This Web Hosting Agreement (this “Agreement”) is between Züm Hosting (“this*”) and the person (individual or legal person) who signs Züm Hosting’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of Züm Hosting’s Web hosting service.
1. Services Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Züm Hosting’s credit approval requirements, Züm Hosting agrees to provide the web hosting services described in the Order for the fees stated in the Order.
2. Term The initial service term of the Agreement shall begin on the date that Züm Hosting 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 unless Züm Hosting or Customer provides the other with written notice of non-renewal by emailing cancel@zumhosting.com. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
3. Payments (a) Fees. Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly, or annually as indicated on the Order, beginning on the Service Commencement Date. Züm Hosting may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Züm Hosting to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise Züm Hosting will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the first day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing Züm Hosting with changes to billing information (such as credit card expiration, change in billing address) at its option, Züm Hosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Züm Hosting may charge interest on overdue amounts at $5 per month or the maximum non-usurious rate under applicable law. Züm Hosting may suspend the service without notice if payment for the service is overdue. Fees not disputed within thirty (30) days of due date are conclusively deemed accurate. Customer agrees to pay Züm Hosting’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Züm Hosting’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases. Züm Hosting may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
(c) Taxes. At Züm Hosting’s request Customer shall remit to Züm Hosting all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Züm Hosting); regardless of whether Züm Hosting fails to collect the tax at the time the related services are provided.
(d) Early Termination. Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Züm Hosting terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Züm Hosting’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
4. Law/AUP Customer agrees to use the service in compliance with applicable law and Züm Hosting’s Acceptable Use Policy posted at http://www.ZumHosting.com/aup (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that Züm Hosting 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 Züm Hosting’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 Züm Hosting’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Züm Hosting and Customer regarding the interpretation of the AUP, Züm Hosting’s commercially reasonable interpretation of the AUP shall govern.
5. Customer Information Customer represents and warrants to Züm Hosting that the information he, she or it has provided and will provide to Züm Hosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Züm Hosting that he or she is at least 18 years of age. Züm Hosting 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.
6. Indemnification Customer agrees to indemnify and hold harmless Züm Hosting, Züm Hosting’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.
7. Disclaimer of Warranties Züm Hosting DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW Züm Hosting 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.
8. Limitation of Damages 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 Züm Hosting 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 THREE MONTHS OF SERVICE.
9. Suspension/Termination
(a) Suspension of Service. Customer agrees that Züm Hosting may suspend services to Customer without notice and without liability if: (i) Züm Hosting reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Züm Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Züm Hosting’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
(b) Termination. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Züm Hosting fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by Züm Hosting prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (3) days of a written notice from Züm Hosting describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information Customer agrees that Züm Hosting 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 Züm Hosting 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.
11. Back Up Copy Customer agrees to maintain a current copy of all content hosted by Züm Hosting notwithstanding any agreement by Züm Hosting to provide backup services.
12. Changes to Züm Hosting’s Network Upgrades and other changes in Züm Hosting’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. Züm Hosting reserves the right to change its network in its commercially reasonable discretion, and Züm Hosting shall not be liable for any resulting harm to Customer.
13. Notices Notices to Züm Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.ZumHosting.com/contact. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. 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.
14. Force Majeure Züm Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Züm Hosting’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.
15. Governing Law/Disputes The Agreement shall be governed by the laws of the Virginia, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN Winchester, Virginia, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.