This agreement constitutes the complete and exclusive statement of the agreement between you and Web Hosting Monsters with respect to the Web Hosting Monsters web hosting services and supersedes any proposal or prior agreement, oral or written, and any other communications relating to the subject matter of this agreement.
1. Order Acceptance, Payment.
A. All orders are subject to acceptance by Web Hosting Monsters. An order will be deemed accepted by Web Hosting Monsters when Web Hosting Monsters sends written confirmation of the order to Customer.
B. Web Hosting Monsters shall charge Customer's credit card for the applicable set-up fees and monthly fees according to the package(s) selected by Customer and provided by Web Hosting Monsters. Such fees and charges shall include, without limitation, the fees for connectivity, design services, and charges by any and all third parties whose materials are included as part of the Package(s). Web Hosting Monsters reserves the right to change the amount of, or basis for determining, any fees or charges and institute new fees and charges upon prior notice to Customer. Customer must provide Web Hosting Monsters with a valid credit card number to which Web Hosting Monsters will automatically charge all Web Hosting Monsters fees as they become due. All monthly fees and set-up fees shall be due in advance of the month incurred and all additional charges shall be due at the end of the month in which such charges are incurred. The set-up fees are nonrefundable and Web Hosting Monsters does not issue pro rata refunds for fees paid in advance.
C. If payment by Customer's credit card is denied, or Customer's charge is returned to Web Hosting Monsters for any reason, including charge back or Customer otherwise fails to make any payments owed to Web Hosting Monsters, Web Hosting Monsters may, at Web Hosting Monsters's discretion, suspend or terminate access to the Web Hosting Monsters services and/or terminate this Agreement. Customer's right to use the Web Hosting Monsters services are subject to any limits established by Web Hosting Monsters or by the issuer of Customer's credit card. Invoices are set out on the first of the month and are due on the 15th. Customers are charged a $20 late fee if they fail to make payment by the 15th. Invoices not paid in full 15 days after the due date will be suspended. A $20 reactivation fee applies to all suspended accounts. Interest charges of 1% per month will accrue daily on any unpaid balance, which is more than thirty (30) days overdue. Customer shall be responsible for any and all taxes related to this Agreement.
2. Web Hosting Monsters Services.
A. Web Hosting Monsters will provide the web hosting services provided in the service package chosen by Customer, and set forth in Exhibit A, for such Web Site therein identified, including a dedicated server or space on a shared server, connection of the server to the Internet, maintenance on the server, e-mail, and file transfer services as provided in the chosen service package, automated server resource monitoring and limited log file generation and access. Web Hosting Monsters may utilize equipment and services provided by third parties and Customer shall not obtain any right or title in any Web Hosting Monsters or third party equipment or software.
B. Unless otherwise indicated on Schedule A hereto, the Web Site shall be accessible to third parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting services due to causes beyond the control of Web Hosting Monsters or which are not reasonably foreseeable by Web Hosting Monsters, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures.
C. If so indicated on Exhibit A, Web Hosting Monsters shall register on behalf of Customer such domain name as is listed on Exhibit A, provided that such domain name is available for registration and does not violate any InterNIC or other registration services' policies, or any law or regulation. Customer agrees to promptly reimburse to Web Hosting Monsters any fees paid by Web Hosting Monsters to InterNIC or other registration services with respect to the registration and maintenance of such domain name. Web Hosting Monsters shall not be responsible for Customer's failure to renew domain name registrations. In the event of any dispute or cause of action arising out of or related to Customer's domain name used in connection with the Web Site, upon Customer's request, Web Hosting Monsters will attempt to register with InterNIC an alternative domain name chosen by Customer and attempt to make the Web Site available over the Internet under such alternative name for an additional fee to be charged to Customer pursuant to a fee to be agreed upon in advance by the parties.
D. In the event that the Web Site requires disk storage, bandwidth use, or number of email accounts on the Web Hosting Monsters Server which exceeds those limits set forth in the selected Hosting package, Customer may (for such additional fees as are agreed upon in advance by the parties) request that Web Hosting Monsters (a) upgrade the level of Hosting Services, or (b) acquire additional incremental disk storage, bandwidth overage allotment, or email accounts to be included in the Hosting Services. For such additional fees as shall be agreed upon by the parties, Web Hosting Monsters shall perform such revisions, updates, deletions, enhancements or modifications (the "Updates") to the Web Site as may be requested by Customer.
E. Web Hosting Monsters may from time to time establish, in good faith, general practices and limits concerning use of Customer's Account or the Web Site. Customer assumes sole responsibility for: (a) acquiring any authorization(s) necessary for hypertext links to third party Web sites; and (b) the accuracy of materials provided to Web Hosting Monsters, including, without limitation, Customer content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and (c) ensuring that the Customer Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Web Hosting Monsters reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Customer Content on the Web Site, or other content not supplied by Web Hosting Monsters which, in Web Hosting Monsters' sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Web Hosting Monsters to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Web Hosting Monsters to monitor or exert editorial control over the Web Site.
F. The services and software offered are subject to change and limitation at Web Hosting Monsters' sole discretion, as is any pricing schedule. Web Hosting Monsters will notify Customer of any changes by electronic mail to Customer, unless the change is judged by Web Hosting Monsters to be necessary to preserve proper security or functioning of Web Hosting Monsters' system. If Customer objects to any change in service, unless the change is one Web Hosting Monsters has determined is necessary for security purposes or to maintain proper operation of Web Hosting Monsters' system, Customer will be entitled to cancel its account. Customer's continued use of the Web Hosting Monsters Web Hosting services after the effective date of such modified general terms and conditions, policies, or changes in services or software will constitute Customer's acceptance of such modified terms.
3. Rules and Regulations.
From time to time Web Hosting Monsters may impose reasonable rules and regulations regarding the use of the Web Hosting Monsters services. Such rules and regulations are called acceptable use policies and are posted on Web Hosting Monsters's web site at http://www.webhostingmonsters.com/aup.htmlAll such acceptable use policies are incorporated by reference into this Agreement as if fully set forth herein.
4. License Grant.
During the term of this Agreement, and conditioned upon full payment of fees, Web Hosting Monsters grants to Customer a non-exclusive, personal, non-transferable license to access and use the Web Hosting Monsters services solely in accordance with this Agreement and the Web Hosting Monsters acceptable use policies. Web Hosting Monsters may modify the Web Hosting Monsters services at any time for any reason and may provide modified versions of the Web Hosting Monsters services to Customer.
5. Intellectual Property Rights.
Customer acknowledges and agrees that the Web Hosting Monsters services constitute confidential and proprietary information of Web Hosting Monsters and its licensors and embodies trade secrets and intellectual property of Web Hosting Monsters and its licensors protected under United States copyright and other laws and international treaty provisions. Customer further acknowledges that all right, title, and interest in and to all parts of the Web Hosting Monsters services, including, without limitation, associated intellectual property rights, are and shall remain with Web Hosting Monsters and its licensors. Customer shall not, and shall cause its employees and agents not to, disclose or transfer any portion of the Web Hosting Monsters services to any third party. Customer further agrees not to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, sublicense, distribute, remarket or otherwise dispose of any portion of the Web Hosting Monsters services. Customer hereby acknowledges that, if Web Hosting Monsters at any time or from time to time performs any customizations or modifications to Web Hosting Monsters services, all rights and interests to such customizations or modifications shall be the sole property of Web Hosting Monsters.
6. Term and Termination.
A. This Agreement shall have an initial term of one (1) month and shall thereafter automatically renew for successive one (1) month periods. This Agreement and Customer's access to the Web Hosting Monsters services shall terminate as follows: (i) Either party may terminate upon thirty (30) days prior notice; (ii) Web Hosting Monsters may immediately and without prior notice terminate upon a violation by Customer of Web Hosting Monsters's acceptable use policies; (iii) Web Hosting Monsters may terminate immediately and without prior notice in accordance with Section 1; and (iv) Web Hosting Monsters may terminate immediately if, after 15 days prior notice to Customer, Customer has failed to correct any breach of this Agreement.
B. Upon any termination in accordance with Section 6(A)(i), Web Hosting Monsters shall permit Customer forty-eight (48) hours to download or otherwise copy any of Customer's information and data residing on Web Hosting Monsters's facilities prior to removing such information and data from Web Hosting Monsters's facilities. Upon termination by Web Hosting Monsters under Sections 6(B)(ii), (iii) or (iv), Web Hosting Monsters may immediately remove all of Customer's data and information from Web Hosting Monsters's facilities and Customer shall have no right to copy or download such data or information, and, in such event, all such information and data, including all copyrighted or copyrightable material therein, shall then become the property of Web Hosting Monsters. In cases where Customer's account has been cancelled, and Customer is requesting reactivation, Web Hosting Monsters, at it's option, may reactivate the same account, only if the account had been cancelled less than sixty (60) days prior. After sixty (60) days, Customer will be required to set up a new account.
C. To cancel an Web Hosting Monsters web hosting, domain name services or electronic commerce services, Customer should email Web Hosting Monsters to the email address listed at http://www.webhostingmonsters.com/contact-us/ or call (408) 786-5502 Attention: Web Hosting Cancellations. For assurance of delivery, Web Hosting Monsters recommends that requests for cancellation are sent via certified mail.
D. Payment must be paid on time. Web Hosting Monsters has the right to shut off the server's login ability if payment is late. We will notify the customer via his or her preferred contact method (phone or email), if no response or payment is received within 2 business days then the server's login ability will be suspended. After this point there will be a $30 reinstatement fee. If no payment is received within another 4 business days then the network access to the whole account will be shut off. After the account's network access is shut off the client then has 25 days to arrange payment before the account is completely deleted.
E. Sections 1, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive any termination of this Agreement.
7. Exclusion of Warranties.
WEB HOSTING MONSTERS PROVIDES THE WEB HOSTING MONSTERS SERVICE ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.
While Web Hosting Monsters makes reasonable efforts to maintain the Web Hosting Monsters service, many factors are not within Web Hosting Monster’s control. Therefore, Web Hosting Monsters does not warrant, and is not responsible for (even if caused by the negligence of Web Hosting Monsters) any loss of data, delays, non-delivery or misdelivery of information, lack of access, slows response time, or service interruptions or errors. Loss, delay or non-delivery of data can be due to but not limited to Web Hosting Monster’s own negligence, viruses or other third parties. Customer's data is defined as any data held by Web Hosting Monsters and includes account information, web hosting data, email and domain name services. This disclaimer and waiver shall apply equally to any and all third party providers. Web Hosting Monsters provides no warranty to customer regarding the accuracy of usage statistics, which Web Hosting Monsters may provide in its discretion. Further, no advice or information given by an Web Hosting Monsters representative shall create a warranty or serve as an amendment to this agreement.
Web Hosting Monsters has the right to change prices, or add or delete product features of any existing product or service. The right to change products or services extends to any software supporting a product or service. Web Hosting Monsters has the right to discontinue products or services and the right to remove or reassign IP addresses of a customer's web site. Web Hosting Monsters also has the right to deactivate a customer's service with a thirty (30) day notice. Except for certain products and services specifically identified as being offered by Web Hosting Monsters, Web Hosting Monsters does not control any materials, information, products, or services on the Internet. The Internet contains unedited materials, some of which are sexually explicit or may be offensive to you. Web Hosting Monsters has no control over and accepts no responsibility for such materials. You assume full responsibility and risk for use of the services and the Internet and are solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information, and the quality and merchantability of all merchandise provided through the service or the Internet.
8. Limitation of Liability and Damages.
THE TOTAL AGGREGATE LIABILITY OF WEB HOSTING MONSTERS TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT PAID TO WEB HOSTING MONSTERS BY CUSTOMER HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH WEB HOSTING MONSTERS IS LIABLE TO CUSTOMER. IN NO EVENT SHALL WEB HOSTING MONSTERS BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED UPON BREACH OF CONTRACT, TORT, OR OTHERWISE, EVEN IF WEB HOSTING MONSTERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF THE FAILURE OF AN AGREED UPON REMEDY.
Customer acknowledges that by reason of its relationship with Web Hosting Monsters, it may have access to certain information and materials relating to Web Hosting Monster’s business, customers, software technology and marketing which Web Hosting Monsters treats as confidential (collectively "Confidential Information"). Customer shall: (i) hold in confidence, and not disclose or reveal to any person or entity, any Confidential Information without the clear and express prior written consent of a duly authorized representative of Web Hosting Monsters; and (ii) not use or disclose any of the Confidential Information for any purpose at any time, other than for the limited purpose of performance under this Agreement. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for two (2) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
Customer shall indemnify and hold Web Hosting Monsters harmless against all third party claims, demands, suits, actions, judgments, losses, costs, damages (direct, indirect and consequential), attorney's fees and expenses that Company may sustain or incur by reason of any breach or alleged breach of any term or condition of this Agreement (including reasonable attorney's fees) and for any act or omission of Customer or its Customers which are in any way related to the Web Hosting Monsters Service.
11. Force Majeure.
Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
Customer may not assign its rights or delegate any of its duties under this Agreement without the prior written consent of Web Hosting Monsters, and any attempted assignment or delegation without such consent shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of partners or joint ventures. Web Hosting Monsters may subcontract any work, obligations or other performance required of Web Hosting Monsters under this Agreement without consent of Customer. Other than the termination of this agreement, all notices provided hereunder sent by email, mail or certified mail to Web Hosting Monsters, and will be effective upon receipt. Web Hosting Monsters has the right to amend this Agreement from time to time, and will do so by posting the new Agreement on the Web Hosting Monsters web site under the Terms and Conditions at the Policies and Agreements page. The Agreement shall be governed by the laws of Washington, without giving effect to applicable conflict of laws provisions. The federal and state courts located in Seattle, WA alone have jurisdiction over all disputes arising out of or related to this Agreement and the services. You consent to the personal jurisdiction of such courts sitting in Washington with respect to such matters or otherwise between you and Web Hosting Monsters, and waive your rights to removal or consent to removal. In the event any litigation or other proceeding is brought by either Party in connection with this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to recover from the other Party all costs, attorneys' fees and other expenses incurred by such prevailing Party in such litigation.