Ideal Web Services
Web Hosting Agreement
(“TOS”)
This Web Hosting Agreement
(this “Agreement”),
is between Ideal Web Services, a business
formed under the laws of the State of California
with its principal office in Moreno Valley and the
person (individual or legal person) whose
signs Ideal Web Services service order and
set up form (the “Order”)
incorporating this Agreement by reference
(“Customer”).
This Agreement governs Customer’s
use of Ideal Web Services Web hosting service.
1. Services.
Subject to the terms of this Agreement,
and contingent on Customer’s satisfaction
of Ideal Web Services credit approval requirements,
Ideal Web Services 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 Ideal Web Services generates an e-mail message
to Customer announcing the activation of
the Customer’s account (the “Service
Commencement Date”) and shall
continue for the first partial month of
service plus the number of full calendar
months stated in the Order (the “Initial
Term”). Upon expiration of
the Initial Term, this Agreement shall automatically
renew for up to twelve successive renewal
terms of having the same number of full
calendar months as the Initial Term (each
a “Renewal Term”)
unless Ideal Web Services 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.
Unless a promised service
has not been provided, all payments to Ideal Web Services
are strictly non-refundable. Fees are payable
in advance on the first day of each billing
cycle. Customer’s billing cycle shall
be between a sole calendar month or twenty
four calendar months, as indicated on the
Order. The first service fee shall include
a prorated portion of the monthly fee for
the first partial month of service plus
the fee for the first full billing cycle.
Ideal Web Services may require payment in full of the
first fee before beginning service. If the
Order provides for credit/debit card billing,
Customer authorizes Ideal Web Services to bill subsequent
fees to the credit/debit card on or after
the first day of each billing cycle during
the Term of this Agreement; otherwise Ideal Web Services
will invoice Customer via electronic mail
to the Primary Customer Contact listed on
the Order. Invoiced fees may be issued on
or before the 1st day of each billing cycle,
and the fees shall be due on the 7th 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 Ideal Web Services with changes to billing
information (such as credit card expiration,
change in billing address). At its option,
Ideal Web Services may accrue charges to be made to
a credit/debit card until such charges exceed
$10.00. Ideal Web Services may charge interest on overdue
amounts at the lesser of 1.5% per month
or the maximum non-usurious rate under applicable
law. Ideal Web Services 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 Ideal Web Services reasonable
reinstatement fee following a suspension
of service for non-payment, and to pay Ideal Web Services
reasonable costs of collection of overdue
amounts, including collection agency fees,
attorney fees and court costs.
(b) Fee Increases.
Ideal Web Services 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 Ideal Web Services request Customer shall
remit to Ideal Web Services all sales, VAT, GST or
similar tax imposed on the provision of
the services (but not in the nature of an
income tax on Ideal Web Services), regardless of whether
Ideal Web Services 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 Ideal Web Services 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 Ideal Web Services 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 Ideal Web Services
Acceptable Use Policy posted at aup.php
(the “AUP”),
which is hereby incorporated by reference
in this Agreement. Customer agrees that
Ideal Web Services 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 Ideal Web Services
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 Ideal Web Services
reasonable investigation of any suspected
violation of the AUP. In the event of a
dispute between Ideal Web Services and Customer regarding
the interpretation of the AUP, Ideal Web Services
commercially reasonable interpretation of
the AUP shall govern.
5. Customer Information.
Customer represents and warrants to Ideal Web Services
that the information he, she or it has provided
and will provide to Ideal Web Services for purposes
of establishing and maintaining the service
is accurate. If Customer is an individual,
Customer represents and warrants to Ideal Web Services
that he or she is at least 18 years of age.
Ideal Web Services 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
Ideal Web Services, Ideal Web Services 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.
Ideal Web Services DOES NOT WARRANT
OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE, OR COMPLETELY SECURE. TO THE
EXTENT PERMITTED BY APPLICABLE LAW Ideal Web Services
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 Ideal Web Services 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
Ideal Web Services may suspend services to Customer
without notice and without liability if:
(i) Ideal Web Services 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) Ideal Web Services
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 Ideal Web Services 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 Ideal Web Services 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 Ideal Web Services
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 Ideal Web Services
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 Ideal Web Services may, without notice
to Customer, (i) report
to the appropriate authorities any conduct
by Customer or any of Customer’s customers
or end users that Ideal Web Services 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 Ideal Web Services notwithstanding
any agreement by Ideal Web Services to provide back
up services.
12. Changes to
Ideal Web Services Network. Upgrades
and other changes in Ideal Web Services 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. Ideal Web Services
reserves the right to change its network
in its commercially reasonable discretion,
and Ideal Web Services shall not be liable for any
resulting harm to Customer.
13. Notices.
Notices to Ideal Web Services under the Agreement shall
be given via electronic mail to the e-mail
address posted for customer support on our contact us page.
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 Nature.
Ideal Web Services shall not be in default of any obligation
under the Agreement if the failure to perform
the obligation is due to any event beyond
Ideal Web Services 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 California, exclusive of its
choice of law principles, and the laws of
United States, as applicable.
The Agreement shall not be governed by the
United States 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
RIVERSIDE COUNTY, CALIFORNIA, 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 Ideal Web Services 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 Ideal Web Services prior written consent.
Ideal Web Services approval for assignment
is contingent on the assignee meeting Ideal Web Services
credit approval criteria. Ideal Web Services may assign
the Agreement in whole or in part.
This Agreement together
with the Order and AUP constitutes the complete
and exclusive agreement between the parties
regarding its subject matter and supersedes
and replace any prior understanding or communication,
written or oral.
Last modified: February 05, 2010 01:32 GMT-0800.
