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Terms of Service for Willtech Web Hosting
Willtech ("We", "Us" or "Our")
provides a platform for internet web hosting services to
its subscribers (the "Subscribers" or "you" or "your").
Additionally, We may provide services involving registration,
transfer or renewal of domain name(s) and other services.
Your use of all of the services is governed by this Terms
of Service (the "Terms of Service") and
our Acceptable Use Policy ("AUP") found
at www.host4adollar.com/aup.php.
1. Services/Reselling Services. Subject
to your satisfaction of our credit approval requirements,
We agree to provide the services you ordered (the "Services")
by completing and submitting our Services order form (the "Order
Form") either in writing, online or verbally. Reselling
the Services is strictly prohibited and is a material breach
of the Terms of Service.
2. Domain Name Services. If your Order
Form provides for Us to register, renew or transfer a domain
name ("Domain Name Services"), We will submit
the request to Tucows.com Co or other service providers as
appropriate (the "Registrar") on your behalf.
Our sole responsibility is to submit the request to the Registrar.
We are not responsible for any errors, omissions or failures
of the Registrar. By ordering Domain Name Services, you are
agreeing to the terms posted at www.host4adollar.com/dra.php.
You are responsible for closing any account with any prior
reseller of Registrar for the requested domain name, and
you are responsible for responding to any inquiries sent
to you by the Registrar.
3. Term. The initial term of each of your
Services shall begin on the date (the "Services Commencement
Date") that We generate an e-mail welcome message
announcing the activation of the Service you ordered and
shall continue for the number of months stated in the Order
Form (the "Initial Term") for each such
Service. Upon expiration of the Initial Term, this Terms
of Service shall automatically renew for successive renewal
terms of the same length as the Initial Term (each a "Renewal
Term") unless either party provides written notice
of non-renewal at least thirty (30) days prior to the expiration
of the Initial Term or Renewal Term, as the case may be.
The Initial Term and any Renewal Term may be referred to
collectively herein as the "Term."
4. Fees
(a) Recurring Fees. The fee for the Services
specified in your Order Form(s) is the "Recurring
Fee". Beginning on the Services Commencement Date,
unless otherwise specified on your Order Form, you agree
to pay the Recurring Fee in advance on the first day of each
billing cycle (the "Due Date"), without
invoice. The billing cycle for Recurring Fees is specified
in the Order Form.
(b) Non-Recurring Fees. If you ask Us
to perform Domain Services, you will be charged a "Domain
Registration Fee" as specified on the Order Form.
If you use bandwidth or disk space in excess of that provided
in your Order Form, you agree to pay a fee ("Overage
Fee") for such excess amounts. We may charge set-up
fees ("Set Up Fee") for certain of the Services;
a fee for credit card charge backs ("Charge Back
Fee"); and other non-recurring fees relating to
the Services. Domain Registration Fees, Overage Fees, Set
Up Fees, Charge Back Fees, Reinstatement Fee (as defined
below) and all other non-recurring fees relating to the Services
are collectively referred to as "Non-Recurring Fees".
You agree to pay Non-Recurring Fees when they are incurred.
(c) Fee Increases. Recurring Fees and
Non-Recurring Fees are collectively referred to as the "Fees" or
individually as "Fee". We may increase any
or all of the Fees by giving notice to you not less forty-five
(45) days prior to the beginning of a Renewal Term applicable
to the particular Fee which is subject to increase. Such
Fee increase shall be effective on the first day of the applicable
Renewal Term. Unless you give notice to Us of your intent
not to renew the Services as provided in Section 3,
you are deemed to have accepted the increased Fee for the
applicable Renewal Term and any subsequent Renewal Terms
(unless the Fees are increased in the same manner for a subsequent
Renewal Term).
5. Payment of Fees. Payment of the Fees
shall be made to Us by credit or debit card (the "Card")
or by another method when agreed upon in advance. Payment
shall be made in United States dollars or Australian dollars
as specified on the Order Form. You authorize Us or an agent
appointed by Us to charge Fees to the Card during the Term.
We may charge the Card for (i) Recurring Fees five (5) days
prior to or after the Due Date and (ii) Non-Recurring Fees
as incurred by you. At Our option, We may abstain from charging
the Card until the next Due Date or until the Fees exceed
$50.00. Fees paid are nonrefundable. Fees charged but not
disputed within sixty (60) days after the date that they
are charged are conclusively deemed accurate. You are required
to provide Us with changes to billing information, such as
credit card expiration and change in billing address. Unpaid
Fees shall accrue interest at the lesser of the highest rate
allowed by applicable law and 1.5% per month. You agree to
pay our reasonable costs of collection of overdue amounts,
including collection agency fees, attorneys' fees and court
costs.
6. Taxes. You agree to pay to Us all sales,
VAT or similar tax imposed on the provision of the Services
(but not in the nature of an income tax on Us), regardless
of whether We fail to collect the tax at the time the Services
are provided.
7. Law/AUP. You agree to use the Services
in compliance with applicable law and Our AUP, which is incorporated
by reference in the Terms of Service. You agree that We may,
in our reasonable commercial judgment consistent with industry
standards, amend the AUP from time to time to further detail
or describe reasonable restrictions and conditions on your
use of the Services. Amendments to the AUP are effective
on the earlier of Our notice to you that an amendment has
been made, or the first day of the next Renewal Term. You
agree to cooperate with Our reasonable investigation of any
suspected violation of the AUP. In the event of a dispute
between the parties regarding interpretation of the AUP,
our commercially reasonable interpretation of the AUP shall
prevail.
8. Your Information. You represent and
warrant to Us that (i) all information you provide for purposes
of establishing and maintaining the Services is accurate;
(ii) if you are an individual, you are at least eighteen
years of age; (iii) you will not use the Services for the
development, design, manufacture, production, stockpiling,
or use of nuclear, chemical or biological weapons, weapons
of mass destruction, or missiles in any country listed in
Country Groups D:4 and D:3 of Supplement No. 1 to Part 740
of the United States Export Administration Regulations, and
(iv) you will not provide access to the Services to any person
(including a natural person or government or private entity)
located in or a national of any embargoed or highly restricted
country under United States Export Regulations, which include
as of September, 2005, Cuba, Iran, Libya, North Korea, Sudan
or Syria. You agree that We may, without notice and without
liability to you report to the appropriate governmental authorities
any conduct by you that We reasonably believe violates applicable
law, and provide any information that We have about you in
response to a formal or informal request from a law enforcement
or government agency or in response to a formal request in
a civil action that on its face meets the requirements for
such a request.
9. Indemnification. You agree to indemnify
and hold Us harmless, as well as Our affiliates, and each
of the respective officers, directors, agents, partners,
shareholders and employees of Us and of our affiliates from
and against any and all claims, demands, liabilities, obligations,
losses, damages, penalties, fines, punitive damages, amounts
in interest, expenses and disbursements ("Claims") 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 Services, including
without limitation Claims related to Web space content that
violates any copyright, trademark or service mark; any proprietary
right of any person or entity; and any state and/or federal
laws or regulations, including US Export Regulations.
10. Disclaimer of Warranties.
WE MAKE ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SERVICES. WE SPECIFICALLY DO
NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE, OR COMPLETELY SECURE. TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW WE DISCLAIM ANY AND ALL WARRANTIES INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE SERVICES ARE
PROVIDED ON AN "AS IS" BASIS.
11. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS
OR 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 TERMS OF SERVICE, EVEN IF THE PARTY
HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF
SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TERMS OF
SERVICE, OUR MAXIMUM AGGREGATE LIABILITY, AND THAT OF OUR
AFFILIATES, AND EACH OF THE RESPECTIVE OFFICERS, DIRECTORS,
AGENTS, PARTNERS, SHAREHOLDERS AND EMPLOYEES OF US AND OF
OUR AFFILIATES, UNDER ANY THEORY OF LIABILITY (INCLUDING
BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT)
SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT OF FEES
PAID BY YOU FOR THE SERVICES FOR THE THREE MONTHS PRIOR TO
THE OCCURRENCE GIVING RISE TO THE CLAIM.
12. Suspension/Termination.
(a) Suspension of Services. You agree
that We may suspend the Services if: (i) We
reasonably believe that the Services are being used in violation
of the AUP; (ii) you fail to cooperate with
any reasonable investigation of any suspected violation of
the AUP; (iii) We reasonably believe that
suspension of the Services is necessary to protect Our network
or other customers, (iv) as required by
a law enforcement or government agency, or (v) if
the Card cannot be charged for payment in accordance with Section
5. You agree to pay a reasonable fee for reinstatement
("Reinstatement Fee") following any suspension.
(b) Termination by You. The Terms of Service
may be terminated by you at any time as long as all Fees
then due together with unpaid Recurring Fees for the remainder
of the Initial Term or the Renewal Term, as the case may
be, are fully paid on the business day following the termination
date.
(c) Termination by Us. The Terms of Service
may be terminated by Us prior to the expiration of the Initial
Term or any Renewal Term without liability as follows: (i) upon
seventy-two (72) hours notice if you are overdue on the payment
of any Fee; (ii) you materially violate
any provision of the Terms of Service or the AUP, and fail
to cure the violation within ten (10) days after receipt
of a written notice from Us describing the violation in reasonable
detail in our sole discretion; (iii) upon
twenty-four (24) hours notice if the Services are used in
violation of a material term of the AUP more than once, or (iv) upon
twenty-four (24) hours notice if you violate Section 8 (Your
Information).
13. Intellectual Property Use and Ownership. Neither
party shall (i) use the other party's name, trademarks, trade
names or logos in either its own legal name or in any fictitious
or assumed name without the party's consent; (ii) knowingly
remove or alter any logo, trademark, trade name, copyright,
or other proprietary notice, legend, or symbol from any of
the other party's products or documentation; or (iii) take
any action, or intentionally omit to take any action that
would jeopardize, limit, or interfere in any manner with
the ownership of the other party's products, services, documentation,
or intellectual property. Title to and ownership of all copies
of any products, services, software, documentation, or Internet
services developed by or for Us during the Term, whether
in machine-readable or printed form, and including without
limitation any derivative works, compilations, or collective
works thereof, and all related technical know-how, and all
rights therein (including without limitation rights in patents,
copyrights and trade secrets applicable thereto), are and
shall remain Our exclusive property and that of Our suppliers.
You shall not take any action to jeopardize, limit, or interfere
in any manner with the ownership and rights therein.
14. Confidential Information. Each party
agrees not to disclose or use, and to assure that their employees
and agents do not disclose or use any confidential information
("Confidential Information") of the other party. Our Confidential
Information is Our unpublished prices for the Services, audit
and security reports, server configuration designs, software
interfaces and other proprietary technology. Your Confidential
Information is content transmitted to or from, or stored
by you on servers provided as part of the Services and not
placed by you in a publicly accessible area. Confidential
Information is also information of a party that is conspicuously
marked as "confidential" or if disclosed in non-tangible
form, is verbally designated as "confidential" at the time
of disclosure and is confirmed as confidential in a written
notice given within one (1) day of disclosure. Confidential
Information does not include (i) any information which is
independently developed by a non-disclosing party as shown
by such party's written business records, (ii) is or becomes
generally available to the non-disclosing party or the public
other than through violation of this Section, or (iii) is
required to be disclosed by law or regulation. The parties
acknowledge that Confidential Information is valuable, special
and unique; that its unauthorized disclosure or use will
cause irreparable injury to its owner, that immediate injunctive
and/or other equitable relief will be necessary and appropriate
to remedy an unauthorized disclosure or use of Confidential
Information, and that such relief may include without limitation
a temporary restraining order obtained ex parte as well as
permanent injunctive relief. Upon termination of the Terms
of Service, each party agrees to return within a reasonable
period of time any and all Confidential Information and other
materials belonging to the other party upon request. This Section
14 will survive the termination of the Terms of Service
for a period of two (2) years.
15. Back Up Copy. You agree to maintain
a current copy of all of your content, data and files hosted
by Us.
16. Notices. Notices to Us shall be given
by means of electronic mail to the e-mail address posted
for customer support on www.host4adollar.com/aup.php.
Notices to you shall be given via electronic mail to the
individual designated as the Primary Contact. 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 transmitted.
17. Force Majeure. We shall not be in
default under the Terms of Service if the failure to perform
is due to any event beyond Our control, including, without
limitation, failure of a portion of the power
grid, failure of the Internet, failure of network
providers, natural disaster, war, riot, insurrection, epidemic,
strikes or other organized action, terrorist activity,
or other events of a magnitude or type for which is the cause
of such failure.
18. Governing Law/Venue. The Terms of
Service shall be governed by the laws of the State of Texas,
exclusive of its choice of law principles, and the laws of
the United States of America, as applicable. The United Nations
Convention on the International Sale of Goods shall have
no application to the Terms of Service. EXCLUSIVE VENUE FOR
ALL DISPUTES ARISING OUT OF OR RELATING TO THE TERMS OF SERVICE
SHALL BE THE STATE AND FEDERAL COURTS IN BEXAR COUNTY, TEXAS,
AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION
AND WAIVES ALL OBJECTIONS THERETO.
21. Miscellaneous. 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.
Neither party has the power or authority to bind the other
in any agreement and will not represent to any person that
it has such power or authority. The Terms of Service may
be amended from time to time by Us, in Our discretion. Amendments
to the Terms of Service are effective on the earlier of Our
notice to you that an amendment has been made, or the first
day of the next Renewal Term. Terms of Service as amended
are posted at www.host4adollar.com/tos.php.
The terms on any purchase order or other business forms issued
by you are not binding on Us. A party's failure or delay
in enforcing any provision of the Terms of Service will not
be deemed a waiver of that party's rights with respect to
that provision or any other provision. A party's waiver of
any of its rights under the Terms of Service is not a waiver
of any of its other rights with respect to a prior, contemporaneous
or future occurrence, whether or not similar in nature. Captions
in the Terms of Services are for the convenience of the parties
and are not intended for interpretation. The following provisions
will survive expiration or termination of the Terms of Service:
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. There are no third party beneficiaries
to the Terms of Service. You may not transfer the Terms of
Service without our prior written consent. Our approval for
any assignment is contingent on the assignee meeting our
credit approval criteria. We may assign all or any part of
the Terms of Service.
This Terms of Service together with the Order Form and
AUP (i) constitute a legal and binding agreement between
you and Us; (ii) are the complete and exclusive agreement
between the parties regarding the subject matter; (iii) supersede
and replace any prior understanding or communication, whether
written or oral, and (iv) do not benefit any other person
or entity.
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