SERVICE AGREEMENT
Table of Contents
1. Services
Subject to the terms of this Agreement, and contingent on Customer's satisfaction
of HostingPlans.com's credit approval requirements, HostingPlans.com agrees
to provide the web hosting services described in the Order for the fees stated
in the Order.
2. Term
The initial service term of the Agreement shall begin
on the date that HostingPlans.com generates an e-mail message to
Customer announcing the activation of the Customer's account (the " Service
Commencement Date ") and shall continue for the number
of months stated in the Order (the " Initial Term ").
Upon expiration of the Initial Term, this Agreement shall automatically
renew for up to three successive renewal terms of the same length
as the Initial Term (each a " Renewal Term ")
unless HostingPlans.com or Customer provides the other with written
notice of non-renewal at least thirty (30) days prior to the expiration
of the Initial Term or then-current Renewal Term, as applicable.
The Initial Term and any Renewal Term may be referred to collectively
in this Agreement as the " Term ."
3. Payments
(a) Fees. Fees are payable in advance
on the first day of each billing cycle. Customer's billing cycle
shall be monthly or annually as indicated on the Order, beginning
on the Service Commencement Date. HostingPlans.com may require
payment for the first billing cycle before beginning service. If
the Order provides for credit/debit card billing, Customer authorizes
HostingPlans.com to bill subsequent fees to the credit/debit card
on or after the first day of each successive billing cycle during
the Term of this Agreement; otherwise HostingPlans.com will invoice
Customer via electronic mail to the Primary Customer Contact listed
on the Order. Invoiced fees may be issued on or before the 1 st
day of each billing cycle, and the fees shall be due on the 14
th day following invoice date, but in no event earlier than the
first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing HostingPlans.com with changes to billing information (such as credit card expiration, change in billing address) At its option, HostingPlans.com may accrue charges to be made to a credit/debit card until such charges exceed $10.00. HostingPlans.com may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. HostingPlans.com may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay HostingPlans.com's reasonable reinstatement fee following a suspension of service for non-payment, and to pay HostingPlans.com's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases. HostingPlans.com may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
(c) Taxes. At HostingPlans.com's request Customer shall remit to HostingPlans.com all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on HostingPlans.com), regardless of whether HostingPlans.com fails to collect the tax at the time the related services are provided.
(d) Early Termination. Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event HostingPlans.com terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for HostingPlans.com's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
4. Law/AUP.
Customer agrees to use the service in compliance with applicable law and HostingPlans.com's
Acceptable Use Policy, which is hereby incorporated
by reference in this Agreement. Customer agrees that HostingPlans.com may,
in its reasonable commercial judgment consistent with industry standards,
amend the AUP from time to time to further detail or describe reasonable
restrictions and conditions on Customer's use of the Services. Amendments
to the AUP are effective on the earlier of HostingPlans.com's notice to Customer
that an amendment has been made, or the first day of any Renewal Term that
begins subsequent to the amendment. Customer agrees to cooperate with HostingPlans.com's
reasonable investigation of any suspected violation of the AUP. In the event
of a dispute betweenHostingPlans.com and Customer regarding the interpretation
of the AUP, HostingPlans.com's commercially reasonable interpretation of
the AUP shall govern.
5. Customer Information.
Customer represents and warrants to HostingPlans.com that the information he,
she or it has provided and will provide to HostingPlans.com for purposes
of establishing and maintaining the service is accurate. If Customer is an
individual, Customer represents and warrants to HostingPlans.com that he
or she is at least 18 years of age. HostingPlans.com may rely on the instructions
of the person listed as the Primary Customer Contact on the Order with regard
to Customer's account until Customer has provided a written notice changing
the Primary Customer Contract.
6. Indemnification.
Customer agrees to indemnify and hold harmless HostingPlans.com, HostingPlans.com's
affiliates, and each of their respective officers, directors, agents, and
employees from and against any and all claims, demands, liabilities, obligations,
losses, damages, penalties, fines, punitive damages, amounts in interest,
expenses and disbursements of any kind and nature whatsoever (including reasonable
attorneys fees) brought by a third party under any theory of legal liability
arising out of or related to the actual or alleged use of Customer's services
in violation of applicable law or the AUP by Customer or any person using
Customer's log on information, regardless of whether such person has been
authorized to use the services by Customer.
7. Disclaimer of Warranties.
HostingPlans.com DOES NOT WARRANT OR REPRESENT THAT THE
SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW HostingPlans.com DISCLAIMS
ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS
IS" BASIS.
8. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST
PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD
HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN
CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED
OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF HostingPlans.com AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
9. Suspension/Termination.
(a) Suspension of Service . Customer
agrees that HostingPlans.com may suspend services to Customer without
notice and without liability if: (i) HostingPlans.com
reasonably believes that the services are being used in violation
of the AUP; (ii) Customer fails to cooperate
with any reasonable investigation of any suspected violation of
the AUP; (iii) HostingPlans.com reasonably believes
that the suspension of service is necessary to protect its network
or its other customers, or (iv) as requested
by a law enforcement or regulatory agency. Customer shall pay HostingPlans.com's
reasonable reinstatement fee if service is reinstituted following
a suspension of service under this subsection.
(b) Termination. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if HostingPlans.com fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by HostingPlans.com prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from HostingPlans.com describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information .
Customer agrees that HostingPlans.com may, without notice to Customer, (i) report
to the appropriate authorities any conduct by Customer or any of Customer's
customers or end users thatHostingPlans.com believes violates applicable law,
and (ii) provide any information that it has about Customer
or any of its customers or end users in response to a formal or informal request
from a law enforcement or regulatory agency or in response to a formal request
in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy.
Customer agrees to maintain a current copy of all content hosted by HostingPlans.com not withstanding
any agreement by HostingPlans.com to provide back up services.
12. Changes to HostingPlans.com's Network .
Upgrades and other changes in HostingPlans.com's network, including, but not
limited to changes in its software, hardware, and service providers, may
affect the display or operation of Customer's hosted content and/or applications.
HostingPlans.com reserves the right to change its network in its commercially
reasonable discretion, and HostingPlans.com shall not be liable for any resulting
harm to Customer.
13. Notices.
Notices to HostingPlans.com under the Agreement shall be given via electronic
mail to the e-mail address posted for customer support. Notices to Customer shall be given via electronic mail to the individual
listed as the Primary Customer Contact on the Order. Notices are deemed received
on the day transmitted, or if that day is not a business day, on the first
business day following the day delivered. Customer may change his, her or
its notice address by a notice given in accordance with this Section.
14. Force Majeure..
HostingPlans.com shall not be in default of any obligation under the Agreement
if the failure to perform the obligation is due to any event beyond HostingPlans.com's
control, including, without limitation, significant failure of a portion
of the power grid, significant failure of the Internet, natural disaster,
war, riot, insurrection, epidemic, strikes or other organized labor action,
terrorist activity, or other events of a magnitude or type for which precautions
are not generally taken in the industry.
15. Governing Law/Disputes.
The Agreement shall be governed by the laws of the State of Connecticut,
exclusive of its choice of law principles, and the laws of the United States
of America , as applicable. The Agreement shall not be governed by the United
Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR
ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE
AND FEDERAL COURTS IN HARTFORD COUNTY, CONNECTICUT,
AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES
ALL OBJECTIONS THERETO.
16. Miscellaneous.
Each party acknowledges and agrees that the other party retains exclusive ownership
and rights in its trademarks, service marks, trade secrets, inventions, copyrights,
and other intellectual property. Neither party may use the other party's
name or trade mark without the other party's prior written consent. The parties
intend for their relationship to be that of independent contractors and not
a partnership, joint venture, or employer/employee. Neither party will represent
itself to be agent of the other. Each party acknowledges that it has no power
or authority to bind the other on any agreement and that it will not represent
to any person that it has such power or authority. This Agreement may be
amended only by a formal written agreement signed by both parties. The terms
on Customer's purchase order or other business forms are not binding on HostingPlans.com unless
they are expressly incorporated into a formal written agreement signed by
both parties. A party's failure or delay in enforcing any provision of the
Agreement will not be deemed a waiver of that party's rights with respect
to that provision or any other provision of the Agreement. A party's waiver
of any of its right under the Agreement is not a waiver of any of its other
rights with respect to a prior, contemporaneous or future occurrence, whether
similar in nature or not. The captions in the Agreement are not part of the
Agreement, but are for the convenience of the parties. The following provisions
will survive expiration or termination of the Agreement: Fees, indemnity
obligations, provisions limiting liability and disclaiming warranties, provisions
regarding ownership of intellectual property, these miscellaneous provisions,
and other provisions that by their nature are intended to survive termination
of the Agreement. There are no third party beneficiaries to the Agreement.
Neither insurers nor the customers of resellers are third party beneficiaries
to the Agreement. Customer may not transfer the Agreement without HostingPlans.com's
prior written consent.HostingPlans.com's approval for assignment is contingent
on the assignee meeting HostingPlans.com's credit approval criteria. HostingPlans.com
may assign the Agreement in whole or in part.
It is also the responsibility of the site owner to keep all installed software up to date. Keeping outdated scripts will comprimise the server and all accounts hosted. We reserve the right to uninstall any unused, outdated scripts that has caused or has a high potential of allowing attacks on our servers. We will make attempts to contact owners before taking action to give time to update files. If the script has already compromised our servers, and we do not receive contact within 24 hours, we will delete the script.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
