This Hosting Agreement (this “Agreement”) is entered into by and between Reut Geva – InSite Out (“InSiteOut“) and you, the legal entity which purchased the Services, and is made effective as of the date of its electronic acceptance. This Agreement sets forth the terms and conditions of your use of InSiteOut’s Hosting services (the “Services”), and represents the entire agreement between you and InSiteOut concerning the subject matter hereof.
The terms “we”, “us” or “our” shall refer to InSiteOut. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
InSiteOut shall provide you with the Services in return for payment of the annual Service fees, as indicated in the Performa invoice sent to you.
You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.
You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and we will not be able to provide a copy of such content.
InSiteOut’s backup service runs once a week and overwrites any of our previous backups. Only two weeks of backups are stored in the remote server. This service is provided only to shared and reseller accounts as a courtesy and may be modified at any time at InSiteOut’s sole discretion. InSiteOut is not responsible for files and/or data residing on your account. You agree to take full responsibility for all files and data transferred and to maintain all appropriate backup of files and data stored on InSiteOut’s servers. Any shared account using more than 2 GB of disk space will be removed from our off-site weekly backup. To ensure continuous backup generation, User must ensure that his disk space consumption does not exceed 2 GB.
Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. You shall not use InSiteOut Services in any way that shall impair the functioning or operation of it or any equipment used to operate it. Included, but not limited to, you shall not use the Services as: (1) a repository or storage for files; and/or (2) a place to store material that can be downloaded through other websites. If we detect an infringement of aforementioned restrictions, you may be issued a disk space violation warning at 2 GB and will be required to reduce the number of used gigabytes in your account. We reserve the right to temporarily suspend disk write functionality, in our sole discretion, when account size reaches 2 GB. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.
InSiteOut hereby disclaims all warranties, either express, implied, statutory, or otherwise, under this agreement, related to the Services, including without limitation any implied warranties of merchantability or fitness for a particular purpose.
InSiteOut shall not be liable to you (whether under contract, tort (including negligence) or any other legal theory)) for any indirect, special, punitive or consequential damages, including, without limitation, any loss or damage to business earnings, lost profits or goodwill and lost or damaged data or documentation, suffered by any person, arising from and/or related to this agreement, even if you are advised of the possibility of such damages. In addition, InSiteOut’s liability with respect to direct damages, shall not exceed in the aggregate for any event, the actual amount paid by you to InSiteOut under this Agreement.
3. YOUR OBLIGATIONS
You Shall pay the annual Service fees on terms to be determined by InSiteOut from time to time.
You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Agreement.
You agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.
Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website; (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download; (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.
You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.
You shall be solely responsible and liable for compliance with applicable privacy and personal data protection requirements (including, but not limited to requirements laid down by the Israel Privacy Act 1981, its regulations and the General Data Protection Regulation (EU) 2016/679) (GDPR), which may be applicable to any personal information, data or content collect through, stored or otherwise processed in relation to hosting Services on your website or server content.
You shall at all times remain data controller of any such personal data without any liability of whatsoever nature to InSiteOut.
You will not provide us any personal information with respect to Your clients, visitors, end-users. You acknowledge that InSiteOut may in certain limited cases have access to information and communications systems for the purposes set forth in this Agreement. However, in cases of such limited access InSiteOut will not become controller, processor, sub-processor or receiver of any such data.
Without limitations to the generality of the foregoing, you shall be solely responsible for installation of organizational and technical security measures sufficiently protecting personal data stored or processed on your website or server. Consequently, you will be solely responsible for all and any data breaches, incidents and similar violations pertaining to such data, unless such data breach has occurred solely due to technical failures, malfunction or errors of the servers and resources, which InSiteOut has expressly warranted to secure to You and assume liability for such failures, malfunction or errors.
If certain limited personal data processing activities are found to be carried out by InSiteOut, the following data processing clauses shall apply: (1) InSiteOut shall process personal data only according to your documented written instructions or only as mandatorily required by law; (2) make best efforts to implement reasonably available technical and organizational measures in order to ensure that personal data processing carried out complies with the requirements of GDPR and personal data protection legislation as regards security of processed personal data; you understand that the fact that available technical and organizational measures will be implemented in itself does not guarantee full and complete security, safety and integrity of personal data; (3) upon your request, InSiteOut will take reasonable measures to discontinue data processing after expiry of the Agreement and, if required by you and unless otherwise provided in applicable legislation, take reasonable measures to erase or in any other way make inaccessible and unusable or return to you all available personal data; (4) you shall undertake to ensure that personal data are collected and processed lawfully, are accurate, relevant and adequate, and that your instructions to InSiteOut are lawful, accurate, relevant, comply with the GDPR and personal data protection legislation; you shall notify data subjects of their data processing and transfer to InSiteOut in accordance with the requirements of GDPR and personal data protection legislation; (5) you grant InSiteOut with a general authorization to engage sub-processors and service providers in the processing of personal data controlled by the you; (6) overall responsibility of InSiteOut hereunder shall be limited to the amount of remuneration for the last 6 (six) months paid to InSiteOut for the services under the Agreement.
5. Term & Termination
This Agreement shall commence upon the execution hereof and shall be in effect for a minimum period of 12 months, unless and until terminated in accordance with the terms and conditions of this Agreement.
The Initial Term shall be extended automatically for an additional 12 months under the same terms of this Agreement (except for the Service fees which may vary) unless You sent an e-mail to InSiteOut expressing your will to terminate the Service.
This Agreement may also be terminated effective immediately by InSiteOut, and without derogating from any other remedy to which InSiteOut may be entitled if:
You are in material breach of an obligation under this Agreement and in the case of any such breach capable of remedy has failed to remedy the breach within a period of 14 days after receipt of written notice to do so;
You (i) are unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of the Law; (ii) passed a resolution for winding up (other than for the purpose of a solvent amalgamation or reconstruction) or have an order to that effect made by a court of competent jurisdiction, (iii) entered into a composition or scheme of arrangement or voluntary arrangement with its creditors or has a receiver, manager, liquidator, administrator or administrative receiver is appointed over any of its assets, or (iv) ceased or threatened to cease to do business; or an analogous event occurs to the other party in any jurisdiction.
In any case of terminating the Service, an up-to-date copy of the website will be downloaded from the server and sent to you.
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.
Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
Neither Party shall be liable for non-performance or negligent performance of its obligations under this Agreement, should the latter be caused by the circumstances beyond its control which cannot be foreseen or avoided, including, without limitation, acts of God, public enemy, acts of government, or any department or agency thereof, fire, flood, earthquakes, epidemics, quarantines, riots, wars, civil insurrections, freight embargoes, labor disputes, and unusually severe weather (“Force Majeure”).
This Agreement contain the entire understanding of the parties with respect to the subject matter hereof, whether written or oral. This Agreement may not be amended or modified except by a written agreement executed by each of the parties hereto.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Israel, without regard to its choice of laws provisions. The Parties shall use commercially reasonable efforts to settle disputes related to this Agreement in good faith within ten (10) business days of receipt of written notice of a dispute by either Party. The courts in Tel Aviv, Israel shall have exclusive jurisdiction over all disputes arising in connection with this Agreement.
All rights and restrictions contained herein may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
The performance of the Services or this Agreement may be assigned by InSiteOut to any third party without your prior written consent.
No failure on the part of any party hereto to exercise, and no delay in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by any party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or a consent to any succeeding breach of or default in the same or any other term or condition hereof.
All notices or other communications required or permitted to be given under this Agreement shall be in writing and delivered personally or sent by registered mail, return receipt requested, or by e-mail transmission, to the intended recipient thereof.