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Hosting Terms of Service Agreement
1. Introduction
This Terms of Service Agreement (“Agreement”) is made by and between you (“Client”), and Benchmark Systems Corporation (“Benchmark”), a
Florida corporation having an address at 3389 Sheridan Street, #294, Hollywood, Fl 33021 and owner and operator of benchmarkhosting.com, a web hosting service.
In order to maximize the efficiency with which Benchmark serves its Clients and to protect the best interests of both Benchmark and
its Clients, all Clients are required to agree to the terms of this document before beginning paid service with Benchmark. By accepting the Agreement during the ordering process, and by placing information on a Benchmark
server, you acknowledge that you have read and understand this Agreement and agree to be bound by the terms and conditions contained within it.
2. Definitions
2.1 “Benchmark” refers to the benchmarkhosting.com web hosting service and to Benchmark Systems Corporation, the operating company
that provides that service.
2.2 “Client” refers to you, the party requesting services from benchmarkhosting.com and using services provided by
benchmarkhosting.com.
2.3 “Services” refers to the services provided by benchmarkhosting.com to its clients, including, but not limited to, the use of
space on Benchmark web servers for the purpose of storing data to be transmitted across the Internet, the use of Benchmark servers to process data and return information to visitors at customer web site(s), the use of Benchmark
domain name servers to answer domain name queries for customer domain name(s), and the use of Benchmark mail servers for sending and/or receiving electronic messages to and/or from others via the Internet.
2.4 “Agreement” refers to the present “Terms of Service Agreement” document.
3. Services
Benchmark will provide you with Services as specified in the individual Hosting Plans described on our website, which is located at the
URL - http://www.benchmarkhosting.com. Said specifications for the Hosting Plan chosen by Client are hereby incorporated within this Agreement.
4. Client Responsibilites & Obligations
4.1 Client shall provide Benchmark with material and data in a condition that is “server ready”, which is in a form requiring no
additional manipulation on the part of Benchmark. Benchmark shall make no effort to validate this information for content, correctness or usability.
4.2 Client warrants that he or she is at least 18 years of age.
4.3 Client shall not post, transmit or store material on or through any of the Services, which in the sole judgment of Benchmark (i) is
in violation of any local, state, federal or International law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity or (iii) violates the
rights of any person, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or
other software products that are not appropriately licensed for use by Client. Client shall be responsible for determining what laws or regulations are applicable to its use of the Services.
4.4 Client may only use Services provided by Benchmark in a manner that, in the sole judgment of Benchmark, is consistent with the
purposes of such Services and with the Benchmark Acceptable Use Policy, as stated at http://www.benchmarkhosting.com/BENCHM_1/POLICY/policy.html. Said Acceptable Use Policy is hereby incorporated within and made a part of this
Agreement.
5. Fees & Taxes
5.1 Client shall pay Benchmark a setup fee (if any) and recurring fees as specified in the fee schedule for Client’s selected plan and
contract length. Said fee schedule is hereby incorporated within this agreement and is available for viewing at http://www.benchmarkhosting.com/Hosting_Plans/hosting_plans.html.
5.2 Benchmark accepts payment only via Mastercard, Visa, American Express and Discover credit cards.
5.3 Benchmark fees are exclusive of any and all local sales, use, value added, transfer, excise privilege, duty and any other taxes or
duties, whether local, state, national or international in origin, no matter how assessed or designated with respect to the Services provided under this Agreement, excepting income taxes on profits which may be levied against
Benchmark. Any such taxes shall be itemized for Client.
6. Terms, Termination and Renewal
6.1 By submission of a credit card on the order form, Client agrees to authorize all recurring charges to the account and any other
balances incurred due to overages of limits, additions of extras to the account, service charges and/or any other fees.
6.2 Benchmark reserves the right to terminate this agreement, and to delete the Website from its hardware, immediately upon the
occurrence of any of the following events:
6.2.1 Non-payment of any charges due from Client.
6.2.2 Breach of any term or condition of this agreement by Client.
6.2.3 Initiation of any lawsuit or proceeding against Client arising from or relating to its use of the Website, whether or not
such suit names Benchmark as a party or seeks any recovery from Benchmark.
6.3 Payment for all charges is due upon the date of the invoice. All payment must be in U.S. dollars. Accounts with
balances outstanding shall be deemed to be in default and subject to suspension or termination of service. In event of a default for nonpayment, Client shall be responsible for all costs of collection, including reasonable
attorney fees and court costs.
6.4 The term of this Agreement shall be renewed automatically for the same Term as stated in the Client’s plan, unless prior to
five (5) days in advance of the end of the Term, Client faxes a cancellation request to 305-854-5073 or e-mails a request to admin@benchmarkhosting.com. Said cancellation request shall contain the account name, password, reason
for cancellation and the signature of the Client’s authorized representative.
7. Service at Will
We reserve the right to refuse or discontinue service to anyone at our sole discretion. We may deny you access to all or part of the
service if you engage in any conduct or activities that we believe violates any of the terms and conditions in this document, and/or our policies page. We shall have no responsibility to notify any third-party providers of
services, merchandise or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. You agree that we have the right to monitor the service electronically from time to time
and to disclose any information that is necessary to satisfy the law, or to protect ourselves or our customers. We reserve the right to refuse to post or to remove any information or materials, in whole or in part, that, in our
sole opinion, are unacceptable, undesirable, or in violation of this agreement or our policies.
8. Limited Warranty
30 Day Money Back Guarantee. Benchmark hereby extends an unconditional money-back guarantee to all Clients during the first thirty (30)
days of service beginning on the date the site is first made available to the Client through IP address access. To make use of this guarantee, the Client shall provide Benchmark with written notice of cancellation of services at
least five (5) days prior to the expiration of the thirty days. Such written notice may be sent via e-mail to admin@benchmarkhosting.com or via fax to 305-854-5073 and shall entitle Client to a full refund for the first 30 days of service. This guarantee does not include any setup fees. Client will not receive a refund for any other reason, including but not limited to: late cancellation, slow connection caused by Client’s ISP/network, Client’s lack of knowledge, InterNIC delays, or account termination for violation of policies.
9. Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 8, BENCHMARK MAKES NO WARRANTIES HEREUNDER, AND EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS INCLUDES LOSS OF DATA, WHETHER RESULTING FROM DELAYS, ON DELIVERIES, WRONG
DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY BENCHMARK AND ITS EMPLOYEES OR OTHER CAUSES. BENCHMARK’S AGENTS HAVE NO AUTHORITY TO GIVE SUCH WARRANTIES ON BEHALF OF BENCHMARK.
10. Limits of Liability
IN NO EVENT SHALL BENCHMARK BE LIABLE TO CLIENT OR TO CUSTOMERS OF CLIENT FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE
OR NONCONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE SERVICES PROVIDED BY BENCHMARK INCLUDING WITHOUT LIMITATION, RELATED TO THE PERFORMANCE OR BREACH THEREOF, EVEN IF BENCHMARK HAS BEEN
ADVISED OF THE POSSIBILITY THEREOF. BENCHMARK’S LIABILITY, IF ANY, TO CLIENT OR THE CUSTOMERS OF CLIENT HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL OF FEES PAID TO BENCHMARK BY THE CLIENT UNDER THE CURRENT TERM OF THIS AGREEMENT.
IN NO EVENT SHALL BENCHMARK BE LIABLE TO CLIENT OR TO CUSTOMER OF CLIENT FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OR
DELAY OF BENCHMARK IN THE DELIVERY OF THE SERVICES UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DELAYS CAUSED BY ACTS OF GOD, FIRE, WAR, RIOTS, STRIKES, QUARANTINES, EMBARGOES, FAILURES OF INTERNET BACKBONES, LOCAL ISP
OUTAGES, ACTS OF HACKERS.
11. Indemnification
Client agrees to indemnify, defend and hold harmless Benchmark, its directors, officers, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of acton, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of
any of Client’s representations, warranties or agreements hereunder, (ii) arises out of the negligence or willful misconduct of Client, or (iii) any of the Client Content to be provided by Client hereunder or other material on the
Web Site infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
12. Serverability
If any provision of this agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and
effect and said provision shall be reformed only to the extent required to make it enforceable.
13. Jurisdiction
This agreement shall be governed in all respects by the laws of the State of Florida. Client and Benchmark agree that the sole venue and
jurisdiction for any disputes arising from this Agreement shall be the appropriate federal or state court located in the State of Florida.
14. Acknowledgements
This agreement constitutes the entire understanding between the parties. Benchmark reserves the right to revise or change these Terms of
Service at any time. Any changes or modifications to this Agreement or documents incorporated within it are agreed to by both parties upon renewal of services. By placing and continuing to maintain or place information on Benchmark
servers, Client states and acknowledges that Client has read and understands the terms and conditions of this document and agrees to be bound by them.
Revision: 060100
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