This Web Hosting Agreement (this “Agreement”) is between Shockwebb, LLC, a LLC formed under the laws of the State of California and the person (individual or legal person) whose signs Shockwebb, LLC ’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of Shockwebb, LLC’s Web hosting service.
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Shockwebb, LLC’s credit approval requirements, Shockwebb, LLC agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that Shockwebb, LLC 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 12 successive renewal terms of the same length as the Initial Term (each a “Renewal Term”) unless the Customer provides Shockwebb 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. Cancellation of Services. Unless the Customer provides Shockwebb 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”.
(a) Fees. Fees are payable in advance on or by the due date listed on your invoice. Customer’s billing cycle shall be monthly, semi- annually or annually as indicated on the Order, beginning on the Service Commencement Date.
Shockwebb, LLC may require payment for the first billing cycle before beginning service. If the Order provides for manual credit/debit card billing or check payments, Customer authorizes Shockwebb, LLC 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 Shockwebb, LLC will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Payments must be made in United States dollars. Customer is responsible for providing Shockwebb, LLC with changes to billing information (such as credit card expiration, change in billing address) At its option,
(b) Multiple Service & Add-ons:
If you add-on multiple services such as ram and bandwidth upgrades, these will be billed in conjunction of your existing account due-date.
(c) Change of Payment Date or Renewal Terms: In conjunction with section (a) 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. If your PayPal subscription or credit card fails to renew, one or more services become over-due, or you require an alternative payment plan. Shockwebb reserves the right to combine or adjust service due-dates accordingly.
(d) Payment Methods: Shockwebb requires a credit card or deposit on file for large orders or an active recurring PayPal subscription on your account. You agree to provide a valid funding method to your Account.
Shockwebb, LLC may suspend or terminate service without notice if payment for the service is overdue, is in violation of our AUP or violates the terms in this agreement. Shockwebb LLC reserves the right to discontinue further service for any violation in this agreement.
(e) Termination of overdue Accounts: If an account is not paid in FULL within THIRTY (30) days from the due date listed on your invoice the account will be terminated and all information within the account will be deleted.
(f) Fee Increases. Shockwebb, LLC 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 thirty (30) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal, 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).
(f.1) Third Party License Fees. Regardless of the term, in the event that a third party license provider increases the fees we may increase your fees the same amount. We will provide notice (30) days prior for any such fee increase if deemed applicable.
(g) Taxes. At Shockwebb, LLC’s request Customer shall remit to Shockwebb, LLC all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Shockwebb, LLC), regardless of whether Shockwebb, LLC fails to collect the tax at the time the related services are provided.
(h) Failure to pay on time. Customer acknowledges that the amount of the fee for the service is based on Customers agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event of a delinquent account or nonpayment, Shockwebb, LLC may terminate the Agreement and suspend /delete the site without notice. Customer understands We DO NOT store backups. It is the customer’s sole responsibility to keep backups of their data. In NO event shall Shockwebb, LLC be liable. All bills must be paid on time!
(i) Late Payments and Service Due Dates. Customer acknowledges and agrees that if an account has been past-due and paid late, your invoice or receipt may show an extended service timeframe which reflects the date you made the late payment. This date will be adjusted back to your original order due-date on the following months invoice as outlined in your order specifications. Under NO circumstances should this be considered your due date, invoices due are listed on your account and are sent out 10 -30 days in advance. Invoices marked in PAST DUE on your account are delinquent and subject to suspension or termination.
You are responsible for what happens on your server whether caused by your or someone else.
Customer agrees to use the service in compliance with applicable law and Shockwebb, LLC’s Acceptable Use Policy posted at: http://shockwebb.com/manage/knowledgebase/24/Acceptable-Use-Policy.html
(the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that Shockwebb, LLC 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 Shockwebb, LLC’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 Shockwebb, LLC’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Shockwebb, LLC and Customer regarding the interpretation of the AUP, Shockwebb, LLC’s commercially reasonable interpretation of the AUP shall govern.
6. Customer Information.
Customer represents and warrants to Shockwebb, LLC that the information he, she or it has provided and will provide to Shockwebb, LLC for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Shockwebb, LLC that he or she is at least 18 years of age. Shockwebb, LLC 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.
(a) Authorized Contacts: Customer may add an authorized contact under their Shockwebb Account. In the event we are unable to contact the primary account holder we may attempt to contact the authorized contacts listed on your account. By adding an authorized contact you agree that we may disclose payment, services and account information to person(s) listed as "authorized contact". You also grant that authorized contacts have the ability to make payments, order, cancel services as well as obtain cpanel and other requested information pertaining to your account.
Customer agrees to indemnify and hold harmless Shockwebb, LLC , Shockwebb, LLC ’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 attorney’s 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.
8. Disclaimer of Warranties.
SHOCKWEBB, LLC DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW Shockwebb, LLC 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. SHOCKWEBB SHALL NOT BE LIABLE 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 SHOCKWEBB, LLC 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.
(a) Suspension of Service. Customer agrees that Shockwebb, LLC may suspend services to Customer without notice and without liability if: (i) Shockwebb, LLC 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) Shockwebb, LLC 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.
(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 Shockwebb, LLC 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 Shockwebb, LLC prior to the expiration of the Initial Term or any Renewal Term without notice.
(c) Requests for Customer Information. Customer agrees that Shockwebb, LLC 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 Shockwebb, LLC 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.
(d) Back Up Copy. Customer agrees to maintain a current copy of all content hosted by Shockwebb, LLC.
IMPORATNT! SHOCKWEBB, LLC DOES NOT RETAIN OFF-SITE BACKUPS. Shockwebb may mail a backup to you on a CD for a cost of $50 plus $10 per 1GB of data. This backup option only applies to accounts hosted with Shockwebb and only if your hosting account has not been terminated. Your Shockwebb account must be in good standing with NO outstanding balance.
(e) Changes to the Network. Upgrades and other changes in the 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. Shockwebb, LLC reserves the right to change its network in its commercially reasonable discretion, and Shockwebb, LLC shall not be liable for any resulting harm to Customer.
Notices to Shockwebb, LLC under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://shockwebb.com/acocunt 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; Customer may change his, her or its notice address by a notice given in accordance with this Section.
7. Force Majeure.
Shockwebb, LLC shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Shockwebb, LLC ’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.
8. 3rd party Partners & Service providers.
Shockwebb, LLC partners or outsource to 3rd party hosting providers. Client understands and agrees to hold Shockwebb harmless of any claims arising from 3rd party companies.
9. Governing Law/Disputes.
Customer and Shockwebb, LLC agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (30) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration and in accordance with the Rules of the American Arbitration Association.
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 Shockwebb, LLC 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 Shockwebb, LLC’s prior written consent. Shockwebb, LLC’s approval for assignment is contingent on the assignee meeting Shockwebb, LLC’s credit approval criteria. Shockwebb, LLC 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 supercedes and replace any prior understanding or communication, written or oral.
SHOCKWEBB LLC RESERVES THE RIGHT TO CHANGE OR MODIFY THIS SERVICE AGREEMENT AND OUR OTHER COMPANY POLICIES WITH NO PRIOR NOTICE.