Web Hosting Service Agreement
Last Updated: May 31, 2022
THIS AGREEMENT HAS A PROVISION FOR ARBITRATION OF DISPUTES BETWEEN THE PARTIES. PLEASE READ THE ENTIRE AGREEMENT IN DETAIL.
By using the website hosting services (hereinafter the "Services," defined further below), you signify your agreement to the terms and conditions contained in this Website Hosting Agreement (hereinafter, this "Agreement"). This Agreement is between you, your organization (if you are entering into this Agreement on behalf of an organization), collectively referred to herein as "you" or "your" (and appropriate formatives) and Name.com, Inc. ("we", “us” and “our”).
BY USING THE SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT.
IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE SERVICES ON BEHALF OF, OR FOR THE BENEFIT OF, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY WITH WHICH YOU ARE ASSOCIATED (AN “ORGANIZATION”), THEN YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT.
CHANGES TO THIS AGREEMENT. This Agreement may be modified from time to time. Modifications made to this Agreement will become effective 30 days after the modified version is posted or upon your express acceptance to the modified terms through the Services Interface, as herein defined, whichever is earlier. This Agreement shall be posted on the Name.com website. We will notify you through the interface which you use to configure and/or otherwise order the Services (the "Services Interface") when any modifications are posted. Any such modifications will not apply to any dispute between you and us arising prior to the date on which we posted the modified Agreement incorporating those modifications, or otherwise notified you of those modifications. You agree that you will check this Agreement and the Services Interface periodically and that, if you no longer agree to the terms and conditions herein, that you will stop using the Services and that you will terminate the Services as described below in paragraph 4.
THE SERVICES. The Services consist of the website hosting package with the specific configuration which you selected or are going to select through the Services Interface as you use the Services. You acknowledge and understand that important service limitations (including bandwidth limitations and other capacity matrices), pricing (including pricing for optional Services, such as automatic capacity upgrade in the event of overage), the term of the Service, payment terms, and other conditions relating to the Services are conveyed through the Services Interface and are hereby incorporated into this Agreement.
PAYMENT. You are hereby informed that, if you use a credit card to pay for the Services, that the charge for the Services may appear under our name or the name of one of our affiliates (the name being generally descriptive of the Services) and that, prior to contacting your credit card company in relation to such charges, that you will first contact us to verify the charges and the manner of billing. You agree that a chargeback by a credit card company (or similar action by another payment provider) of a charge related to the Services may be a material breach of this Agreement and grounds for termination. You further agree that, upon a chargeback by you, you agree and acknowledge that we may suspend your access to any account you have with us and your use of any domain names, websites, website content, email, or other data hosted on our systems. We will reinstate your rights solely at our discretion, and subject to our receipt of the fee owed and our then-current reinstatement fee, currently set at US$200 for chargebacks over US$1,000, and US$50 for chargebacks under US$1,000.
RENEWAL AND TERMINATION OR SUSPENSION.
- You agree that the Services shall be provided for the term you selected through the Services Interface. Unless you terminate the Services through the Services Interface prior to the end of the then extant Services term, you agree that the Services may be renewed for another term of equal duration to the immediately preceding term for the same cost as the immediately preceding term, unless another cost is communicated to you via email prior to your renewal, and that the resulting fees shall be charged to the default payment profile associated with your account. We will email a renewal notification approximately one (1) month and approximately one (1) week prior to the automatic renewal of the Services. You agree that attempts to terminate the Services other than through the Services Interface (such as by sending an email to a general email address of us) are not reliable means of communication and that such a termination attempt shall not binding until accepted and acknowledged by us. In relation to renewals, you further agree that it is your obligation to keep the credit card information associated with your account current and that we shall not be obligated to contact you to update such information in the event that the charges are denied.
- Your use of the Services may be suspended and/or this Agreement may be terminated if we reasonably believe that you are or are alleged to be violating the terms and conditions of this Agreement or any other agreement entered into by you and us. In the event of termination or suspension of Services under such circumstances, you agree a) that no pre-paid fees will be refunded to you and b) that we may take control of any domain name associated with the terminated Services, provided such domain name was registered through the domain name registration services of us. You understand that taking control of a domain name includes, without limitation, acts such as listing us as the "registrant" and/or "administrative contact" for the domain name and controlling the DNS settings for the domain name.
- We may elect to terminate this Agreement without cause and discontinue the Services upon thirty (30) days’ notice, whereupon any pre-paid fees for an unused portion of a service term shall be refunded to you within a reasonable period of time. You further agree that, within 30 days of your initial enrollment to receive the Services, we may elect to terminate this Agreement without cause and that, in such event, the termination shall take effect immediately and that any pre-paid fees for an unused portion of your service term shall be refunded to you within a reasonable period of time. The functionality or performance of the Services may change over time. We may introduce new features or impose limits on, suspend, eliminate, change, or update certain existing features of the Services.
- The Services are provided through an infrastructure which is shared by all users of the Services. Your use of the Services may be throttled or suspended indefinitely if your use of the Services degrades the ability of us to provide the Services to other users of the Services.
- You agree that you may not downgrade (reduce) the bandwidth or other capacity matrices of the Services below the level of actual use of the Services which you experienced in the current or previous month.
COMMUNICATIONS. You acknowledge that email and/or online communication systems (chat, account notices, etc.) will be the primary means of communication between yourself and us. You acknowledge that it is your responsibility to maintain a current email address and physical mailing address in your contact information. You further agree that you will regularly login to your account to obtain any notices posted through the Services Interface. You agree that your failure to respond to a communication from us may result in suspension or cancellation of Services without any refund of pre-paid fees, if any.
YOUR DATA. You acknowledge that we are not obligated to return any data to you upon termination of this Agreement. You acknowledge that it is your responsibility to download, make copies of, and/or backup all data residing on the servers and other equipment which provide the Services and to do so within the bandwidth limitations of the Services. You acknowledge that any loss or corruption of data which occurs due to an interruption in the Services, regardless of the cause of the interruption, shall not be the responsibility of us and that you may, following an interruption in the Services, be required to upload the data to the servers and other equipment which provide the Services.
REPRESENTATIONS AND WARRANTIES. You represent and warrant as follows: that a) you are lawfully entitled to use, display, posses, or access the data uploaded, linked to, framed, or otherwise posted on your website by you and/or by the users of your website; b) that your website and your use of the Services will not infringe the intellectual property or other proprietary rights of any third party; c) that your website and your use of the Services will not violate any laws, including, without limitation, laws relating to unsolicited commercial email, child pornography, collection of identifying information, consumer protection, and privacy; d) that neither you nor those who access your website will upload any worms, virus, or malicious code to the servers which provide the Services; and e) that your website and your use of the Services will not subject us to any claims by any third party, including claims relating to infringement of intellectual property rights or claims relating to the products or services which you may provide or offer through the website hosted through the Services. You further represent and warrant that you will not allow any unauthorized third party to access the account which you use to access the Services.
EXCLUSIVE REMEDIES FOR UNPLANNED SERVICE INTERRUPTIONS. You agree that any unplanned or unannounced interruptions in the Services shall not require a remedy unless such unplanned or unannounced interruptions exceed 24 hours in any 30 day period, in which case you agree that the exclusive remedy shall be a credit toward 24 hours of hosting for each 24 hour period of unplanned or unannounced interruptions, and that such credit shall exclusively be applied against the fees owed for your next period of hosting, if any, or shall be exclusively be accomplished by adjusting the end of your then-current Service term.
LIMITATION OF LIABILITY. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY (A) SUSPENSION OR LOSS OF THE SERVICES, EXCEPT TO THE LIMITED EXTENT THAT A REMEDY IS PROVIDED UNDER THIS AGREEMENT; (B) INTERRUPTION OF BUSINESS; (C) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEB SITE(S) PROVIDED THROUGH OR BY THE SERVICES; (D) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD; (E) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (F) EVENTS BEYOND OUR CONTROL; (G) THE PROCESSING OF YOUR APPLICATION FOR THE SERVICES; OR (H) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD. YOU FURTHER AGREE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES FOR A ONE-MONTH PERIOD, BUT IN NO EVENT GREATER THAN ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, THE LIABILITY OF US SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
INDEMNIFICATION. YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD US, OUR CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, AND EXPENSES (INCLUDING ATTORNEY'S FEES AND COURT COSTS), FOR THIRD PARTY CLAIMS RELATING TO YOUR USE OF THE SERVICES OR ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, INFRINGEMENT BY YOU OR SOMEONE ELSE USING YOUR COMPUTER, OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY PERSON OR ENTITY, OR FROM THE VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT. WHEN WE MAY BE INVOLVED IN A SUIT INVOLVING A THIRD PARTY AND WHICH IS RELATED TO THE SERVICES UNDER THIS AGREEMENT, WE MAY SEEK WRITTEN ASSURANCES FROM YOU IN WHICH YOU PROMISE TO INDEMNIFY AND HOLD US HARMLESS FROM THE COSTS AND LIABILITIES DESCRIBED IN THIS PARAGRAPH.
DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED “AS IS”. WE DO NOT MAKE ANY REPRESENTATIONS NOR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- With respect to any dispute over the Services, this Agreement, your rights and obligations and all actions contemplated by this Agreement will be governed by the laws of the United States of America and the State of Washington, as if the Agreement was a contract wholly entered into and wholly performed within the State of Washington.
- Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate, will be determined by arbitration in King County, Washington, before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. You and we agree that each may bring claims against the other only in an individual capacity, and not as a class member in any form of a class proceeding. Further, unless both you and we expressly agree otherwise in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class proceeding. This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Service of process on you by us in relation to any dispute arising under this Agreement may be served upon you by first class mail to any address listed by you in your account or by electronically transmitting a true copy of the papers to any email address listed by you in your account.
- Notwithstanding the foregoing, for the adjudication of third-party disputes (i.e., disputes between you and another party, not us) concerning or arising from use of the Services hereunder, you will submit without objection, without prejudice to other potentially applicable jurisdictions, to the subject matter and personal jurisdiction of the courts where we are located, currently those State or federal courts whose geographic districts include Denver, Colorado.