (the “T&C Private Domain Registration”), which are incorporated herein by reference.
2.2.7. Skylark Hosting may suspend performance under or terminate this Agreement, cease transmission of data associated with your domain name, permanently remove Your Data from the Skylark Hosting Equipment, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with the UDRP or relevant Laws if it is informed or otherwise believes, in its sole discretion, that your domain name violates the intellectual property rights of any third party or is otherwise the subject of a dispute. As more completely set forth in Sections 5, 6, and 9, you waive any and all claims you may have, now and forever, against Skylark Hosting relating to the registration, use, and subsequent transfers of your domain name and agree to indemnify and hold harmless Skylark Hosting from and against any such claims.
2.3. Bulk IP Address Leasing
2.3.1. Should you choose to lease or purchase bulk IP addresses (“Bulk Addresses”) from Skylark Hosting, Your use of the Bulk Addresses are subject to applicable Laws and the Acceptable Use Policy.
2.3.2. You shall inform Skylark Hosting of any claim or potential claim against your use of any of the Bulk Addresses, within five days of notification of same.
2.3.3. You are solely responsible for determining the suitability of the Bulk Addresses for Your particular purposes, and for conducting any research or due diligence on the quality and history of the Bulk Addresses.
2.3.4. Skylark Hosting may suspend performance under or terminate this Agreement, terminate your right to use the Bulk Addresses, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with relevant Laws if it is informed or otherwise believes, in its sole discretion, that your use of the Bulk Addresses is the subject of a dispute. As more completely set forth in Sections 5, 6, and 9, you waive any and all claims you may have, now and forever, against Skylark Hosting relating to the registration and use of your Bulk Addresses and agree to indemnify and hold harmless Skylark Hosting from and against any such use.
3.1. Certain Skylark Hosting Services are subject to set-up, service, and domain service fees, pursuant to the Fee Schedule, and by registering for such Skylark Hosting Services you authorize Skylark Hosting to debit your Payment Account for any and all such fees.
3.2. The Fee is due monthly, in advance of the provision of services, not later than the first of that month. In the event that Skylark Hosting determines that the services of a collection agency are necessary or appropriate to collect amounts due under this paragraph, which determination shall be made in Skylark Hosting’ sole and unfettered discretion, any and all collection agency fees and other costs of collection shall be added to any amounts due under this provision.
3.3. All Fees must be paid in United States Dollars / INR in advance of the provision of services. Skylark Hosting will charge the monthly fee and any additional fees to the Payment Account, or send You an invoice for the subsequent monthly services, unless specifically provided otherwise. You also agree that Skylark Hosting may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to Your Services or Your Website, including but not limited to fees for excessive bandwidth use or other surcharges for services in excess of those included within Your Services or Your Web Site. If payment in full is not received by Skylark Hosting from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for Your Services upon demand by Skylark Hosting.
3.4. Skylark Hosting 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 affect 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. Promotional fees and special offers may not be combined.
3.5. You shall pay all costs of collection, including reasonable attorney’s fees and costs, in the event any invoice requires collection efforts. All accounts referred to a collection agency shall be subject to an additional fee of $49.95, which must be paid in full before the account is reactivated.
3.6. International Customers bear the risk of currency fluctuations and any fees or taxes associated with the conversation of foreign currencies into United States Dollars. Certain Skylark Hosting Services will not be available to International Customers until Skylark Hosting is able to receive satisfactory confirmation from such customer’s Payment Account provider, in Skylark Hosting’s sole discretion, that the funds will be available for debit from the International Customer’s account. Orders from International Customers will not be accepted unless the country provided in the contact information matches that on file for the Payment Account.
3.7. Upon cancellation of this Agreement you will NOT receive any prorated refund of any pre-paid fees for the remainder of any term. Fees for certain services, including but not limited to domain name registration and maintenance, set up fees, shipping and handling, SSL certificate and fees are not refundable unless provided otherwise by applicable local law. Skylark Hosting may, in its sole discretion, refund other amounts as it deems necessary or advisable.
4. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE INCONSISTENT WITH YOUR WARRANTIES.
Receipt by Skylark Hosting of data for storage in Web Site Space and/or transmission via Skylark Hosting’s Equipment which are inconsistent with your warranties set forth in Section 7 herein shall not constitute an agreement by Skylark Hosting to allow the Skylark Hosting Services or the Skylark Hosting Equipment to be used to disseminate such information or data in whole or in part, by any means, or if once disseminated via the use of Skylark Hosting’s Services or Equipment, to continue to disseminate such data.
5. NO WARRANTIES BY SKYLARK HOSTING.
THE SKYLARK HOSTING SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SKYLARK HOSTING SERVICES IS AT YOUR SOLE RISK. SKYLARK HOSTING DOES NOT WARRANT THAT (A) THE SKYLARK HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, ANY SPECIFIC RESULTS MAY BE OBTAINED BY USE OF THE SKYLARK HOSTING SERVICES, OR THAT ANY BULK ADDRESSES WILL BE FREE OF ANY SPAM “BLACKLISTS.” NO WARRANTY IS MADE BY SKYLARK HOSTING REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND SKYLARK HOSTING HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER, INCLUDING BUT NOT LIMITED TO YOUR SERVICES AND YOUR WEB SITE; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SKYLARK HOSTING DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE SKYLARK HOSTING SERVICES WILL BE FREE OF VIRUSES, “WORMS”, “TROJAN HORSES”, OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON’S OR ENTITY’S WEB SITE OR WEB PAGE.
6. SKYLARK HOSTING’S LIMITED LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL SKYLARK HOSTING, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE SKYLARK HOSTING SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, SKYLARK HOSTING’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SKYLARK HOSTING DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE SKYLARK HOSTING SERVICES, AND SKYLARK HOSTING WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE SKYLARK HOSTING FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF SKYLARK HOSTING FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO SKYLARK HOSTING IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $5,000.
7. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES.
7.1. You agree and warrant that the contact information you have provided to Skylark Hosting is complete and accurate, and you further agree to notify Skylark Hosting within fifteen days of a change to any such contact information. Contact information includes your full legal name, e-mail address, and mailing address and the name, mailing address, telephone number, facsimile number, and e-mail address of the technical and administrative contacts for your domain, if any.
7.2. You agree to provide Skylark Hosting notice of any changes in the primary or secondary DNS address of your name servers, to the extent you have installed and are operating those name servers or to the extent your domain name is held by another registrar and points to a website hosted by Skylark Hosting.
7.3. You agree and warrant that your use of the Skylark Hosting Services and Skylark Hosting’s Equipment, and all sales and distributions, by any and all means, of any type(s) of Content including, but not limited to, executable files (such as .EXE), digitized audio/visual files (such as MP3), or archived copies of copyrighted works (such as .ZIP); goods, including, but not limited to, videotapes and CD-ROM products, and any type of services by you, which are advertised and/or promoted by, or are in any other way directly or indirectly associated with your use of the Skylark Hosting Services or Skylark Hosting Equipment, shall at all times comply with all applicable Laws and the Acceptable Use Policy.
7.4. You agree and warrant that you will neither store on nor allow to be transmitted by Skylark Hosting’s Equipment any data or other matter which constitutes, contains, or links to child pornography or which involves depictions of sexuality by someone who is or looks younger than eighteen years of age, regardless of their actual age, or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age, or which could otherwise result from or cause harm to minors.
7.5. You agree and warrant that Your Data shall be solely for business, entertainment and/or educational purposes and that you shall assume the sole responsibility and duty to ensure that all such data, visual materials, advertising and other matter shall be transmitted exclusively to willing adults and only to places in which such materials comply with contemporary community standards.
7.6. You agree and warrant that Your Data shall not violate any Laws concerning obscenity and shall not contain or link to any pornography, or depictions of bestiality, rape, sexual assault, violence, torture or disfigurement, or other content deemed objectionable by Skylark Hosting, in its sole discretion.
7.7. You agree that you shall install and maintain appropriate and effective screening devices and/or procedures on Your Web Site to avoid access to, or communication of, any harmful matter or indecent communications to minors.
7.8. You agree that if, in Skylark Hosting’s sole and exclusive judgment, Skylark Hosting concludes that Your Web Site displays, contains or links to any harmful matter or indecent materials or communications which are available to, or accessible by, minors, or displays or contains any material that consists of child pornography or which could otherwise result in harm to minors; then Skylark Hosting may, without prior notice to you and in Skylark Hosting’s sole and exclusive discretion, either remove and erase the material from Your Web Site, and/or disable public access to the material on Your Web Site, and/or cease hosting Your Web Site, without any liability of any kind to Skylark Hosting from either you or any third party.
7.9. You agree that in the event that Skylark Hosting is informed by any party that your domain name or any material on Your Web Site infringes the copyright of any party, or violates the right of publicity or privacy of any party, or consists of any other claim or violation of intellectual property rights of any kind, then Skylark Hosting may, without prior
notice to you and in Skylark Hosting’s sole and exclusive discretion, either remove the material from Your Web Site, and/or disable public access to your domain name or the material on Your Web Site, and/or terminate this Agreement, without any liability of any kind to Skylark Hosting from either you or any third party. As more completely set forth in Sections 5, 6 and 9, you waive any and all claims you may have, now and forever, against Skylark Hosting relating to any action taken in response to the claim that you have infringed the intellectual property rights of a third party, and agree to indemnify and hold harmless Skylark Hosting from and against any such claims.
7.10. You affirmatively represent, agree and warrant that you have and at all times shall have all necessary intellectual property rights, including, but not limited to, all copyrights, trademark and service mark rights and rights of publicity, both in the United States and throughout the world, to reproduce and disseminate, via the Internet, Your Data or Content which you otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the Skylark Hosting Services or Skylark Hosting’s Equipment, prior to and at all times during the time such materials are promoted, advertised, disseminated or distributed through any direct or indirect use of the Skylark Hosting Services or Skylark Hosting’s Equipment.
7.12. You agree and warrant that Your Data shall not contain or link to any material which is harmful, violent, threatening, abusive or hateful.
7.13. You agree and warrant that Your Data and any and all material(s) of every kind which you transmit using Skylark Hosting’s Services or Equipment shall at all times be free from any and all damaging software defects, including, but not limited to, software “viruses”, “worms”, “Trojan Horses,” and other source code anomalies, which may cause software
or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to access the Skylark Hosting Equipment or Web Site or another customer’s Web Site without authorization, or use the Skylark Hosting Services to carry out, or assist in the carrying out of, any “denial of service” attacks on any other website or internet service.
7.14. You agree and warrant that you shall not use any form of mass unsolicited electronic mail solicitations, news group postings, IRC posting or any other form of “spamming,” “phishing,” or “mail bombing,” and Skylark Hosting reserves the right to block mail from any source which Skylark Hosting believes, in its sole discretion, is being used to send such unsolicited e-mail, including but not limited to open mail relays.
7.15. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the Skylark Hosting Services or Skylark Hosting’ Equipment.
7.16. You shall at all times use Web Site Space exclusively as a conventional Web Site. You shall not use the Web Site Space or Your Services in any way which may result in an excessive load on the Skylark Hosting Equipment, including but not limited to installing or running web proxies, using your allotted space as online backup or storage, or mirroring mass downloads. Use of Web Site Space and Your Services shall be in a manner consistent with this Agreement and shall not in any way impair the functioning or operation of Skylark Hosting’s Equipment or network. Should your use of the Skylark Hosting Services result in an overly high load on the Skylark Hosting Equipment, in Skylark Hosting’s sole discretion, Skylark Hosting may suspend your account until the cause of any such overload is determined and resolved.
7.17. You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the Skylark Hosting Services and that no taxing authorities shall have any claim against Skylark Hosting or any persons affiliated therewith for the payment of such taxes.
7.18. You represent and warrant that you are over eighteen years of age (twenty one in places where eighteen years is not the age of majority) and are fully competent to enter into this Agreement.
7.19. You agree to comply with all Laws rules regarding online conduct and acceptable Content.
7.20. You agree to abide by INDIA / US and other applicable export control laws and not to transfer or permit the transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to your Skylark Hosting account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
7.21. You agree not to use your IMAP account for the storage of files other than in the course of normal e-mail usage.
7.22. You shall not operate a chat room using the Skylark Hosting Services unless expressly permitted by the terms and conditions of Your Services.
8. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT
8.1 During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to Skylark Hosting in connection with Skylark Hosting’s performance of the Skylark Hosting Services (“Confidential Information”). You agree to preserve the confidentiality of all Confidential Information that is provided in connection with the Agreement, and shall not, without the prior written consent of Skylark Hosting , disclose or make available to any person, or use for your own or any other person’s benefit, other than as necessary in performance of your obligations under this Agreement, any Confidential Information of Skylark Hosting. Skylark Hosting retains all right and title to such Confidential Information.
8.2 Skylark Hosting is a service mark of Skylark Hosting, Inc. All rights reserved. The trademarks, logos, and service marks displayed on this Web Site (collectively, the “Marks”) belong Skylark Hosting and/or its affiliates or third parties which have licensed those rights to Skylark Hosting (“Partners”); Skylark Hosting and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner’s prior written consent. All other trademarks, product names, and company names and logos appearing on Skylark Hosting’s Web Site are the property of their respective owners.
8.3 Unless expressly stated otherwise on the Skylark Hosting Web Site, you should assume that all content, images, and materials appearing on this Web Site (collectively the “Skylark Hosting Content”) are the sole property of Skylark Hosting. Both INDIA, U.S. and international copyright laws and treaties protect such Skylark Hosting Content. You may not use, reproduce, display, or sell any Skylark Hosting Content without Skylark Hosting’s prior written consent. You may not link to any page within Skylark Hosting’s Web Site or frame any portion of the site without Skylark Hosting’s prior written consent.
9. YOUR INDEMNIFICATION OF SKYLARK HOSTING.
You agree that you shall fully defend and indemnify Skylark Hosting, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys’ fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 7 or your violation of a third party’s intellectual property rights. You further agree to defend, indemnify and hold harmless Skylark Hosting, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that Skylark Hosting shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
10. NO JOINT VENTURE OR PARTNERSHIP
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Skylark Hosting and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Skylark Hosting and you. Skylark Hosting shall have no control or ownership interests of any kind in your business. Skylark Hosting shall have no direct financial or other interest in, nor in any way “own” any online “store” or other online venture pertaining to your use of the Skylark Hosting Services or Skylark Hosting’s Equipment. Skylark Hosting’s relationship to you shall be restricted to matters pertaining to the provision of the Skylark Hosting Services as set forth in this Agreement.
11. SKYLARK HOSTING HAS MADE NO REPRESENTATIONS REGARDING SUCCESS, MARKETS OR PROFITABILITY
11.1. You confirm that you have unilaterally decided to enter the online and/or Web Site service business and that these are high risk businesses. You further confirm, understand, acknowledge and expressly agree that neither Skylark Hosting, any agent or representative of Skylark Hosting, nor any other person is currently representing or otherwise directly or indirectly communicating in any manner herein or otherwise, nor has at any time in the past, represented to you or has otherwise directly or indirectly communicated in any manner to you any guarantee, reassurance or any other communication of any kind regarding:
11.1.1. the potential profitability, marketability, or likelihood of success of your endeavors through the use of the Skylark Hosting Services or Skylark Hosting’s Equipment as set forth herein or otherwise;
11.1.2. the possibility or likelihood that use of any products and/or services provided by Skylark Hosting pursuant to this Agreement can or will result in the recoupment of any funds expended by you for any purpose; or
11.1.3. the existence, nonexistence, size or any other characteristics of any market for any products or services which involve your use, in any manner, of the Skylark Hosting Services or Skylark Hosting’ Equipment pursuant to this Agreement.
11.2. You expressly acknowledge and agree that the success of any business endeavors which involve your use, in any manner, of the Skylark Hosting Services and/or Skylark Hosting’s Equipment pursuant to this Agreement, like any other business endeavor, is subject to numerous factors, such as the effectiveness of its advertising and promotion, your administrative capabilities, etc., and that the ultimate success or failure of your business rests with you and not Skylark Hosting. You further expressly agree not to raise any claim of any kind against Skylark Hosting and to hold Skylark Hosting harmless from any claim of financial investment or other loss to you directly or indirectly resulting from your decision to use the Skylark Hosting Services and/or Skylark Hosting’s Equipment pursuant to this Agreement.
12. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by Skylark Hosting pursuant to this Agreement, including the licensure of rights herein, are non-exclusive and nothing in this Agreement shall limit or restrict Skylark Hosting from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict Skylark Hosting from engaging in any activities similar to yours or in competition with you.
13. NO EDITORIAL CONTROL BY SKYLARK HOSTING.
In reliance on your express warranties regarding Your Data, Skylark Hosting shall neither have nor exert any editorial or other subjective control over the substantive content of Your Data. Skylark Hosting does not engage in any monitoring of Your Data, and exercises no control over information which is found on the internet, except for its own Web Site. Skylark Hosting cannot be held responsible for the accuracy, correctness, or legality of such information. You are solely responsible for the content of Your Web Site and for verifying the accuracy and suitability of information and services you obtain from third parties via the internet.
14. TERM AND TERMINATION.
14.1. Unless sooner terminated pursuant to other terms of this Agreement, and except as otherwise provided in this Agreement, this Agreement shall be for an initial term of one month and shall be automatically renewed each month for additional one month periods unless and until sooner terminated pursuant to the provisions of this Section 14. Skylark Hosting may accept prepayment for services to be provided under this Agreement, but such acceptance shall not modify or extend the term of this Agreement.
14.2. Notwithstanding the provisions of Section 14.1 to the contrary, Skylark Hosting offers certain Hosting Packages for which the initial term of this Agreement shall be in excess of one month (the “Extended Term Packages”), at the end of which this Agreement shall renew automatically on a month-to-month basis pursuant to the terms of Section 14.1. Any and all service fees for the Extended Term Packages are due and payable for the entire initial term thereof, and should you terminate, attempt to terminate, or otherwise default on this Agreement prior to the end of the initial term you authorize Skylark Hosting to charge the Payment Account for all such fees and charges for the remainder of such initial term. For the purposes of this Section, any modification of the server package shall be deemed a termination and shall entitle Skylark Hosting to the fees owing on the Extended Term Package. Fees paid for the Extended Term Packages are not refundable unless this Agreement is terminated by Skylark Hosting without cause pursuant to Section 14.3 or as otherwise agreed to in writing by Skylark Hosting in its sole discretion.
14.3. You or Skylark Hosting may terminate this Agreement at any time for any reason, with or without cause, upon thirty days’ written notice. Skylark Hosting may suspend performance under or terminate this Agreement and cease transmission of data associated with Your Web Site immediately and without notice:
14.3.1. if Skylark Hosting, in its sole discretion, deems that you have breached any part of this Agreement, including, without limitation, any warranty or obligation set forth in Section 7,
14.3.2. if your Payment Account provider refuses payment of fees or charges or you refuse authorization for same, or
14.3.3. if payment for the Skylark Hosting Services is more than fifteen days overdue.
14.4. You further agree that in the event that Skylark Hosting believes, in its sole discretion, that you have breached any provision(s) of Section 7 of this Agreement, or any of its sub-parts, by storing or allowing material such as that described in the aforementioned Section 7, or any of its sub-paragraphs, to be transmitted by Skylark Hosting’s Equipment, that Skylark Hosting may without any liability to you, and in addition to any other remedies, erase or purge such materials from Skylark Hosting’s Equipment without prior notice to you.
14.5. After termination, you will no longer have access to your account and Your Data, including but not limited to e-mails, log files, databases, or other data files associated with your account may be deleted. Skylark Hosting accepts no liability for such deleted information or content.
15.1. It is Skylark Hosting’s policy to respect your privacy. Skylark Hosting will not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless Skylark Hosting deems it necessary, in its sole discretion, to:
15.1.1. comply with legal process or other legal requirements, including but not limited to responding to civil or criminal subpoenas, search warrants, national security letters, or other requests for information from law enforcement officials;
15.1.2.protect and defend the rights or property of Skylark Hosting or its officers, agents, affiliates, and licensees;
15.1.3. enforce this Agreement; or
15.1.4. protect the interests of other Skylark Hosting customers.
15.2. NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, SKYLARK HOSTING RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF A USER’S MAIN ACCOUNT AND ANY SUB-ACCOUNTS, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
15.4. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE SKYLARK HOSTING SERVICES ARE PROVIDED BY SKYLARK HOSTING IN INDIA. THE PERSONAL INFORMATION WHICH YOU GIVE SKYLARK HOSTING WILL BE TRANSFERRED TO AND MAINTAINED IN THE UNITED STATES AND ELSEWHERE. IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THE TERMS AND CONDITIONS FOR THE SKYLARK HOSTING SERVICES. INTERNATIONAL CUSTOMERS FURTHER UNDERSTAND AND AGREE THAT SKYLARK HOSTING MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR WEBSITE OR DOMAIN NAMES PURSUANT TO THIS SECTION, AND WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
17. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER.
Failure of Skylark Hosting at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of Skylark Hosting.
18.1. Skylark Hosting may provide notice to you via e-mail sent to the e-mail address provided by you upon registration or as subsequently provided by you to Skylark Hosting. Such notice is deemed effective whether you receive it or not and shall be deemed written notice for the purposes of this Agreement.
19. FORCE MAJEURE.
19.1. In the event of “force majeure” (as defined below), Skylark Hosting may terminate this Agreement without liability to you. For purposes of the Agreement, “force majeure” shall mean circumstances or occurrences beyond Skylark Hosting’s reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which Skylark Hosting cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the Skylark Hosting Services are located or maintained or through which the Skylark Hosting Services are provided, and non-availability of any permits, licenses and/or authorizations required by governmental authority.
19.2. Skylark Hosting reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Skylark Hosting Services (or any part thereof) with or without notice. You agree that Skylark Hosting shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Skylark Hosting Services.
20. NO ASSIGNMENT BY YOU; ASSIGNMENT BY SKYLARK HOSTING.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without Skylark Hosting’ prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. Skylark Hosting may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
21. ARBITRATION AND WAIVER OF JURY TRIAL.
21.1. ANY AND ALL DISPUTES AS TO THE INTERPRETATION OF OR ANY PERFORMANCE UNDER THIS AGREEMENT WHICH ARE NOT FIRST RESOLVED INFORMALLY, SHALL BE DETERMINED BY BINDING ARBITRATION IN MUMBAI, INDIA.
You consent to personal jurisdiction and venue in such courts and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that Skylark Hosting shall be entitled to collect its attorneys’ fees, costs and other expenses in the event that Skylark Hosting acts to enforce this arbitration and forum selection clause, regardless of whether Skylark Hosting prevails in the underlying action. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the MUMBAI, INDIA. There are no exceptions to these mandatory arbitration provisions except as set forth in Sections 21.2 and 21.3.
21.2. Notwithstanding the provisions of Section 21.1, if you fail to timely pay amounts due Skylark Hosting may assign your account for collection and the collections agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permitted by Law or this Agreement.
22. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of Skylark Hosting or you has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and Skylark Hosting and you hereby acknowledge and agree that neither Skylark Hosting nor you have executed this Agreement in reliance upon any such representation or promise.
23.1. This Agreement may be materially altered by Skylark Hosting by posting the new version of the Agreement at www.skylarkhosting.com and if posted in this manner, shall be effective immediately upon posting such notice and notifying you by email at the email address registered in your account. In the event that Skylark Hosting does materially change the terms of this Agreement, you accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of the posting of notice of such change.
23.2. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of Skylark Hosting. No additional or conflicting term in any other document used by you will have any legal effect.
24. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.