Web Hosting Customer Agreement
Terms of Service
Customers using WEBii services are subject to the following terms and conditions set forth in the following WEBII CUSTOMER AGREEMENT. Please read below for a detailed description of the requirements and responsibilities of Customer and WEBii. IMPORTANT: Please carefully review Section 4 concerning payment in advance of services, Section 5 concerning automatic renewal provisions, and Section 6 concerning changes to services.
WEBII CUSTOMER AGREEMENT
By submitting an order request and/or by using WEBii services, Customer agrees to the terms and conditions of this WEBii Customer Agreement (the “Agreement”):
1.1 “Plans” means proposals for offering various services to be provided by WEBii, as listed online at: http://www.webii.net/hosting.html or at http://www.webii.net/e-commerce.html. “Plans” do not include the use of WEBii’s trademark or the use of its parent company, WebXess’ trademarks.
1.2 “Customer” means an end user who is utilizing services provided by WEBii.net.
1.3 “WEBii” refers to WEBii.net and its parent company WebXess, Inc. Occasionally Customers may receive communication directly from WebXess depending on the services required.
2.1 All prices for Plans provided by WEBii to Customer are in US dollars.
2.2 Customer is responsible for paying all taxes of any nature which become due with regard to WEBii services, except for taxes on WEBii’s income, irrespective of which party may be responsible for reporting or collecting such taxes.
3. ORDER ACCEPTANCE
3.1 All orders are subject to acceptance by WEBii. An order will be deemed accepted by WEBii when written confirmation of the order is sent to Customer. WEBii may refuse to accept any order, or delay acceptance pending fulfillment of conditions WEBii may choose to impose. WEBii agrees to provide Customer with reasonable notice via Email or fax of any intent to delay or decline the acceptance of any order.
4.1 Payment shall be made in US dollars to WEBii into the account designated by WEBii, or as may otherwise be agreed in writing by the parties. Payments are due upon presentation of invoice. Customer is responsible for paying any bank charges, transfer fees or similar charges (“Transfer Fees”). In the event WEBii receives less than its invoice amount due to any such Transfer Fees, WEBii will re-invoice Customer for the shortfall. Should payment in full of any invoice not be received by WEBii within thirty (30) days after presentation, WEBii will impose a debt service charge amounting to one percent (1%) of the unpaid balance for each month or fraction thereof for which that amount remains unpaid. In the event that any amount remains unpaid thirty (30) days after presentation of an invoice, WEBii may discontinue, withhold, or suspend services to Customer and/or its customer(s) to whom such unpaid amounts relate.
4.2 During this Agreement, Customer may opt to utilize additional services beyond the scope of Customer’s original account order or current account allocations. In such event, Customer is responsible for recognizing that it has required any such additional services and is responsible for any automatic renewal provisions pursuant to Sections 5 and 6 that these additional services may incur. Further, Customer accepts charges based on any services utilized in excess of Customer’s original account order or current account allocations.
4.3 Payment for all services is due in advance of receiving such services. WEBii does not issue invoices, but rather automatically charges the credit card on file with WEBII. Customer is responsible for tracking payment due dates and maintaining proper payments by said dates. WEBii retains the right to discontinue, withhold, or suspend services for any account that is in past due status. If an account is not properly paid on the recognized account renewal date, WEBii may impose additional fees to resolve, reactivate, or retrieve Customer’s access to account information.
5. ACCOUNT RENEWAL AND DISCONTINUATION
5.1 WEBii’s standard procedure is to automatically renew an account with the latest contract terms and plan allocations (“Automatic Account Renewal”). If a credit card is listed on file for the Customer, that card will be charged accordingly for renewal, unless the Customer contacts WEBii with alternative payment information before the payment deadline. WEBii will provide Customer with notification of the renewal date by email to the address listed on file, or by regular mail if previously requested by the Customer. It is the Customer’s responsibility to inform WEBii of updates to contact information, including email addresses.
5.2 Customer may cancel the Automatic Account Renewal by providing WEBii written notice of its decision to discontinue an account as follows:
A. Thirty days (30) prior to the renewal deadline to avoid automatic renewal for all regular web hosting services
B. Sixty (60) days prior to renewal date for all E-commerce web hosting services.
If no written cancellation notice is received before the deadline as required by WEBii, Customer will remain responsible for payment for services during the next billing period.
5.3 If Customer requests to discontinue an account within an already active contract period, the charges for that period will not be refunded. The only event in which funds will be reimbursed to Customer is when WEBii has been notified in writing by Customer prior to a new account’s activity pursuant to Section 5.2. There will be no reimbursement for E-commerce accounts
5.4 Customers who request the “30-day-money-back-guarantee” (must be for an eligible non-ecommerce hosting plan) may be reimbursed the web hosting service fees minus setup fees and domain name registration fees. If the Customer received the “free 1 year domain name registration” offer, the value of the domain name registration will be withheld from the refund amount. This fee is typically $17.50 per year for the domain registration service.
6. DOWNGRADES, UPGRADES, AND SERVICE CHANGES
6.1 Requests to change services require written notice prior to the renewal billing date as described in Section 5. WEBii typically handle such requests in conjunction with Customer’s request to cancel the Automatic Account Renewal.
6.2 WEBii may assess additional fees to handle account downgrades or upgrades. Generally WEBii will asses such additional fess as follows:
A. For downgrades, WEBii usually charges $15.00 per account.
B. For upgrades, WEBii typically charges a fee equal to the difference between the former and new plan setup costs. Upgrades to more extensive solutions, such as dedicated servers, may require more substantial setup fees. Additions of add-on features to a plan may also require a setup fee.
7.1 If the Customer requests to cancel a Web hosting account (non-Ecommerce only) within the first 30 days of the account’s activity, they may choose to take advantage of the “30 day money back guarantee offer” policy. This policy will refund only web hosting charges paid at the time of purchase, minus any setup fees or domain name registration fees. If a new domain name is acquired through WEBii at any time during the account’s activity, the Customer remains responsible for domain name registration charges of at minimum $17.50 per year. These domain registration costs are non-refundable. Customer may continue to own the domain name(s) until the specified expiration date(s).
8. DUTIES OF WEBII
8.1 Upon Customer’s request, WEBii will acquire on behalf of the Customer, a new internet domain name (“Domain Name”) through SiteReserve.com. In such case, Customer must provide a written waiver prior to the acquisition of the Domain Name, of any and all claims which it may have against WEBii for any loss, damage, claim or expense arising out of, or in relation to, the registration of such Domain Name in any on-line or off-line network directories, membership lists or registration lists, or the release of the Domain Name from such directories or lists following the termination of services by WEBii for any reason. Any costs of WEBii in obtaining or maintaining a Domain Name for Customer or its customers shall be immediately reimbursed to WEBii upon invoice from WEBii to Customer.
9. RULES AND REGULATIONS
9.1 WEBii may impose reasonable rules and regulations regarding the use of its services from time to time. Customer shall impose such rules and regulations on its customers to the extent necessary to ensure compliance.
10. LIMITATION OF WEBII’S OBLIGATIONS AND LIABILITY
10.1 WEBii will utilize its best efforts to maintain acceptable performance of services contracted for services, but WEBii makes absolutely no warranties whatsoever, express or implied, including warranty of merchantability or fitness for a particular purpose. WEBii cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. WEBii is not liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted or received or stored on its system. WEBii is not liable to Customer or any of its customers for any claims or damages which may be suffered by Customer or its customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions whether or not caused by the fault or negligence of WEBii.
10.2 WEBii may discontinue servicing any Plan, or may require fulfillment of conditions WEBii may choose to impose as a prerequisite for continuing to service any Plan. WEBii agrees to provide Customer with reasonable notice via Email and fax of any such intent to discontinue or impose conditions.
10.3 Services provided by WEBii to Customer shall be deemed accepted for all purposes thirty (30) days after presentation of invoice for such services, if no written claim or objection regarding such services has been received by WEBii within the thirty (30) day period.
10.4 WEBii’s liability to Customer and any end user of any Plan or other WEBii services is limited to the amount paid to and received by WEBii for services. In no event shall WEBii be liable to Customer, any end user, or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if WEBii has been advised of the possibility of such damage.
10.5 Customer will take all necessary measures to preclude WEBii from being made a party to any lawsuit or claim regarding WEBii services provided to any Customer or end user. Customer hereby agrees to indemnify and hold harmless WEBii from any and all claims of whatever nature brought by any of Customer’s customers against WEBii in excess of the remedy set forth in Section 10.4.
11. PROPERTY RIGHTS
11.1 WEBii owns all right, title and interest in WEBii’s trade names, service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of Plans and of the hardware and software systems and resources necessary to provide the individual service elements of which they consist. This Agreement does not constitute a license to Customer to use WEBii’s trade names or service marks. The use by Customer of the other property rights mentioned here is authorized only for the purposes of marketing and selling Plans.
12.1 Customer acknowledges that by reason of its relationship with WEBii, it may have access to certain information and materials relating to WEBii’s business, plans, customers, software technology, and marketing strategies that is confidential and of substantial value to WEBii (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties. Customer agrees that it will not use in any way, for its own account or for the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by WEBii. Customer further agrees that it will take every reasonable precaution to protect the confidentiality of such information. In the event of termination of this Agreement, there shall be no use or disclosure by Customer of any such Confidential Information in its possession, and all confidential materials shall be returned to WEBii or destroyed. The provisions of this section shall survive the termination of this Agreement for any reason. Upon any breach or threatened breach of this section, WEBii shall be entitled to injunctive relief, which relief shall not be contested by Customer.
13. RELATIONSHIP OF THE PARTIES
13.1 The relationship between WEBii and Customer is that of vendor and vendee. They shall not be construed as being joint ventures, franchiser/franchisee, or employer/employee. This Agreement is a commercial agreement between businesses, not a consumer agreement. Customer has no authority, apparent or otherwise, to contract for or on behalf of WEBii, or in any other way legally bind WEBii in any fashion, nor shall Customer be authorized to make any representations about WEBii or its services other than to set forth WEBii’ responsibilities as outlined in this Agreement.
14.1 The parties shall attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in Section 12 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Austin, Texas, or at another location if the parties so agree. The arbitration shall take place before an arbitration panel chosen as follows: The parties shall each choose an arbitrator, and the two arbitrators shall choose a third arbitrator and determine the third arbitrator’s compensation. Each party shall have one veto over the choice of the third arbitrator. The three arbitrators shall schedule an informal proceeding, hear the arguments, and decide the matter by secret majority vote. Unless the arbitrators decide otherwise, each party shall pay the costs of its own arbitrator, and shall pay half of the other costs of the arbitration proceeding. Each party shall have the right to have the proceedings transcribed. The arbitrators shall not have the authority to award punitive damages or any other form of relief not contemplated in the contract. The majority of arbitrators shall render a written opinion setting forth the basis on which they arrived at the decision regarding each issue submitted to arbitration; the dissenting arbitrator, if any, shall not issue a dissenting opinion. Regarding each issue submitted to arbitration, the decision shall be final and binding only to the extent it is accompanied by a written explanation of the basis upon which it was arrived at. Judgment upon the award, if any, rendered by the arbitrators may be entered in any court having jurisdiction thereof. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred at both the trial and appellate levels.
15. TERM, TERMINATION
15.1 This Agreement is effective throughout the term of the services required by Customer, including any automatic renewal periods unless terminated in one of the following ways:
A. By either party, by notifying the other in writing subject to the notice provisions in Section 5.
B. By WEBii, upon thirty (30) days’ written notice, if Customer breaches any material and substantial provision of this Agreement and has not cured by the end of the thirty (30) days.
D. By WEBii, immediately upon giving written notice to Customer, in the event that (i) any bank draft, check, or credit card payment delivered by Customer to WEBii in payment for Products is returned unpaid and Customer fails to remedy such nonpayment within five (5) business days; (ii) Customer becomes more than thirty (30) days in arrears in payment of its account with WEBii; (iii) bankruptcy or insolvency proceedings are instituted against Customer, which are not vacated within sixty (60) days from the date of filing; (iv) Customer institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; or (v) Customer makes an assignment of all or part of its assets for the benefit of creditors.
E. By WEBii immediately, if Customer attempts to assign all or any part of this Agreement without WEBii’s prior written approval;
F. By WEBii immediately, if Customer fails to cause WEBii to be informed in writing immediately on the happening of any event specified in this section;
G. By Customer, immediately upon giving written notice to WEBii, if: (i) bankruptcy or insolvency proceedings are instituted against WEBii, which are not vacated within sixty (60) days from the date of filing; (ii) WEBii institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency; (iii) WEBii makes an assignment of all or part of its assets for the benefit of creditors; or (iv) WEBii fails to cause Customer to be informed in writing immediately on the happening of any event specified in this section.
The provisions of this paragraph survive any termination of this Agreement.
16.1 Customer’s rights and obligations under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of WEBii, which consent shall not be unreasonably refused.
17. PARTIAL INVALIDITY
17.1 If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. WEBii and Customer agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed substitute provision.
18. APPLICABLE LAW, JURISDICTIONAL MATTERS
18.1 This Agreement takes effect when accepted by WEBii in Texas. It is to be governed by and construed under the laws of the State of Texas and the United States of America. The federal and state courts of the State of Texas shall have exclusive jurisdiction to adjudicate any non-arbitrary dispute arising out of this Agreement.
18.2 Customer hereby expressly consents to:
A. The jurisdiction of the courts of Texas and
B. Service of process being effective upon it by registered mail sent to the address set forth in Customer’s order form, as may be changed from time to time by written notice actually received by WEBii.
19.1 Except with respect to service of process, all notices may be sent by email, fax, or express mail to the email address, fax number, or mailing address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.
20. ENTIRE AGREEMENT; MODIFICATIONS
20.1 This Agreement between WEBii and Customer sets forth the entire agreement and understanding between the parties and merges all prior discussion between them.
20.2 WEBii may make changes to this Agreement upon thirty (30) days’ written notice to Customer, advising of the change and the effective date thereof. Utilization of WEBii services by Customer and/or its customers following the effective date of such change shall constitute acceptance by Customer of such change(s). Otherwise, this Agreement may not be modified except by written consent of both parties.
BY SUBMITTING AN ORDER, REQUEST AND/OR USING WEBII SERVICES, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS WEBII CUSTOMER AGREEMENT, INCLUDING PAYMENT IN ADVANCE FOR ALL SERVICES AND AUTOMATIC RENEWAL PROVISIONS.