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1. Services.
Subject to the terms of this Agreement, and contingent
on Customer’s satisfaction of StaticHost’s
credit approval requirements, StaticHost 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 StaticHost generates an e-mail message
to Customer announcing the activation of the Customer’s
account (the “Service Commencement Date”)
and shall continue for the number of months stated in
the Order (the “Initial Term”).
Upon expiration of the Initial Term, this Agreement shall
automatically renew for up to three successive renewal
terms of the same length as the Initial Term (each a “Renewal
Term”) unless StaticHost or Customer provides
the other with written notice of non-renewal at least
seven (7) 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. Fees are payable in advance
on the first day of each billing cycle. Customer’s
billing cycle shall be monthly or annually as indicated
on the Order, beginning on the Service Commencement Date.
StaticHost may require payment for the first billing cycle
before beginning service. If the Order provides for credit/debit
card billing, Customer authorizes StaticHost to bill subsequent
fees to the credit/debit card on or after the first day
of each successive billing cycle during the Term of this
Agreement; otherwise StaticHost 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 14th day following invoice date, but in
no event earlier than the first day of each billing cycle.
Payments must be made in Pounds Sterling, United States
Dollars, Canadian Dollars, Euros, or Yen. Customer is
responsible for providing StaticHost with changes to billing
information. (Such as credit card expiration, change in
billing address) At its option, StaticHost may accrue
charges to be made to a credit/debit card until such charges
exceed £5.00. StaticHost may charge interest on
overdue amounts at the lesser of 1.5% per month or the
maximum non-usurious rate under applicable law. StaticHost
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 StaticHost’s reasonable reinstatement
fee following a suspension of service for non-payment,
and to pay StaticHost’s reasonable costs of collection
of overdue amounts, including collection agency fees,
attorney fees and court costs.
(b) Fee Increases. StaticHost 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 StaticHost’s request
Customer shall remit to StaticHost all sales, VAT or similar
tax imposed on the provision of the services (but not
in the nature of an income tax on StaticHost), regardless
of whether StaticHost 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
StaticHost 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 StaticHost’s 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 StaticHost’s Acceptable Use
Policy posted at http://www.statichost.co.uk/acceptable_use_policy/
(the “AUP”), which is hereby incorporated
by reference in this Agreement. Customer agrees that
StaticHost 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 StaticHost’s 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 StaticHost’s
reasonable investigation of any suspected violation
of the AUP. In the event of a dispute between StaticHost
and Customer regarding the interpretation of the AUP,
StaticHost’s commercially reasonable interpretation
of the AUP shall govern.
5. Customer Information.
Customer represents and warrants to StaticHost that
the information he, she or it has provided and will
provide to StaticHost for purposes of establishing and
maintaining the service is accurate. If Customer is
an individual, Customer represents and warrants to StaticHost
that he or she is at least 18 years of age. StaticHost
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 StaticHost,
StaticHost’s 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.
StaticHost does not warrant or represent that the services
will be uninterrupted, error-free, or completely secure.
To the extent permitted by applicable law StaticHost
disclaims any and all warranties including the implied
warranties of merchantability, fitness for a particular
purpose, and non-infringement. 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 possibility of such damages.
Notwithstanding anything else in the agreement to the
contrary, the maximum aggregate liability of StaticHost
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 StaticHost may suspend services to Customer
without notice and without liability if: (i)
StaticHost 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)
StaticHost 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 StaticHost’s 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 StaticHost 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 StaticHost 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 StaticHost
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 StaticHost 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 StaticHost 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 StaticHost notwithstanding any agreement by
StaticHost to provide back up services.
12. Changes to StaticHost’s Network.
Upgrades and other changes in StaticHost’s 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. StaticHost reserves the right to change
its network in its commercially reasonable discretion,
and StaticHost shall not be liable for any resulting
harm to Customer.
13. Notices.
Notices to StaticHost under the Agreement shall be given
via our helpdesk system for customer support located
at https://secure.statichost.co.uk. 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 Majeure.
StaticHost shall not be in default of any obligation
under the Agreement if the failure to perform the obligation
is due to any event beyond StaticHost’s 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 Country
of the United Kingdom, exclusive of its choice of law
principles, and the laws of the United States of America,
as applicable. The Agreement shall not be governed by
the United Nations Convention on the International Sale
of Goods.
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 StaticHost
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 StaticHost’s
prior written consent. StaticHost’s approval for
assignment is contingent on the assignee meeting StaticHost’s
credit approval criteria. StaticHost may assign the
Agreement in whole or in part.
This agreement together with the AUP constitutes the
complete and exclusive agreement between the parties
regarding its subject matter and supercedes and replaces
any prior understanding or communication, written or
oral.
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