Terms of Service


1.  SOCALWEB AGREEMENTS

Our Service Level Agreement details the performance guarantee for the services you have chosen.  Our Acceptable Use Agreement specifies the terms of appropriate use of Socalweb servers and services.  Our Service Order details the hardware, software and agreed upon supplementary services that comprise the specifics of our comprehensive managed hosting agreement.  This comprehensive managed hosting Agreement ("Agreement") specifies parameters for Socalweb's comprehensive managed hosting.  Agreement is made and effective as of the date of the last signature affixed hereto.

2.  DEFINITIONS

Some words used in the Agreement have particular meanings:

"Confidential Information" means all information disclosed by one of us to the other that the recipient should reasonably understand to be confidential, whether before or after the effective date of the Agreement, including but not limited to: 

(i)>                 For you, all information transmitted to or from, or stored on, your Socalweb servers or other devices,

(ii)>               For Socalweb, unpublished prices and other terms of service, audit and security reports, data center designs (including non-graphic information you may observe on a tour of a data center), and other proprietary technology, and

(iii)>             For both of us, information that is marked or otherwise conspicuously designated as confidential.  Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.

"Comprehensive Managed Hosting" means the provision, monitoring and maintenance of server and networking hardware and operating system software required for internet connectivity.  Comprehensive managed hosting specifically excludes development, maintenance, or modification of application level software and security breaches caused thereby. 

"Personally Identifiable Information" means:

(i)>     Any information that identifies an individual, such as name, social security number or other government issued number, date of birth, address, telephone number, biometric data, mother's maiden name, or other personally identifiable information;

(ii)>   Any "non-public personal information" as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4), and

(iii)> "Protected health information" as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.  

"Service" or "Services" means the comprehensive managed hosting and any Supplemental Services we may provide to you, collectively.

"Service Commencement Date" means the date on which we finalize a service order agreement.

"Supplemental Service" means any service we provide to you other than comprehensive managed hosting.

 

"Support" means (i) provision of comprehensive managed hosting; (ii) extended contractual support services, and (iii) availability of emergency support twenty four hours per day, seven days per week, year round.

"Client" means the person(s) or entity who executes this Agreement.

 

"Parties" means Socalweb and Client.

 

3.  CLIENT OBLIGATIONS

Clients must use reasonable security precautions for all applications running on Socalweb servers or storage devices, including but not limited to, encrypting any personal information transmitted to or from, or stored on, Socalweb servers.  Clients shall comply with the laws applicable to your use of the Services and with Socalweb's Acceptable Use Policy.  Clients shall cooperate with Socalweb's reasonable investigation of service outages, security problems, and any suspected breach of the Agreement.

4.  UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES

Socalweb is not responsible for unauthorized access to clients contracted servers if such breach results from access attained through client applications or due to operating system modifications by client.  Clients are responsible for use by their employees, any person to whom they have given access, and any person who gains access as a result of the client's failure to use reasonable security precautions.

5.  TERM

The initial term begins on the Service Commencement Date and continues for the period stated in the Service Order. Upon expiration of the initial term, there will be a maximum of a one month period during which Socalweb and the client may decide whether to renew this Agreement for an additional term of 12 or 24 month duration.  Such renewal shall only become effective and binding upon the execution by Socalweb and client of a written Addendum to this Agreement.

6.  FEES

Your first invoice will include the initial set up fee and a prorated part of the monthly fee from the Service Commencement Date to the last day of the calendar month.  We may require you to pay this initial invoice before beginning the service agreement.  Following the Service Commencement Date, recurring fees will be invoiced monthly on or around the first day of each calendar month, due no later than the 15th day of the month.  Non-recurring fees, such as bandwidth overages and special services, will be billed at the end of the month in which they are incurred.  Fees for any advanced designated supplemental services will be billed in the amounts and at such times as are agreed upon in writing.

7.  SUSPENSION OF SERVICES

Socalweb may suspend Services without liability if: (i) we reasonably believe that the Services are being used in violation of any agreement; (ii) you do not cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is another event for which we reasonably believe that the suspension of Services is necessary to protect the Socalweb network, our other customers, the datacenter in which it resides; or, (iv) we are required by law.  We will give you advance written notice of a pending suspension under this paragraph of at least twelve hours unless we determine in our judgment that a temporary suspension on shorter or contemporaneous notice is prudent and necessary to protect your server, your data, Socalweb or its other customers from imminent and significant operational harm.   

8.  TERMINATION FOR CAUSE

8.1       You may terminate the Agreement for cause if we materially fail to provide the COMPREHENSIVE MANAGED HOSTING as agreed and do not remedy that failure within five days of your written notice describing the failure, or we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within 15 days of your written notice describing the failure.

8.2       We may terminate the Agreement for cause if:

(i)   We discover that the information you provided to us for the purpose of establishing the Services is materially inaccurate or incomplete,

(ii) The individual signing the Agreement did not have legal right or authority to enter into the Agreement on behalf of the person represented to be the customer,

(iv)> Your payment of any invoiced amount is overdue and you do not pay the overdue amount within the designated time period in a written notice, or

(v)>   You fail to comply with any other provision of the Agreement and do not remedy the failure within thirty days of our notice to you describing the failure.  Socalweb may also terminate the Agreement for cause if a pattern of intentional violation of the Agreement emerges.

 

9.  TERMINATION FOR CONVENIENCE

You may terminate the Agreement for convenience at any time on thirty days advance written notice and subject to the Early Termination Fee described below.

10.  EARLY TERMINATION FEE

If you terminate the Agreement for convenience or we terminate the Agreement for cause, in addition to other amounts you may owe, you must pay an early termination fee equal to the monthly recurring fees for the remaining portion of the then-current term.  If the monthly recurring fee includes services in addition to COMPREHENSIVE MANAGED HOSTING, this early termination fee shall be restricted to the portion related to COMPREHENSIVE MANAGED HOSTING services.

11.  CONFIDENTIAL INFORMATION

Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:

(i)>     To law enforcement or government agency if requested, or if either of us reasonably believes that the other's conduct may violate applicable criminal law; 

(ii) As required by law; or

(iii) In response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least 15 days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if 15 days advance notice is not reasonably feasible), unless the law forbids such notice. 

12.  LIMITATION ON DAMAGES

12.1     We are liable to you for failing to provide COMPREHENSIVE MANAGED HOSTING when such failure results from a breach of agreement in the service order, a breach of the Service Level Agreement, or results from our gross negligence, willful misconduct, or intentional breach of the Agreement. 

12.2     We are not liable to you for lost data unless and to the extent you purchase data back-up services from Socalweb and we fail to provide the back-up services as agreed.  You release Socalweb from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a back up.

12.3     Notwithstanding anything in the Agreement to the contrary, except for claims based on our willful misconduct, the maximum aggregate monetary liability of Socalweb and any of its employees, agent, suppliers, or affiliates, shall not exceed three times the monthly recurring fee.

13.  SOFTWARE

You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use.  Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law.

 

14.  NOTICES

Your routine communications regarding the Services should be sent to your Socalweb engineer.  If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by first class United States mail to:

Socalweb

600 West 7th Street Suite 350

Los Angeles, CA 90017

Socalweb's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier.  Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered.  Notices must be given in the English language.

15.  OWNERSHIP OF INTELLECTUAL PROPERTY

Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property.  Any intellectual property developed by Socalweb during the performance of the Services shall belong to Socalweb unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.

16.  OWNERSHIP OF OTHER PROPERTY

You do not acquire any ownership interest in or right to possess the servers or other hardware or software we provide for your use. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your Socalweb servers or other devices.

17.  FORCES BEYOND CONTROL

Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as a major routing failure outside the datacenter, natural disaster, war, riot, insurrection, terrorism, or other events of a magnitude or type for which precautions are not reasonably available or knowable.

18.  INVALID PROVISION

In the event any part or provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, it is the intent of the Parties that all other provisions of this Agreement shall be construed to remain fully valid, enforceable and binding on the Parties.

 

19.  ATTORNEY AND OTHER FEES

In the event an attorney is retained by Socalweb to enforce the terms of this Agreement or to collect any monies due hereunder or to collect money damages for breach hereof, the party retaining the attorney shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney's fees, court costs, costs of investigation and other related expenses incurred in connection therewith.

 

20.  GOVERNING LAW AND VENUE

This Agreement shall be construed under and governed by the laws of the State of California.  In the event of any controversy, claim or dispute between the Parties hereto arising out of or relating to this Agreement, such controversy, claim or dispute shall be tried exclusively in the Los Angeles County Superior Court.

 

20.  ENTIRE AGREEMENT

This Agreement contains the entire agreement between the Parties and supersedes and replaces all prior and contemporaneous agreements and discussions among the Parties with respect to the subject matter hereof, whether express or implied, oral or written.  The terms of this Agreement are contractual and not a mere recital.  THIS AGREEMENT MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR OR CONTEMPORANEOUS ORAL AGREEMENTS OR DISCUSSIONS AMONG THE PARTIES OR THEIR RESPECTIVE COUNSEL.  Any amendments or additions to this Agreement must in writing and signed by all Parties.

 

Socalweb is committed to and supports the free flow of information and ideas over the Internet. Socalweb does not actively monitor nor does Socalweb exercise editorial control over the content of any web site, electronic mail transmission (email), mailing list, news group or any other material created or accessed via Socalweb services. Socalweb does however, reserve the right to remove any materials Socalweb does become aware of, that in Socalweb's sole opinion, are potentially illegal, could subject Socalweb to any liability, or violate the policies contained herein. Violation of this Acceptable Use Policy (AUP) may result in the suspension or cancellation of any Socalweb services.

Policies - Acceptable Use Policy (AUP)

This Acceptable Use Policy document, including the following list of prohibited activities, is an integral part of your comprehensive managed hosting agreement with Socalweb. If you engage in any of the activities prohibited by this AUP document, Socalweb may suspend or terminate your account.

Socalweb's Acceptable Use Policy (the "Policy") is designed to help protect Socalweb, Socalweb's customers, and the Internet community in general from irresponsible, or, in some cases, illegal activities. The Policy is a non-exclusive list of the actions prohibited by Socalweb.

Prohibited Uses of Socalweb Systems and Services:

1.            Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret, or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.

2.            Sending Unsolicited Bulk Email ("UBE", "spam"). The sending of any form of Unsolicited Bulk Email through Socalweb's servers is prohibited. Likewise, the sending of UBE from another service provider advertising a web site, email address or utilizing any resource hosted on Socalweb's servers, is prohibited. Socalweb services may not be used to solicit customers from, or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider.

3.            Running Unconfirmed Mailing Lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by Socalweb customers must be Closed-loop ("Confirmed Opt-in"). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list.  Purchasing lists of email addresses from 3rd parties for mailing to or from any Socalweb-hosted domain, or referencing any Socalweb account, is prohibited.

4.            Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this AUP or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mail-bombing, or denial of service attacks.

5.            Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Registry of Known Spam Operations (ROKSO) database at www.spamhaus.org or any other industry recognized list of spammers.

6.            Unauthorized attempts by a user to gain access to any account or computer resource not belonging to that user (i.e., "cracking").

7.            Obtaining or attempting to obtain service by any means or device with intent to avoid payment.

8.            Unauthorized access, alteration, destruction, or any attempt thereof, of any information of any Socalweb customers or end-users by any means or device.

9.            Knowingly engaging in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the Socalweb network or on another provider's network.

10.          Using Socalweb's Services to interfere with the use of the Socalweb network by other customers or authorized users.

 

Customer Responsibility for Customer's Users

Each Socalweb customer is responsible for the activities of its users and, by accepting service from Socalweb, is agreeing to ensure that its customers/representatives or end-users abide by this Policy. Complaints about customers/representatives or end-users of a Socalweb customer will be forwarded to the Socalweb customer's postmaster for action. If violations of the Socalweb Acceptable Use Policy occur, Socalweb reserves the right to terminate services with or take action to stop the offending customer from violating Socalweb's AUP as Socalweb deems appropriate, without notice.

Please direct any abuse complaints to abuse@Socalweb.com.

Service Level Agreement (SLA)

Socalweb is proud to offer an exceptional level of performance, reliability, and service. That is why we are making commitments to our customers in the form of a Service Level Agreement (SLA), which provides certain rights and remedies regarding the performance of the Socalweb network.

The Socalweb Service Level Agreement (SLA) guarantees our network/equipment reliability and performance. This Service Level Agreement (SLA) applies to customers of Socalweb's comprehensive managed hosting.

1.            Uptime Guarantee: Socalweb strives to maintain a 99.99995% network and server uptime service level. This uptime percentage is a monthly figure, and is calculated solely by Socalweb monitoring systems or Socalweb authorized/contracted outside monitoring services. If Socalweb fails to meet its 99.99995% uptime guarantee, and it is not due to one of the exceptions below, credits will be made available to each client, upon request, on a case-by-case basis. Socalweb does not credit a full month's service for minor downtime. This would not be financially healthy for Socalweb, and in turn would only negatively affect the service level Socalweb provides to you. "Partial refunds for partial downtime" is our standard policy. In extreme circumstances, Socalweb may distribute full month credits, but this is dealt with on a case-by-case basis. Details on how credit amounts are calculated can be found below.

2.            Exceptions: Customer shall not receive any credits under this SLA in connection with any failure or deficiency of the Socalweb network caused by or associated with:

a. Circumstances beyond reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, "Acts of God" (i.e.: fire, flood, earthquake, tornado, etc.), strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service Level Agreement.

b. Telco Failure (e.g., cutting a fiber line somewhere).

c. Backbone peering point issues (e.g., UUnetª having a router go down in San Francisco that wipes out Internet service for the entire West Coast).

d. Scheduled maintenance for hardware/software upgrades, done between the hours 12am and 4am PST on Sunday morning, or upon 72 hours written notice to client via email. All scheduled and non-scheduled maintenance shall require 72 hours written notice to client via email.

e. Software bugs/flaws. (Exploits and bugs may develop that cause security issues or downtime.)

f. DNS issues not within the direct control of Socalweb.

g. Network floods, hacks, D.O.S. attacks from outside parties or individuals.

h. Failure or error of any Socalweb monitoring or measurement system.

i. Client's acts or omissions, including without limitation, any negligence, willful misconduct, or use of Socalweb service(s) in breach of Socalweb Acceptable Use Policy, by Client or others authorized by Client.

j. Clients software applications or modification to server operating system.

3.            Connectivity: Our goal is to make the network available to Client free of outages for 99.99995% of the time. An "outage" is defined as an instance in which Client is unable to transmit and receive IP packets due to a Socalweb service failure for more than 15 consecutive minutes, excluding service failures relating to Socalweb scheduled maintenance and upgrades. The Socalweb network does not include client premises equipment or any Telco access facilities connecting Client's premises to such infrastructure. Socalweb's goal is to keep Average Round-Trip Latency on the Socalweb network to 85 milliseconds or less.

Socalweb defines "Average Round-Trip Latency", with respect to a given month, as the average time required for round-trip packet transfers between the Socalweb network and major US backbone peering points during such month, as measured by Socalweb. Socalweb's goal is to keep Average Packet Loss on the Socalweb network to 1% or less. Socalweb defines "Average Packet Loss", with respect to a given month, as the average percentage of IP packets transmitted on the Socalweb network during such month that are not successfully delivered, as measured by Socalweb.

4.            Measurement: Socalweb will periodically (on average every 15 minutes) monitor Socalweb network and server availability using software and hardware components capable of measuring application traffic and responses. Client acknowledges that such measurements may not measure the exact path traversed by Client's Internet connection, and that such measurements constitute measurements across the Socalweb network but not other networks to which Client may connect. Socalweb reserves the right to periodically change the measurement points and methodologies it uses without notice to Client.

5.            Hardware Failure: Socalweb stands behind all equipment on our network. Faulty hardware is rare, but cannot be predicted or avoided. Socalweb utilizes only name brand hardware of the highest quality and performance. Socalweb will replace all faulty hardware affecting performance levels of equipment within 24 hours, which includes hardware issues that cause server crashes or speed issues. Hardware failure resulting in complete network/server outage/downtime will be corrected within two hours of problem identification. Router failure is an exception to this SLA guarantee, and may require on-site Ciscoª engineers or backbone provider emergency personnel to correct the problem. Router failure is governed by current datacenter contracts with Ciscoª and backbone providers in regard to the emergency repair service in case of such an issue.  Socalweb will replace all faulty hardware on comprehensive managed hosting servers (rented or leased servers), at no charge to the Client, with an unlimited free replacement policy. This includes parts ordered as upgrades.

6.            General: Socalweb reserves the right to change or modify this SLA to benefit the Client upon 30 days written notice to Client. Except as set forth in this SLA, Socalweb makes no claims regarding the availability or performance of the Socalweb network or servers. Specific terms/points of this SLA may be adjusted on a case-by-case basis by the specific Service Agreement signed/agreed to by client. In case of difference terms/points in SLA and Service Agreement, the Service Agreement terms/points prevail over this general SLA policy. The Service Agreement signed/agreed by client is above and beyond this SLA, and Service Agreement terms are in effect, including, but not limited to, limitations of liability.