Hosting Agreement

This agreement was revised on 2014-12-24


This agreement is between Hardfocus International ("Hardfocus"), the party of the first part, and you (the "the Client"), the party of the second part.

WHEREAS Hardfocus, is in the business of providing Internet-hosted computer network services such as website hosting, mail server hosting, Internet telephony (VoIP) hosting and other computer network or Internet-based Services, including ancillary services (herein, collectively referred to as the "Services") which are offered via the Hardfocus websites and elsewhere; and,

WHEREAS the Client, wishes to retain Hardfocus for the purpose being provided with such Services.

WHEREAS Hardfocus is committed to providing courteous and reliable service to its Clients, respecting the rules etiquette which govern the Internet community as a whole, while ensuring the on-going integrity and viability of its business.

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises, mutual covenants and agreements herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

1 Services

Hardfocus shall provide computer network and Internet related services (collectively referred to as the "Services", herein) to the Client, in accordance with the terms of this Agreement. The Services may incorporate certain options, bonuses and discounts as part of a packaged "Hosting Plan" or be made available separately. The Services are set out in the document entitled Schedule of Hosting Services (herein "Schedule A") and Schedule of Telephony Services (herein "Schedule B"), both which are incorporated into this Agreement by reference.

2 Execution

a) This Agreement shall be deemed to have been executed and in full force when the following steps have been performed:

  1. The Client shall submit one or more of several "Order Forms" to Hardfocus, requisitioning the Service. Hardfocus provides these Order Forms at one or more of its websites.
  2. Hardfocus shall examine the Order Forms submitted by the Client.
  3. Hardfocus may request further information or clarification in writing. The Client shall respond to those requests in writing. The Client may make additional requests to Hardfocus or ask for clarifications in writing.
  4. The contents of the Order Forms submitted to Hardfocus by the Client, clarifications and amendments, when in writing and mutually agreed upon by the Parties, shall constitute the substance of the entire order for the Services and are incorporated into this Agreement by reference.
  5. Hardfocus shall request payment for the Services in accordance with Section 3 (Consideration), below. When requested by the Client, Hardfocus will also provide an Invoice detailing the substance of the Service, in a format suitable for printing by the Client via a computer printer.
  6. The Client shall make full payment for the Services in accordance with Section 3 (Consideration), below.
  7. In the case of Internet-hosted Services, Hardfocus shall activate the Services on its servers and shall notify the Client by eMail of such activation. In the case of Services performed by Hardfocus or its agents Hardfocus will notify the Client when work commences on the performance of these Services and on their completion.

b) Hardfocus may, at its option, activate the Services, or commence performance of ancillary Services (Step 7, above) prior to the Client making Payment. This Agreement shall nonetheless be deemed executed and in full force and payment due in accordance with Section 3 (Consideration) below.

c) All communication pursuant to this Section shall be in accordance with Section 21 (Notice) herein.

3 Consideration

a) In consideration for the Services provided, the Client agrees to compensate Hardfocus in accordance with the Fee Schedule as set out in Schedule “A” and selected by the Client via the Order Forms.

c) The Client agrees to remit payment in advance for the Services at regular intervals. The Client shall select the desired "Payment Cycle" via the Order Forms. During the Service period the Payment Cycle may be amended by mutual consent of the Parties, pursuant to conditions set down in Schedule "A".

d) Hardfocus will facilitate accepting payment for the Services via wire transfer, cheque or other bank service, or enlist the services of third-party payment-processing services to facilitate credit card and Internet payment transfers or other method of payment. The Client will be advised of the available methods of payment at the time that Hardfocus makes a request for Payment. Hardfocus may amend the acceptable methods of payment from time to time without prior notice to the Client.

e) Provision of the Services will commence after payment is received by Hardfocus for the Services, or on a date later than the date of payment if such has been requested by the Client.

f) If the Client fails to make payment by the due date for any reason, including but not limited to credit card charge-back or NSF cheque, the Client's account shall be considered payment overdue.

g) In the event that Client's account becomes payment overdue, Hardfocus may suspend or terminate the Services, pursuant to Section 20 (Termination) herein. The Client will be liable to make payment of an overdue account, even if such account has been suspended or terminated. Interest on overdue accounts shall accrue at one (1.5) percent per month, compounded monthly.

4 Adjustments, Reimbursements and Refunds

a) All monetary adjustments to the Client's account shall be applied as debits or credits in accordance with the principles of BBF (balance-brought-forward) accounting.

b) No refund or reimbursement will be made by Hardfocus, except as stipulated under in Schedule "A" under Money-Back Guarantee, or in the case of an overpayment by the Client.

b) The Client agrees to make prompt payment for any net debit balance of the Client's account that exceeds 5,000 yen, resulting from;

i) a change to the Hosting Level or Payment Cycle in accordance with Schedule "A",

ii) charges for ancillary Services whether or not they are a part of this agreement, and

iii) late-payment charges and accrued interest charges, and

iv) any other adjustment or charge that results in a net debit account balance.

c) In the case of the Client over-paying for the Services resulting in a net credit account balance, such credit balance shall be carried forward. Hardfocus may issue a refund to the Client in the amount of the credit balance, if so requested by the Client.

d) In the event of a reimbursement or refund being made to the Client;

i) such a refund shall be issued as a reversal of charges against a credit card payment, or wire-transfer service where applicable, or by the identical method of payment as the original payment.

ii) Hardfocus is not responsible or liable for any bank or financial service charges incurred to the Client, or to losses due to fluctuations in currency exchange rates.

5 Term

a) This Agreement is in effect, commencing on the date that the Hosting Account becomes activated and available for use by the Client, and continues for a period of one year (herein, the "Term").

b) This Agreement shall automatically renew under the same terms and condition set forth herein without further documentation being required, in accordance with Section 6 (Rights of revision) below, and unless and until either party terminates the Agreement pursuant to Section 20 (Termination).

6 Right of Revision

a) Hardfocus reserves the right to revise the Services and the Fee at any time during the Term. Schedule "A" shall be amended to reflect such revisions and the Client shall be given notice of such proposed revisions at least one calendar month before the end of the Client's Billing Cycle, pursuant to Section 21 (Notice) herein.

b) Proposed revisions shall take effect as of period coinciding with the next unpaid Billing Cycle (Payment Due Date). If such proposed revisions are unacceptable to the Client, the Client may terminate this Agreement pursuant to Section 20 (Termination) herein. In the event that the Client fails to give notice pursuant to Section 20 (Termination), the Client is deemed to have accepted the revisions as proposed in the notice of revision.

7 Client-Supplied Software

a) The Client is permitted to install its own software or third-party software on Hardfocus’s servers, in accordance with the Hardfocus Terms of Service (TOC). Such software may enhance the functionality of the Client's Hosting Service by enabling blogs, content management systems, bulletin-board systems, on-line shopping carts or other functions.

b) In the event that the client-supplied software disrupts the normal operation of any of Hardfocus’s servers, Hardfocus shall have the right to temporarily disable the software or suspend the Service until the problem can be resolved.

c) In the event that the client-supplied software violates Hardfocus's Acceptable Use Policy (AUP), Hardfocus shall have the right to suspend the Service without notice until an agreement can be reached between the Parties. At its option, Hardfocus may terminate the Services without notice pursuant to Section 20 (Termination) herein.

d) Hardfocus may, at it's option, make certain software, including third-party software or software developed by Hardfocus, available for installation by the Client. Except in the case where the Client has contracted Hardfocus to install or support such software, such third-party software is considered client-supplied, for the purpose of this agreement.

8 Support Services

a) Hardfocus shall provide Support Services to the Client on a 24 hour basis via a support ticketing system and by email.

b) In case that the Client requires support on business matters, such Client billing, the Agreement, and Hardfocus’s corporate policies, such support shall be provided free of charge.

c) In such case that the Client requires support on technical matters, such matters concerning Hardfocus’s standard server configuration, including software installed and maintained by Hardfocus or its agents, and Internet connection thereof, such support shall be provided free of charge except, as state below.

d) Support for of any kind of Client-provided Software, including third-party software which is made available by Hardfocus for installation by the Client, is expressly excluded from this agreement.

e) Support Services which are external to this Agreement are billed to the Client in accordance to the Fees set down in the Schedule of Support Services (Schedule "B").

9 Disk Space

a) Hardfocus will provide a fixed amount of hard disk storage space (herein, "Disk Space") to the Client, as specified in Schedule "A".

b) In the event that the Client usage of the Disk Space approaches the limit of allotment, Hardfocus shall notify the Client by email, in order that the Client may take steps to delete unnecessary files or take other remedial action.

c) The Client may, at its option, arrange to upgrade the Service to a higher Disk Space allotment level and pay an Upgrade Fee, in accordance with Schedule "A".

d) In the event that the allotted disk space or monthly traffic is exceeded, Hardfocus will suspend the Service until the Client takes action to remedy the situation.

10 Data Traffic

a) Hardfocus will provide a monthly network data transfer allowance ("Data Traffic") to the Client, which shall be limited as specified in Schedule "A". Data Traffic shall include all forms of data transferred to and from the server, including access to the Clients websites (HTTP), email accounts (SMTP and POP), file transfers (FTP) and any other server software program that sends or receives data via the server's network connection.

b) In the event that the Client Data Traffic approaches the monthly limit, Hardfocus shall notify the Client by email, in order that the Client may take steps to delete unnecessary files.

c) The Client may, at its option, arrange to upgrade the Service to a higher Data Traffic allotment level and pay an Upgrade Fee, in accordance with Schedule "A".

d) In the event that the allotted disk space or monthly traffic is exceeded, Hardfocus will suspend the Service until the Client takes action to remedy the situation. In the case where the Client's Service has been suspended for exceeding the monthly Data Traffic, the Service will be reinstated at the beginning of the new monthly period.

11 Security

a) Hardfocus shall take reasonable steps to limit vulnerabilities to its computers and network resources by performing routine upgrades and patches to the software operating on its computer servers and other infrastructure.

b) Hardfocus shall maintain a firewall which will consist of hardware or software designed and configured to limit or block unauthorised access to the computer and network resources.

12 Data Backup and Disaster Recovery

a) Hardfocus shall make a daily copy of the Client’s data, including the Clients websites, databases, email and other data (herein, "Backup"), and retain the Backups on-site for a minimum of one week.

b) Hardfocus shall retain at least one recent copy of the Backup on a different physical server, known as the "Backup Server".

c) In the event that the Client’s data has been lost or corrupted, the Client may make a request to Hardfocus to restore the data from one of the available Backups. Hardfocus may, at its option, charge a fee for restoring the data in accordance with Schedule A.

d) Hardfocus maintains the Backups as a convienience to the Client and shall not be responsible or liable for damages to the Client due to an inability to recover or restore the Client's data. The Client is therefore advised to maintain their own Backups on a different computer system.

13 Reporting

a) Hardfocus shall make available the raw server log data which contains the number of unique visitors to the Client's websites, the number of visits to each web page, including date and time of visits.

b) Hardfocus shall provide one or more utilities that facilitate formatting the server log data into meaningful reports.

c) Hardfocus shall not guarantee the usefulness or merchantability of the server log data or the utilities that generate reports from the log data.

14 Client Access

a) Hardfocus shall provide the Client the ability to remotely access the Client’s Hosting Account, including all website, email and other data via the Internet.

b) The Client's access to the hosting account shall be protected by user identification ("User ID") and a password. The password may be changed by the Client at any time.

c) The Client's connection to the hosting account shall be secured by a data encryption system and the firewall referred to in Section 11 (Security) herein.

15 Confidentiality

a) Hardfocus shall not disclose to any third party or use, except in connection with the performance of Services hereunder, any confidential information of the Client’s business (“Confidential Information”) learned by Hardfocus in the course hereof. Confidential Information shall include;

i) the Client’s business plans, marketing plans or plans for use of Hardfocus Services including:

ii) Specifications of the Client’s Website and any future development plans

iii) Concepts relating to the Client’s Website not disclosed from the operation of the Website

iv) Trade secrets of the Client

v) Email and other documents stored by the Client on Hardfocus servers.

vi) Information derived from providing the Services when Website is in operation, including but not limited to:

  1. identities, contact information and credit card information of the Client’s users
  2. confidential information of the Website’s use, such as number of users, unique visitors and unique visits.

vi) Notwithstanding the forgoing, this confidentiality obligation shall not apply to any information which is already known to the public or in the event that Hardfocus receives a validly issued administrative or judicial order, warrant or other process that requires the Hardfocus to disclose all or part of the Confidential Information or is otherwise required to disclose any Confidential Information in order to comply with any law.

16 Client Content

a) The Client acknowledges that responsibility for all content provided by the Client to Hardfocus for the performance of the Services or otherwise included in the clients websites (the “Client Content”) is the sole and exclusive responsibility of the Client and that Hardfocus will not be held responsible in any way for any copyright infringement or violation, or the violation of any other person’s rights or the violation of any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising or relating to the Client Content.

(b) the Client acknowledges and agrees that Hardfocus may elect at its sole discretion to monitor the Client Content. Hardfocus shall have the right, but not the obligation, to remove the Client Content which is deemed, in Hardfocus’s sole discretion, to be in violation of Hardfocus's <a target="_aup" href="/legal/network/aup">Acceptable Use Policy (AUP)</a>, any provision of this Agreement or in breach of any law.

(c) the Client agrees to indemnify and save harmless Hardfocus from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any such the Client Material provided by the Client.

17 Compliance with the Law

(a) The Client agrees to use the Services for legal purposes only. In the event that Hardfocus becomes aware or reasonably believes, in its sole discretion, that the Services are being used for illegal purposes, Hardfocus shall be entitled to immediately terminate the Agreement and the Services without notice in addition to any remedies to which it may be entitled under law.

(b) The Client agrees to indemnify and save harmless Hardfocus from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any illegal use of the Services or the Website.

18 Intellectual Property Rights

a) Hardfocus owns and shall continue to own all proprietary rights in all software code and content that Hardfocus supplies as part of the Services.

b) The Client owns and shall continue to own all proprietary rights in the Website and all software code and the Client Content relating to the Website.

19 Representations, Warranties and Indemnifications

a) Hardfocus represents and warrants to the Client that:

i) it has the right and capacity to enter into this Agreement and fully perform all of its obligations hereunder;

ii) it shall use commercially reasonable efforts to perform the Services as described in Schedule “A” (except to the extent the Services modified by the parties from time to time by mutual written agreement) and shall provide such Services in a professional manner consistent with industry standards.


b) the Client Represents and warrants to Hardfocus that:

i) The Client has the right and capacity to enter into this Agreement and fully perform all of its obligations hereunder;

ii) All Client Content provided hereunder shall be wholly original to the Client or the Client has acquired the necessary rights from third parties to contribute such Client Content and include it in the Client's Websites, and Client Content shall not violate any laws of any country and shall not infringe any other party’s copyright, patent, trademark or other intellectual property right.

iii) The Client shall not, nor shall it allow, authorise or assist any third party to, use the Services for any illegal purpose whatsoever.

c) Each of the Parties hereto agree to indemnify and save harmless the other, and any of its respective successors, licensees and assigns, from any and all losses, costs, liabilities, damages and expenses (including reasonable lawyers fees) resulting any breach of any representation, warranty and/or covenant under this Agreement.

20 Termination

a) Either party may terminate this Agreement at any time on one (1) month written notice to the other, pursuant to Section 21 (Notice).

b) Either party may terminate this Agreement in the event the other party is in material breach of any provision of this Agreement upon ten (10) business days’ prior written notice, unless the party receiving notice corrects the default within such ten business (10) day period.

c) Notwithstanding the forgoing, Hardfocus can, at its sole discretion, immediately terminate this Agreement and withdraw the Services in the event that it determines that the Client is using or allowing, authorising or assisting the Hosting Account for purposes contrary to the Acceptable Use Policy (AUP).

21 Notice

a) Any notice required or permitted to be given hereunder shall be in writing and shall be deemed given

i) when delivered by eMail to the eMail addresses designated by each Party for the purpose of such contact; or

ii) when delivered personally to any officer of the party being notified; or

iii) when delivered by registered mail to the postal address designated by each party for the purpose of such contact.

b) The parties shall notify each other of the email addressed to be used for contacting each other for the purpose of this Notice and for issues covered under Section 8 (Support Services).

c) The parties shall promptly notify each other of any change of eMail address or postal address.

e) When notice is given by eMail, both the sending and receiving parties shall retain copies of the eMail messages, including the entire eMail headers.

22 Independent Contractors

(b) Hardfocus and the Client are independent contractors and neither shall act as the other’s agent, or be deemed an agent or employee of the other, nor shall this Agreement be interpreted as creating a partnership or joint venture or otherwise.

23 Force Majeure

(a) Neither party hereto shall be responsible for any losses or damages to the other occasioned by delays in the performance or non-performance of any of said party’s obligations when caused by Acts of God, strike, acts of war, inability of supplies or material or labour or any other cause beyond the reasonable control of the said party.

24 Severability

(a) In the event any portion of this Agreement is deemed to be invalid or unenforceable, such portion shall be deemed severed and the parties agree that the remaining portions of this Agreement shall remain in full force and effect.

25 Assignment

a) Neither party may assign or otherwise transfer this Agreement without the written consent of the other party. This Agreement shall enure to the benefit of and bind the parties hereto and their respective legal representatives, successors and assigns.

Governing Laws

a) This Agreement shall be governed by and construed in accordance with the laws of the in the country of Japan.

27 Entire Agreement

(a) This Agreement, including the Recitals and Schedules, sets forth the entire agreement between the parties with respect to the subject matter hereof and, subject to Section 6 (Right of Revision) herein, this Agreement shall be amended only by mutual agreement in writing by the parties.