This Web Hosting Agreement (this "Agreement") is between ServerEarth, a LLC formed under the laws of the State of Delaware (ServerEarth) and the person (individual or legal person) whose signs ServerEarth's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of ServerEarth's Web hosting service.
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of ServerEarth's credit approval requirements, ServerEarth agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that ServerEarth 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 the same length as the Initial Term (each a "Renewal Term") unless ServerEarth or Customer provides the other with termination notice within 7 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."
We do not offer a 30 day money back guarantee on Dedicated Servers. Renewal notices are emailed 10 days before the actual renew date in your account. If you have a credit card on file your card will automatically be charged 3 days before your renewal date. (ie. Your renew date is May 20th, your invoice will be sent on May 10th and your card on file will be charged May 17th) If your billing method is Paypal you will need to manually pay your invoice every month by the due date at 12 PM EST. All renewals made with a credit card are expected to work on the day your card is charged. If the card declines then the customer is subject to a $5 one time fee on top of the monthly renewal price. In the event you fail to pay your invoice by the due date, we reserve the right to suspend your entire account and a late fee of $25 applies. The term "Account" describes all services provided to a customer as defined by the primary ownership email and physical address.If your invoice is still not paid by the 3rd day past the due date on the invoice, we reserve the right to terminate your service entirely and reformat your server.
Customer acknowledges that a minimum of 14 days cancellation notice prior to the following renewal term must be given in writing to ServerEarth or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
Customer agrees to use the service in compliance with applicable law and ServerEarth's Acceptable Use Policy (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that ServerEarth 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 ServerEarth'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 ServerEarth's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between ServerEarth and Customer regarding the interpretation of the AUP, ServerEarth's commercially reasonable interpretation of the AUP shall govern.
Customer represents and warrants to ServerEarth that the information he, she or it has provided and will provide to ServerEarth for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to ServerEarth that he or she is at least 18 years of age. ServerEarth 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.
Customer agrees to indemnify and hold harmless ServerEarth, ServerEarth'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.
KNOWNHOST DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW KNOWNHOST 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.
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 KNOWNHOST 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 ONE MONTH OF SERVICE.
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee and you are responsible to pay for any overage.
ServerEarth is not a domain registrar. We are a reseller for Enom so all ServerEarth customers who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by Enom. You can only purchase a domain from ServerEarth or transfer a domain to ServerEarth at the time when you are purchasing a hosting package. Domain purchases as well as domain transfers are billed at $10.95/year. You have the option to add privacy protection to your domain at $7.00/year. You will receive notice from ServerEarth once your domain is up for renewal. If you do not renew your domain by the expiration date you run the risk of loosing your domain. If you choose to cancel your hosting plan with ServerEarth or fail to pay your renewal we will not be renewing your domain past the cancellation date of your hosting plan. We are not responsible for domains that expire if you no longer have an active hosting plan.
Customer agrees that ServerEarth 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 ServerEarth 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.
Customer agrees to maintain a current copy of all content hosted by ServerEarth notwithstanding any agreement by ServerEarth to provide back up services.
During any service term, customer may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a $10.00 one time fee will be enforced.
Notices to ServerEarth under the Agreement shall be given via electronic mail to the e-mail address of email@example.com or via our online ticketing system at http://support.serverearth.com/. All notices, including but not limited to support or billing requests, must be submitted from the registered primary or secondary e-mail address on file for the customer account.
Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. It is the Customers responsibility to ensure valid and accurate contact information is supplied and updated as necessary. 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.
ServerEarth shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond ServerEarth'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.
As a Customer of ServerEarth you agree to submit to binding arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The location of Arbitration shall be selected by ServerEarth at the time of the dispute.
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 ServerEarth 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 ServerEarth's prior written consent. ServerEarth's approval for assignment is contingent on the assignee meeting ServerEarth's credit approval criteria. ServerEarth may assign the Agreement in whole or in part.
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.
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