Web Hosting Service Agreement
By using the website hosting services (hereinafter the “Services,” defined further below), you signify your agreement to the terms and conditions contained in this Website Hosting Agreement (hereinafter, the “Agreement”). This Agreement is between you, your organization (if you are entering into this Agreement on behalf of an organization), collectively referred to herein as “you” or “your” (and appropriate formatives), the website hosting service provider offering these services to you, if any, (the “Primary Service Provider”) and the backend service provider eNom, Inc. (the “Backend Service Provider”).
1. These terms and conditions may be modified from time to time. Modifications made to this Agreement will become effective 30 days after the modifications are posted. This Agreement shall be posted through the interface which you use to configure and/or otherwise order the Services (the “Services Interface”). You agree that you will check the terms and conditions periodically and that, if you no longer agree to the terms and conditions of this Agreement, that you will stop using the Services and that you will terminate the Services as described below in paragraph 4.
2. The Services consist of the website hosting package with the specific configuration which you selected or are going to select through the Services Interface as you use the Services. You acknowledge and understand that important service limitations (including bandwidth limitations and other capacity matrices), pricing (including pricing for optional Services, such as automatic capacity upgrade in the event of overage), the term of the Service, payment terms, and other conditions relating to the Services are conveyed through the Services Interface and are hereby incorporated into this Agreement.
3. You are hereby informed that, if you use a credit card to pay for the Services, that the charge for the Services may appear under a name other than the name of the Primary Service Provider (the name being generally descriptive of the Services) and that, prior to contacting your credit card company in relation to such charges, that you will first contact the Primary Service Provider to verify the charges and the manner of billing. You agree that any chargeback by a credit card company (or similar action by another payment provider) of a charge related to the Services, for whatever reason, is a material breach of this Agreement and is grounds for termination. You further agree that, upon a chargeback by you, you agree and acknowledge that eNom may suspend your access to any account you have with eNom and your use of any domain names, websites, website content, email, or other data hosted on eNom systems. We will reinstate your rights solely at our discretion, and subject to our receipt of the fee owed and our then-current reinstatement fee, currently set at US$200.
4. You agree that the Services shall be provided for the term you selected through the Services Interface. Unless you terminate the Services THROUGH THE SERVICES INTERFACE prior to the end of the then extant Services term, you agree that the Services may be renewed for another term of equal duration to the immediately preceding term and that the resulting fees shall be charged to the credit card associated with your account. You agree to hereby waive any requirement which might otherwise be imposed by law which would require that either the Primary Service Provider or the Backend Service Provider obtain your affirmative consent for on-going billings and that your continuing consent to be billed for such renewal(s) may be presumed until such time as you terminate the Services through the Services Interface. You agree that attempts to terminate the Services other than through the Services Interface (such as by sending an email to a general email address of either the Primary Service Provider or the Backend Service Provider) are not reliable means of communication and that such a termination attempt shall not binding until accepted and acknowledged by either the Primary Service Provider or the Backend Service Provider. In relation to renewals, you further agree that it is your obligation to keep the credit card information associated with your account current and that neither the Primary Service Provider nor the Backend Service Provider shall be obligated to contact you to update such information in the event that the charges are denied.
5. You agree that you may not downgrade (reduce) the bandwidth or other capacity matrices of the Services below the level of actual use of the Services which you experienced in the current or previous month.
6. Your use of the Services may be suspended and/or this Agreement may be terminated if either the Primary Service Provider or the Backend Service Provider determines that you are or are alleged to be violating the terms and conditions of this Agreement or any other agreement entered into by you and either the Primary Service Provider or the Backend Service Provider. In the event of termination or suspension of Services under such circumstances, you agree a) that no pre-paid fees will be refunded to you and b) that either the Primary Service Provider or the Backend Service Provider may take control of any domain name associated with the terminated Services, provided such domain name was registered through the domain name registration services of either the Primary Service Provider or the Backend Service Provider. You understand that taking control of a domain name includes, without limitation, acts such as listing such controlling party as the “registrant” and/or “administrative contact” for the domain name and controlling the DNS settings for the domain name.
7. Either the Primary Service Provider or the Backend Service Provider may elect to terminate this Agreement without cause and discontinue the Services upon 30 days notice, whereupon any pre-paid fees for an unused portion of a service term shall be refunded to you within a reasonable period of time. You further agree that, within 30 days of your initial enrolment to receive the Services, either the Primary Service Provider or the Backend Service Provider may elect to terminate this Agreement without cause and that, in such event, the termination shall take effect immediately and that any pre-paid fees for an unused portion of your service term shall be refunded to you within a reasonable period of time.
8. The Services are provided through an infrastructure which is shared by all users of the Services. Your use of the Services may be throttled or suspended indefinitely if your use of the Services degrades the ability of either the Primary Service Provider or the Backend Service Provider to provide the Services to other users of the Services.
9. You acknowledge that email and/or online communication systems (chat, account notices, etc.) will be the primary means of communication between yourself and the Primary Service Provider and/or the Backend Service Provider. You acknowledge that it is your responsibility to maintain a current email address and physical mailing address in your contact information. You further agree that you will regularly login to your account to obtain any notices posted through the Services Interface. You agree that your failure to respond to a communication from either the Primary Service Provider or the Backend Service Provider may result in suspension or cancellation of Services without any refund of pre-paid fees, if any.
10. You acknowledge that neither the Primary Service Provider nor Backend Service Provider are obligated to return any data to you upon termination of this Agreement. You acknowledge that it is your responsibility to download, make copies of, and/or backup all data residing on the servers and other equipment which provide the Services and to do so within the bandwidth limitations of the Services. You acknowledge that any loss or corruption of data which occurs due to an interruption in the Services, regardless of the cause of the interruption, shall not be the responsibility of the Primary Service Provider or Backend Service Provider and that you may, following an interruption in the Services, be required to upload the data to the servers and other equipment which provide the Services.
12. You represent and warrant as follows: that a) you are lawfully entitled to use, display, posses, or access the data uploaded, linked to, framed, or otherwise posted on your website by you and/or by the users of your website; b) that your website and your use of the Services will not infringe the intellectual property rights of any third party; c) that your website and your use of the Services will not violate any laws, including, without limitation, laws relating to unsolicited commercial email, child pornography, collection of identifying information, consumer protection, and privacy; d) that neither you nor those who access your website will upload any worms, virus, or malicious code to the servers which provide the Services; and e) that your website and your use of the Services will not subject either the Primary Service Provider or Backend Service Provider to any claims by any third party, including claims relating to infringement of intellectual property rights or claims relating to the products or services which you may provide or offer through the website hosted through the Services.
13. You further represent and warrant that you will not allow any unauthorized third party to access the account which you use to access the Services.
14. EXCLUSIVE REMEDIES FOR UNPLANNED SERVICE INTERRUPTIONS: You agree that any unplanned or unannounced interruptions in the Services shall not require a remedy unless such unplanned or unannounced interruptions exceed 24 hours in any 30 day period, in which case you agree that the exclusive remedy shall be a credit toward 24 hours of hosting for each 24 hour period of unplanned or unannounced interruptions, and that such credit shall exclusively be applied against the fees owed for your next period of hosting, if any, or shall be exclusively be accomplished by adjusting the end of your then-current Service term.
15. LIMITATION OF LIABILITY: YOU AGREE THAT NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND SERVICE PROVIDER WILL BE LIABLE FOR ANY (A) SUSPENSION OR LOSS OF THE SERVICES, EXCEPT TO THE LIMITED EXTENT THAT A REMEDY IS PROVIDED UNDER THIS AGREEMENT; (B) INTERRUPTION OF BUSINESS; (C) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEB SITE(S) PROVIDED THROUGH OR BY THE SERVICES; (D) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD; (E) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (F) EVENTS BEYOND THE CONTROL OF THE PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER; (G) THE PROCESSING OF YOUR APPLICATION FOR THE SERVICES; OR (H) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD. YOU FURTHER AGREE THAT NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND SERVICE PROVIDER WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER OR NOT EITHER THE PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF EITHER THE PRIMARY SERVICE PROVIDER OR THE BACKEND SERVICE PROVIDER EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES FOR A ONE-MONTH PERIOD, BUT IN NO EVENT GREATER THAN ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, THE LIABILITY OF THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. INDEMNIFICATION: YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD THE PRIMARY SERVICE PROVIDER AND BACKEND SERVICE PROVIDER, THEIR CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY’S FEES AND COURT COSTS, FOR THIRD PARTY CLAIMS RELATING TO YOUR USE OF THE SERVICES OR ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, INFRINGEMENT BY YOU OR SOMEONE ELSE USING YOUR COMPUTER, OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY PERSON OR ENTITY, OR FROM THE VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT. WHEN EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER MAY BE INVOLVED IN A SUIT INVOLVING A THIRD PARTY AND WHICH IS RELATED TO THE SERVICES UNDER THIS AGREEMENT, EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE PROVIDER MAY SEEK WRITTEN ASSURANCES FROM YOU IN WHICH YOU PROMISE TO INDEMNIFY AND HOLD SUCH PARTIES HARMLESS FROM THE COSTS AND LIABILITIES DESCRIBED IN THIS PARAGRAPH. SUCH WRITTEN ASSURANCES MAY INCLUDE THE POSTING OF PERFORMANCE BONDS OR OTHER GUARANTEES. YOUR FAILURE TO PROVIDE SUCH ASSURANCES MAY BE CONSIDERED A BREACH OF THIS AGREEMENT BY YOU.
17. You agree that the Backend Service Provider shall not be liable for the actions, inactions, negligence, or intentional misconduct of the Primary Service Provider. You acknowledge and agree that neither the Primary Service Provider nor the Backend Service Provider are agents for one another.
18. DISCLAIMER OF WARRANTIES: NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND SERVICE PROVIDER MAKE ANY REPRESENTATIONS NOR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EITHER THE PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
19. GOVERNING LAW: this Agreement, your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of Washington, as if the Agreement was a contract wholly entered into and wholly performed within the State of Nevada. You agree that any action to enforce this Agreement or any matter relating to your use of the Services shall be brought exclusively in the United States District Court for the District of Nevada, or if there is no jurisdiction in such court, then in a state court in Clark County, Nevada state. You consent to the personal and subject matter jurisdiction of any state or Federal court in Clark County, Nevada state in relation to any dispute arising under this Agreement. You agree that service of process on you by either the Primary Service Provider or Backend Service Provider in relation to any dispute arising under this Agreement may be served upon you by first class mail to the address listed by you in your contact information or by electronically transmitting a true copy of the papers to the email address listed by you in your contact information.