This Hosting Agreement (this “Agreement”) contains the exclusive terms and conditions between Ohava, Inc., a Delaware corporation (“Ohava”) and you, governing your testing, evaluation and use of the version of the Ohava open hosting services and any related software, applications or services to which Ohava gives you access (collectively, “Services”). By accessing the Services, you are consenting to be bound by and are becoming a party to the terms and conditions of this Agreement. If you do not agree to all of the terms of this Agreement, you must not access the Services. If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you” or “your” shall refer to such entity and its affiliates.
1. Evaluation. During the time period permitted by Ohava (the “Term”) you may access the Services and test the functionality and other features of the Services, but only to evaluate the Services for their intended purpose.
2. Acceptable Use. You are solely responsible for all content within your account. You agree to immediately notify Ohava of any unauthorized use of your account or any other breach of security. The following are examples of the kinds of content and/or use that are illegal or prohibited by Ohava. Ohava reserves the right to investigate and take appropriate legal action against anyone who, in Ohava’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting the violators to the law enforcement authorities.
You agree to not use the Service to:
- upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; (vi) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vii) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Ohava, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Ohava or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- misuse system resources, including but not limited to employing programs that consume excessive network capacity, CPU cycles, or disk IO.
3. Fees. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Ohava information regarding your credit card or other payment instrument. You represent and warrant to Ohava that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Ohava the amount that is specified in the payment plan in accordance with the terms of such plan and this Agreement. Ohava reserves the right to change its prices. If Ohava does change prices, Ohava will provide notice of the change in the Service or in email to you, at Ohava’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Ohava uses Balanced as its third party service provider for payment services (e.g. card acceptance, merchant settlement, and related services).
4. Intellectual Property Rights; Confidentiality; Feedback. As between the parties, title, ownership rights, and intellectual property rights in and to the Services, and any copies or portions thereof, shall remain in Ohava and its suppliers or licensors. You retain all title, ownership rights and intellectual property rights in to any content you upload to the Service. By uploading any such content, you hereby grant Ohava a nonexclusive, worldwide, transferable, sublicensable license to copy, display, upload, perform, distribute, store, modify and otherwise use such content in connection with the operation of the Service. You acknowledge that, in the course of evaluating the Services, you will obtain information relating to Ohava and the Services which is confidential in nature (“Confidential Information”). Such Confidential Information shall belong solely to Ohava and includes, but is not limited to, the existence of the Services, their content, features and modes of operation, this Agreement, documentation, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data. You agree that you will not use or disclose Confidential Information without the prior written consent of Ohava unless such Confidential Information becomes part of the public domain. Further, if you provide Ohava any feedback, ideas, concepts or suggestions about Ohava’s Services, business, technology or Confidential Information (“Feedback”), you grant Ohava, without charge, the fully paid-up, irrevocable right and license to use, share, commercialize and otherwise fully exercise and exploit your Feedback and all related rights (and to allow others to do so) in any way and for any purpose.
5. Term/Termination. This Agreement will commence on the date that you first accept the terms of this Agreement by electronically signing or otherwise accepting this Agreement and shall continue for the Term. Sections 2-8 of this Agreement will survive any expiration or termination of this Agreement. Either party may terminate this Agreement at any time with or without notice. If this Agreement is terminated by either party within the first 30 days, you will be entitled to a full refund, less the cost of any merchang and/or Ohava processing fees. After the first 30 days of this Agreement, you will be responsible for payment of amounts outstanding owed to Ohava upon termination by either party. All rights you are granted herein shall immediately terminate upon expiration or termination of this Agreement and you shall immediately return to Ohava or destroy all Confidential Information (including any software). In addition to any other rights set forth herein, Ohava may in its sole discretion restrict or suspend your access to the Services, in whole or in part and without notice.
6. Disclaimer. The parties acknowledge that the Services are experimental in nature and that the Services are provided “AS IS.” OHAVA DISCLAIMS ALL WARRANTIES RELATING TO THE SUBJECT MATTER HEREOF, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. Limitation of Remedies and Damages. OHAVA SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ANY ERROR OR INTERRPUTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS, (B) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, OR (C) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF FIFTY DOLLARS ($50). OHAVA SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
8. Miscellaneous. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by you, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions therein.