This User Agreement ("Agreement") is an agreement
between WorldOfHosting Internet, Inc. ("WorldOfHosting"), and the
party set forth in the related order form incorporated herein by reference
(together with any subsequent order forms submitted by Customer, the
"Order Form"), and applies to the purchase of all services
(collectively, the "Services") ordered by Customer on the
Order Form. Such party is referred to in this Agreement as "Customer"
or "you". PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING
ON THE BUTTON ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE
TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY
REFERENCE IN THIS AGREEMENT, INCLUDING WorldOfHosting'S USAGE POLICY. YOUR
USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. WorldOfHosting
reserves the right to reject this Agreement for any reason or no reason,
prior to acceptance thereof by WorldOfHosting. Activation of the Services
shall indicate WorldOfHosting's acceptance of this Agreement. Subject to
the terms and conditions of this Agreement, WorldOfHosting will provide
to Customer the Services selected by Customer set forth on the Order
Form.
1. Usage Policy.
Under this Agreement, Customer shall comply with WorldOfHosting's then current
"Usage Policy", as amended, modified or updated from time
to time by WorldOfHosting, which currently can be viewed here,
and which is incorporated in this Agreement by reference. Customer hereby
acknowledges that it has reviewed the Usage Policy and that the terms
of the Usage Policy are incorporated herein by reference. In the event
of any inconsistencies between this Agreement and the Usage Policy,
the terms of the Usage Policy shall govern. WorldOfHosting does not intend
to systematically monitor the content which is submitted to, stored
on or distributed or disseminated by Customer via the Service (the "Customer
Content"). Customer Content includes content of Customer's customers
and/or users of Customer's website. Accordingly, under this Agreement,
you will be responsible for your customers content and activities on
your website. Notwithstanding anything to the contrary contained in
this Agreement, WorldOfHosting may immediately take corrective action, including
removal of all or a portion of the Customer Content, disconnection or
discontinuance of any and all Services, or termination of this Agreement
in the event of notice of possible violation by Customer of the Usage
Policy. In the event WorldOfHosting takes corrective action due to a violation
of the Usage Policy, WorldOfHosting shall not refund to Customer any fees
paid in advance of such corrective action. Customer hereby agrees that
WorldOfHosting shall have no liability to Customer or any of Customer's
customers due to any corrective action that WorldOfHosting may take (including,
without limitation, disconnection of Services).
2. Amendment.
WorldOfHosting may amend, modify or update this Agreement or the Usage Policy
at any time in its sole discretion, and Customer shall be bound by any
such amendment, modification or update. WorldOfHosting may, but is under
no obligation to, provide notice of any amendment, modification or update
of this Agreement or the Usage Policy. Any modification is effective
on the earlier of two days after posting on WorldOfHosting's website or two
days after the sending of a notice by WorldOfHosting to Customer by e-mail
or conventional mail. If any material modification to this Agreement
or the Usage Policy is unacceptable to you, you may terminate your subscription
as provided in Section 3. However, if you do not terminate the Agreement,
or if you continue to use the Services following effectiveness of the
modification, your continued use will mean that you have accepted that
modification. WorldOfHosting reserves the right to amend its service offerings
and add, delete, suspend or modify the terms and conditions of the Services,
at any time and from time to time, and to determine whether and when
any such changes apply to both existing and future customers.
3. Term; Termination; Cancellation Policy.
The initial term of this Agreement shall be as set forth in the Order
Form (the "Initial Term"). The Initial Term shall begin upon
commencement of the Services to Customer. After the Initial Term, this
Agreement shall automatically renew for successive terms of equal length
as the Initial Term, unless terminated or cancelled by either party
as provided in this section. The Initial Term and all successive renewal
periods shall be referred to, collectively, as the "Term".
This Agreement may be terminated (i) by either party by giving the
other party 30 days prior written notice (subject to an early cancellation
fee as provided below), (ii) by WorldOfHosting in the event of nonpayment
by Customer, (iii) by WorldOfHosting, at any time, without notice, if, in
WorldOfHosting's judgment, Customer is in violation of any term or condition
of the Usage Policy or Customer's use of the Service disrupts or, in
WorldOfHosting's judgment, could disrupt, WorldOfHosting's business operations
and (iv) by WorldOfHosting in accordance with Sections 1, 9, and 10 of this
Agreement.
If you cancel this Agreement prior to the end of the Term, (i) you
shall be obligated to pay all fees and charges accrued prior to the
effectiveness of such cancellation, (ii) WorldOfHosting shall refund to you
all pre-paid fees for basic hosting services (shared, dedicated and/or
managed) for the full months remaining after effectiveness of cancellation
(i.e., no partial month fees shall be refunded), less any setup fees
and any discount applied for prepayment, (iii) you shall be obligated
to pay 100% of all charges for all Services for each month remaining
in the Term (other than basic hosting fees as provided in (ii) above)
and (iii) WorldOfHosting shall have the right to charge you an early cancellation
fee of $25.00. Any cancellation request shall be effective 30 days after
receipt by WorldOfHosting, unless a later date is specified in such request.
If WorldOfHosting cancels this Agreement prior to the end of the Term, WorldOfHosting
shall not refund to you any fees paid in advance of such cancellation
and (i) you shall be obligated to pay all fees and charges accrued prior
to the effectiveness of such cancellation, (ii) you shall be obligated
to pay 100% of all charges for all Services for each month remaining
in the Term and (iii) WorldOfHosting shall have the right to charge you an
early cancellation fee of $25.00.
4. Billing and Payment.
All fees for the Services shall be in accordance with WorldOfHosting's fee
schedule then in effect, the terms of which are incorporated herein
by reference, and shall be due at the times provided therein. A $15.00
late fee will apply to accounts past due more than ten (10) calendar
days from the due date. WorldOfHosting may, with 30 days notice to Customer,
amend the Services and/or the rates and fees it charges for the Services.
Fees for renewal periods after the Initial Term shall be due and owing
immediately upon the first day of such renewal period. WorldOfHosting may
impose a debt service charge equal to one and one-half percent (1.5%)
of the overdue balance (or such lesser amount as may be required by
law) for each month or fraction thereof the overdue amount remains unpaid.
In addition, in the event that any amount due WorldOfHosting remains unpaid
twenty (20) days after such payment is due, WorldOfHosting, in its sole discretion,
may immediately terminate this Agreement, and/or withhold or suspend
Services. There will be a $50.00 charge to reinstate accounts that have
been suspended or terminated. All taxes, fees and governmental charges
relating to the Services provided hereunder (other than income taxes
of WorldOfHosting) shall be paid by Customer.
Customer agrees that WorldOfHosting may pre-charge Customer's fees for the
Services to the credit card supplied by Customer during registration.
5. Special Provisions Applicable to Resellers.
WorldOfHosting from time to time may offer reseller programs which will
permit Customers to resell certain products and services of WorldOfHosting's,
and be eligible for certain discounts, services and other promotions.
A Customer that participates in a reseller program is referred to herein
as a "Reseller". To be eligible to participate in a reseller
program, the Reseller may be required to meet certain requirements as
provided in such reseller program. If you are a Reseller, the terms
and conditions in this section (in addition to any terms or conditions
contained in the reseller program) are applicable to you.
As a Reseller, you are WorldOfHosting's Customer. A Reseller shall be deemed,
and is the "Customer" for all purposes under this Agreement
and the Usage Policy. When you resell the Services, the purchaser of
those resold services becomes your customer (a "Reseller Customer").
A Reseller Customer is not a Customer of WorldOfHosting, and WorldOfHosting will
not support any Reseller Customer. Reseller shall take all necessary
measures to preclude WorldOfHosting from being made a party to any agreement
with any Reseller Customer. As a Reseller, you are authorized to resell
the Services identified in the applicable reseller program on a non-exclusive
basis. WorldOfHosting reserves the right to market and sell its products
and services through its own employees, other resellers and other representatives
and retailers that may compete with you. The terms and conditions of
such other relationships may differ from the terms of this Agreement
and the reseller program, and may be better. Reseller shall be responsible
for billing, and collecting payments from, Reseller Customers. Reseller
shall not withhold payments to WorldOfHosting under this Agreement because
of a failure of a Reseller Customer to make payments to Reseller. Reseller
may set the prices to be paid to it by Reseller Customers for any of
the resold Services. Reseller shall provide all support (including,
without limitation, customer support, first level support, second level
support, and other technical support) for Reseller Customers. Reseller
shall pay all sales, use, transfer, privilege, excise or other taxes
and all duties, whether international, state or local, however designated,
which are levied or imposed on WorldOfHosting and Reseller under this Agreement
and any and all transactions between Reseller and Reseller Customers.
Reseller shall not resell the Services under WorldOfHosting's brand name.
Reseller shall be solely responsible for compliance with any regulations
governing the export of the Services (or any portion thereof). Nothing
in this Agreement constitutes a license to Reseller to use or resell
the Marks (as defined below).
6. WorldOfHosting as Reseller or Licensor.
WorldOfHosting is acting only as a reseller or licensor of the hardware,
software and equipment used in connection with the products and/or Services
that were or are manufactured or provided by a third party ("Non-WorldOfHosting
Product"). WorldOfHosting shall not be responsible for any changes in
the Services that cause the Non-WorldOfHosting Product to become obsolete,
require modification or alteration, or otherwise affect the performance
of the Services. Any malfunction or manufacturer's defects of Non-WorldOfHosting
Product either sold, licensed or provided by WorldOfHosting to Customer or
purchased directly by Customer used in connection with the Services
will not be deemed a breach of WorldOfHosting's obligations under this Agreement.
Any rights or remedies Customer may have regarding the ownership, licensing,
performance or compliance of Non-WorldOfHosting Product are limited to those
rights extended to Customer by the manufacturer of such Non-WorldOfHosting
Product. Customer is entitled to use any Non-WorldOfHosting Product supplied
by WorldOfHosting only in connection with Customer's permitted use of the
Services. Customer shall use its best efforts to protect and keep confidential
all intellectual property provided by WorldOfHosting to Customer through
any Non-WorldOfHosting Product and shall make no attempt to copy, alter,
reverse engineer, or tamper with such intellectual property or to use
it other than in connection with the Services. Customer shall not resell,
transfer, export or re-export any Non-WorldOfHosting Product, or any technical
data derived therefrom, in violation of any applicable United States
or foreign law.
7. IP Address Ownership.
If WorldOfHosting assigns Customer an Internet Protocol address for Customer's
use, the right to use that Internet Protocol address shall belong only
to WorldOfHosting, and Customer shall have no right to use that Internet
Protocol address except as permitted by WorldOfHosting in its sole discretion
in connection with the Services, during the term of this Agreement.
WorldOfHosting shall maintain and control ownership of all Internet Protocol
numbers and addresses that may be assigned to Customer by WorldOfHosting,
and WorldOfHosting reserves the right to change or remove any and all such
Internet Protocol numbers and addresses, in its sole and absolute discretion.
8. Caching.
Customer expressly (i) grants to WorldOfHosting a license to cache the entirety
of the Customer Content and Customer's web site, including content supplied
by third parties, hosted by WorldOfHosting under this Agreement and (ii)
agrees that such caching is not an infringement of any of Customer's
intellectual property rights or any third party's intellectual property
rights.
9. CPU Usage.
Customer agrees that Customer shall not use excessive amounts of CPU
processing on any of WorldOfHosting's servers. Any violation of this policy
may result in corrective action by WorldOfHosting, including assessment of
additional charges, disconnection or discontinuance of any and all Services,
or termination of this Agreement, which actions may be taken in WorldOfHosting's
sole and absolute discretion. If WorldOfHosting takes any corrective action
under this section, Customer shall not be entitled to a refund of any
fees paid in advance prior to such action.
10. Bandwidth and Disk Usage.
Customer agrees that bandwidth and disk usage shall not exceed the number
of megabytes per month for the Services ordered by Customer on the Order
Form (the "Agreed Usage"). WorldOfHosting will monitor Customer's
bandwidth and disk usage. WorldOfHosting shall have the right to take corrective
action if Customer's bandwidth or disk usage exceeds the Agreed Usage.
Such corrective action may include the assessment of additional charges,
disconnection or discontinuance of any and all Services, or termination
of this Agreement, which actions may be taken in WorldOfHosting's sole and
absolute discretion. If WorldOfHosting takes any corrective action under
this section, Customer shall not be entitled to a refund of any fees
paid in advance prior to such action.
11. Property Rights.
WorldOfHosting owns all right, title and interest in and to the Services
and WorldOfHosting's trade names, trademarks, service marks, inventions,
copyrights, trade secrets, patents, know-how and other intellectual
property rights relating to the design, function, marketing, promotion,
sale and provision of the Services and the related hardware, software
and systems ("Marks"). Noting in this Agreement constitutes
a license to Customer to use or resell the Marks.
12. Customer Web Site; E-Commerce; Customer Warranties.
Customer shall be solely responsible for the development, operation
and maintenance of Customer's web site, online store and e-commerce
activities, for all products and services offered by Customer or appearing
online and for all contents and materials appearing online or on Customer's
products, including, without limitation (i) the accuracy and appropriateness
of the Customer Content and content and material appearing in its store
or on its products, (ii) ensuring that the Customer Content and content
and materials appearing in its store or on its products do not violate
or infringe upon the rights of any person, and (iii) ensuring that the
Customer Content and the content and materials appearing in its store
or on its products are not defamatory or otherwise illegal. Customer
shall be solely responsible for accepting, processing and filling customer
orders and for handling customer inquiries or complaints. Customer shall
be solely responsible for the payment or satisfaction of any and all
taxes associated with its web site and online store.
Customer shall be responsible for the security and confidentiality
of any customer information (including, without limitation, customer
credit card numbers) that Customer may receive as a result of its web
site or online store.
Customer represents and warrants to WorldOfHosting that Customer owns or
has the right to use the Customer Content and material contained therein,
including all text, graphics, sound, music, video, programming, scripts
and applets, and the use, reproduction, distribution and transmission
of the Customer Content and any information and materials contained
therein does not, and will not, (i) infringe or misappropriate any copyright,
patent, trademark, trade secret or any other proprietary right of a
third party, (ii) violate any criminal laws or (iii) constitute false
advertising, unfair competition, defamation, an invasion of privacy,
violate a right of publicity or violate any other law or regulation.
Customer grants WorldOfHosting the right to reproduce, copy, use and distribute
all and any portion of the Customer Content to the extent needed to
provide and operate the Services.
13. Disclaimer of Warranty.
Customer agrees to use all Services and any information obtained through
or from WorldOfHosting, at Customer's own risk. Customer acknowledges and
agrees that WorldOfHosting exercises no control over, and accepts no responsibility
for, the content of the information passing through WorldOfHosting's host
computers, network hubs and points of presence or the Internet. THE
SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS
AVAILABLE BASIS. NONE OF WorldOfHosting, ITS PARENT, SUBSIDIARY OR AFFILIATED
CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS,
SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION
PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "WorldOfHosting
PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY
EQUIPMENT WorldOfHosting PROVIDES. NO WorldOfHosting PERSON MAKES ANY WARRANTIES
THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY
OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM
THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT
OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED
THROUGH THE SERVICES. WorldOfHosting IS NOT LIABLE, AND EXPRESSLY DISCLAIMS
ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR
FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA
THE SERVICES PROVIDED BY WorldOfHosting. NO ORAL ADVICE OR WRITTEN INFORMATION
GIVEN BY ANY WorldOfHosting PERSON, WILL CREATE A WARRANTY; NOR MAY YOU
RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall
survive any termination of this Agreement.
14. Indemnification.
Customer agrees to indemnify, defend and hold harmless WorldOfHosting and
its parent, subsidiary and affiliated companies, and each of their respective
officers, directors, employees, shareholders and agents (each an "indemnified
party" and, collectively, "indemnified parties") from
and against any and all claims, damages, losses, liabilities, suits,
actions, demands, proceedings (whether legal or administrative), and
expenses (including, but not limited to, reasonable attorney's fees)
threatened, asserted, or filed by a third party against any of the indemnified
parties arising out of or relating to (i) Customer's use of the Services,
(ii) any violation by Customer of the Usage Policy, (iii) any breach
of any representation, warranty or covenant of Customer contained in
this Agreement or (iv) any acts or omissions of Customer. The terms
of this section shall survive any termination of this Agreement.
15. Limitation of Liability.
Customer agrees that no WorldOfHosting Person, under any circumstances, shall
be held responsible or liable for situations where the Services are
accessed by third parties through illegal or illicit means, including
situations where such data is accessed through the exploitation of security
gaps, weaknesses or flaws (whether known or unknown to WorldOfHosting at
the time) which may exist in the Services or WorldOfHosting's equipment used
to provide the Services.
Under no circumstances, including negligence, shall any WorldOfHosting Person
be liable for any indirect, incidental, special, consequential or punitive
damages, or loss of profits, revenue, data or use by Customer, any of
its customers, any Reseller Customer or any other third party, whether
in an action in contract or tort or strict liability or other legal
theory, even if WorldOfHosting has been advised of the possibility of such
damages. No WorldOfHosting Person shall be liable to Customer, any of its
customers, any Reseller Customer or any other third party, for any loss
or damages that result or are alleged to have resulted from the use
of or inability to use the Services, or that results from mistakes,
omissions, interruptions, deletion of files, loss of data, errors, viruses,
defects, delays in operations, or transmission or any failure of performance,
whether or not limited to acts of God, communications failure, theft,
destruction or unauthorized access to WorldOfHosting's records, programs,
equipment or services.
Notwithstanding anything to the contrary in this Agreement, WorldOfHosting's
maximum liability under this Agreement for all damages, losses, costs
and causes of actions from any and all claims (whether in contract,
tort, including negligence, quasi-contract, statutory or otherwise)
shall not exceed the actual dollar amount paid by Customer for the Services
which gave rise to such damages, losses and causes of actions during
the 12-month period prior to the date the damage or loss occurred or
the cause of action arose.
Customer understands, acknowledges and agrees that if WorldOfHosting takes
any corrective action under this Agreement because of an action of Customer
or one if its customer or a Reseller Customer, that corrective action
may adversely affect other customers of Customer or other Reseller Customers,
and Customer agrees that WorldOfHosting shall have no liability to Customer,
any of its customers or any Reseller Customer due to such corrective
action by WorldOfHosting.
This limitation of liability reflects an informed, voluntary allocation
between the parties of the risks (known and unknown) that may exist
in connection with this Agreement. The terms of this section shall survive
any termination of this Agreement.
16. Force Majeure.
WorldOfHosting shall not be liable for failure or delay in performing it
obligations hereunder if such failure or delay is due to circumstances
beyond its reasonable control, including, without limitation, acts of
any governmental body, war, insurrection, sabotage, embargo, fire, flood,
strike or other labor disturbance, interruption of or delay in transportation,
unavailability of, interruption or delay in telecommunications or third
party services (including DNS propagation), failure of third party software
or hardware or inability to obtain raw materials, supplies or power
used in or equipment needed for provision of the Services.
17. Governing Law; Jurisdiction; Arbitration.
This Agreement shall be governed in all respects without regard to the
conflict of law provisions thereof. Any controversy or claim arising
out of, relating to or in connection with this Agreement, or the breach
thereof, shall be subject to arbitration administered by the American
Arbitration Association ("AAA") in accordance with its then
existing Commercial Arbitration Rules (collectively, the "AAA Rules")
and judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. An award rendered in connection
with an arbitration pursuant to this Section shall be final and binding
upon the parties and the parties agree and consent that the arbitral
award shall be conclusive proof of the validity of the determinations
of the arbitrations set forth in the award, and any judgment upon such
an award may be entered and enforced in any court of competent jurisdiction.
The parties agree that the award of the arbitral tribunal will be the
sole and exclusive remedy between them regarding any and all claims
and counterclaims between them with respect to the subject matter of
the arbitrated dispute. The parties hereby waive all in personam jurisdictional
defenses in connection with any arbitration hereunder or the enforcement
of an order or award rendered pursuant thereto. In any legal action,
the prevailing party will be entitled to recover all legal expenses
incurred in connection with the action, including but not limited to
its costs, both taxable and non-taxable, and reasonable attorney's fees.
The terms of this section shall survive any termination of this Agreement.
18. Assignment.
Customer shall not have the right to assign this Agreement without the
prior written consent of WorldOfHosting. This Agreement shall be binding
upon and inure to the benefit of Customer and WorldOfHosting and their successors
and permitted assigns.
19. Entire Agreement; Severability.
This Agreement, together with the Order Form and any other documents
or agreements specifically identified in this Agreement, represents
the entire agreement between the parties, and supercedes all previous
representations, understandings or agreements. If any provision of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement shall remain
in full force and effect.
Customer hereby represents that he, she or it is either,
an individual entering this Agreement for his or her personal use and
is over 18 years of age, or a corporation, limited partnership or other
legal entity, duly organized, validly existing and in good standing
under the laws of the state of its organization and the person acting
on behalf of Customer is duly authorized to accept, execute and deliver
this Agreement on behalf of Customer.