These HOSTING Professional Services Terms and Conditions (these “Terms and Conditions”) are by and between Hosting.Com, Inc., a Delaware corporation (“HOSTING”), and the individual or entity designated as “Customer” in one or more Statements of Work (each, an “SOW”, and collectively, the “SOWs”) entered into in connection with these Terms and Conditions (“Customer”). HOSTING and Customer may be referred to individually as a “Party” and collectively as the “Parties” in these Terms and Conditions. The agreement between HOSTING and Customer includes these Terms and Conditions and one or more SOWs. Each SOW, when executed by both Parties, constitutes a separate agreement, and, except for provisions of these Terms and Conditions that are specifically excluded or modified in such SOW, the provisions of these Terms and Conditions are incorporated into each such SOW by this reference. In the event that the Parties are also parties to a Master Services Agreement (“MSA”), and provisions of such MSA directly conflict with provisions of these Terms and Conditions, the provisions of such MSA shall control, but only to the extent that such provisions directly conflict.
(a) HOSTING shall provide Customer the services set out on each SOW, subject to and in accordance with the terms of these Terms and Conditions and each such SOW (the “Professional Services”). HOSTING agrees to use good faith efforts to implement the Professional Services in accordance with the applicable SOW. Customer agrees to provide, and to cause its third party vendors and agents to provide, HOSTING with all information, access, and good faith cooperation required to enable HOSTING to provide the Professional Services to Customer. The Professional Services may include services provided by or through a third party. Customer shall not resell the Professional Services unless permitted by the applicable SOW. No amendment or change may be made to an SOW without the acceptance of such amendment or change by HOSTING.
(b) While HOSTING is performing the Professional Services set forth on an SOW and before HOSTING has delivered such Professional Services, Customer may request changes to such Professional Services. If agreeable to HOSTING, HOSTING shall incorporate any such changes pursuant to a “change order” to the applicable SOW executed by both Parties setting forth the amended scope of the Professional Services and the impact thereof on, among other things, the specifications, the delivery dates, and the cost to Customer of the Professional Services and deliverables set forth on such SOW. If the Parties are unable to mutually agree upon a change order setting forth the relevant information, then the Parties agree HOSTING shall complete the original SOW.
These Terms and Conditions are effective and binding on the Parties as of the effective date of the earliest SOW and shall, unless terminated pursuant to Section 4, continue until the later of: (a) one (1) year or (b) completion of the work set out on all existing SOWs. Upon such earlier completion or termination of an SOW, HOSTING shall have no further duties or obligations (including any support of or related to the Professional Services) to provide the Professional Services with respect to the items set out on such SOW.
- Billing and Payment.
(a) Customer shall pay HOSTING the fees set forth on each SOW. Fees do not include taxes. Customer shall pay all taxes assessed upon or related to the Professional Services (except for taxes based on HOSTING’s net income), unless Customer provides HOSTING with a valid tax exemption certificate.
(b) Customer shall pay the fees and taxes set forth on an invoice within twenty-one (21) days following the date of such invoice (the “Due Date”). If Customer fails to pay an invoiced amount by the Due Date, HOSTING may assess a late payment charge equal to the lesser of (i) 1.5% times the unpaid amount per month or (ii) the maximum amount permitted by law. Customer shall pay all of HOSTING’s reasonable expenses associated with any collection efforts, including, but not limited to, reasonable attorneys’ fees and court costs.
(c) Customer may dispute an invoice, so long as such dispute is made in good faith and, prior to the Due Date, Customer (i) pays all undisputed amounts and (ii) provides HOSTING with written notice of and evidence supporting such dispute. HOSTING and Customer shall attempt in good faith to resolve such dispute within thirty (30) days of HOSTING’s receipt of Customer’s notice and supporting evidence. Any disputed amount found to be properly owed to HOSTING shall be paid within five (5) days following resolution of the dispute, together with the applicable late payment interest fee on such amount accrued from the original due date for such amount.
- Termination and Suspension.
(a) Either HOSTING or Customer may terminate:
(i) an SOW or these Terms and Conditions, as applicable, in the event that the other Party breaches a material obligation of an SOW or these Terms and Conditions and (A) such breach is not cured within thirty (30) days (or ten (10) days in the case of non-payment by Customer) following the breaching Party’s receipt of written notice from the non-breaching Party, in which case such termination shall be effective as of the end of such thirty (30) day period (or ten (10) day period in the case of non-payment by Customer), or (B) such breach is incurable, in which case such termination shall be effective upon the breaching Party’s receipt of written notice from the non-breaching Party.
(ii) an SOW or these Terms and Conditions in the event that the other Party becomes the subject of any insolvency, receivership, or bankruptcy proceeding or makes an assignment for the benefit of creditors or ceases to do business. Such termination shall be effective upon the other Party’s receipt of written notice from the Party electing to terminate.
(iii) an SOW or these Terms and Conditions in the event of Force Majeure that has made performing under the SOW or these Terms and Conditions impossible for thirty (30) continuous days. Such termination shall be effective upon receipt of written notice from the Party electing to terminate.
(b) Customer shall pay HOSTING for all services rendered and expenses incurred prior to the effective date of termination. Additionally, in the event that HOSTING terminates pursuant to Section 4(a)(i) or Section 4(a)(ii) or Customer terminates outside of the reasons set forth in Section 4(a), (i) Customer shall pay, within five (5) days of the effective date of such termination, all damages that HOSTING incurred as a result of such termination and (ii) HOSTING expressly disclaims liability for any resultant damages, delays, or claims of Customer. Customer acknowledges and agrees that this provision is a material inducement to HOSTING entering into these Terms and Conditions. Termination of these Terms and Conditions will terminate any SOW.
(c) HOSTING may suspend the Professional Services in the event and for the period of time that: (i) providing the Professional Services is prohibited by applicable law or regulation; (ii) Customer fails to pay any invoiced amount (except for an amount disputed in good faith in accordance with Section 3(c)) when due; or (iii) the Professional Services are used in violation of the Policies or applicable law or regulation.
(d) In the event that HOSTING suspends the Professional Services pursuant to Section 4(c)(ii) or Section 4(c)(iii), Customer shall pay all amounts for the Professional Services during the period of suspension as if no suspension had occurred.
- Warranties, Indemnification, and Limitations of Liability.
(a) Customer and HOSTING represent and warrant to each other that such Party has the power, authority, and legal right to enter into and to perform such Party’s obligations under these Terms and Conditions. Customer represents and warrants that Customer owns or has the right to use all data and Intellectual Property (as defined below) transmitted by or used in connection with the Professional Services.
(b) NOTWITHSTANDING ANY COMMUNICATIONS BETWEEN HOSTING AND CUSTOMER, EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, NEITHER HOSTING NOR ANY OF ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, SUB-CONTRACTORS, OR LICENSORS MAKE ANY WARRANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, COMPLETELY SECURE, ERROR-FREE, NON-INTERRUPTION, NON-INTERFERENCE, OR NON-INFRINGEMENT. EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, THE PROFESSIONAL SERVICES AND EQUIPMENT PROVIDED UNDER OR ASSOCIATED WITH THESE TERMS AND CONDITIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EACH OF THESE DISCLAIMERS SHALL APPLY UNLESS PROHIBITED BY APPLICABLE LAW.
(c) HOSTING shall indemnify, defend, and hold harmless Customer, its affiliates, employees, and agents (collectively, the “Customer Group”) from and against all claims, actions, and demands and all damages and expenses, including reasonable attorneys’ fees, related to the foregoing (collectively, “Losses”) asserted against or incurred by the Customer Group to the extent arising from (i) personal injury, death, or physical damage to, loss of, or theft of tangible personal property caused by the gross negligence or willful misconduct of the HOSTING Group or (ii) allegations that Customer’s use of the Intellectual Property (as defined below) wholly owned by HOSTING and used to provide the Professional Services directly infringes the Intellectual Property rights of a third party under the laws of the country in which such Professional Services are provided to Customer; provided, that the HOSTING Group’s sole and exclusive liability with respect to Section 5(c)(ii) shall be limited to HOSTING, in its sole discretion, either making such Professional Services non-infringing or obtaining a license or consent to allow Customer’s continued use of such Professional Services; provided further, that, if neither of these options is commercially practicable, HOSTING may terminate such Professional Services, in which case HOSTING shall refund to Customer any prepaid fees for such Professional Services. Notwithstanding anything to the contrary, HOSTING shall have no liability or obligation for any infringement based on unauthorized use or modification of the Professional Services, use of the Professional Services in combination with any Intellectual Property (as defined below) not owned by HOSTING, or Customer’s failure to install updates or patches.
(d) Customer shall indemnify, defend, and hold harmless HOSTING, its affiliates, employees, and agents (collectively, the “HOSTING Group”) from and against all Losses asserted against or incurred by the HOSTING Group to the extent arising from (i) personal injury, death, or physical damage to, loss of, or theft of tangible personal property caused by the gross negligence or willful misconduct of the Customer Group or (ii) use of the Professional Services, including, but not limited to, allegations that the Professional Services have been used, or use has been facilitated by Customer, in a way that (A) infringes an Intellectual Property (as defined below) right of a third party under the laws of a country in which such Professional Services have been used or use has been facilitated by Customer, or (B) violates the Policies or applicable law or regulation.
(e) The indemnification obligations of this Section 5 shall be conditioned on the party suffering the Loss (i) promptly notifying the indemnifying party in writing of the circumstances giving rise to such Loss such that there is no material prejudice to the indemnifying party due to the timing of the delivery of such notice and (ii) giving the indemnifying party complete authority and information for the defense or settlement of the matter; provided, that (A) the indemnified party shall have the right to participate in the defense of the matter at such party’s expense, and (B) the indemnifying party shall not settle the matter without the indemnified party’s prior written consent if such settlement contains an admission of liability or fault attributable to the indemnified party or material equitable relief.
(f) To the extent permitted by applicable law and regardless of the basis for a claim, under no circumstances shall either party be liable for any indirect damages of any nature (including, but not limited to, consequential, incidental, exemplary, special, or punitive damages or damages for business interruption or loss of revenues, profits, data, or business information) that arise out of or in connection with these Terms and Conditions OR THE PROVISION OF THE PROFESSIONAL SERVICES. This limitation shall apply even if a party has been advised of the possibility of these damages and even if such damages were foreseeable; provided, however, that this exclusion shall not apply to (i) HOSTING’s indemnification obligations under Section 5(c)(i) with respect to willful misconduct in regards to personal injury or death and under Section 5(c)(ii), and (ii) Customer’s indemnification obligations under Section 5(d)(i) with respect to willful misconduct in regards to personal injury or death and under Section 5(d)(ii). Customer agrees that for the purposes of this section, lost revenues and lost profits do not include Customer’s payment obligations to HOSTING pursuant to these Terms and Conditions.
(g) To the extent permitted by applicable law and except for (i) the Parties’ respective indemnification obligations under Section 5(c)(ii) and Section 5(d)(ii) and (ii) Customer’s payment obligations with respect to fees and related taxes and expenses, the HOSTING Group’s liability to the Customer Group and the Customer Group’s liability to the HOSTING Group arising out of these Terms and Conditions and any other agreements between the Parties shall not exceed the amount of fees paid by Customer to HOSTING for the Professional Services during the twelve (12) months immediately prior to the event giving rise to the liability.
- Confidential Information.
“Confidential Information” means all non-public information, know-how, and trade secrets in any form disclosed by one Party to the other Party and that are designated by the disclosing Party as confidential or are known, or under the circumstances should be known, to be confidential. For the avoidance of doubt, the following items shall be considered Confidential Information: these Terms and Conditions and HOSTING’s network configuration, and the following items shall not be considered Confidential Information: information that is or becomes publicly known or available without breaching this section, information that is or was previously disclosed to the receiving party from a third party without any confidentiality restriction, information that is independently developed without using any Confidential Information or otherwise breaching this section, reference to the other Party by name as a vendor or customer, or the existence and general nature of these Terms and Conditions (but not any specific terms of these Terms and Conditions). Each Party agrees: (a) to hold the Confidential Information of the other Party in strict confidence using the same standard of care that such party uses to protect its own confidential information, but no less than reasonable care, and (b) not to disclose the Confidential Information of the other Party to any third party, other than as necessary to provide the Professional Services, as permitted by the Policies, or as required by applicable law, court order, or regulation. In the event that a Party is required by applicable law, court order, or regulation to disclose the other Party’s Confidential Information, such Party shall, unless prohibited by law, provide the other Party a reasonable opportunity to obtain, at the other Party’s expense, a protective order. Customer shall use reasonable security precautions in connection with its use of the Professional Services, including, but not limited to, encrypting any sensitive information (such as nonpublic personal information and protected health information) transmitted by or used in connection with the Professional Services, and require all parties having access to the Professional Services by or through Customer to use reasonable security precautions. Customer is responsible for the security of customer credit card numbers and related information to which Customer may have access as a result of conducting electronic commerce transactions in connection with the Professional Services.
- Intellectual Property.
“Intellectual Property” means trademarks, service marks, copyrights, patents, technology, hardware, software, and other proprietary rights, whether owned or licensed. In order to permit HOSTING to provide the Professional Services, Customer shall obtain and maintain all rights, consents, and approvals required to grant HOSTING and its agents the right to access, use, and modify any data, content, equipment, and Intellectual Property utilized by Customer in connection with the Professional Services. Unless expressly stated in these Terms and Conditions, neither Party shall (a) have any right, title, claims, or interest in or to the other party’s Intellectual Property, (b) use, copy, modify, or translate any of the other Party’s Intellectual Property or related documentation, (c) decompile, disassemble, or reverse engineer any of the other Party’s Intellectual Property, or (d) distribute or authorize a third party to distribute any of the other Party’s Intellectual Property. HOSTING shall own all worldwide right, title, and interest in and to all work product performed for Customer, and all technology and Intellectual Property rights therein. HOSTING retains all rights that are not expressly granted in these Terms and Conditions to Customer. Customer may choose to, but is not required to, provide comments or suggestions or related data to HOSTING regarding possible improvements to the operation, functionality, or use of the Professional Services, and inventions, product improvements, modifications, or developments made by HOSTING, if any, shall be the exclusive property of HOSTING.
(a) Governing Law; Interpretation. These Terms and Conditions shall be governed by and construed and enforced in accordance with the laws of the State of Colorado, without regard to choice of law or conflicts of laws principles. The Parties consent to the jurisdiction of the federal or state courts located in Denver, Denver County, Colorado for all disputes between the Parties, and venue shall be proper in any such court. Neither Party shall contest notice from any such court. The Parties hereby waive trial by jury in any dispute between the parties. The United Nations Convention on Contracts for International Sale of Goods shall not apply to these Terms and Conditions or any dispute between the Parties. No presumption or burden of proof shall arise favoring or disfavoring a Party by virtue of the authorship of any provision of these Terms and Conditions. Customer acknowledges and agrees that the pricing provided to Customer is based largely on the Parties’ respective rights, obligations, and limitations provided in these Terms and Conditions.
(b) Compliance with Laws. Each Party shall obtain and maintain all permits and licenses required by applicable law or regulations for the provision or use, as applicable, of the Professional Services. Each Party shall comply with all applicable law and regulations in connection with these Terms and Conditions and, in the case of Customer, in its use of the Professional Services, including, but not limited to, all applicable export control, data protection, Intellectual Property, and consumer protection laws and regulations. Customer agrees that: (i) violating applicable export control laws may include selling products or services that may be legal to sell in the United States, but illegal to export, and (ii) Customer shall not use the Professional Services to provide services to individuals or entities with which citizens of the United States may not do business.
(c) Force Majeure. Except for failure to pay, neither party shall be liable for or be considered in breach of these Terms and Conditions due to any failure or delay in performing, if such failure or delay is caused by an event of Force Majeure. “Force Majeure” shall mean circumstances beyond a Party’s reasonable control, including, but not limited to, a natural calamity, act of God, military or terrorist act, change in law, labor dispute, utility disruption or outage, malfunction of equipment or software, loss or corruption of data, interruption of or delay in transportation, failure by any supplier or other third party to perform, or act or omission of the other Party.
(d) Amendment; Waiver; Severability. Except as otherwise expressly provided in these Terms and Conditions, these Terms and Conditions shall not be amended and the Professional Services shall not be changed except by a written amendment signed by both Parties. The failure or delay to exercise, or the partial exercise of, any right or remedy shall not operate as a waiver of, nor affect the right to exercise, any such right or remedy, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default. The waiver of time for performance shall not constitute a waiver of the act or condition itself. The invalidity or unenforceability of any provision of these Terms and Conditions shall not affect the validity or enforceability of any other provision of these Terms and Conditions, which shall remain in full force and effect. Any such invalid or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision.
(e) Assignment. These Terms and Conditions shall be binding upon and inure to the benefit of Customer, HOSTING, and HOSTING’s respective successors and permitted assigns. Neither Party may assign these Terms and Conditions without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed; except that HOSTING may assign these Terms and Conditions without the prior consent of Customer (i) to an affiliate and (ii) in connection with a merger, reorganization, or sale of all or a portion of its assets. The sale, assignment, or other transfer of the equity securities or other ownership interests of HOSTING shall not constitute an assignment of these Terms and Conditions. Any attempt to assign these Terms and Conditions without the other Party’s required consent shall be null and void. Notwithstanding the foregoing, Customer agrees that HOSTING may delegate performance of any of its obligations hereunder to its subsidiaries or to agents or subcontractors selected by HOSTING, except that HOSTING shall not be relieved of any of such obligations as a result of such delegation.
(f) Notices. All notices, requests, consents, and other communications (collectively, “Notices”) required or permitted under these Terms and Conditions shall be in writing and shall be deemed to have been received on the earlier of (i) the date of actual receipt (including by facsimile or email), (ii) the first business day after being sent to the designated address by a nationally recognized overnight delivery service, or (iii) the third business day after being mailed to the designated address by first class mail. Notices shall be delivered to the Parties at the respective addresses stated in the SOWs.
(g) Entire Agreement; Survival; Conflicts. These Terms and Conditions state the entire agreement between the Parties, and supersede all previous proposals, negotiations, and other written and oral communications between the Parties, with respect to the subject matter of these Terms and Conditions. The following provisions shall survive the termination of these Terms and Conditions: Sections 3, 4, 5, 6, 7 and 8. If there is a conflict between documents entered into by the Parties, such documents shall have the following order of precedence: (i) the SOW or SOWs, then (ii) these Terms and Conditions. Customer acknowledges and agrees that these Terms and Conditions and all SOWs are separate from any other agreement between the Parties, including any MSA. Performance or non-performance (including any delay in timing of performance) of the Professional Services shall not impact the payment obligations of Customer for other services provided by HOSTING (for example, pursuant to an MSA), and that performance or non-performance (including any delay in timing of performance) of other services provided by HOSTING (for example, pursuant to an MSA) shall not impact the payment obligations of Customer for the Professional Services.
(h) No Third-Party Beneficiary; Relationship of the Parties. No person or entity other than Customer and HOSTING and their respective successors and permitted assigns is or shall be entitled to bring any action to enforce any provision of these Terms and Conditions against either or both of Customer and HOSTING or any related party. The Parties shall be considered independent contractors of one another, and neither Party shall have the authority to make any representations, claims, or warranties of any kind on behalf of the other Party or on behalf of the other Party’s affiliates, agents, subcontractors, licensors, or third-party suppliers. Nothing in these Terms and Conditions shall be construed as implying a joint venture, agency, employer-employee, or partnership relationship between the Parties.