Web Hosting Agreement & Terms of Service
This Web Hosting Agreement (this “Agreement”)
is between Windy City Web Solutions, a Company
formed under the laws of the State of Illinois
with its principal office located in Lombard,
Illinois. WCWS and the person (individual or legal
person) whose signs WCWS’s service order
and set up form (the “Order”) incorporating
this Agreement by reference (“Customer”).
This Agreement governs Customer’s use of
WCWS’s Web hosting service along with any
other services offered..
Table of Contents
Services
Term
Payments
Law/AUP
Customer Information
Indemnification
Disclaimer of Warranties
Limitation of Damages
Suspension of Services/Termination
Request for Customer
Information
Back Up Copy
Notices
Force Majeure
Governing Law/Disputes
Miscellaneous
1. Services.
Subject to the terms of this Agreement, and contingent
on Customer’s satisfaction of WCWS’s
credit approval requirements, WCWS 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 WCWS 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 WCWS 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.”
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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.
WCWS may require payment for the first billing
cycle before beginning service. If the Order provides
for credit/debit card billing, Customer authorizes
WCWS to bill subsequent fees to the credit/debit
card or Papal account on or after the first day
of each successive billing cycle during the Term
of this Agreement; otherwise WCWS 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 United States dollars.
Customer is responsible for providing WCWS with
changes to billing information (such as credit
card expiration, change in billing address) At
its option, WCWS may accrue charges to be made
to a credit/debit card until such charges exceed
$10.00. WCWS may charge interest on overdue amounts
at the lesser of 1.5% per month or the maximum
non-usurious rate under applicable law. WCWS may
suspend the service without notice if payment
for the service is overdue past 5 days. Fees not
disputed within sixty (30) days of due date are
conclusively deemed accurate. Customer agrees
to pay WCWS’s reasonable reinstatement fee
of $25.00 following a suspension of service for
non-payment, and to pay WCWS’s reasonable
costs of collection of overdue amounts, including
collection agency fees, attorney fees and court
costs.
(b) Fee Increases.
WCWS 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).
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(c) Taxes. At
WCWS’s request Customer shall remit to WCWS
all sales, VAT or similar tax imposed on the provision
of the services (but not in the nature of an income
tax on WCWS), regardless of whether WCWS 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 WCWS
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 WCWS’s breach, the unpaid fees for each
billing cycle remaining in the Initial Term or
then-current Renewal Term, as applicable, are
due within ten business days following termination
of the Agreement.
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4.
Law/AUP. Customer agrees to use the service
in compliance with applicable law and WCWS’s
Acceptable Use Policy posted at http://windycitywebsolutions.com/aup.html,
which is hereby incorporated by reference in this
Agreement. Customer agrees that WCWS 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 WCWS’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 WCWS’s reasonable investigation
of any suspected violation of the AUP. In the
event of a dispute between WCWS and Customer regarding
the interpretation of the AUP, WCWS’s commercially
reasonable interpretation of the AUP shall govern.
5.
Customer Information. Customer represents
and warrants to WCWS that the information he,
she or it has provided and will provide to WCWS
for purposes of establishing and maintaining the
service is accurate. If Customer is an individual,
Customer represents and warrants to WCWS that
he or she is at least 18 years of age. WCWS 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.
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6
Indemnification. Customer agrees to indemnify
and hold harmless WCWS, WCWS’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.
WCWS DOES NOT WARRANT OR REPRESENT
THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE,
OR COMPLETELY SECURE. TO THE EXTENT PERMITTED
BY APPLICABLE LAW WCWS 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.
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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 WCWS 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 WCWS may suspend services
to Customer without notice and without liability
if: (i) WCWS 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) WCWS
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 WCWS’s
reasonable reinstatement fee if service is reinstituted
following a suspension of service under this subsection.
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(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 WCWS 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 WCWS 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 WCWS 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 WCWS 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 WCWS 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.
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11.
Back Up Copy. Customer agrees to maintain
a current copy of all content hosted by WCWS nothwithstanding
any agreement by WCWS to provide back up services.
12. Changes to WCWS’s
Network. Upgrades and other changes in
WCWS’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.
WCWS reserves the right to change its network
in its commercially reasonable discretion, and
WCWS shall not be liable for any resulting harm
to Customer.
13.
Notices. Notices to WCWS under the Agreement
shall be given via electronic mail to thee-mail
address posted for customer support on http://windycitywebsolutions.com/support.php
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.
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14.
Force Majeure. WCWS shall not be in default
of any obligation under the Agreement if the failure
to perform the obligation is due to any event
beyond WCWS’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
Illinois, 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. EXCLUSIVE VENUE FOR ALL DISPUTES
ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL
BE THE STATE AND FEDERAL COURTS IN DUPAGE COUNTY,
ILLINOIS, AND EACH PARTY AGREES NOT TO DISPUTE
SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS
THERETO.
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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 WCWS 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 WCWS’s prior written consent. WCWS’s
approval for assignment is contingent on the assignee
meeting WCWS’s credit approval criteria.
WCWS may assign the Agreement in whole or in part.
This Agreement together with the
Order, Sla Guarantee, 30 or 14 day money back
Guarantee 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.
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