WebFX, Inc. Terms of Service

Web Site Hosting Service Terms and Conditions

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY USING WEBFX'S HOSTING SERVICES AND/OR PRODUCTS AND BY VIRTUE OF YOUR USE OF THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

A. SERVICE OFFERING. WebFX, Inc. agrees to provide the Web-Site Hosting and other services ("Services") referenced in this agreement through its applicable subsidiaries and affiliates (herein, "WebFX" or "Provider" ). This Agreement (as defined below) between you ("you" may also be referred to as "Customer" or "Client" ) and WebFX sets forth the legal rights and obligations governing WebFX provisioning or delivering Services to you and your use of those Services. This Agreement consists of the following terms and conditions, any applicable "Product Ts and Cs" (those terms applicable only to other WebFX Services ordered or used by you and which are listed at www.webfxhost.com/legal) (collectively, and as applicable, the "Terms and Conditions"), along with any applicable tariffs, which are fully incorporated herein (collectively, the "Agreement"). For any Tariffed Services, in the event of a conflict between the Terms and Conditions and a tariff, the tariff shall control unless cancelled, upon which the Terms and Conditions shall control. In the event of any inconsistency between the terms contained herein and other applicable documents, and only to the extent of the inconsistency, the additional terms and/or Product Ts and Cs shall control. For example, to the extent early termination charges for a product are detailed in the other Product Ts and Cs, those terms shall control to the extent inconsistent with the terms contained herein.

B. TERM. This Agreement shall become binding and effective upon the earlier of your acceptance or your first payment for services, and shall continue on a month-to-month basis until such time as terminated in accordance with the terms hereof. Either party may terminate the agreement and your subscription at any time for any reason or no reason upon 10 days notice. WebFX may immediately restrict, suspend or terminate without notice, your access to and use of the WebFX Service upon any breach of this agreement. In the event of any termination for breach of this agreement, you may not establish a new subscription with WebFX for one year from the date of termination. Upon and after termination or suspension, WebFX will not be obligated to provide you with access to any stored e-mail or content related to your account. Your only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of WebFX in operating the WebFX Service, any change in the content of the WebFX Service, or any change in the amount or type of fees charged in connection with the WebFX Service, is to terminate this agreement by delivering notice to WebFX, effective the day WebFX receives notification of termination.

C. RATES AND PAYMENT. Services are billed in advance monthly and are due prior to the month for which services are billed. Any optional services or software selected for the site will be billed under separate cover.

There is an initial minimum Web Hosting agreement of 3 months, and all Web Hosting fees are billed quarterly. Client shall pay the initial fees set forth, prior to the commencement of service. The billing cycle begins upon Web Hosting Plan Activation Date. Thereafter, client shall be invoiced in advance for a minimum three (3) month period, at least fourteen (14) days prior to the expiration of the then current three (3) months period. Payment of the service fee is due prior to the first day of said three (3) months period. Unless otherwise indicated, all invoices are due upon receipt and your payment is considered late after 15 days. Provider may suspend the service without notice if payment for the service is overdue. If clients’ account is suspended for a balance due, client will be subject to a reactivation fee following a suspension of service for non-payment that exceed 24 hours. By proceeding and using the WebFX Hosting Services you agree to the terms and services.

You agree to pay WebFX the then-current monthly charges for the WebFX Service, along with any connect time charges, surcharges, applicable taxes and other charges incurred by you or other users of your account via valid credit or other agreed upon method of payment. You may find information regarding current rates for using: (i) the Web-Site Hosting Service by calling 1.888.932.3987, or by viewing http://www.webfxhost.com/. Customer agrees that WebFX may pre-charge Customer's monthly service fee to the credit card or other agreed upon payment method supplied by customer during registration.

If WebFX does not receive the full amount of Customer's WebFX Service account balance within 30 days of the invoice date or billing date, the lesser of an additional 1.5%, or the highest percentage allowed by law, of the outstanding balance may be added to your bill as a late charge each month and will be due and payable immediately. Provider may suspend any services in progress including suspension of Client's hosting, without notice, and remain suspended until account balance is paid in full. If Clients’ account is suspended for a balance due, Client will be subject to a $50 reactivation fee. Client's hosting account will continue to accrue charges while on account suspension. Account suspension includes, but may not be limited to, website access, email and FTP services.

At such time if it becomes necessary in the sole option of “Provider” to proceed with a collection effort on amounts owed, all collections costs, court costs, and reasonable attorney’s fee’s and expenses associated with collecting amounts owed, plus all amounts past due including any fees or late charges for all Services purchased by the Client will be due and payable by Client. The specific service you have chosen may offer you the choice of additional payment terms, including without limitation pre-payment terms. WebFX reserves the right to increase fees, surcharges, monthly subscription fees or to institute new fees at any time upon 30 days prior notice. WebFX may reduce any fees at any time without notice. In the event that your account is terminated or canceled, on-line time credited to your account is not convertible to cash or other form of credit. You are responsible for obtaining, providing and paying for all means of access (for example, telephone, DSL, or dial-up charges) associated with connecting to the WebFX Service (WebFX encourages you to contact your local telephone company to determine whether your means of access is a toll-charge or not). You are responsible for all activities and charges resulting from use of your principal account on the WebFX Service.

D. ACCEPTABLE USE POLICY. Your use of the Services is subject to, and you agree to be bound by, the WebFX Acceptable Use Policy ("AUP") found at www.webfxhost.com/legal/, and which is incorporated by reference herein. You acknowledge that you have read the AUP and agree to be bound by the current version of the AUP, which may be updated from time to time, and to comply with its terms, all laws, regulations and other legal requirements that apply to these terms and conditions, your use of the Service and your presence on the Internet.

E. RIGHT TO MAKE SERVICE CHANGES. WebFX retains the right to change, increase or decrease from time to time, in its discretion and without liability to Customer, the methods, processes and/or the suppliers by which WebFX provides Services to Customer, as well as to change, add to or delete Service offerings with appropriate notice to Customer.

F. SOFTWARE AND INFORMATION PRODUCTS AND SERVICES. You acknowledge that except for software, information products or services ("Software/IT Product") clearly identified as being owned and licensed by WebFX under separate terms, Software/IT Products are owned and licensed by suppliers, licensors, or affiliates of WebFX. Any Software/IT Product accessible through the WebFX Service, and all merchandise, information and services offered or made available or accessible through the WebFX Service, are provided "AS IS." NOTHING IN THIS AGREEMENT OR YOUR USE OF THE SERVICES CONSTITUTES A TRANSFER OF ANY OWNERSHIP RIGHTS IN ANY SOFTWARE/IT PRODUCT. YOU ACKNOWLEDGE THAT USE OF THE WEBFX SERVICE IS AT YOUR SOLE RISK AND YOU AGREE THAT ANY SOFTWARE/IT PRODUCT ACCESSIBLE THROUGH THE SERVICE (i) MAY BE SUBJECT TO US AND INTERNATIONAL COPYRIGHT, PATENT AND TRADEMARK PROTECTION, AS WELL AS U.S. EXPORT CONTROLS AND RESTRICTIONS; (ii) ARE TO BE USED SOLELY INCONNECTION WITH THE SERVICES; AND (iii) ARE PROVIDED WITHOUT WARRANTIES FROM WEBFX AS FURTHER DESCRIBED BELOW. YOU MAY NOT MAKE COPIES OF ANY SOFTWARE/IT PRODUCT, EXCEPT FOR BACKUP PURPOSES IF NECESSARY TO EFFECTUATE YOUR USE OF THE SERVICES, NOR MODIFY, REVERSE ENGINEER, DECOMPILE OR DISASSEMBLE ANY SOFTWARE/IT PRODUCT. YOU MAY NOT, DIRECTLY OR INDIRECTLY, RENT, RESELL OR TRANSFER ANY SOFTWARE/IT PRODUCTS OR USE THEREOF TO ANYONE NOT AUTHORIZED UNDER THIS AGREEMENT. YOU UNDERSTAND THAT SOFTWARE/IT PRODUCTS MAY NOT BE FAULT TOLERANT AND ARE NOT INTENDED FOR USE WHERE ANY FAILURE THEREOF COULD LEAD TO INJURY, DEATH OR DAMAGE. The Uniform Computer Information Transaction Act is specifically excluded from application to this Agreement. The terms of this Section will survive any termination of this Agreement.

G. WEB COMMERCE. You acknowledge and accept that your use of the Services, and all associated communications and transactions conducted on-line, may not be absolutely secure, and that the Service is not guaranteed to be error free. By engaging in on-line activity, you accept the responsibilities and risks associated with the use of the Internet generally. You understand that information available to you through the Internet may include materials that are unedited, explicit or offensive to you, and that your access to such materials is at your own discretion and risk. Further, you acknowledge that all transactions relating to merchandise or services offered by you through the WebFX service, including but not limited to the purchase terms, payment terms, warrantees, guarantees, maintenance and delivery terms for such transactions are agreed to solely between you and third party purchasers. WebFX and its affiliates make no warranties or representations whatsoever with respect to your goods and services, or with respect to the qualifications of any third party purchaser, and shall not be liable in any way to any such third party user or purchaser.

H. SERVICE AND SERVICE USE.

1. WebFX reserves the right to limit, restrict or prioritize access to system access, resources, including CPU time, memory and disk space, including CPU time, memory, bandwidth, and disk space.

2. IP Addresses. If WebFX assigns you an Internet Protocol ("IP") address for your use of the WebFX Service, the right to use that IP address will belong only to WebFX, and you will have no right to use that Internet Protocol address except as allowed by WebFX in its sole discretion in connection with the plan you have selected, during the term of this agreement.

3. Electronic Mail. WebFX may, but is not obligated to, block any incoming or outgoing e-mail message that WebFX determines, in its sole discretion, is unsolicited or otherwise violates these terms. WebFX shall not be responsible for lost, misdirected, undeliverable or blocked e-mail, whether in transmission or receipt. All e-mail messages sent through WebFX Services are transmitted through WebFX Services in California and other jurisdictions.

4. Storage Capacity. Your storage space and bandwidth utilization on the WebFX Service must remain within the Storage Space and Bandwidth Allocations associated with the access plan you have selected. You are responsible for ensuring that combined storage (including, without limitation, e-mail, web files, FTP space, etc) stored material will not exceed that limit. For WebFX Web Site Hosting and similar accounts, these allocations are set forth in the account plan selected during registration. Additional storage space and bandwidth may be available at an additional charge. Please contact WebFX if you are interested.

5. Traffic and Hits. If you publish any Web page or site using the WebFX Service, the usage of that Web page or site should be consistent with the access plan you have chosen.

6. Accounts and Passwords. Users are responsible for the security of all user id and password information. This agreement applies to all accounts, sub-accounts, alternative account names and passwords associated with your principal account. By enrolling for and using the Services, you accept sole responsibility for the security and confidentiality of all passwords. Accidental or unauthorized disclosure or use may have serious consequences and WebFX shall have no liability for your failure to maintain this information securely. Additionally, you are responsible for the use of each of your accounts, whether used under any name or by any person, and for ensuring full compliance with this agreement by all users of that account. In the event of a breach of security through your account, you should immediately contact WebFX customer service at 1.888.932.3987.

I. PERSONAL INFORMATION. You hereby certify to WebFX that you are not a minor. (A minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision by the parent or guardian). For purposes of identification, billing and marketing, you must provide WebFX with accurate, complete, and updated information required by the registration to the WebFX Service, including your legal name, address, telephone number(s), and applicable payment data. You must notify WebFX within thirty (30) days of any changes in your Member Registration Data. WebFX may require a copy of a state issued form of identification before making changes to the billing information or registration data on a Customer's account. By enrolling for the Services, you authorize WebFX and its affiliates to use billing and usage information related to your account for additional marketing purposes.

J. DISCLAIMER OF WARRANTIES. WEBFX MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES; ANY SOFTWARE/IT PRODUCTS, INCLUDING THIRD PARTY SOFTWARE/IT PRODUCTS; AND ANY WEBFX SYSTEM OR WEBFX PROVIDED EQUIPMENT USED BY THE CUSTOMER OR TITLE THERETO (EXCEPT TO THE EXTENT SET FORTH IN A SEPARATE SALE TRANSFER OR LICENSE DOCUMENT). THIS INCLUDES, BUT IS NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS OF THE SERVICE OR EQUIPMENT FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF OR NON-INTERFERENCE WITH ANY THIRD PARTY RIGHTS.

K. LIMITATION OF LIABILITY. 1. WITH RESPECT TO CLAIMS OR SUITS BY CUSTOMER, OR ANY OTHERS, FOR DAMAGES RELATING TO OR ARISING OUT OF ACTS OR OMISSIONS UNDER THIS AGREEMENT AND/OR SERVICES PROVIDED HEREUNDER, WEBFX LIABILITY FOR SERVICE INTERRUPTIONS OR PROBLEMS, IF ANY, SHALL BE LIMITED TO CREDIT ALLOWANCES AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, IN ANY PRODUCT TERMS AND CONDITIONS, OR IN ANY APPLICABLE TARIFFS. 2. WEBFX SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM: (A) THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, USE OR MISUSE OF AN ACCOUNT, EQUIPMENT, OR SERVICE; (B) ANY ACT OR OMISSION OF CUSTOMER, OR ITS END-USERS OR AGENTS, OR ANY OTHER ENTITY FURNISHING EQUIPMENT, PRODUCTS OR SERVICES TO CUSTOMER; (C) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVICE OR THE EQUIPMENT, EVEN IF WEBFX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (D) ANY FAILURE TO PERFORM UNDER THIS AGREEMENT CAUSED BY ANY UNFORESEEN CONTINGENCY BEYOND THE REASONABLE CONTROL OF WEBFX INCLUDING WITHOUT LIMITATION INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, WAR OR ACT OF GOD, OR OTHER SIMILAR EVENTS. 3. IN NO EVENT SHALL WEBFX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, GOODWILL OR PROFITS, SAVINGS OR REVENUE, OR HARM TO BUSINESS, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY CAUSE WHATSOEVER.

L. INDEMNIFICATION. You agree to indemnify, defend and hold WebFX and its officers, directors, employees, agents, affiliates and suppliers harmless from and against any claims, actions, demands, losses and damages, including attorney's fees, relating to any violation of state or federal law or regulation, this Agreement, the WebFX AUP, or related acts or omissions by Customer, its end users, or other users of its account, or the placement or transmission of any message, information, software or other materials on the Internet by Customer or end users of Customer's account. This indemnification shall survive the termination of the Agreement.

M. CANCELLATION: A request to cancel project must be made in writing to “Provider” and include the signature of the authoritative client. “Provider” will charge for the number of hours accumulated in project development before the cancellation request is made. Any outstanding invoices must be paid in full. All services are non-refundable.

A request to cancel Web Hosting Services must be made in writing to “Provider”, include the signature of the authoritative client, and must be submitted 15 days before the beginning of a new 3-month term. If you cancel the Web Hosting Service before the end of the 3-month term, your cancellation will take effect immediately, but you will have access to the Web Hosting Service for the remainder of the term in which you cancel. Your domain name will remain registered for its current term, but will cease working with your email and pointing to your website. After cancellation and when term ends, you will no longer have access to your website and all information contained therein may be deleted by “Provider”. “Provider” accepts no liability for such deleted information or content.

If your credit card is invalid for any reason or you fail to pay an invoice by the terms set forth, the Web Hosting Service may be cancelled and all the information contained within deleted permanently. “Provider” accepts no liability for information that is deleted due to an invalid credit card or failure to pay an invoice.

N. ARBITRATION: Any dispute arising under this agreement shall be resolved by binding arbitration in the city of Garden Grove, CA or San Francisco, CA (location by choice of provider) and under the rules of the American Arbitration Association.

O. CHOICE OF LAW; JURISDICTION: This Agreement and Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with this Agreement will be brought solely in Orange County, California, and you consent to the jurisdiction of such courts.

P. COMPLETE AGREEMENT/ADDITIONAL TERMS. This Agreement represents the complete agreement and understanding of the parties with respect to the Services and any related matters, and supersedes all other agreements whether written or oral, including but not limited to, any advertising, brochures, proposals, representations or understandings regarding the subject matter hereof. This Agreement may be modified only by written agreement, changes to the URL sites referenced herein, changes to the applicable tariffs or as otherwise specifically provided herein. Customer may not sell, transfer, or assign this Agreement, without the prior written consent of WebFX; any impermissible assignment shall be null and void. This Agreement shall be governed by the substantive law of the Commonwealth of California without reference to its principles of conflicts of laws, and Customer consents to the nonexclusive jurisdiction of the federal and state courts of the Commonwealth of California.

THESE TERMS AND CONDITIONS, ALONG WITH ANY SOFTWARE/IT PRODUCT TS AND CS MAY BE MODIFIED FROM TIME TO TIME AT WEBFX'S DISCRETION OR AS REQUIRED BY APPLICABLE LAW. YOU AGREE TO REVIEW SUCH CHANGED ITEMS FROM TIME TO TIME AND BE BOUND BY SUCH CHANGES, AS THEY PERTAIN TO THE PARTICULAR SERVICES YOU CHOOSE NOW OR MAY CHOOSE IN THE FUTURE. IF WEBFX DETERMINES CHANGES TO THE ADDITIONAL TERMS AND/OR PRODUCT TS AND CS WILL MATERIALLY AND DETRIMENTALLY AFFECT YOUR SERVICE OR RIGHTS THERETO, WEBFX WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE NOTICE OF SUCH CHANGES AND AN OPPORTUNITY TO OBJECT IN WRITING IN THE MANNER PROSCRIBED IN SUCH NOTICE. IN ANY CASE, THE CHANGES SHALL NOT DIMINISH ANY SERVICE LEVELS COMMITTED TO CUSTOMER IN ANY APPLICABLE SERVICE LEVEL AGREEMENTS AT THE SERVICE COMMENCEMENT DATE. YOU HEREBY CONSENT TO THE INCORPORATION OF APPLICABLE TARIFFS AND THE ADDITIONAL TERMS AND PRODUCT TS AND CS POSTED AT (WEBFXHOST.COM/LEGAL). YOU AGREE THAT ACCEPTANCE OF THIS AGREEMENT CONSTITUTES CONSENT TO THE USE OF ELECTRONIC RECORDS. YOU MAY REQUEST HARD COPIES OF PART OR ALL OF THE TERMS AT ANY TIME BY CALLING [1.888.932.3987]. THE OFFERING OF SERVICES IS SUBJECT TO ANY AND ALL FINAL REGULATORY COMMISSION REVIEW, APPROVAL AND REQUIREMENTS IN ACCORDANCE WITH APPLICABLE LAW. IF YOU USE THE SERVICES, YOU ARE DEEMED TO HAVE ACCEPTED THE TERMS AND CONDITIONS, AND THE APPLICABLE TARIFFS.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND WEBFX FOR THE SERVICES PROVIDED HEREUNDER, AND THAT IT MAY BE AMENDED ONLY IN ACCORDANCE WITH THE TERMS STATED ABOVE. BY USING WEBFX'S SERVICES YOU REPRESENT THAT YOU HAVE THE AUTHORITY AND RIGHT TO BIND YOU AND/OR YOUR COMPANY TO THESE TERMS AND CONDITIONS.