Terms of Service for all Webs By Amy Hosting Clients
1. The Services
The following provisions apply to all Services:
1.1.1. Descriptions of the features, characteristics and limitations of the products and services we offer are set out on our website. We agree to provide the Services to you, as they are described on our website or in a proposal, as of the Effective Date, during the Term. Should these characteristics change after the Effective Date, we are not obligated to modify your Services to reflect these changes. If we do so, and you agree to purchase them, the Fee may change. We may make changes to these Services if a supplier makes components unavailable, cost prohibitive, if a beta period ends, or at any time effective on the end of the term of a particular Service.
1.1.2. We provide two ways for you to purchase our Services: (i) through our website; or (ii) by opening a ticket to purchase additional Services and you are invoiced. When you place an order for the Services using either of these methods, you agree to purchase the Services selected by you during the Term.
1.1.3. The individual or entity set out in our records is the only entity authorized to access the Services. It is your responsibility to secure passwords and other access methods used to access the Services. If you administer an account on behalf of another party, you warrant that you will administer that account in good faith, and indemnify us against all losses and liabilities incurred by us should you administer the account in ways that are adverse to your customer and which result in a claim against us.
1.1.4. We agree to use all reasonable efforts to provide Client with the Services according and subject to the terms of this TOS and all agreements incorporated by reference.
1.1.5. You must provide Webs By Amy with all information, access, and full good faith cooperation, including, if required, with your employee or webmaster, etc., reasonably necessary to enable Webs By Amy to deliver the Services. We will rely on the information you provide to us. It is your obligation to keep this information up-to-date. We have no liability if communications are delayed, or not delivered, because of your failure to keep this information up-to-date. You agree that we may provide you with information that may negatively affect you by email. Please ensure that the email address you provide to us is configured in a way so that information from us is not rejected or marked as SPAM.
1.1.6. All software, hardware and some systems have a defined support lifetime (End of Life). Client may only use software that are currently supported by their developers, including those that may have initially been provided by Webs By Amy in conjunction with the Services (for example, a program running on your hosting). When these items reach their End of Life, it is your responsibility to upgrade to a supported version. Webs By Amy has no responsibility to support End of Life items.
1.1.7. It is your obligation to keep your own back up your data. If the Services include backup services, these are provided as a supplement to your own backup efforts. Because no backup method is failsafe, we make no warranties regarding the thoroughness of our backup solution. If your data is restored from backup, it will be restored in the manner it is stored by us. This may not include formatting and other elements necessary to make the restored data available on the internet, or in the form originally transmitted to us. We are not obligated to restore the data in that format.
1.1.8. You have the right to use the Services covered by this paragraph 1.2 to connect to our network, on a 24 x 7 basis, limited by this TOS. You will have no physical access to the equipment used to provide the Services.
Right to Disconnect and Remove
If you fail to pay any amounts due (hosting or design services) and such failure continues for more than ten (10) days, included in our right to suspend your use of the Space is the right to disconnect and remove any or all data stored or created for you.
Upon conclusion of a 30 day period of non-payment we reserve the right to remove your website from our server and are not required to keep a copy and/or restore the site after obligations have been met that exceed the 30 day window. Exercise of any of the foregoing rights by Webs By Amy shall not relieve you of any of your payment obligations under the agreement.
Unless otherwise set forth in detail in the Service Order, the physical protection measures we provide shall consist solely of security checks and monitoring at the Space. Client’s use of the Services shall constitute acknowledgment of the sufficiency of such protection measures.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SECURITY SOLUTIONS PROVIDED AS PART OF THE SERVICES DO NOT GUARANTEE NETWORK SECURITY OR PREVENT SECURITY INCIDENTS, ARE NOT INTENDED TO BE A COMPREHENSIVE SECURITY SOLUTION AND ARE CONSIDERED TO BE SERVICES FOR WHICH WEBS BY AMY LIMITS ITS LIABLITY AND DISCLAIMS WARRANTY AS PROVIDED IN THIS TOS.
We provide free cPanel account transfers for all new accounts (less than 30 days from sign-up date). Transfer requests submitted after this 30-day period are subject to transfer fees based on source account size.
All transfers from remote networks (servers hosted outside of Webs By Amy) are not guaranteed. There are many factors that can affect remote transfers that may be out of our control (poor network connections, firewalls, missing/incorrect account credentials, corrupted source account data, etc.). We will use best efforts to transfer your data to our servers. If we are unable to complete the transfer, we will let you know so that you can handle the transfer yourself. We also cannot be held responsible for the integrity of your transferred data.
Source Server Requirements:
- Active cPanel license
- Recent stable version of cPanel
- Perl 5.8.8
- MySQL4 or later (Note: All servers/accounts come with MySQL5. Please ensure database compatibility before submitting request.)
2.1. This TOS will begin on the Effective Date and continue in effect as long as we are providing a Service to you (TOS Term).
2.2. The Effective Date of an individual Service, is the date we begin the Ordering Process (Service Term). We use fraud detection programs. If during the Ordering Process your order is flagged as potentially fraudulent, it may not be processed. Until we notify you that the Service is available, you should not assume that your order has been processed.
2.3. Upon the expiration of an initial Service Term, that Service shall renew for a period of equal length unless one party has provided the other with a notice of termination.
3.1. Fees for individual Services are set out in our agreement which may be outlined in a proposal. We will begin to charge you for those Fees upon your initial payment.
3.2. If you provide us with a credit card to pay the Fees, we will attempt to charge your card no sooner than five days prior to the Due Date. It is your obligation to ensure that your credit card may be charged. We have no responsibility to provide the Services, or preserve data, if your credit card is declined for any reason.
3.3. If you fail to pay Fees by the Due Date, a late fee will be assessed to the invoice due. Accounts 7 days past due will incur a $20.00 USD late fee or the maximum amount allowed by law will be due to re-activate service.
3.4 If an account holder submits a bank assisted dispute for services rendered, their hosting account will be de-activated within 48 hours if the payment issue has not been recovered. A $50.00 charge back fee will be added to the amount disputed by the customer.
4. Termination and Suspension
4.1. Either party may terminate a particular Service by providing the other with at least 3 days written notice prior to the expiration of a Term. For hosting that is pre-paid and you are leaving on good terms, you will be refunded a pro-rated amount beginning at the first day of the month proceeding the cancellation request.
4.2. Webs By Amy may suspend the Services if you fail to pay the Fees by the Due Date, if providing them is prohibited by law or regulation, if you use End of Life software, hardware or systems on or in conjunction with the Services, or if you fail to cure a violation of our AUP within the amount of time set out in the notice, which the parties agree to be a material breach for which Webs By Amy’s original notice was your opportunity to cure. In the latter case, Fees will continue to accrue until the violation is cured.
5. Warranties, Limitation of Liability and Indemnification
5.1. You warrant and represent that you own, or have the right to use, any and all data, software and hardware the transmission or use of which is facilitated by the Services.
5.2. We warrant that we own, or have been given a license by a third party to provide, the Services. OTHER THAN THE WARRANTIES SET OUT IN THIS TOS, WE PROVIDE NO OTHER EXPRESS OR IMPLIED WARRANTIES. EXCEPT AS SET OUT IN THIS TOS, THE SERVICES ARE PROVIDED AS-IS AND AS AVAILABLE. IN ADDITION, WE DISCLAIM ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. EACH OF THESE DISCLAIMERS APPLIES UNLESS PROHIBITED BY LAW.
5.3. Webs By Amy’s liability, that of its contractors, and any third party vendors, to you arising out of this TOS is limited to direct damages up to the amount of Fees paid by you for the three months prior to the event giving rise to the liability, except as prohibited by law. This limitation of liability does not apply to Webs By Amy’s obligation to indemnify you set out in paragraph 5.5, or for a breach of its obligations of confidentiality set out in paragraph 6.
5.4. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF THE BASIS FOR A CLAIM, NEITHER PARTY, ITS AFFILIATES, OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) WHICH ARISE IN CONNECTION WITH THIS TOS AND/OR ANY AGREEMENTS INCORPORATED BY REFERENCE. THIS PARAGRAPH APPLIES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR THAT SUCH DAMAGES WERE FORESEEABLE. THIS LIMITATION DOES NOT APPLY TO A VIOLATION OF THE AUP OR A PARTY’S INDEMNIFICATION OBLIGATION.
5.5. Each of us shall indemnify and hold the other harmless from, and at our own expense agree to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against the other so far as it is based on: (i) a material breach of this TOS including the AUP and RAP; (ii) personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of the other party; (iii) in the case of Client, a claim against Webs By Amy in the U.S., Canada, or the European Union that the Services have been used, or such use facilitated, by, Client in a way that violates copyright, patent, trademark or trade secret law, or a violation of the Webs By Amy Policies; or (iv) in the case of Webs By Amy, a claim against Client in the U.S. that the Services owned by Webs By Amy violate copyright, patent, trademark or trade secret law. This paragraph will be conditioned on the indemnitee’s notifying the indemnitor promptly in writing of the claim and giving the indemnitor full authority, information, and assistance for the defense and settlement thereof; and that in the case of a claim for indemnification under this paragraph, the claim arises from an unauthorized modification of the Services by you, combination with other intellectual property not owned by you, or your failure to update software or hardware. The indemnitee shall have the right to participate in the defense of the claim at its own expense. The indemnitor shall not settle a claim without indemnitee’s approval if such a settlement contains an admission of liability or fault that could reasonably be attributed to indemnitee.
6.2. The following items are outside the definition of Confidential Information: information that is, or is made, publicly available without a breach of this paragraph; was known by a party without a legal obligation to keep it confidential; is independently developed by a party without reference to the Confidential Information; is a comment or suggestion Client volunteers to improve Webs By Amy’s products or services.
6.3. Subject to this paragraph, the parties agree not to disclose the Confidential Information to third parties, other than as necessary to provide the Services, and then only for the purposes set out in this TOS. The parties agree to take reasonable steps to ensure the security and confidentiality of the Confidential Information, steps at least as protective as those used to protect their own Confidential Information. One party shall notify the other in writing within twenty four hours of its discovery of disclosure of the Confidential Information, and cooperate with the other to regain control and prevent further dissemination of the Confidential Information.
6.4. Either party may disclose the other’s Confidential Information if required to comply with a court order or other government demand that has the force of law. However, the party subject to the court order agrees to give the other party notice within a reasonable period of time to allow the owner of the Confidential Information to protest it, unless notice is prohibited.
6.5. The obligations of this Section shall remain in effect for three years after termination of this agreement.
7. General Provisions
7.1. If Webs By Amy or you are unable to perform our respective obligations due to circumstances outside our reasonable control (Force Majeure Event), performance shall be excused for the period of time that these circumstances persist, contingent on our taking steps to remedy those circumstances. The following circumstances are outside the scope of a Force Majeure Event: lack or unavailability of funds. If Webs By Amy is unable to provide the Services for a period of thirty days or more, notwithstanding attempts to remedy the Force Majeure Event, you may terminate the affected Services with no early termination fees (if applicable).
7.2. If we ever receive warrants and subpoenas from law enforcement entities for information you provide to us (Law Enforcement Request), unless the Law Enforcement Request prohibits, or requests, that it not be disclosed, we will inform you of our intent to disclose your information.
7.3. If you are involved in civil litigation we have no obligation to provide assistance to you to comply with civil litigation demands such as subpoenas. Should we be compelled to comply with a subpoena for the Services we provide to you, we will charge you $300 per hour, plus reasonable expenses, to comply.
7.4. This TOS is the final, and full, expression of our agreement, and supersedes all prior oral and written communications between the parties about its subject matter.
7.5. This TOS and all agreements incorporated by reference shall be governed by the laws of the State of Pennsylvania without regard to its choice of laws or conflicts of laws principals. All disputes between you and Webs By Amy of any nature shall be brought before, and venue shall be proper in, the federal and state courts located in Chester County, PA. Neither party shall contest notice from such a court. THE PARTIES EACH WAIVE TRIAL BY JURY IN ANY DISPUTE. The U.N. Convention on Contracts for the International Sale of Goods shall not apply. Client acknowledges and agrees that pricing is based in large measure on the parties’ respective rights, obligations and limitations set out in this agreement.
7.6. This TOS and the Addenda may not be amended except upon the written consent of an authorized officer of Webs By Amy and Client.
7.7. No failure to exercise, nor delay in exercising, any right, remedy or power shall be a waiver of it.
7.8. This TOS, and all contracts incorporated by reference, shall be binding on the parties and their successors and assigns. Either party may assign this TOS and all contracts incorporated by reference except in the following circumstances: to a competitor of the other; or to an entity having no assets and/or operations.
7.9. If any provision in this TOS, or a contract incorporated by reference, is found illegal or unenforceable, that provision shall be deemed restated in such a way as to be legal, enforceable and reflective of the parties intent and this TOS or other contract will remain in effect. Under no circumstances shall such a finding cause the contract to be void or unenforceable.
7.12. No person or entity, other than you and us and our respective successors and assigns, shall be entitled to bring any action to enforce any provision of this TOS or contracts incorporated by reference, against either of us. For the purposes of this agreement, we shall both be considered independent contractors, and cannot make representations, claims or warranties on behalf of the other. Each party agrees to indemnify the other pursuant to paragraph 5.5 if a claim is brought that is within the scope of this paragraph.
If you have any questions or concerns about the Terms of Service for hosting clients, please contact me HERE.