Web Hosting Agreement
This
Web Hosting Agreement (this “Agreement”)
is between Tranquil Hosting, Inc., doing business as “RootBSD”,
a Company formed under the laws of
the State of North Carolina with its principal office at 128
Towerview Court, Cary, NC 27513 (“Tranquil Hosting, Inc. DBA
RootBSD”) and the person (individual or legal person) whose signs
RootBSD’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs
Customer’s use of RootBSD’s Web hosting service.
Force Majeure
1. Services. As an internet
service provider, RootBSD provides internet web hosting, consultation, and
associated services to its customers. Web hosting and its associated services
is provided to customers by the use of hardware and software operated, owned
and/or leased by RootBSD.
2. Term. The initial service
term of the Agreement shall begin on the date that RootBSD 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”), or shall continue
month to month until cancellation is requested by Customer. 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 RootBSD 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. Fees are payable in advance on the first
day of each billing cycle.
Customer’s billing cycle shall be monthly, quarterly,
semi-annually or annually as indicated on the Order, beginning on the Service
Commencement Date. RootBSD requires
payment for the first billing cycle before beginning service. If the Order provides for credit/debit
card billing, Customer authorizes RootBSD 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 RootBSD 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
12th day following invoice date, but in no event earlier than the
first day of each billing cycle.
Payments must be made in
(b) Fee Increases. RootBSD 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 (30) 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) 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 RootBSD 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 RootBSD’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 RootBSD’s
Acceptable Use Policy posted at http://www.rootbsd.net/aup.html (the “AUP”),
which is hereby incorporated by reference in this Agreement. Customer agrees that RootBSD 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 RootBSD’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 RootBSD’s reasonable investigation of any suspected
violation of the AUP. In the event
of a dispute between RootBSD and Customer regarding the interpretation of the
AUP, RootBSD’s commercially reasonable interpretation of the AUP shall
govern.
5. Customer
Information.
Customer represents and warrants to RootBSD that the information he, she
or it has provided and will provide to RootBSD for purposes of establishing and
maintaining the service is accurate.
If Customer is an individual, Customer represents and warrants to
RootBSD that he or she is at least 18 years of age. RootBSD 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 RootBSD, its 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 Restrictive Use Policy 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.
RootBSD DOES NOT WARRANT OR REPRESENT THAT
THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY
APPLICABLE LAW RootBSD 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 RootBSD 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 RootBSD may suspend services to Customer without
notice and without liability if: (i)
RootBSD reasonably believes that the services are being used in violation of
the Restrictive Use Policy; (ii) Customer fails to cooperate with any
reasonable investigation of any suspected violation of the Restrictive Use
Policy; (iii) RootBSD 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 RootBSD’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 RootBSD 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 RootBSD 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 Restrictive Use Policy, and fails to
cure the violation within thirty (30) days of a written notice from RootBSD
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 Restrictive Use Policy 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 RootBSD 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
RootBSD 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 RootBSD notwithstanding any agreement by RootBSD to provide back up
services.
12. Changes to
RootBSD’s Network.
Upgrades and other changes in RootBSD’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. RootBSD reserves the
right to change its network in its commercially reasonable discretion, and
RootBSD shall not be liable for any resulting harm to Customer.
13. Notices. Notices to RootBSD under the Agreement shall be given via
electronic mail to the e-mail address posted for customer support on http://manage.tqhosting.com. 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. RootBSD shall not
be in default of any obligation under the Agreement if the failure to perform
the obligation is due to any event beyond RootBSD’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 State of
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
RootBSD 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 RootBSD’s prior written consent. RootBSD’s approval for assignment
is contingent on the assignee meeting RootBSD’s credit approval
criteria. RootBSD may assign the
Agreement in whole or in part.
This Agreement together with the Order and Restrictive
Use Policy constitutes the complete and exclusive agreement between the parties
regarding its subject matter and supercedes and replace any prior understanding
or communication, written or oral.