Townsquare Hosting Terms of Service

These Web and Email Hosting Terms of Service (“Terms”), which include the policies and documents referenced and hereby incorporated in these Terms, govern Townsquare Interactive, LLC’s (“Townsquare”) relationship with any persons using the Services (as defined below). When you submit an Order Form or start using the Townsquare Hosting Services (as applicable), you agree to be bound by these Terms as updated from time to time in accordance with the amendment provisions herein. If there is any conflict between these Terms and any the applicable Order Form, then the Order Form will govern your use of the applicable Townsquare Hosting Services to the extent of the conflict.These Terms are comprised of and include such further policies and documents as referenced in each of the General Terms and Billing Terms.

1. GENERAL TERMS
These General Terms apply to all persons using Townsquare Hosting Services.

1.1 Defined Terms

1.1.1 All other defined terms not listed in this section are defined in their respective sections below and apply to the Terms as a whole (and not limited to the section the term is defined in).

“Abuse of Services” means Client’s use of the Services (including making any component of the Services available to Client’s resellers, customers or End Users) in a manner that (a) contravenes applicable laws, including regulations, policies, and rules thereto, (b) creates legal liability or other actual or potential material risk or harm to Townsquare, its Affiliates, Townsquare’s other clients and end users, or Systems, (c) is a material violation of these Terms, or (d) is generally considered materially objectionable in the Internet community, including but not limited to child pornography, racism, or hate speech.

“Affiliate” means any person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such first person, with “control” meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, and “person” broadly construed to include any natural person or any incorporated or unincorporated entity or association, trust, joint venture, joint stock company or other entity.

“Billing Cycle” means the recurring period of time for which Service Fees are payable by Client to Townsquare as specified in the Order Form, Hosting Portal, or invoice (as applicable).

“Business Day” (or “business day”) means the period from 8:00 A.M. to 5:00 P.M. Eastern Time on a day which is not a weekend or statutory holiday in New York, New York, USA.

“Claim” means any claim, demand, action, or proceeding (including lawsuits and administrative proceedings).

“Client” or “you” means the person (individual, company, etc.) named in the Order Form as the Client or, in the absence of Client’s name on such Order Form, the person otherwise using the Services.

“Client Account” means the account set up by Townsquare, attributed exclusively to Client, identified by the Client ID, and used for the provisioning and administration of the Townsquare Hosting Services to Client.

“Client Data” means personal information relating to Client and data owned or controlled by Client, including (a) names, addresses, and other personally identifiable information pertaining to Client, (b) usage data collected by Client regarding Client’s own use of Services, (c) Client’s content hosted on Systems, including Client’s Uniform Resource Locators, Web pages and other website data, software and applications, and (d) any of the same relating to or owned by an End User.

“Client ID”, or “customer ID” means the combination of alphanumeric characters designated by Townsquare Hosting which (a) is unique to Client, and (b) identifies the Client and the Client Account to Townsquare Hosting.

“Effective Date” means the date that the executed Order Form is submitted to Townsquare.

“End User” means any third party who accesses or uses the Services via Client or any Affiliate of Client.

“End User Data” means personal information relating to an End User and data owned or controlled by the End User, including (a) names, addresses, and other personally identifiable information pertaining to End User, (b) usage data collected by Client or End User regarding an End User’s own use of the Services, and (c) an End User’s content hosted on Systems, including End User’s Uniform Resource Locators, Web pages and other website data, software and applications.

“Hosting Portal” means Townsquare’s online portal or interface tool (known as “Townsquare Hosting Portal” or “Hosting Portal”) for Client to manage the Client Account and associated Services.

“Intellectual Property” means any and all rights, title, interest, and ownership, whether by registration, statute, common law or other operation of law, in and to: (a) copyrights, (b) patents, (c) trademarks, (d) trade secrets, (e) all other proprietary, intellectual, or industrial property rights of any kind or nature, (f) registrations and registration applications of the foregoing in any jurisdiction, (g) in Townsquare’s case, Townsquare Hosting Data and Systems, and (h) in Client’s case, Client Data.

“Late Charges” means the interest, equal to 1.5% monthly and 18% annual (or the maximum permitted by law if lesser), to be applied to any portion of the Service Fees not paid by Client to Townsquare on or before the applicable due date.

“Losses” means any loss, liability, damage, penalty, cost, or expense (including reasonable lawyer fees, witness compensation, and court fees).

“Minimum Term” means the specific period described in the Order Form, during which time Client may not terminate the Order Form, any Services ordered thereunder, or the Terms.

“Order Form” means Townsquare’s online or hard copy form or statement of work, which (a) references, incorporates, and is an integral part of these Terms, and (b) describes the Services to be provided to Client.

“Party” means either Townsquare or Client individually and “Parties” means both Townsquare and Client collectively.

“Renewal Term” means the period or successive periods starting from the expiration of the Minimum Term, as specified in the applicable Order Form for which the Order Form and the Services thereunder are renewed.

“Representatives” means, collectively, a Party’s shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders.

“Service Fees” means the money amounts or rates, specified in, as applicable, the Order Form, Hosting Portal, invoice from Townsquare, or which Client has otherwise agreed to pay to Townsquare in consideration of the Services provided, whether used by Client or not.

“Technical Support” means the assistance and advice Townsquare’s technical support staff provides to Client, as part of the Services, via electronic mail, telephone, or other means of communication as designated by Townsquare (including Townsquare’s ticketing system).

“Third Party Products” means the equipment, software, products or services procured from a Third Party Vendor which Townsquare, in turn, provides to Client as part of, or in combination with, Townsquare’s own products and services which are part of the Services.

“Third Party Vendor” means a third party vendor who provides Townsquare with Third Party Products to be, in turn, provided to Client by Townsquare as part of, or in combination with, the Services.

“Third Party Audit” means an audit performed by either Townsquare or a Third Party Vendor with respect to the Third Party Products.

“Townsquare” means Townsquare Interactive, LLC, a Delaware limited liability corporation, or such other Townsquare Affiliate as named in the applicable Order Form.

“Townsquare Hosting Data” means any data relating to Townsquare, all Services or Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, (b) user identifications, account access, log-in information, and passwords, (c) usage data collected by Townsquare regarding Client’s use of the Services, and (d) all other data owned or controlled by Townsquare.

“Townsquare Hosting Services” (or “Services”) means the products, services, and licenses provided to Client by Townsquare, whether or not used or paid for by Client, which may include any combination of the following:
(a) Web and Apps, including Domain Hosting, Domain names, Email Hosting, all as further defined in the applicable Order Form;
(b) Add-ons and other related products and services to the above;
(c) Technical Support; and
(d) Any other product or service specified in any applicable Order Forms.

“Townsquare Hosting Systems” or “Systems” means the technology (including systems, networks, facilities, infrastructure, computer servers, other hardware, software, online application program interfaces, Internet Protocol addresses, and other technologies) owned, licensed, controlled, or otherwise used by Townsquare to provide Services to Client, and, as applicable, to End Users and Client Affiliates.

1.1.2. References. Section headings and any bolding, underlining, or italicization of words herein are for convenience only and have no interpretive value. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning will refer to the Terms in its entirety, which includes all Order Forms, and not to any particular provision of the Terms.

1.1.3 Without Limitation. When used for listing purposes, the terms “including” and “includes” mean “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in the Terms that the masculine, feminine or neutral gender is used, it includes all applicable genders, and wherever the singular is used, it includes the plural and vice versa, where the context so requires.

1.2 Term & Renewal

1.2.1 Term. These Terms will continue in full force and effect until all Order Forms and the Client Account are terminated in their entirety. The term of each Order Form will commence upon the Effective Date and will continue for the duration of the Minimum Term, and any successive Renewal Terms, until terminated by a Party in accordance with these Terms. In the event the Minimum Term and Renewal Term are not specified in the Order Form, the term of each will be one year.

1.2.2 Renewal. Upon expiration of the Minimum Term, the Order Form will automatically renew for successive Renewal Terms until either Party terminates the Order Form, or the Client Account and these Terms in their entirety, in accordance with the termination provisions herein and any applicable Order Form.

1.3 Services.

In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with the Terms, including all applicable Order Forms, Townsquare will provide to Client the Services as described in the Order Form. In furtherance of providing the Services to Client, Townsquare hereby grants to Client a worldwide, limited, non-exclusive, non-transferable, fully revocable license to use Systems in connection with the Services as permitted in the Terms. Townsquare may, at its sole discretion, add to, modify, remove, or re-price any particular product or service from the Services based on factors including the unavailability of any relevant Third Party Products. To prevent downtime caused by outdated components or malfunction of the Systems and to protect the security of the Systems, Client hereby consents to (a) Townsquare upgrading, repairing, or replacing the Systems that are hosting Client Data at any time with or without notice to Client, and (b) Townsquare migrating Client Data within the Systems at any time with or without notice to Client. Townsquare may (at Townsquare’s sole discretion) provide any of the Services (in whole or in part) through an Affiliate of Townsquare, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within the Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access. In the event that Client refuses or fails to permit such access, Client understands and agrees that Townsquare is not responsible for any malfunction or delay in the performance of the Services resulting therefrom. In connection with Technical Support, Townsquare makes no representation or warranty that Townsquare will be able to find the cause of, or resolve, the problem for which Client contacts Townsquare for Technical Support. Unless otherwise expressly specified in the Order Form, Townsquare is not responsible for providing Technical Support, or any other support (including customer service, billing support, and sales support), to Client’s resellers, customers, and End Users.

1.4 Connectivity

Except for the Systems specifically licensed to Client hereunder, Client is solely responsible, and Townsquare is not responsible, for sourcing and paying for network resources used to connect Client to the Internet.

1.5 Third Party Products

Client will agree to, be bound by, and comply with the terms of any license or other agreement for Third Party Products that may be required by the applicable Third Party Vendor. Client acknowledges that Client’s use of Third Party Products is subject to Client’s agreement to, and compliance with, the terms and conditions of the Third Party Vendors who provide the respective Third Party Products. The Third Party Vendors are permitted to perform directly Third Party Audits on the Systems (including any computer server or other hardware licensed to Client by Townsquare as part of the Services) with regards to their respective Third Party Products. All trademarks and other Intellectual Property rights associated with or attached to a Third Party Product belong solely to the relevant Third Party Vendor and are used by Townsquare subject to license from such Third Party Vendor.

1.6 Client Account

Upon Client’s submission or execution of an Order Form, Townsquare will create a unique Client Account and Client ID for Client. Once the Client Account and associated Client ID have been set up, Townsquare will provide Client with appropriate login credentials and access to the Hosting Portal, if such Hosting Portal is to be made available.

1.7 Client Account Ownership

The legal owner of the Client Account is the person who is identified as the “Client” in the applicable Order Form or, in the absence of such name in the Order Form, the person otherwise using the Services. It is Client’s sole responsibility, and not Townsquare’s responsibility, to ensure that (a) Client’s correct full legal name is stated on the Order Form and in the Client Account, (b) Client’s current name and other contact information is kept up-to-date with Townsquare, (c) the Client ID and associated password are kept secure and disclosed only to those with a need to know, and (d) Townsquare receives all documentation reasonably requested by Townsquare to ascertain the correct legal owner of the Client Account in the event of a dispute or verification of Client’s identification. This includes regularly updating the Client Account to accurately reflect staff departures or changes in service providers Client may have used to subscribe for Services (e.g., website design companies or online media management companies) who may have used their name as the contact person for the Client Account. In the event of a dispute, or in the event of a reorganization or dissolution of the Client, the business entity whose name was given at the time of account signup (or its designated successor) will be the legal owner of the Client Account.

1.8 Domain Name Ownership

Client acknowledges that (a) the person listed as the “Registrant” of the domain name in the public Whois registry is the legal owner of that domain name, (b) the person listed as the “Admin” (or administrative contact) of the domain name in the Whois registry has access to the username and password, which gives such person the ability to change the Whois information, (c) ownership and administration (including registration renewal and billing) of a particular domain name is independent of the ownership and administration of the Client Account even if the domain name is associated with the Client Account, (d) it is Client’s sole responsibility, and not the responsibility of Townsquare, to ensure that the Registrant and Admin information are up-to-date in the Whois registry, and (e) domain names are subject to the standard terms and conditions, as amended from time to time, of the ICANN-accredited domain name registrar and applicable registry, which Client is bound by at the time Client registers the domain name(s).

1.9 Identification Verification

In communicating with Townsquare Hosting about the Client Account or Client Data, Client will comply with Townsquare’s then-current security measures and identification verification processes, including answering identification verification questions over the phone and submitting a proof of identity form. Townsquare is not responsible or obligated to restore access to the Client Account to any person if that person is unable to meet Townsquare’s security measures and procedures to Townsquare’s sole reasonable satisfaction.

1.10 Ownership Disputes

Townsquare has no responsibility to act as an arbiter, mediator or other authority in the event of a dispute over the ownership of the Client Account or domain name associated with the Client Account or any other dispute between Client and a third party (including Client’s current or former employees, contractors, agents or vendors). Townsquare may suspend Client’s access to, or place an administrative lock on, the Client Account and associated domain name(s) pending an investigation into the ownership thereof.

1.11 Townsquare Access

Townsquare reserves the right to conduct or perform an audit or report, whether by Townsquare directly or by an authorized third party, or pursuant to compliance with any applicable statute, government regulation, or Third Party Vendor requirement (such as in the course of a Third Party Audit).

1.12 Client Access

Client may access the Client Account through the Hosting Portal using only Client’s own authentication credentials (username and password).

1.13 Email Accounts

All email accounts, including POP email accounts, which have not been logged into for a period of four (4) consecutive months or more will be deemed abandoned and Townsquare may, at its sole discretion, delete the email account (“Abandoned Mailbox”) and all emails residing in the Abandoned Mailbox (“Abandoned Emails”).

1.14 Client Data

Client represents and warrants that Client is the owner of, or is duly authorized or licensed by the legal owner to, hold, store, upload, create, destroy, use, run, implement, modify, edit, and otherwise manage the Client Data. In the event that Client Data includes any software or application that is not provided by Townsquare, Client is solely responsible for supporting such software or application including maintaining the licenses and installing updates and upgrades to such software or application. Townsquare is in no way liable for the support of such software or application, including Client’s use or misuse thereof. Client is solely liable, and Townsquare will not be liable, for any unpaid licenses installed by Client on Systems that are reported in the course of a Third Party Audit. Client further warrants that the access by Townsquare of any and all materials and data as furnished by Client to Townsquare in the provision of the Services will not violate or conflict with any Intellectual Property or privacy rights of any third parties including copyrights, patents and trademarks, protected health information, or personally identifiable information. Client warrants that it is authorized to permit Townsquare to use all relevant code for the purposes of performing the Services hereunder. In the event that Client requests Townsquare’s assistance or participation in any third party audit of the Client Data or of Client’s use of the Services, Townsquare will reasonably cooperate with Client (at Client’s expense) to respond to any audit inquiries solely as related to the Services.

1.15 Protected Health Information

Client will not, in connection with the Services, request or cause Townsquare to create, receive, maintain, or transmit any information that is considered “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing rules and regulations (collectively, “HIPAA”) or any information that is regulated as consumer health information, personally identifiable health information, or similar information under other applicable laws (collectively, “Protected Health Information”). In addition to Client’s indemnification obligations under the Terms, Client will further indemnify Townsquare (including its officers, directors, employees, agents, and Representatives) from and against any Claims against Townsquare or Losses incurred by Townsquare that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding Protected Health Information, or (ii) Client’s breach of HIPAA or any other applicable statute or regulation.

1.16 Data Security

Townsquare will use industry standard measures designed to detect and prevent unauthorized third parties from accessing the Systems. Notwithstanding anything to the contrary, Client acknowledges that Townsquare does not guarantee, and does not represent or warrant, that the Systems cannot or will not be accessed by unauthorized third parties. Client will review Townsquare Hosting’s Privacy Policy, as amended from time to time, posted at https://www.townsquareinteractive.com/privacy-policy/ (or such other redirected webpage or alternate URL as designated by Townsquare), which is incorporated herein by reference.

1.17 Data Disclosures

Client hereby consents to Townsquare disclosing Client’s data required to be disclosed by any (a) law of the U.S.A., or (b) court order of any jurisdiction in the U.S.A. or other jurisdiction in which either Townsquare or Client operates its business. However, if and to the extent allowed by such law or court order, Townsquare will promptly notify Client in writing of the legal obligation and, if Client chooses, Client may seek protective measures against the requirement at Client’s sole expense and reimburse Townsquare for any reasonable expenses (including costs for legal advice, staff hours, and disbursements) incurred by Townsquare in complying with such requirement.

1.18 Townsquare’s Intellectual Property

In no way will any license granted by Townsquare in these Terms be an assignment of rights, title, or ownership in any of Townsquare’s Intellectual Property, including any of the Systems. Townsquare retains sole and exclusive right, title and ownership in and to all of Townsquare’s Intellectual Property. As between Townsquare and Client, all Internet Protocol addresses provided to Client by Townsquare belong exclusively to Townsquare. Client acknowledges that Client has no right to use such Internet Protocol addresses except as permitted by Townsquare in connection with the Services and in accordance with these Terms. Townsquare may change or remove Internet Protocol numbers and addresses at its sole discretion. Except as otherwise expressly permitted in the Terms, Client may not use Townsquare’s Intellectual Property without obtaining the prior written consent, in each instance, of Townsquare. Townsquare’s Intellectual Property includes any data relating to Townsquare, the Services, or Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by Townsquare regarding Client’s use of the Services, and (e) all other data owned or controlled by Townsquare.

1.19 Other Restrictions

1.19.1 Client will not take any action or use any of Townsquare’s Intellectual Property or any Third Party Vendor’s Intellectual Property in a manner that (a) acquires, or may reasonably acquire, any rights, title, or interest in or to Townsquare’s Intellectual Property or any Third Party Vendor’s Intellectual Property by Client or a third party, or (b) compromises or diminishes Townsquare’s rights, title, or interest in or to Townsquare’s Intellectual Property or any Third Party Vendor’s rights, title, or interest in or to their Intellectual Property. If Client does acquire any rights, title, or interest in or to any of Townsquare’s Intellectual Property, by operation of law or otherwise, then Client will immediately assign such rights, title, or interest to Townsquare at Client’s sole cost. Client will not, and will not permit any third party, including its resellers, customers or End Users, to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any of the Services, Systems, or Third Party Products to ascertain, derive, or appropriate for any reason or purpose the source code or source listings thereof or trade secrets contained therein.

1.19.2 Client (including all those acting under its authority or on its behalf) will not use any of the Services, Systems, Third-Party Products, Townsquare Hosting Data, or any Townsquare Intellectual Property: (i) to engage in fraudulent, deceptive or misleading activities or practices; (ii) by any unauthorized or automated means, other than through the interface that Townsquare provides; (iii) to engage in unlawful activities or in a way that creates legal liability or other actual or potential material risk or harm to Townsquare, its Affiliates or their Representatives; (iv) to engage in infringement, misappropriation or violation of any Intellectual Property or other rights of any person or entity; (v) to engage in spam or transmission or distribution of unsolicited commercial messages in violation of applicable laws or regulations; (vi) to offer or promote illegal, unlawful, false, deceptive, misleading, violent, threatening, harassing, discriminatory, derogatory, defamatory, libelous, pornographic, obscene, sexual, vulgar, or racially, ethnically or otherwise objectionable or offensive content or activities, or content that otherwise violates applicable rules of behavior; (vii) to impersonate any person or entity, or make any false statement pertaining to your identity, employment, agency or affiliation with any person or entity; (viii) to use or handle any End User Data in violation of the published privacy policy for the applicable Client website or any applicable law or regulation pertaining to the privacy or security of End User Data; (ix) to collect or process personal information of End Users without their explicit consent; (x) in violation of U.S. export control laws or regulations; (xi) in connection with any illegal activities, including promoting, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography; (xii) to violate the security or integrity of any network, computer or communications system, software application, or network or computing device involved in the Services, Systems or Third-Party Products; (xiii) to interfere with the proper functioning of any system, including deliberate attempt to overload a system by mail bombing, or flooding techniques; (xiv) to interfere in any manner with the functionality of the Services or Systems or use the Services or Systems in any way that breaches any code of conduct, policy or other notice applicable to the Services or Systems; or (xv) in any manner that involves the maintenance, creation, transmission, receipt, use or processing of Protected Health Information, as defined by HIPAA (nor will Townsquare be responsible in any manner to comply with HIPAA in connection with your account). In addition, Client will not: (a) copy, reproduce, distribute, sell or resell, or prepare derivative works from, any of the Services, Third-Party Products, or any Townsquare Intellectual Property; (b) use or introduce any software viruses, trojan horses, worms, vandals, spyware or any other malicious applications or any other similar software or programs that may damage the operation of the Services, Systems, or any Third-Party Product; (c) reverse-engineer, decompile or disassemble the Services, Systems, or any Third-Party Product; (d) alter, modify, remove, deface or otherwise tamper with any trademark, logo, copyright, or other Intellectual Property notice or any Townsquare legal notices that appear on or within the Services, Systems, or any Townsquare Intellectual Property; (e) use robots, crawlers and similar applications to collect and compile content from the Services or Systems; or (f) solicit, induce, cause or authorize others to do any of the above. Client acknowledges and agrees that, in the event of any breach or violation of this Section 1.19 by Client or anyone acting under its authority or on its behalf, Townsquare may immediately, in its sole discretion, remove any such content, suspend or terminate the Client Account and/or these Terms, and notify the applicable authorities.

1.20 Resellers, Customers & End Users

Client is solely responsible, and Townsquare is not responsible, for the activities of any End User and for the activities of Client’s resellers and customers. Client will ensure that the use of Services by Client’s resellers, customers, and End Users will not be in contravention of these Terms. If Townsquare Hosting receives complaints about Client’s resellers, customers or End Users (including complaints about infringement of a third party’s Intellectual Property), subject to Townsquare’s rights in these Terms to suspend Townsquare Hosting Services, Townsquare may at its sole discretion (a) send a notice directly to the reseller, customer or End User requesting them to cease, remedy, and resolve the matter, or (b) forward the complaint to Client whereupon Client will take immediate action to ensure that the matter is resolved to Townsquare’s satisfaction. If the particular activity continues or the complaint is otherwise unresolved, then Client may be subject to termination or other action as Townsquare may deem appropriate.

1.21 Domain Name Proxy Services

If the Services provided to Client include domain name registration services where Townsquare or a third party provider is named as the Registrant or Admin Contact in Client’s place (“Proxy Services”), Client agrees that if Townsquare or the third party provider does not receive a response to a communication sent to Client within forty-eight (48) hours of such communication being sent, then Townsquare or the third party provider, as applicable, may suspend the Proxy Services or terminate all services (including, as applicable, all Services) at its sole discretion.

1.22 Representations & Warranties

Client represents and warrants to Townsquare Hosting as follows:

(a) Client has the full authority to execute, deliver, and perform under these Terms;

(b) these Terms are valid, binding, and enforceable against Client, and no provision requiring Client’s performance is in (i) conflict with Client’s obligations under any other agreement, (ii) violation of any law applicable to Client, or (iii) contravention of Client’s by-laws or other governing rules, as applicable;

(c) Client is duly organized, authorized, and in good standing under the laws of the jurisdiction of its organization and is duly authorized to do business in all other jurisdictions in which Client’s business makes such authorization necessary or required; and

(d) Client’s purpose for entering into this Agreement, accepting these Terms, and/or and using or delivering the Services is not to engage in, or be part of, any activity that is, or may reasonably be deemed, objectionable in the Internet community, unethical, unlawful or illegal.

1.23 Disclaimer

Notwithstanding anything to the contrary in these Terms, Townsquare (a) makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, completeness, non-infringement, or validity of the Services, Systems, or Third Party Products, and (b) provides all aspects of the Services, Systems, and Third Party Products “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Client acknowledges that Client uses the Services, Systems, and Third Party Products at Client’s sole risk. No verbal advice or written information given by Townsquare, its employees, licensors or the like, will create a warranty and Client will not rely on any such advice or information as a warranty.

1.24 Force Majeure

Townsquare will not be liable for delays in its performance hereunder caused by circumstances beyond Townsquare’s reasonable control including, without limitation, third-party network or system outage, hacking, virus attack or other form of sabotage, Acts of God, acts of government, strikes, lockouts, riots, insurrection, civil commotion, pandemic, natural disaster, war or terrorist attacks (“Force Majeure”). If Townsquare Hosting is affected by a Force Majeure, Townsquare Hosting will (a) promptly give written notice to Client, and (b) make reasonable efforts to reduce to a minimum and mitigate the effect of the Force Majeure.

1.25 Limitation of Liability

1.25.1 No Consequential Damages. IN NO EVENT WILL TOWNSQUARE BE LIABLE HEREUNDER TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF BUSINESS OR OPPORTUNITY, OR LOSS OF USE OR DATA, EVEN IF TOWNSQUARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

1.25.2 Maximum Liability. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF TOWNSQUARE HEREUNDER TO CLIENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED A SUM EQUAL TO THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO TOWNSQUARE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF THE APPLICABLE CLAIM OR ACTION. No Claim by Client against Townsquare, relating to these Terms or the Services, will be effective after one (1) calendar year (twelve calendar months) from the time the event or cause of action comprising the basis of the Claim first occurred regardless of any statutory limitation period allowing for a longer period.

1.26 Indemnification

Client will indemnify, defend and hold harmless Townsquare and its Affiliates and its and their Representatives from and against all Claims and Losses which result from or are caused by (a) breach of these Terms (including a breach of any representations or warranties made by Client herein), (b) gross negligence or willful misconduct, (c) misrepresentation, (d) alleged or actual infringement of the Intellectual Property rights of any third party by Client or any Client Data, (e) the acts or omissions of any of Client’s resellers, customers, or End Users, or (f) the alleged or actual violations by Client of any law, regulation or rule, then Client will indemnify, reimburse, and compensate Townsquare Hosting and, as applicable, Townsquare’s Representatives, for all Losses, as they accrue and become payable by Townsquare Hosting, and defend, hold harmless, and protect Townsquare Hosting, including Townsquare’s Representatives, from and against all Claims. Townsquare will give prompt written notice to Client of the Losses and the Claim for which indemnification is sought, and Client will have the right to control the defense and settlement of any Claim at the sole expense of Client using counsel of its choosing reasonable acceptable to Townsquare. Townsquare will cooperate in the defense or settlement of any Claim at the sole expense of Client. Notwithstanding the foregoing, the failure of Townsquare Hosting to give prompt notice, cooperate, or timely mitigate will not affect Townsquare’s rights to indemnification, except (and only to the extent) that Client’s ability to provide indemnification is materially prejudiced. Client will not agree to any settlement without the prior written agreement of Townsquare.

1.27 Abuse of Services

Client will use the Services, and access the Systems, only in a manner that is legal, lawful, ethical, and generally acceptable in the Internet community. Client will not engage in, and will ensure that Client’s resellers, customers, and End Users do not engage in any Abuse of Services. Without limiting the generality and scope of the definition of Abuse of Services, Abuse of Services includes (i) infringement of a person’s Intellectual Property or other rights, (ii) publishing or transmitting material which is offensive, hateful, threatening, obscene, or defamatory, (iii) non-compliance with applicable anti-spam legislation, including the U.S. Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act), as amended, and Canada’s Anti-Spam Legislation (CASL), as amended, (iv) violation of applicable laws, regulations, or policies, and (v) system or network security violations. System or network security violations include the following: (A) unauthorized access to or use of data, systems or networks, including any attempt to ping, probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network); (B) interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system, denial of service attacks, and broadcast attacks; (C) forging any TCP-IP packet header or any part of the header information in an email or a newsgroup posting; (D) creating or sending Internet viruses, worms or Trojan horses; (E) engaging in any other activity which is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services and Systems (or any connected network, system, service or equipment) or conduct their business over the Internet. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with the Terms or the Services) is not engaged in any activity which is, or may reasonably be deemed, an Abuse of Services.

1.28 Executive Order 13224

Client will not use the Services, in whole or in part, to do business with any person who has been determined to have committed or supported, or who poses a risk of committing or supporting, acts of terrorism or who otherwise is subject to the prohibitions of Executive Order 13224. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with the Terms or the Services) is not, and has not been designated, (a) a “suspected terrorist” as defined in Executive Order 13224, (b) owned or controlled by a “suspected terrorist” as defined in Executive Order 13224, or (c) a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all amendments thereto.

1.29 Sanctions

Client will not use the Services, in whole or in part, to do business with any country, person or group sanctioned by the United Nations, U.S.A., or Canada, including those identified by the Office of Foreign Assets Control, as updated from time to time. Client will not export the Services, in whole or in part, to any country, person or group sanctioned by the United Nations, U.S.A., or Canada. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with the Terms or the Services) is not, and has not been designated, (a) a resident of a country sanctioned by the United Nations, U.S.A., or Canada, or (b) a person or member of a group sanctioned by the United Nations, U.S.A., or Canada. Client further represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with the Terms or the Services) is not engaged in any activity which is, or may reasonably be deemed, in contravention of any of the abovementioned sanctions.

1.30 Suspension

Townsquare may, at its sole discretion and without prior notice, immediately suspend the Services and the Client Account if Townsquare determines that Client is engaging, or has engaged, in any Abuse of Services or if the Client Account is involved in any way, whether directly or indirectly, in an attack on another person’s server or system (“Third Party Server”) or the Systems. Townsquare will promptly notify Client upon suspending Services pursuant to an Abuse of Services. A suspension based on an Abuse of Services or an attack on a Third Party Server may be implemented until the Abuse of Services or threat has been remedied to Townsquare’s sole reasonable satisfaction. Service Fees will continue to accrue during the suspension and Client will ensure timely payment of all Service Fees due. If Client engages in or the Client Account is involved in any Abuse of Services, Client will be responsible for all costs, including labor and other resources, to remedy any damage done to Systems or attend to complaints received by Townsquare.

1.31 Revocation of Domain Name

If Client purchases a domain through Townsquare, Townsquare may exercise its suspension and termination rights in these Terms against such domain name registration for reasons including (a) Client’s Abuse of Services or other breach of the Terms, or (b) Townsquare’s receipt of an arbitration award or order from a court of competent jurisdiction instructing the suspension, termination or transfer of ownership of the domain name. Client acknowledges that Client will not receive any refund whatsoever for any such suspension, termination, transfer, or modification to Client’s domain name registration.

1.32 Survival Clauses

The provisions of these Terms which by their nature continue beyond termination will survive such termination, including the provisions of these Terms relating to ownership, Intellectual Property, representations and warranties, disclaimer, limitation of liability, indemnification, and governing law and jurisdiction.

1.33 Minimum Age Requirement

Client must be at least 18 years of age or the age of majority in the state, province, or country of Client’s residence in order to agree to these Terms and submit an Order Form.

1.34 Assignment

Client may not assign or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of Townsquare, which will not be unreasonably withheld. Without requiring Client’s prior consent, Townsquare may assign or otherwise transfer these Terms, and Townsquare’s rights and obligations hereunder. Any assignment or transfer in violation of these Terms will not have any effect against Townsquare. This MSA will be binding and have effect upon Townsquare and Client and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than Townsquare and Client and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities in connection with these Terms. Notwithstanding the foregoing, Client acknowledges that Townsquare may, at its sole option, perform any of its duties or obligations hereunder, by itself or with or through any of Townsquare’s Affiliates, which will not be deemed an assignment of these Terms.

1.35 Waiver; Severability; Cumulative Rights

No waiver by Townsquare of a breach of any provision of these Terms will take effect or be binding upon Townsquare unless expressly waived in writing, and such waiver will extend and apply only to the particular breach so waived and will not limit or affect the rights of Townsquare in respect of any future breach or in respect of a breach of any other provision hereof. If any portion of the Terms is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability will not affect the validity of the remainder of these Terms. Except as may be otherwise specified herein, rights and remedies of the parties are not exclusive but will be cumulative of all other rights and remedies.

1.36 Relationship of Parties.

Nothing in these Terms will be construed as creating a relationship of employer and employee, principal and agent, franchisee and franchisor, partnership or joint venture between Townsquare and Client. Client will not, and has no authority to, bind Townsquare to any commitments or hold itself out as a representative of Townsquare.

1.37 Non-Exclusivity

Townsquare and Client each acknowledge that the relationship between them in connection with the Services, and these Terms are non-exclusive and that Townsquare may grant a license to use, market, sublicense, or distribute the Services, including providing access to the Systems, to other parties who may engage in the same or similar activities as Client, or who may compete with Client or Client’s goods or services.

1.38 No Third Party Beneficiary

These Terms are for the sole benefit of the Parties and do not create any rights on the part of any third party, including Client’s resellers, customers, and End Users. Client acknowledges that Townsquare’s obligations under these Terms are to Client only. Client is solely responsible, and Townsquare is not responsible, for ensuring Client satisfies all of Client’s obligations to Client’s resellers, customers, and End Users.

1.39 Governing Law

These Terms, including all disputes and controversies between the Parties arising from or connected to these Terms, will be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflict of laws rules. Any dispute or claim relating in any way to your use of any Service will be adjudicated in the state or federal courts in New York County, New York, and you consent to exclusive jurisdiction and venue in these courts. Client and Townsquare each waive any right to a jury trial.

1.40 Notices

Except with respect to the cancellation notices set forth in Section 2.7, any notices and other communications required or permitted under these Terms will be in writing and sent by courier or via e-mail or facsimile. Such notice will be deemed to have been given upon the expiration of 48 hours after posting or 12 hours after sending by email. Client may give notice to Townsquare at any time by email addressed to clients@townsquareinteractive.com. Townsquare reserves the right to publish (including on any Townsquare website) any communications with Client, as long as Client’s personal details are not revealed without Client’s prior consent.

1.41 Amendments

Townsquare may amend these Terms from time to time upon notice. Your continued use of the Services will constitute your agreement to the changes. If you do not agree to any changes, you must cancel and stop using all Services.

1.42 Complete Agreement

These Terms, which include the Order Forms and all other policies and documents referenced herein, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings, communications and agreements, written or oral, between them with respect thereto.

2. Billing Terms

These Billing Terms apply to all persons using the Services.

2.1 Service Fees

Client will pay to Townsquare all Service Fees on or before each due date as specified in the Hosting Portal or invoice (as applicable). Client acknowledges that Service Fees will start accruing from the time the Client Account is created and Services are made available to Client, whether or not Client uses the Services.

2.2 Billing

Client’s Billing Cycle will start on the Effective Date (as defined herein). The Billing Cycle will automatically renew for the same successive period until Client cancels the Client Account or terminates these Terms in accordance with the cancellation provisions and termination provisions herein and in the applicable Order Form. Townsquare will provide a renewal notice and invoice, and Client is solely responsibility for ensuring payment for applicable Service(s) before the Due Date. Add-on features to Services added to the Client Account may be charged monthly or according to the Billing Cycle or otherwise based on an alternate payment schedule as agreed by Townsquare when Client orders such features. Add-on features are non-refundable.

2.3 Past Due Amounts

If Client fails to pay the Service Fees on or before the Due Date, then Townsquare may charge Client applicable Late Charges which shall be applied to any portion of the Services Fees unpaid past the Due Date. If the Client Account has Service Fees unpaid past the Due Date, then Townsquare may, at Townsquare’s sole discretion, suspend the Client Account (and the Services associated with it) upon notice at any time. Townsquare may also terminate these Terms and cancel the Client Account in its entirety if the Service Fees remain past due following reasonable notification from Townsquare to the contact person listed in the Client Account. Client is solely responsible, and Townsquare is not responsible, for keeping Client’s contact information up to date and for any failure to receive such notification of Client Account cancellation.

2.4 Payment Methods

Client will pay the Service Fees via the credit card indicated in the Order Form, which will be selected from one of the following:
(a) Visa
(b) MasterCard
(c) American Express
(d) Discover

Client will provide Townsquare with a valid credit card number, associated full name on the credit card, expiration date, and card verification number. Client will notify Townsquare in writing of all changes to Client’s credit card, including card number, expiration date, and billing address. For credit card payments, Client hereby authorizes Townsquare to automatically charge Client’s credit card each Billing Cycle for Service Fees. Client hereby also consents to Townsquare charging Client any chargeback fee assessed against Townsquare from the credit card company for each credit card chargeback received by Townsquare. Client acknowledges that recurring Service Fees will be charged to Client’s credit card each Billing Cycle until Client cancels the Client Account or otherwise terminates the Order Form or these Terms in accordance with the cancellation provisions and termination provisions of these Terms and the applicable Order Form.

2.5 Taxes.

2.5.1 Chargeable Tax. The Service Fees quoted by Townsquare, whether on Townsquare’s website, these Terms, any Order Form, quotation, or sales proposal provided to Client, or in Client’s customer portal or on Client’s invoice, do not include sales or any other taxes which may be applicable. If any federal, state, provincial or other goods and services tax (excluding any tax levied on property or income) is applicable to Client’s purchase of the Services (“Tax”) and is required by law to be collected from Client by Townsquare, then (a) Townsquare will charge Client for such Tax in addition to the Service Fees, (b) Client consents to such Tax being charged to Client, and (c) Townsquare will remit such collected Tax to the applicable tax authority.

2.5.2 Audit Cooperation. If Townsquare Hosting is audited by a tax authority or other governmental entity with legal authority over the matter, Client agrees to reasonably cooperate with Townsquare (at Townsquare’s expense) in order to respond to any audit inquiries in a proper and timely manner so that the audit, and any resulting controversy, may be resolved expeditiously.

2.5.3 Tax Exemption. If a Tax exemption is available and Client complies with the exemption procedures thereto, including submitting to Townsquare all documentation evidencing the exemption, then Townsquare will not charge or collect such Tax during the effective period of such exemption.

2.5.4 Withholding Tax. If any applicable tax authority requires withholding taxes to be paid on money amounts payable by Client to Townsquare pursuant to these Terms (“Withholding Tax”), then Client will (i) be entitled to deduct such Withholding Tax from the money amounts payable to Townsquare hereunder, (ii) remit such amounts to the appropriate tax authority, and (iii) provide to Townsquare, on a quarterly (every 3 calendar months) basis, the statements of the Withholding Taxes paid.

2.6 Reactivation
If Client wishes to reactivate a closed Client Account, then Townsquare may charge Client a reactivation fee which Townsquare will communicate to Client upon the reactivation request. Townsquare may also charge Client a fee for certain changes to the Client Account (“Account Change Requests”), including requests to:

(a) change to a lower priced hosting plan on the same platform; or
(b) separate one or more hosting plans contained under one Client Account into separate Client Accounts (the fee for this Account Change Request is charged to each new Client Account). There is no upgrade fee for upgrading to a higher priced hosting plan, but Client may be charged any difference between the setup fees applicable to Client’s new and former hosting plans. For Account Change Requests, contact support@townsquarewebhost.com.

2.7 Termination and Account Cancellation

2.7.1 Unless and until terminated in accordance with these Terms, the Terms will continue through the Minimum Term and any Renewal Term stated in an Order Form. Client may terminate the Terms, a particular Order Form, or the Client Account in its entirety, upon at least 30 days’ written notice prior to the end of any Renewal Term. Townsquare may terminate the Terms or a particular Order Form for convenience upon 30 calendar days’ written notice to Client. Without limiting Townsquare’s rights under Abuse of Services and Suspension above, Townsquare Hosting may also terminate the Terms or a particular Order Form for Client’s material breach upon 2 business days’ written notice to Client if such material breach is uncured within such time. To cancel the Client Account or particular Services after the expiration of the Minimum Term or during a Renewal Term, Client must contact Townsquare’s customer service department on a Business Day (Monday through Friday, excluding holidays) at 1-312-279-2496 or email support@townsquarewebhost.com, and must specify the exact Services, or domain name, that Client is cancelling. The cancellation process is not complete or effective until Townsquare Hosting confirms the closure of the Client Account by providing Client a confirmation number either over the phone or through email at Client’s contact information recorded on the Client Account. Client acknowledges that there are no pro-rated refunds if Client cancels before the end of any Renewal Term. Cancellation requests must be received at least 30 calendar days before the end of Client’s Billing Cycle or Client’s Billing Cycle will automatically renew for a successive Billing Cycle. Townsquare does not monitor, and will not automatically cancel, plans for any problems arising out of or related to domain name transfers, non-usage, InterNIC, Client’s ISP, or any other secondary issues not directly related to the Services. Cancellation of Services does not relieve Client from paying all outstanding balances owed on the Client Account.

2.7.2. Upon any termination of these Terms or the Client Account, Townsquare Hosting may delete all Client Data residing on Systems. It is Client’s sole responsibility, and not the responsibility of Townsquare, to transfer Client’s domain to another provider, and ensure that all Client Data is either retrieved prior to termination or cancellation or otherwise backed up on systems other than Systems or using Services, in each case by the date you communicate to Townsquare your cancellation or termination notice. Client acknowledges that (a) termination of these Terms or a particular Order Form does not automatically cancel the registration of any of the domain names associated with the Client Account, and (b) the cancellation or expiration of Client’s domain names associated with the Client Account does not automatically terminate these Terms or the other Services.

2.7.3 These Terms and all Order Forms will automatically terminate if (i) Client makes a general assignment for the benefit of Client’s creditors; (ii) Client appoints or has appointed on its behalf a receiver, trustee in bankruptcy or similar officer to take charge of all or part of its assets; (iii) Client files or has a petition filed against Client for bankruptcy; or (iv) Client is otherwise adjudicated insolvent or bankrupt.

2.8 Billing Disputes

Townsquare will maintain records of the Services provided to Client and the billing thereof. If there is an inconsistency between Townsquare’s records as stated in the Hosting Portal and Client’s records, then Townsquare’s records will be deemed the controlling records. If Client wants to dispute the amounts, Client must contact Townsquare’s customer service department on a Business Day (Monday through Friday, excluding holidays) at 1-312-279-2496 or email support@townsquarewebhost.com. Disputes Client may have over any portion of Service Fees will not exempt Client’s payment obligations for undisputed Service Fees whether such non-disputed amounts pre-date, post-date, or are concurrently dated with the disputed amounts. If Client fails to provide Townsquare with written notice of a disputed amount of Service Fees within seven (7) calendar days after the Service Fees are made available through the Hosting Portal, then Client will be deemed to have accepted the amounts owed and will be obligated to pay such amounts.

2.9 Price Changes

Townsquare may, at its reasonable discretion, add to, modify, or discontinue any particular product or Service upon notice.

2.10 Collections

Client Accounts in arrears with past due and unpaid Service Fees are subject to collections. In the event of collection, Client will be liable for Late Charges and all costs of collection, including attorney’s fees, court costs, and collection agency fees.

2.11 Currency

Unless stated otherwise, all money amounts stated by Townsquare, including on Townsquare’s website, the Terms, any Order Form, quotation, or sales proposal provided to Client, the Hosting Portal, and any invoice issued by Townsquare are in U.S. Dollars.

3. Privacy Policy

These Terms includes Townsquare’s Privacy Policy, as amended from time to time, posted at https://www.townsquareinteractive.com/privacy-policy/ (or such other redirected webpage or alternate URL as designated by Townsquare), which is incorporated herein by reference (“Privacy Policy”).

4. Refund Policy

Townsquare does not issue refunds for Services.