2. This TOU has agreements that have been incorporated by reference. The following documents are part of this agreement and you agree that you have reviewed and accepted:
a. The web page where the services you need from us are indicated. During the course of your relationship with us, you may purchase more services from us using new Order Forms. All these forms are incorporated into this TOU agreement. In the event that you are purchasing services for another third party, you warrant and represent to us that you have the required authority from the third party to purchase those services. For purposes of this agreement, the Order Form will be our online ordering process.
c. Our Service Level Agreement (SLA) that can be found here: SLA
d. In the event that you are using our services to offer your own services to third parties, including End Users, you will be responsible for any violation that may result from your use of the services in a manner that violates this agreement. For this reason, we strongly recommend that you add these policies to your own policies or that you adopt policies that are just as restrictive as these ones are. Other than in the event of a threat to our infrastructure or when there is an emergency, we will notify you and give you a chance to correct violations of this document.
e. This TOU and SLA are herein together referred to as the TOU. Should there be a need to refer to any agreement or policy individually, we will use the names above.
f. This TOU agreement may change periodically. Unless it is a change to correct typographical errors, we will give our users written notice of any changes made. This notice will be given either by email to the contact email address provided, or by posting on our home page or control panel. Other than the changes that are necessary to respond to unforeseeable situations, or those required by a third party service provider, or changes that are required by law, any other change will be effective in thirty(30) calendar days from the date a notice is posted on our home page, control panel or by email to our users. In case you have a “Term Commitment” as defined below and a change of these terms affects your ability to use one of the services, you have the option of terminating the affected service as described in the termination section of this agreement.
3. The Services
a. Services will be offered in the manner indicated on the Order Form beginning on the Effective Date. These services will be given according to our provision for the services as indicated on the Order Form at the time of placing your order. We will provide the indicated services during the term as indicated on the Order Form. We could however amend the services during the term if we are required to do so by law, by a third party vendor who is our service provider for aspects of the Services, or if you use the Services in a manner that violates this TOU agreement. New customers could be offered services that are not similar to the services you have purchased. We don’t have any obligation to provide those services to you. In the event that there is a conflict between the Order Form and this TOU agreement, the Order Form will prevail.
b. Our Services are given as described in the Order Form on the website on the Effective Date. For you to use the Services, you may have to get additional equipment, materials, services and/or technology. You may not terminate this agreement because of the requirement to get these extra items. Our implementation of the Services may call for your assistance from time to time. You agree to offer the assistance with reasonable cooperation and to cause the same from any third party providers you work with.
c. Some aspects of the Services may be provided to us by third parties. We agree to make efforts that are commercially reasonable to ensure access to these components. However, should the providers change, discontinue or make the services economically prohibitive for us to provide them, we will only be obliged to try and find replacement components at an economically viable cost to us. If we are not able do that, you may terminate Services that are affected directly by the change.
d. Services aren’t static hence you may be required to install new versions of firmware, software and other items (Updates) to ensure continuity. In such a case, you accept to install them within 30 (thirty) calendar days of our request. If you fail to do so in the required time, and your failure to install them endangers the Service or the stability of our network, you agree that we are free to install them with no liability to you.
e. The security of passwords and other access control tools is your responsibility. We will be relying on operations or instructions of any entity that uses your passwords or access control tools to log into your account. Should any of these items get stolen, lost or compromised, you agree to inform us immediately.
f. We aim to maintain the Services as described in this TOU agreement. To do that, it may be necessary to interrupt them periodically for maintenance. We agree to provide notice 24 hours before the Services are suspended for this purpose. This notice will be sent to your registered email address in our records and it will give the features that will be affected, the period during which the maintenance will go on and the reasons for the maintenance. In rare cases, we may need to do emergency maintenance that makes it impossible to provide the notice described in this paragraph. In such cases, we will make reasonable efforts to make sure that maintenance operations don’t interfere with your normal operations. However, to ensure stability of our platforms, maintenance activities may take precedence where a conflict may arise.
g. You understand and agree that sometimes, Services and/or support could be unavailable because of equipment malfunction, scheduled maintenance, technical difficulties or other circumstances beyond our control, and that we make no claim or representation that Services will be made available to you on an uninterrupted or continuous basis.
h. We don’t have set limits on the disk space available for your Services provided that this TOS agreement is not violated by the contents. In the event that your use goes beyond the capacity of the product specifications of your particular Service or this agreement, we reserve the right to make changes to the Services we provide to you or request that you move to another Service.
i. You accept that it is not our duty to back up your data and that it is your responsibility to take the necessary steps to ensure that data is maintained in accordance with your requirements. In addition, you agree that the Backup Services defined below will not back-up all data, are not fool-proof and that you will have another source of backup. We will not under any circumstance have any responsibility or liability for loss of backup data, content or any other information unless it is caused by our willful misconduct or negligence.
j. Should you purchase Backup Services from us, you agree that they are offered on an as-available and as-is basis as a supplement to and not in lieu of your personal backup efforts. We will make efforts that are reasonable commercially to make sure that Backup Services operate effectively. Further, you agree that no backup service or program is fail-safe or error-free. Should the Backup Service fail or get interrupted, we will only be obliged to restore your server to operating condition. It will be your duty to restore your websites functionality. For this reason, you may want to keep an operational copy of your website.
k. The purpose of Backup Services is disaster recovery. In the event that you or a third party would request that we provide data held using Backup Services for other purposes, for example in litigation, we will not be obliged to provide it. If we determine in our exclusive and sole judgment to provide this data to you, or if your data is subpoenaed or its disclosure otherwise compelled, we will provide it at our convenience and you will be charged hourly at our prevailing hourly rate. Any attorney fees we incur when producing, reviewing and responding to your requests will also be your responsibility, and you will need to pay a retainer for securing your obligations.
l. You agree to provide certain current, accurate and complete account information for your Services. Maintaining and updating this information to ensure that it is current, accurate and complete is your responsibility.
m. You agree that you will have no access physically to the equipment that we use to provide our Services and that we have the right to relocate it at any time.
a. Payments for our Services, due dates and other information concerning collection and assessment of amounts owed can be found under Order Form (“Fees”). In instances where the Order Form does not specify a payment date for the Services, Fees will be due monthly. When renewing a Service Term, Fees will be set to our standard fee for the particular Service at the time. Discounts available only to new Users may not be available for services you have already agreed to purchase. Your service could be suspended if we don’t collect Fees immediately.
b. We will only increase Fees in the following circumstances during the Term.
i. When you purchase additional Services with additional Fees;
ii. When a regulated entity e.g. a utility, increases the amount they charge to us; or
iii. When a vendor adds additional fees or surcharges based on your use of the Services.
We agree to provide you with a written notice 30 (thirty) calendar days before any changes are made in the fees. This notice will be sent to the primary contact email address you have provided in your account.
c. Fees are non-refundable.
d. Taxes may be omitted from the prices on your Order Form. In circumstances where we are expected to collect taxes, they will be added to the Fees. You agree to provide the information we need to calculate them. Once calculated, you agree to pay them. You will not be charged taxes based on our income.
e. Should third parties review some charges, they will be added to your Fees within 30 (thirty) calendar days from the day we get them. Regardless of the time that may have elapsed, you agree to pay these charges.
f. Should you fail to pay the Fees on the scheduled due date, we may suspend and/or delete any Services. When we suspend Services for non-payment, we won’t be required to reinstate them until:
i. All Fees due have been paid in full, including interest charges of 1.5 (one and a half) percent per month (or the highest rate permitted by laws governing this TOU agreement), collection costs (including attorneys’ fees and fees charged by our collection agency), and any cost incurred as we reinstate the services; and
ii. You provide us with satisfactory proof (such as a deposit) as requested by us that you will be able to pay for the Services for the rest of the Service Term. Should you fail to address the non-payment within the provided timeframe, you will be deemed to have terminated all affected Services as of the date when the Services were suspended. We will treat your failure to pay Fees when due as a termination for convenience and it will be subject to Early Termination Fees. You won’t receive SLA credits or any other credits or benefits in the period you have not paid Fees, and during any dispute, you will not withhold Fee-payment.
g. We understand that disagreements concerning Fees may arise from time to time between the parties. To ensure timely resolution, each of the parties agrees to use the methods described in this paragraph for resolution. If you dispute a Fee, you agree to notify us in writing before the due date for the fee. In this written notice, you will provide enough information to allow us conduct an investigation. We will complete this investigation in 30 (thirty) calendar days from the due date for the Fee and send you a written report of the results of the investigation with the necessary facts for your review. If we agree with the dispute, you will be credited on your next billing cycle or within 60 (sixty) calendar days if you don’t have a monthly billing cycle. If we don’t agree with your dispute, you may send us a written rebuttal within 30 (thirty) calendar days again providing the necessary facts and evidence to help us better understand your concerns. We will give you a response in 30 (thirty) calendar days from the date of receipt of this rebuttal. If the parties don’t agree beyond this point, they may pursue their remedies at law. Fee disputes are specific to the service concerned hence you will be required to pay Fees for your other services during the dispute period. You may not terminate a Service or this TOU agreement based on a dispute on Fees. We won’t charge any interest on affected Fees during the dispute resolution period as long as the dispute is bona fide.
h. We have every possible measure in place to ensure that online payment processing is secure for your account. Although our payment processing systems are all PCI compliant and safe, the hosting environments may not be fully compliant with Payment Card Industry Data Security Standard (“PCI DSS”).
6. Term. This TOU Agreement shall take effect on the Effective Date and will continue until it is terminated by either party (“TOU Term”). Individual services will start on their Effective Date and end when either party terminates them (“Service Term”). Collectively, the TOU Term and Service(s) Term are referred to as “Term”. The initial Service(s) Term is indicated on the Order Form, but it will be set to 30 (thirty) days if the Order Form doesn’t have a Service(s) Term. Upon the expiration of the initial Service(s) Term, individual services will renew for a period equal to the length of the initial Service(s) Term unless the User sends us a written notice of termination 15 (fifteen) calendar days prior to expiration. Our required procedure for termination is provided below. Until this agreement is properly terminated, the TOU Term will extend automatically.
7. Termination. We are sad to see you leave, but here is the procedure for termination.
a. An individual service may be terminated by contacting our support team by phone, chat or ticket and notifying us that you intend to terminate a service (“Service Termination”). Service Termination must be done at least 24 hours before the scheduled renewal of the Service Term, does not apply to any other services you get from us and unless you are terminating the last service you get from us, does not terminate this TOU agreement. You agree and understand that you are required to give notice of your intention to terminate a Service Term or this TOU agreement because of the long-term facilities and equipment commitments we have to make in order to provide the Services to you.
b. We may immediately terminate this TOU agreement or an individual Service if:
i. A User violates a term in this agreement and does not correct the violation within the provided timeframe;
ii. A user fails to pay Service Fees when they are due;
iii. A third party vendor ceases to provide aspects of the Services to us and we are unable to get replacement services as described in this TOU;
iv. A User becomes the subject of a bankruptcy proceeding or an insolvency proceeding; or
v. We are required to do so by law. In this case, you will be liable to us for accrued amounts owed before the effective date of the termination. These amounts include but are not limited to Early Termination Fees, if any as described in this TOU agreement. Should we give a cure period, all legal notices to remove equipment and vacate our network will be waived after the cure period.
c. In the event of a force majeure event that goes on for more than 30 (thirty) calendar days, or one party becomes subject of an involuntary or voluntary bankruptcy, liquidation, insolvency, reorganization or dissolution proceeding in bankruptcy or under any other insolvency law, makes an assignment for the benefit of creditors or makes an admission in writing that they are unable to pay debts when due, either party may terminate a particular element of a service as described in this TOU agreement.
d. Once this TOU agreement is terminated, it will be your duty to appropriately redirect any technical aspects of your business such as WHOIS, mail and other such items that may be beyond our control. It will not be our duty to maintain backups (including backups of Hosted Personal Data), forward emails, or to point your domain names’ DNS away from us.
8. Our Standard Service. Our Services are covered by the sections of our SLA applicable to your service. The SLA has your exclusive remedies for any issues touching on the delivery of the concerned Services. We agree that we will provide the credits and remedies described in our SLA, and you agree that you will use it only for issues that are covered therein.
9. The Parties Own Their Intellectual Property. Each party keeps the intellectual property licensed or owned by them. To offer and use the Services, each party grants the other a limited license to distribute and use the intellectual property when necessary to offer or use the Service. Apart from in the circumstances set out in the previous sentence or in this TOU agreement, no party grants the other any right, interest in or claim to the other’s owned or licensed intellectual property. Suggestions that are given to us and used by us for improving our Services will be considered our intellectual property.
10. We Stand Up for Each Other.
a. We agree that we will defend, indemnify and hold you, your directors, employees, and officers (“Your Indemnified Parties”) from any and all third party actions, damages, expenses, costs and liability (including, but not limited to expenses and attorneys’ fees charged to us) related to or arising from property damage or personal injury resulting solely from our willful misconduct or gross negligence. You agree to release and waive all claims against Our Indemnified Parties (as defined in paragraph b), and that Our Indemnified Parties will not face any liability for damage to property or injury to person sustained by Your Indemnified Parties as a result of the Services or in any other way related to this TOU agreement unless the damage or injury is solely as a result of our wilful misconduct or gross negligence.
b. You agree to defend, indemnify and hold us, third party vendors who give aspects of the service to us, subcontractors, contractors, affiliates, employees, officers and directors (“Our Indemnified Parties”) from all third party actions, damages, expenses, liability and costs (including but not limited to attorneys’ expenses and fees charged to us) related to or arising from:
i. Property damage or personal injury arising from your action or inaction or those of any entity or individual identified as Your Indemnified Parties, as well as End Users;
ii. Any claim by you, your End Users or Your Indemnified Parties, other than claims that are solely based on our willful misconduct or gross negligence;
iii. Any claim by your customers (including End Users) arising from, or relating to your or any End Users’ services or the Services provided under this TOU agreement;
iv. Any claim where you have not fulfilled a contractual obligation made with a third party;
v. Any claim as a result of your failure to get the necessary licenses or consents for you or your End Users to use our Services; and
vi. Any clam made by a party or End User claiming that by, through or under you, to the extent that such a claim would result in a greater liability or obligation to us than what is undertaken to you in this TOU agreement if sustained.
11. Each of Us Stands Behind this TOU Agreement.
a. Every party warrants to the other that it has the authority, power and legal right to go into this TOU agreement and to carry out the obligations described in it, and in line with agreements and provisions incorporated therein.
b. You warrant that you own, or have the required license to use the technology required to use the Services, the technology placed by you on our network and any data transmitted using the Services. You agree that you will provide us with evidence of these licenses when we make a reasonable request, and that you will make available similar warranties from all your End Users. Particularly, you warrant and represent that material transmitted and placed on our network through the Services doesn’t in any way infringe any third party copyright, patent, trademark or right to a trade secret. You also warrant that you have used reasonable efforts to make sure that none of the material has any viruses and that it is not placed on our Services to give access to them by other parties.
c. ANY WRITTEN OR ORAL COMMUNICATION BETWEEN YOU AND US ABOUT THE SERVICES NOTWITHSTANDING, EXCEPT AS STATED EXPRESSLY IN ANY DESCRIPTION OF OUR PRODUCTS OR IN THIS TOU AGREEMENT, AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR AFFILIATES, EMPLOYEES, AGENTS, SUB-CONTRACTORS SUPPLIERS, OR LICENSORS MAKE ANY WARRANTIES OF ANY KIND, WRITTEN OR ORAL, IMPLIED OR EXPRESS, ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR IN ANY OTHER WAY INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, CONFORMITY TO ANY DESCRIPTION OR REPRESENTATION, NON-INTERFERENCE, NON-INTERRUPTION, NON-INFRINGEMENT, OR THAT THE SERVICES ARE COMPLETELY ERROR-FREE OR SECURE. EXCEPT WHEN IT IS EXPRESSLY STATED IN THIS TOU AGREEMENT, EQUIPMENT AND SERVICES ASSOCIATED WITH OR PROVIDED UNDER THIS TOU AGREEMENT WILL BE PROVIDED ON AN “AS AVAILABLE”, “AS IS” AND “WITH ALL FAULTS” BASIS.
12. Our Liability is Limited.
ANYTHING TO THE CONTRARY IN THIS TOU AGREEMENT NOTWITHSTANDING, WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY MAKING A CLAIM ARISING FROM OUR PROVISION OF THE SERVICES TO YOU FOR (I) LOSS OF BUSINESS; (II) LOSS OF PROFITS; (III) LOSS OF REVENUES; (IV) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; (V) LOSS OF DATA OR CORRUPTION OR INTERRUPTION OF DATA; OR (VI) ANY INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE). THIS LIMITATION IS APPLICABLE EVEN IN CIRCUMSTANCES WHERE WE HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES. OUR MAXIMUM LIABILITY WILL BE 1 (ONE) MONTH’S FEES (OR EQUIVALENT) ACTUALLY RECEIVED BY US IN THE MONTH PRIOR TO THE CLAIM. SHOULD THIS DISCLAIMER BE PROHIBITED BY THE LAW GOVERNING THIS TOU AGREEMENT, OUR LIMITATION WILL BE LIMITED TO THE EXTENT ALLOWED BY LAW. FURTHER, OUR MAXIMUM LIABILITY AS A RESULT OF A SERVICE WITH A NON-RECURRING CHARGE WILL BE EQUAL TO THE AMOUNT OF THE NON-RECURRING CHARGE FOR THE SERVICE ON THE OCCASION RESULTING IN THE CLAIM. OUR OBLIGATION TO IMDEMNIFY OUR USERS AS DESCRIBED IN PARAGRAPH 10 IS NOT LIMITED BY THIS PARAGRAPH. TO THE EXTENT THE SERVICES CONTAIN SOFTWARE FROM MICROSOFT, BOTH MICROSOFT AND ITS SUPPLIERS WILL NOT BE SUBJECT TO ANY DAMAGES WHETHER CONSEQUENTIAL, DIRECT OR INDIRECT ARISING FROM THE USE OF MICROSOFT SOFTWARE OR PRODUCTS.
13. We Both Agree That Certain Information Will Be Kept Confidential.
b. Both parties agree that should one party (“Disclosing Party”) makes Confidential Information available to the other party (“Receiving Party”), that Confidential information will be held in confidence and that the Confidential Information will be given the same protection and care given to the Receiving Party’s own confidential and proprietary information, but no less than reasonable care so that disclosure or unauthorized use by third parties can be avoided. Unless it’s specified otherwise in writing, all Confidential Information will remain property of the Disclosing Party and will therefore be used by the Receiving Party solely for its intended purpose. After the Receiving Party’s need for Confidential Information has expired, all Confidential Information received, including any copies made, will either be returned to the Disclosing Party or destroyed upon the request of the Disclosing Party. Provisions of this paragraph will not apply to Confidential Information that:
i. is made available publicly other than through the disclosure by the Receiving Party;
ii. is required to be disclosed by court order, government authority or applicable law;
iii. is developed independently by the Receiving Party;
iv. is made available to the Receiving Party with no restriction by a third party; or
v. is relevant for the enforcement of either party’s rights under this TOU agreement or the settlement of any dispute.
In the event that Confidential Information is required to be disclosed following the circumstances set out in this paragraph, the party disclosing will, unless it is prohibited legally, furnish the other party immediately with the requirements of such a disclosure so that the Disclosing Party can take the necessary protective measures to ensure that the confidentiality of the Confidential Information is preserved as much as possible in the context of the permitted disclosure. A party disclosing Confidential Information to its agents, employees, lenders and its accounting, financial and legal advisors who need to access the Confidential Information is not in violation of this paragraph as long as the Disclosing Party notifies the recipient that the information is proprietary and confidential.
14. Data Protection
a. “Data Protection Legislation” refers to all the applicable laws that relate to privacy and data protection including but not limited to the EU General Data Protection Regulation (2016/679) and any other national laws implementing this regulation, The EU Privacy and Electronic Communications Directive 2002/58/EC as implemented in each jurisdiction and any legislation that’s a replacement or amendment from time to time.
b. With respect to personal data processed by or submitted via the Services under this TOU agreement (“Hosted Personal Data”), we are the data processor and you are the data controller.
c. You warrant, agree and undertake to comply with all your obligations under Data Protection Legislation with regards to Hosted Personal Data, and that you will ensure that you only give lawful instructions to us with regards to the Hosted Personal Data.
d. We will:
i. only process Hosted Personal Data according to instructions in this TOU agreement, or according to instructions given by you from time to time in writing and agreed by us (subject to provisions set out in section 7). Where the law allows, we will notify you whenever we are required to process Hosted Personal Data in a manner that is not in accordance with your instructions;
ii. ensure that all our personnel who have access to Hosted Personal Data are bound by confidentiality obligations;
iii. reasonably assist you to ensure that you are compliant with your obligations under Data Protection Legislation at your expense and upon written request taking into account the nature of the available information and the processing required; and
iv. make available to you information that is reasonably necessary to demonstrate our compliance with our obligations to you with respect to the sections where we are your data processor under section 13 of this TOU agreement upon written request. We will, on a case by case basis, consider reasonable requests for access to our premises for purposes of auditing our compliance with our obligations to you as a data processor in section 13 of this TOU agreement, taking into consideration our need to ensure security of other customers’ data and our infrastructure. We reserve the right to charge you an appropriate fee for our compliance with such requests.
e. You accept that the processing of Hosted Personal Data may be subcontracted to a subcontractor and/or any of our associated companies (“Sub-processor”). We will check and ensure that all Sub-processors used are subjected to contractual obligations to provide the same protection for your Hosted Personal Data as those imposed on us by these Terms. We will inform you within a reasonable timeframe about intended additions or replacements of our Sub-processors prior to the implementation of the said changes. In case you don’t agree with a particular change, you have the right to terminate this TOU agreement with a 30 days’ notice as your exclusive and sole remedy. We agree to be held responsible for the performance of all our Sub-processors.
f. You agree that we may process Hosted Personal Data together with our Sub-processors outside the European Economic Area so that we can offer the Services and our other obligations as described in this TOU agreement in line with our Privacy Shield Certification (more information on this certification can be found on section 4).
g. The processing activities that we carry out on Hosted Personal Data under this TOU agreement are:
i. Subject matter: Provision of the Services as set out in the Order Form
ii. Duration: The period in which the Services will be provided
iii. Nature and purpose: So that we can provide the Services
iv. Data categories: Information about individuals that is provided to us via the Services by you, at your direction or by End Users.
v. Data Subjects: Individuals who the information provided to us via the Services by you, at your direction or by End Users is about.
15. We Take Security Seriously. Organizational and technical security measures are always in place to ensure that Hosted Personal Data is safe from unlawful and unauthorized processing, accidental damage, loss or destruction. Nonetheless, we co-manage with you a majority of the resources that are associated with the Services. You will be fully responsible for maintaining security of the aspects of the services that are co-managed and you agree to do it in a manner that doesn’t compromise on the security and stability of the entire network. Our services are configured for standard deployment. This configuration may not be in line with your security needs. You are therefore expected to configure these services in line with your security needs. We will not be responsible for the way you choose to make changes to the configuration so that it meets your security needs. If we find that there has been an unauthorized access to the Services (“Breach”), we may consult with a security agency so that we can find our best course of action given the circumstances. We agree to notify you in writing as soon as we have determined our course of action in response to the breach once we have been advised (“Breach Notification”). We may take action and this action may include suspending all or part of the Services so that we can identify and resolve the cause of the Breach. We will take no liability for the effects of such a suspension. The Breach Notification provided to you could contain unconfirmed and preliminary information. It is provided to you so that it can be of help to you as you try to mitigate the effects of the Breach. The extent to which you rely on the Breach Notification will be at your own risk. Both parties agree to reasonably cooperate with each other during the investigation of the circumstances and the facts surrounding a Breach. If our cooperation will require us to devote resources and time beyond what is extended by us for a typical Breach investigation, or if cooperation with a government investigation is required, you will be billed at our standard consulting rate. Information provided to you as a result of a Breach (including the Breach Notification) will be considered our Confidential Information.
16. Compliance with Laws. Both parties agree that they will get and maintain the necessary licenses, permits and certificates required by regulatory bodies for the use and provision of the Services. Both parties agree to comply with all laws applicable when performing their obligations and exercising their rights under this TOU agreement. Unless it is specifically indicated on your Order Form, we have not represented to you, nor do we warrant that our Services conform to any particular industry standard.
17. We own the IP addresses used by the Services. When you terminate the Services, the IP addresses must be relinquished by you. Services will either have a dedicated or shared IP address. We can’t guarantee that this IP address will never change. We will make reasonable efforts to prevent any changes to these IP addresses, but owing to many factors, including changes in the network configuration, we will not give you an email notification in advance for such changes.
18. General Provisions
a. Your name and email address will be used to occasionally send newsletters to you. You may find information about our services, promotions and the company in these newsletters. To protect your privacy, each newsletter comes with a way to unsubscribe. You may choose to opt-out of these email by using the provided unsubscribe link. We will then only send you service related announcements when necessary e.g. you will receive an email when there is a scheduled network maintenance.
b. You agree that you or any End User will not modify, remove or obscure any trademark, copyright or other proprietary rights notices contained on the products used to provide the Services or in the Services. We, or a third party acting on our behalf will provide all the support expressly described in this TOU agreement for software and products licensed by Microsoft. Any license that you are provided with is given with “Restricted Rights” that are applied to public and private licensees, and includes restrictions on duplication, disclosure and use by the US Government as described in this TOU agreement and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
c. This TOU agreement will be controlled and construed by the laws of the Netherlands and both parties consent to exclusive jurisdiction and venue in the courts sitting in Amsterdam. The parties agree to waive all defenses of forum non-conveniens and personal jurisdiction. Process could be served on either one of the parties in a manner authorized by court rule or applicable law. In any suit or action to enforce any right or remedy under this TOU agreement or to interpret any provisions of this TOU agreement, the prevailing party will be entitled to recover its reasonable expenses including any possible attorneys’ fees and costs.
e. Should one party exercise partially, delay exercising or fail to exercise a right, power or remedy available in this TOU agreement, it must not be treated as a preclusion or waiver of a right to do so in future. The waiver of performance time or an extension of performance time by a party will not constitute a waiver of the condition or act.
f. Both parties are free to assign this TOU agreement to an affiliate as long as the original signatory agrees to be fully responsible for any obligations and rights of the affiliate. If this is not the case, this TOU agreement can only be assigned to an affiliate with our written consent. We reserve the right to allow our corporate subsidiaries, their subcontractors or agents to perform the Services without your consent. Any attempts to assign the agreement without written consent will be null and void. This TOU agreement will be binding upon and inure to both parties benefit and their permitted assigns and respective successors.
g. In the event that a particular provision is deemed to be illegal and thus unenforceable in any jurisdiction, this provision will be effective to the extent of such unenforceability or illegality, without deeming the remaining provisions invalid, and the affected provision will be restated so that it can reflect the original intentions of both parties to the greatest possible extent in accordance with the law. Titles, sections and paragraphs are intended for ease of reference. They are not considered a part of this TOU agreement.
h. This TOU agreement states the full agreement between the parties together with all documents that are incorporated by reference. Unless there are any pre-existing confidentiality, non-competition and non-disclosure obligations with respect to this TOU agreement’s subject, this agreement supersedes any other previous negotiations, proposals, or any other oral or written communications between the parties.
i. This agreement is as a result of negotiations between parties equally situated. Each individual party has had the power and ability to protect their legal and other interests, they have had and still have full and complete ability to analyze, review, evaluate, edit, draft and negotiate the terms of this TOU agreement. This TOU agreement will not be enforced or construed strictly against either party and should there be any ambiguity in any conditions or terms in this TOU agreement, it will not be interpreted against either party or in favor of the other, based upon any rules of construction premised upon draftsmanship of this TOU agreement or up on the parties’ bargaining positions.
j. Should there arise a conflict between terms in this TOU agreement, SLA and Order Form, the following precedence will take effect: SLA, Order Form and TOU agreement.
k. Each part is an independent contractor. Unless you specifically grant us the right to enter into contracts on your behalf in the Order Form, no party will have the right to enter into contracts on behalf of the other. No party will have authority to make claims, representations, or warranties of any kind in any circumstances on behalf of the other party, its agents, affiliates, third party suppliers, subcontractors or agents.
l. For Customers based in the state of California, it is advised that if it is applicable under the California Civil Code Section 1789.3, they may initiate a complaint about the concerned Service using our trouble ticket system, or as described in the applicable section on our SLA. Should the provided resolution not be satisfying to the Customer, they may contact us in writing at the address on paragraph 17(o), and the Complaint Assistance Unit of the Division of Consumer Services at the Department of Consumer Affairs at 1020 N. Street #501, Sacramento, CA 95814, or by phone at 1-916-445-1254. Charges for Services are provided in their respective Order Forms. This paragraph does not indicate, alter or change a waiver of the party’s choice of venue and jurisdiction given in paragraph 17(c).
m. Obligations and rights of both parties described in this TOU agreement that would by their context or nature be intended to survive the termination or expiry of this TOU agreement, will survive. Particularly, but not limiting the preceding sentence, both parties’ obligations and rights in the following sections under this TOU agreement shall survive: 3, 5, 8, 9, 11 (c), 12, 13, 14, 17 (c), (f), (g), (h), (i), (j), (m), (o), and 19 (g).
n. Other than for the duty to make payments for monies owed and as they become due, no party will be liable for failure or delay in performance as a result of events outside the defaulting party’s control, including, but not limited to, acts of God, earthquake, telecommunications interruptions, labor disputes, riots, fire, war, supplies shortages, delays of common carriers, epidemics, or other circumstances beyond its reasonable control. Rights and obligations of the excused party will be extended on a day to day basis for a period equal to the length of the excusable delay. The party that has been affected by the Force Majeure will notify the other party as soon as possible, but under no circumstance less than 10 days from the start of the Force Majeure event.
o. Notices concerning our SLA will be provided to the addresses given in those documents. Any other documents that are permitted, necessary or required under this TOU agreement must be provided in writing, and they are considered to have been received on the earlier of:
i. actual receipt;
ii. the date of receipt provided on an indication of delivery (except on email or facsimile confirmation); or
iii. on the 4th (fourth) business day after it has been deposited in a government operated postal service, and addressed as follows.
Parties can give notice by email and/or facsimile, as long as the notice is followed by a written notice in line with the conditions set out above. All consents, notices, requests and other communication should be delivered to:
If to us:
Legal – Re: TOU agreement
Overschiestraat 184-B 1062XK
19. The Following Paragraphs Only Apply to Dedicated Server Customers. If your Services as stated in your Order form include “Dedicated Servers,” the following paragraphs will apply to the services described as Dedicated Servers and only to those services. In case any of the following paragraphs conflicts with previous paragraphs, these paragraphs will prevail:
a. The Service for Dedicated Servers includes facilities, equipment, software, programming, services, data files and resources we use to make it possible for you to outsource your Internet and data requirements with access through our network. Dedicated Services are offered by the date indicated on your Order.
b. You agree that you will provide us with any material needed to configure and customize the service (“Dedicated Material”) if it is included in the Order Form. You also agree that Dedicated Material will be provided to us in a manner that is server ready, able to be placed on the Services without requiring anything more than administrative effort from us.
c. If need be, you will give us administrative access to the managed service’s operating system.
d. As indicated in our TOU agreement, we will replace promptly any defective hardware used on the Service.
e. You will have no physical access to equipment used to provide the Service and we reserve the right to relocate this equipment at any time.
f. Your outgoing and incoming bandwidth will be combined and monitored and if it is applicable, you will be charged Overage Fees as indicated on the Order Form.
20. These Paragraphs Only Apply to Customers of Managed Services. In case your Order Form indicates that your Services include “Manages Services,” the following paragraphs will apply to any Services described as Managed Servers, and only to those services. Should there be conflict between these paragraphs and earlier paragraphs, these paragraphs will prevail:
a. The Service in Managed Services refers to operation and maintenance of the infrastructure that is used to give the Services, including programming, equipment, software, data files, resources, and services as indicated in the Order Form.
b. We agree that we will be monitoring the physical infrastructure, servers, network and applications on a 24x7x365 basis. You agree and acknowledge that:
i. performance of the Managed Services will be subject to best practices in the industry, the Customer’s equipment and infrastructure, and the technical limitations of the managed devices; and
ii. that certain Managed Services could expose vulnerabilities that could, in some circumstances, cause the disruption of Services.
c. The support that you will be eligible to receive will be determined by the plan selected on the Order Form. The Order Form indicates the support that is included in each plan. The type and amount of support available may be changed without notice at any time. We will strive to ensure that we give the highest level of support for the Services, but you are ultimately responsible for the condition of the Services and the final result.
d. By accepting this TOU agreement, you have authorized us to log in and access your Server when necessary so that we can install and configure the Managed Services. This applies for general maintenance of the service and any other purpose reasonably required by us in the provision of these Managed Services.
e. Software Patches: We shall monitor and install third party software that is in a stable branch of a repository base package system (“Patch”). These installations will be completed in 30 (thirty) calendar days from the date when the software was released, or as per your request if you decline scheduled patches.
f. Firewall Settings: Initial firewall settings for Managed Services will be selected by us. You have the option of requesting changes to these settings by submitting a ticket. If this ticket is approved, the initial firewall settings will be changed within 1 (one) business day after our receipt of your ticket.
g. Where Managed Services include backup services, we will make reasonable efforts to ensure that your backup preferences (“Backup Services”) are complied with. If you have purchased Backup Services off-the-shelf, we have designed them in a general manner. It will be your duty to configure them so that they can meet your individual needs. If you have purchased custom Backup Services, your instructions will be used when configuring the Backup Services. You agree that we will not be held liable for issues resulting from provision of incomplete configuration instructions, or your failure to provide sufficient information for configuring custom Backup Services that could have captured particular data.
h. You agree that you will provide us with any material necessary for configuring, and if indicated in the Order Form, customizing the Service (“Managed Services Material”). You also agree that this Managed Services Material will be provided to us in a server-ready manner that can be placed on the Services without requiring anything more than administrative efforts from us.
i. Our unlimited shared hosting has been designed with the needs of most small businesses and personal websites in mind. It has not been meant for the needs of client services or large businesses whose needs are outside the typical average usage pattern for shared hosting. These businesses are better suited for plans with expanded features. Accounts that have databases larger that 5GB in size or a cumulative total size of all databases that is greater than 10GB or large number of files (inode counts larger than 200,000) are going to have a significant negative effect on server performance. We reserve the right to ask you to reduce the number of inodes (directories and files) and to reduce the size of your databases to ensure that server performance is kept at an acceptable level. You also agree that we may terminate your account if you fail to comply with these requests. We reserve the right to place you in a new service plan or to modify the Services to meet the new criteria if your use of the Services exceeds:
i. the description indicated on the Order Form; or
ii. the use of similarly situated Customers.
When the data transfer limit of your account is exceeded, we will notify you to resolve the situation and give you options to upgrade your account. We will send you warning notices via email when you approach this limit to ensure timely action. When the limit is reached, we will stop data transfer for your account.
21. These Paragraphs Only Apply to Cloud Services. These paragraphs apply only to any services described in the Order Form as “Cloud Services”. If any of these paragraphs differs from previous paragraphs, these paragraphs will prevail:
a. Your outgoing and incoming bandwidth will be combined and monitored, and you will be charged Fees described in the Order Form.
b. Cloud Services could have limitations on the throughput and/or bandwidth you can use. You can find these limitations generally described on the Order Form. You agree that you may not use the Services in a manner that interferes with the stability of our network or our ability to offer services to other Customers. In the even that we determine that you have used our Services in this manner, we reserve the right to minimize the effects by limiting your use. When we limit your use, we will send you a notification in writing with steps you can take to mitigate the effects of the limitation. If you don’t accept the steps provided, we have the right to impose permanent limitations on your use of our Services.
c. You have no physical access to equipment used in providing the Service and we reserve the right to relocate this equipment at any time without notice.
d. We have a Power Pack product that allows a customer to go beyond their cloud server product’s applicable RAM limit so as to meet any exceptional needs they might have for short periods. On top of any limits specified in the purchase order or product literature on the Power Pack you purchased, we may put in place a fair use policy. We reserve the right to put a limit on the excess RAM available to your cloud server if such a server uses a significant amount of excess RAM for a long period. When this happens, we will inform you and recommend that you upgrade your cloud server product.
22. These Paragraphs Only Apply to Domain Name Services. If “Domain Name Services” or “Domain Name Registration” are Services included on your Order Form, the following paragraphs will apply to the Services described as Domain Services. If there arises conflict between any of these paragraphs and previous paragraphs, these paragraphs will prevail:
a. Our Domain Services will be given through [ENOM] (“Domain Name Vendor”) who are our third party vendors. When you purchase Domain Name Services through us, you will be bound by Domain Name Vendor terms and conditions available at [http://www.enom.com/terms/] and hereby incorporated into this TOU agreement. We therefore encourage you to review the Domain Name Vendor terms and conditions before you purchase any Domain Services.
b. You agree and understand that your domain name will not actually be registered until the time when we send you a registration confirmation. We will not be held liable when a domain name fails to register during the registration process.
c. It is your duty to maintain, update, secure and to keep all domain name, passwords and login IDs confidential.
e. You agree that it is your sole responsibility to determine whether your chosen domain name(s), and the use you or others make of the domain name(s), infringes other peoples’ legal rights. It is your obligation to know if your chosen domain name(s) infringe other peoples’ legal rights whether you are the one using them or if you have allowed others to use them.
f. The Domain Name Vendor may discontinue the provision of Domain Services to you, or reject your application for domain name registration for any reason within 30 (thirty) calendar days from the date of Domain Service initiation or renewal. Outside this period, the Domain Name Vendor could suspend or terminate the domain name at any time for reasons which include, but are not limited to:
i. registration of prohibited domain name(s);
ii. abuse of your domain name;
iii. irregularities in payment;
iv. any allegations that there is some illegal conduct on your part;
v. your failure to maintain accurate and up-to-date account or WHOIS information;
vi. your failure to respond to inquiries from your Domain Name Vendor for more than 10 (ten) calendar days; or
vii. if you use the Domain Services in a manner that violates a third party’s rights or any acceptable use policies. This includes, but is not limited to, violation of any copyright, or the transmission of unsolicited email.
When your Domain Services are suspended or terminated for cause, you will not be entitled to any refund.
g. When renewal fees are due, either ourselves or the Domain Name Vendor will send you a notification. It is your obligation to maintain current payment details with us on file. We will not be liable for the lapse of your domain name registration because wither we or any of our partners are unable to process your payment information upon expiry.
h. The Domain Name Vendor is the owner of all database, collective, compilation, and similar rights, interests and titles worldwide in their domain name database, and any information or derivative works generated from their domain name database.
i. YOU WARRANT AND REPRESENT THAT NEITHER THE DIRECT OR INDIRECT USE OF A DOMAIN NAME, NOR ITS REGISTRATION, NOR ANY OTHER USE OF DOMAIN SERVICES INFRINGES A THIRD PARTY’S LEGAL RIGHTS OR WILL SUBJECT US OR THE DOMAIN NAME VENDOR TO A LEGAL CLAIM. DOMAIN SERVICES ARE MEANT FOR USE BY PERSONS WHO ARE 18 YEARS AND ABOVE, AND BY USING DOMAIN SERVICES, YOU WARRANT AND REPRESENT THAT YOU ARE 18 YEARS AND ABOVE AND THAT ALL THE INFORMATION YOU HAVE PROVIDED WHEN PROCURING THE DOMAIN SERVICES IS ACCURATE. YOU AGREE THAT ALL DOMAIN SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS AND WITH ALL FAUTLS.
j. You agree that you will be bound by the transfer agreement for domain names that can be found here: https://archive.icann.org/en/transfers/policy-12jul04.htm
k. Except in circumstances where this TOU agreement has an applicable dispute resolution policy, you agree that you will be bound by ICANN Uniform Dispute Resolution Policy available here: http://www.icann.org/dndr/udrp/policy.htm
l. Only the registered owner of a domain name may transfer ownership of a domain name or respond to a request to transfer. Your domain must be unlocked before a transfer is requested. To transfer domains to an EPP registry, you will need to secure an EPP Authorization Code.
By using HostingKing B.V. You agree to the above terms of service.