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Web
Hosting, Virtual Private Server, Dedicated Server,
and Other Internet Related
Service Agreement
This Web Hosting, Virtual Private
Server, Dedicated Server and Other Internet Related Service Agreement (this "Agreement")
is between WEBSITE SOLUTION LIMITED, a limited liability company formed under
the laws of the Hong Kong Special Administrative Region (HKSAR) with its principal
office at Unit 1617A, 16/F, Block B, Profit Industrial Building, 1-15 Kwai Fung Crescent, N.T. Hong Kong. ("Website Solution") and the person (individual
or legal person or legal entity) whose sign up Website Solution's service order
and set up form (the "Order") incorporating this Agreement by reference
("Customer"). This Agreement governs Customer's use of Website Solution's
Web hosting, Virtual Private Server, Dedicated Server, or Other Internet Related
Services.
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
Changes
to Website Solution's Network
Notices
Force Majeure
Governing
Law/Disputes
Miscellaneous
1.
Services.
Subject to the terms of this Agreement, and
contingent on Customer's satisfaction of Website Solution's credit approval requirements,
Website Solution agrees to provide the 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 Website Solution
generates an e-mail message to Customer announcing the activation of the Customer's
account and shall continue until the expiry date stated in the email. Upon expiration,
this Agreement shall automatically apply for subsequent renewal terms of the same
length as the Initial Term (each a "Renewal Term") unless Website Solution
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, or annually as indicated on the Order, beginning on the service start
date. Website Solution may require payment for the first billing cycle before
beginning service. If the Order provides for credit/debit card billing, Customer
authorizes Website Solution 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 Website Solution 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
expiry date or due date stated on the invoice.
Customer is responsible for
providing Website Solution with changes to billing information (such as credit
card expiration, change in billing address). Website Solution may suspend the
service without notice if payment for the service is overdue. Fees not disputed
within fourteen (14) days of invoice issue date are conclusively deemed accurate.
Customer agrees to pay Website Solution's reasonable reinstatement fee following
a suspension of service for non-payment, and to pay Website Solution's reasonable
costs of collection of overdue amounts, including collection agency fees, attorney
fees and court costs.
(b) Fee Adjustment.
Website Solution may
adjust 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 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.
(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 Website Solution 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 Website Solution'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 Website Solution's Acceptable
Use Policy posted at http://www.website-solution.net/hosting_aup.html (the "AUP"),
which is hereby incorporated by reference in this Agreement. Customer agrees that
Website Solution 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 without further notice. Customer agrees to cooperate with Website
Solution's reasonable investigation of any suspected violation of the AUP. In
the event of a dispute between Website Solution and Customer regarding the interpretation
of the AUP, Website Solution's commercially reasonable interpretation of the AUP
shall govern.
5.
Customer Information.
Customer represents and warrants
to Website Solution that the information he, she or it has provided and will provide
to Website Solution for purposes of establishing and maintaining the service is
accurate. If Customer is an individual, Customer represents and warrants to Website
Solution that he or she is at least 11 years of age. Website Solution 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 Website Solution, Website Solution'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.
WEBSITE SOLUTION LIMITED DOES NOT WARRANT
OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY
SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW WEBSITE SOLUTION 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 WEBSITE SOLUTION 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 Website Solution may suspend services to Customer without notice and without
liability if: (i) Website Solution 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) Website Solution 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 Website Solution'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 Website Solution fails in a material way to provide the service in accordance
with the terms of the Agreement and does not cure the failure within fourteen
(14) days of Customer's written notice describing the failure in reasonable detail.
The Agreement may be terminated by Website Solution prior to the expiration of
the Initial Term or any Renewal Term without further notice and without liability
as follows: (i) 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 Website Solution 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 Website Solution
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 Website Solution
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 Website Solution notwithstanding
any agreement by Website Solution to provide back up services.
12.
Changes to Website Solution's Network.
Upgrades and other changes
in Website Solution'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. Website Solution reserves the right to change
its software, hardware, network in its commercially reasonable discretion, and
Website Solution shall not be liable for any resulting harm to Customer.
13.
Notices.
Notices to Website Solution under the Agreement
shall be given via electronic mail to the e-mail address. 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.
Website Solution shall not be in default of any
obligation under the Agreement if the failure to perform the obligation is due
to any event beyond Website Solution'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 Hong Kong Special Administrative Region (HKSAR). EXCLUSIVE
VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE COURTS
IN HONG KONG, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION
AND WAIVES ALL OBJECTIONS THERETO.
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. The terms
on Customer's purchase order or other business forms are not binding on Website
Solution 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 Website Solution's prior written consent. Website
Solution's approval for assignment is contingent on the assignee meeting Website
Solution's credit approval criteria. Website Solution may assign the Agreement
in whole or in part.
Customer agrees and acknowledges that Website Solution
may revise, amend, modify and supplement this Agreement and Acceptable Usage Policy
(AUP) if necessary to comply with its various agreements with different authority
or domain name registry, and any other similar agreements that Website Solution
is currently bound by or will be bound by in the future, as well as to adapt to
the changing business environment.
This Agreement together with the Order
and AUP constitutes the complete and exclusive agreement between the parties regarding
its subject matter and supersedes and replace any prior understanding or communication,
written or oral.
