Welcome to this site operated by ArkanHosting, its subsidiaries and affiliates (“ArkanHosting”, “Arkan Hosting”, “ARKANHOSTING”, “we”, “our” and “us”). This site offers a wide variety of products and services which may be accessed through the site (“Site”). The term “you” or “your” includes any of your subsidiaries, affiliates, employees, agents, customers, contractors or entities you represent (“End Users”).
1.1 Your Representations. You represent to us that you are lawfully able to enter into contracts and are at least 18 years of age. If you are entering into this Agreement for an entity, such as a company, you represent to us that you have legal authority to bind that entity. If you are not at least 18 years of age or older or if you are not fully able and competent to enter into the terms, conditions, and representations set forth in this Agreement, please exit the Site. You agree to keep your account and profile information, including your current email address, up to date so that you may receive email notices and invoices from us in a timely manner.
CHANGES TO THE TERMS OR THE SITE.
2.1 We may change or modify the Terms of this Agreement from time to time without notice other than posting a revised version on the Site or by notifying you by email or on your invoice. The amended terms will become effective upon posting or, if we notify you by email or invoice, on the date the email or invoice message is sent you the email listed on your account. Your continued use of the Service Offerings after the effective date of any changes to the Terms of this Agreement shall constitute your consent to the changes and your agreement to be bound by the modified terms. We reserve the right to change, modify or discontinue, temporarily or permanently, the Site, the Agreement and the Service Offerings, at any time without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service Offerings, the Terms, or the Site. It is your responsibility to check the Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
3.1 Personal Data (“PD”) is data associated with a specific End User used to identify that End User. Data that is anonymous or aggregated and does not identify a specific End User is not considered PD.
4.1 ArkanHosting may collect and retain PD from you and devices you use when you: (i) register on our Site; (ii) provide us data on a web form or in your account; (iii) open a trouble ticket; (iv) communicate with customer service; (v) use our Service; (vi) communicate via chat or a discussion board; or (vii) communicate generally with us.
4.2 PD we collect includes, but is not limited to, the following:
4.2.1 Information You Give Us. We collect information you enter on our Site and use that information for such purposes as communicating with you, improving your shopping experience, and improving our Site. You may choose not to provide information, but your choice could limit the Site or product features available to you. The information we collect might include: (i) information you provide during registration such as name, address, phone number, email address, etc.; (ii) information you provide on a web form, account update, discussion board, customer service chat, trouble ticket request, dispute resolution, or other Service correspondence; (iii) information provided related to a purchase transaction such as bill, postal, and other information related to the purchase (including tracking or Tax ID numbers); and (iv) information associated with your account that you request such as watch list items.
4.2.3 Information from Other Sources. We may receive information from third party sources and add it to your account information. Examples of third party information include: (i) information publically available; (ii) credit and fraud check and bureau information; and (iii) information we receive from subsidiary or co-branded businesses for which we provide fulfillment, technical and other services.
Use and Retention of PD
5.1. We do not sell your PD or allow third parties to track or collect your PD on our Site for advertising purposes. We may us your PD to: (i) communicate with you about your account or Services; (ii) provide customer service; (iii) troubleshoot issues related to your account; (iv) detect, prevent and investigate illegal or fraudulent activities or transactions; (iv) personalize the advertising and services we provide you; (v) customize and improve our Services; and (vi) give you access to our Services and your purchase history and other profile content.
Your Access to PD
6.1 We need your PD to be accurate and up to date. As such, you have the ability to access and correct your account or profile information at any time unless you have been suspended or your account has been terminated. Access gives you the ability to review and change your personal profile information and email notification settings.
7.1 We do not sell PD to third parties for their advertising and marketing purposes. We may disclose PD to: (i) our subsidiaries and affiliates for reasons noted in Agreement; (ii) provide access to our Services; (iii) enforce the User Agreement; (iv) detect and prevent security breaches or fraudulent or illegal activities related to your account, your payment processing or our Services; (v) enhance our marketing abilities; (vi) third party payment processing services that process your bill payments; (vii) third party bill collection services; (viii) comply with the law or our legal obligations; (ix) respond to claims that you are violating the rights of others; (x) respond to a criminal investigation or suspected illegal activity that exposes you and/or us to legal liability; (xi) respond to a civil investigation or claim that exposes you and/or us to legal liability; (xii) respond to a subpoena, court order, or similar legal proceeding or process; and (xiii) credit reporting agencies as authorized by law.
8.1. General. You will defend, indemnify, protect and hold harmless us and our employees, officers, directors, members or shareholders, lenders, principals, managers and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees regardless of whether any action is ever commenced) arising out of or relating to any third party claim, suit, action or proceeding brought against us concerning: (a) your use of our Service (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or our Terms of Service or violation of applicable law, rule or regulation by you; or (c) any negligent or willful act or omission by you. If we are obligated to respond to a third party subpoena, order or process described above, you agree to reimburse us for reasonable attorneys’ fees, as well as all employees’ and contractors’ time and expense spent responding to the subpoena, order or process at our then-current hourly rates. These obligations survive termination of your relationship with ArkanHosting or your use of our Service or Site. ArkanHosting reserves the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with ArkanHosting in asserting any available defenses.
8.2. Process. Unless restricted by court order, we will attempt to notify you of any claim subject to Section 11.5, but our failure to immediately notify you will only affect your obligations under Section 8.1 to the extent that our failure prejudices your ability to defend the claim. You may use counsel of your own choosing (subject to our written consent) to defend against a claim or to settle a claim, provided that you obtain our prior written consent. You agree that we may assume control of the defense and settlement process at any time.
LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL ARKANHOSTING, ITS EMPLOYEES, OFFICERS, OWNERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF DATA OR PERSONAL DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (i) THE USE OR INABILITY TO USE OUR SERVICE OR SITE OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, THE INABILITY TO USE AS A RESULT OF ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, AIR CONDITIONING OUTAGES, SYSTEM FAILURES, HUMAN ERROR, OR OTHER INTERRUPTIONS, OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AVAILABLE THROUGH THE SITE OR THE SITE, THE CONTENT, MATERIALS, SOFTWARE, INFORMATION, YOUR ACCOUNT MANAGER OR PRODUCTS, (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SITE; (iv) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE OFFERINGS (v) UNAUTHORIZED ACCESS TO OR ALTERATION OF OR LOSS OF YOUR TRANSMISSIONS OR DATA OR PERSONAL DATA; (vi) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SITE; (vii) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; (viii) ANY ERROR, OMISSION, DEFECT, VIRUS OR THEFT THAT CAUSES DAMAGE OR LOSS OF YOUR CONTENT OR DATA OR PERSONAL DATA or (ix) ANY OTHER MATTER RELATING TO OUR SERVICE OR SITE OR USE OF YOUR PERSONAL DATA, EVEN IF ARKANHOSTING OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR SITE OR OUR USE OF YOUR PERSONAL DATA IS TO STOP USING THE SITE AND/OR OUR SERVICES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF ARKANHOSTING UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). IF YOU DO NOT AGREE, YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR SITE OR OUR USE OF YOUR PERSONAL DATA IS TO STOP USING THE SITE AND/OR OUR SERVICES.
You authorize us to file a copy of this Section 9 in any proceeding as conclusive evidence that you consented to limitations of liability.
OUR SERVICE OFFERINGS ARE PROVIDED “AS IS.” WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR PERSONAL DATA, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT & TITLE, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE.
You authorize us to file a copy of this Section 10 in any proceeding as conclusive evidence that you consented to limitations of warranties.
11.1 Force Majeure. We will not be liable for any failure or delay to perform any obligation under this Agreement where the failure or delay results from any cause beyond our reasonable control, including without limitation, acts of God, explosion, flood, fire or other casualty, vandalism, cable cut, failure of commercial power, adverse weather conditions or other elements of nature, labor disputes or shortages or other industrial disturbances, inability to procure materials or transportation facilities, failure of any third party (including any other supplier) to provide services or facilities or equipment required for such performance or obligation, systemic electrical, telecommunications, or other utility failures, earthquake, blockages, embargoes, riots, governmental action or inaction or orders (such acts including without limitation any regulatory or administrative decision making performance or obligation economically or technically unfeasible), condemnation or the exercise of rights of eminent domain, acts of terrorism, national emergency, or war. Invocation of this clause shall not relieve you of your obligation to pay for any Services actually provided.
11.2 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party is an agent of the other for any purpose or has the authority to bind the other.
11.3 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
11.4 Waiver of Trial by Jury. We and you agree, to the fullest extent that we may lawfully do so, to waive trial by jury in any action or proceeding brought by any party to this Agreement with respect to this Agreement, or any matter related to this Agreement. This waiver of right to trial by jury is given knowingly and voluntarily by you, and is intended to encompass individually each instance and each issue as to which the right to a trial by jury would otherwise accrue. We or you, as applicable, are hereby authorized to file a copy of this Section 11.4 in any proceeding as conclusive evidence of this waiver by you and us, as applicable.
(b) To Us. To give us notice under this Agreement, you must contact ArkanHosting as follows: by e-mail to support [at] arkanhosting.com. Notices provided by e-mail will be effective three business days after they are received.
(c) Language. All communications and notices must be in the English language.
11.6 Assignment. You may not assign this Agreement or any of your rights under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the Parties and their respective successors and assigns.
11.7 No Waivers. No failure by us to exercise any power, right, privilege or remedy under this Agreement, and no delay in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. All waivers by us must be in writing to be effective. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default.
11.8 Severability. If any term or provision of this Agreement is held to be invalid, illegal or incapable of being enforced by virtue of any federal or state law, or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any such term or provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
11.9 Governing Law; Venue; Attorney’s Fees. This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Missouri, without regard to choice of law principles. Any dispute arising from this Agreement shall be governed by the laws of the State of Missouri, and shall be decided solely and exclusively by State courts located in Clay County, Missouri or Federal Court within the County of Jackson. Any Party who unsuccessfully challenges the enforceability of this forum selection clause shall reimburse the prevailing party for its attorney’s fees, and the party prevailing in any such dispute shall be awarded its attorneys’ fees. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. You authorize us to file a copy of this Section 11.9 in any proceeding as conclusive evidence that you consented to venue.
11.10 Entire Agreement. This Agreement, without limitation, constitutes the complete and exclusive agreement between you and us with respect to the subject matter of this Agreement and supersedes and replaces any and all prior or contemporaneous representations, understandings, agreements, negotiations or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement). If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control.
11.11 Survival. Any obligations under the Agreement which by their express terms are to survive, shall survive the expiration or termination of this Agreement. In addition, any other obligations under this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, including without limitation confidentiality, limitation of liability, and indemnification, shall survive the termination or expiration of this Agreement.
Effective Date: 10-3-17