Master Service Agreement
- Welcome. We appreciate your business and look forward to a productive working relationship with you. This “Master Services Agreement” (the “MSA”) sets out the rights, responsibilities and legal obligations of the parties to it. The individual or entity placing an order for Services is referred to in this MSA as “Customer,” “you” or “your” and is the individual, or entity, designated as the “owner” in our records. The entity providing the services is referred to as “we,” “us” or “our.” The individual or entity using the Services, if different than the Customer, is referred to as the “End User.” The “Services” are the products, technologies and other items purchased by the Customer as set out on our web page describing them on the Effective Date (“Order Form”). The Effective Date of this MSA is the date you click “I accept” as that date is recorded by our servers.
This MSA includes agreements incorporated by reference.
This MSA includes the following documents, which you agree you have reviewed, and accept:
- The web page on which you indicate which Services you agree to purchase from us. During the course of the parties’ relationship with each other, you may purchase additional Services from us using new Order Forms. Each of these is incorporated into this MSA. If you are purchasing Services on behalf of a third party, you represent and warrant to us that you have the authority to purchase those Services. For the purposes of this MSA, the Order Form may be our on-line ordering process.
- Our Acceptable Use Policy (“AUP”) posted here: AUP
- Our Service Level Agreement (“SLA”) posted here: SLA
- If you are using the Services to provide your own services to third parties, including End Users, and as a result you use the Services in a manner that violates our AUP, you are responsible for that violation. As a result, we strongly encourage you to incorporate these policies into your own policies, or adopt policies that are no less restrictive than they are. Other than in the case of an emergency, or threat to the Service or our network infrastructure, we will give you notice and opportunity to correct a violation of either the AUP.
- This MSA, AUP and SLA are referred to collectively herein as the MSA. If there is a need to refer to them individually, they will be referred to using the names set out above.
- This MSA, and each of the documents set out above, may change from time-to-time. We will provide you with written notice of any change, other than one to correct typographical errors. Notification will be provided by posting a notice on our control panel, our home page or by email to the contact email you have provided us. Changes, other than changes necessary to respond to an unforeseeable situation, or those required by law or a third party who provides services to us, will be effective thirty (30) calendar days from the date we post a notice on our control panel, home page or by email. If you have agreed to a “Term Commitment” as that term is defined below, and a change materially affects your ability to use a particular Service, you may terminate the affected Service as set out in the termination section below.
- The Services will be provided as set out on the Order Form as of the Effective Date. The Services will be provided pursuant to our brand offering for those Services as shown on the Order Form at the time of your order. Services may not be available immediately. We agree to provide those Services during the term as set out on the Order Form (“Term”). However, we may make changes to the Services during the Term if required by law, a third party vendor who provides aspects of the Services to us, or if your use of the Services violates our AUP. New customers may be offered Services that are different than the Services you have purchased. We have no obligation to make those Services available to you. Should there be a conflict between this MSA and the Order Form, the Order Form will prevail.
- The Services are provided as set out on the Order Form and as described on our website on the Effective Date. In order to use the Services, you may need to procure additional services, technology, equipment and/or materials. You may not terminate this MSA because you are required to procure these items. It may be necessary for you to assist us in our implementation of the Services. You agree to provide reasonable cooperation and assistance, and to cause any of your third party providers to do so as well.
- Third parties may provide certain aspects of the Services to us. We will use commercially reasonable efforts to continue to have access to those components of the Services. However, should a third party change the services, make them economically prohibitive for us to provide to you, or discontinue them, our only obligation will be to attempt to find replacement components at a reasonable cost to us. If we are unable to do so, you may terminate those Services directly affected.
- The Services are not static, and they may require that you install new versions of software, firmware or other items to ensure their continued function (“Updates”). You agree to install these Updates within thirty (30) calendar days of our request. If you do not install the Updates, and doing so endangers the Service, or our network, you agree that we may install them without liability to you.
- The security of your passwords and other access devices is your responsibility. We shall be entitled to rely on the instructions, or operations, of any entity accessing the Service using your passwords and/or access devices. You agree to notify us immediately should any of these items become lost, stolen or compromised.
- Our goal is to maintain the Services as set out in this MSA. To do so, we may need to interrupt them from time-to-time for maintenance. We agree to give you five (5) business days’ notice of our intent to suspend the Services for this reason. We will provide this notice to you by email to the address we have in our records. Our notice will, at a minimum, set out the reasons for the maintenance, the features to be affected, and the period of time the maintenance will take place. On infrequent occasions, we may be required to undertake emergency maintenance, and we will be unable to provide you with the notice set out in this paragraph. We will use reasonable efforts to ensure that maintenance does not interfere with your operations; however, in order to ensure the continued stability of our operational platforms, our maintenance activities may take precedence.
- You agree and understand that Services and/or related support may not be available at certain times as a result of technical difficulties, equipment malfunctions, during scheduled maintenance, or as a result of circumstances beyond our reasonable control. You also understand and agree that we make no representation that Services and/or related support will be available on a continuous or uninterrupted basis.
- We do not set limits on the amount of disk space you can use for your services as long as the contents do not violate our AUP. If your use exceeds the capacity of a particular service as defined in the product specifications or AUP then we reserve the right to modify the Services we provide to you or request you move to a different Service.
- You agree that we have no obligation to back-up your data and you should independently take appropriate steps to maintain data in accordance with your needs and requirements. You specifically agree that you understand that Backup Services, as defined below, are not fool-proof, that they will not back-up all data, and that you will use a second source of back-up. Under no circumstance will we have any liability or responsibility for the loss of back-up data, content or other information, unless caused by our negligence or willful misconduct.
- If you purchase Backup Services from us, they are provided on an as-is and as-available basis, as a supplement to, and not in lieu of, your own back-up efforts. While we will use commercially reasonable efforts to ensure the effective operation of the Backup Services, you expressly agree that no back-up program or service is error-free or fail-safe. In the event of an interruption or failure of the Backup Service, our only obligation is to restore your server to operating condition. It is your responsibility to restore the functionality of your website. You may wish to maintain an operating copy of your website for this purpose.
- Backup Services are designed for disaster recovery. Should you, or a third party, request that data held by us using the Backup Services be used for a purpose other than disaster recovery, for example in litigation, we have no obligation to provide the data to you. Should we determine, in our sole and exclusive judgment, to provide the data to you, or should your data be subpoenaed, or disclosure of it otherwise compelled, it will be provided at our convenience and you will be charged our prevailing hourly rate. You will also be responsible for any attorneys’ fees we incur in reviewing, responding to or producing your data, and required to pay us a retainer to secure your obligations.
- You must provide certain current, complete and accurate account information for your Services. You must maintain and update this information as needed to keep it current, complete and accurate.
- We reserve the right to relocate the equipment used to provide the Service at any time. You will have no physical access to this equipment.
- Payments for the Services, the due date, and all other information related to the assessment and collection of amounts owed are set out on the Order Form (“Fees”). If the Order Form does not contain a payment date, Fees are due monthly. Upon the renewal of a Service Term, the Fees will be set to our then standard fee for the particular Service. Discounts provided to new Customers may not be extended to Services you have already agreed to purchase. If we do not collect Fees immediately, your service may be suspended.
During the Term, we will only increase the Fees in the following circumstances:
- you purchase additional Services and those Services have additional Fees;
- a regulated entity, such as a utility, increases their charges to us; or
- a vendor adds surcharges or additional fees based on your use of the Services. We agree to provide you with thirty (30) calendar days written notice prior to any change in the Fees. Notice will be provided to the email address in our records
- Fees are not refundable, unless you choose Services covered by a “30 day money back guarantee.”
- Taxes may not be included in the prices set out on your Order Form. If we are required to collect taxes, they will be added to the Fees, and you agree to furnish us information necessary to calculate them and you agree to pay them once calculated. We will not charge you taxes based on our income.
- Charges assessed by third parties will be added to the Fees within thirty (30) calendar days from the date we receive them. You agree to pay these charges regardless of the length of time that may have passed.
If you do not pay the Fees when due, we may suspend and or delete any and all Services. Following suspension of Services for non-payment, we are not required to reinstate Services until:
- you have paid in full all Fees then due, including late fees, interest charges of one and a half (1.5) percent per month (or the highest rate permitted by the laws governing this MSA), collection costs (including fees charged by our collection agency and reasonable actual attorneys’ fees), and any cost of reinstating Services; and
- you provide us satisfactory assurance as requested by us (such as a deposit) of your ability to pay for the Services for the remainder of the applicable Service Term. If you fail to timely cure the non-payment within the timeframe specified by us, you will be deemed to have terminated the affected Services as of the effective date of Service suspension. Your failure to pay Fees when due shall be treated as termination for convenience by you subject to Early Termination Fees, if any, described in this MSA. You will not receive credits (including SLA credits) or other benefits during the period you have failed to pay any Fees, and you may not withhold payment of Fees during any dispute.
- We understand that from time to time the parties may have disagreements about the Fees. To help resolve these disputes, each of the parties agrees to try to resolve these disagreements as set out in this paragraph. If you dispute any Fee, you must notify us in writing of this dispute before the Fee is due. In your notice, you agree to include sufficient information to allow us to investigate the dispute. We agree to complete this investigation within thirty (30) calendar days from the date your Fee is due, and provide to you a written discussion of our investigation, with sufficient facts for you to review. If we agree with your dispute, we will credit your account on your next billing cycle, or within sixty (60) calendar days if your billing cycle is not monthly. If we reject your dispute, you have thirty (30) calendar days to present us with a written rebuttal, again with sufficient information for us to understand your arguments. We will review this material within thirty (30) calendar days from our receipt. If the parties continue to disagree, they may pursue their remedies at law, consistent with this MSA. Fee disputes are Service specific, and you are required to pay Fees for other Services during the period of a dispute. You may not terminate this MSA, or any Service, based on a Fee dispute. We will not charge you interest on affected Fees during a dispute, provided that the dispute is bona fide.
- We take every possible measure to secure online payment processing of your account. While our own payment processing systems are secure and PCI compliant, our hosting environments are not fully compliant with Payment Card Industry Data Security Standard (“PCI DSS”).
- Term. This MSA shall begin on the Effective Date and continue until terminated by a party (“MSA Term”). Individual Services shall begin on their Effective Date and continue until terminated by a party (“Service Term”). The MSA Term and the Service(s) Term are collectively referred to as the “Term.” The initial Service(s) Term is set out on the Order Form. If the Order Form does not have a Service(s) Term, the Service(s) Term will be one (1) year. On the expiration of an initial Service(s) Term, the individual Services shall renew for the length of the initial Service(s) Term unless you notify us in writing no later than fifteen (15) calendar days prior to expiration of your intent to terminate them. Our required termination procedure is set out below. The MSA Term shall extend until the MSA is properly terminated.
We hate to see you go, but here is how this MSA may be terminated.
- You may terminate an individual Service by contacting our client services team by phone, ticket or chat and notifying us of your intent to terminate your service (“Service Termination”). A Service Termination must be done no later than fifteen (15) calendar days before the Service Term will renew, does not apply to other Services we provide to you, and, unless the Services are the last Services we provide you, does not terminate this MSA. You acknowledge and agree that we require advance notice of your intent to terminate a Service Term, or this MSA, because of the long-term equipment and facilities commitments we are required to undertake in order to provide the Services to you.
We may terminate an individual Service, or this MSA immediately, if:
- you violate our AUP and have not corrected the violation in the time we have provided you, if any;
- if you fail to pay Fees when due;
- if a third party ceases to make aspects of the Services available to us, and we are unable to procure replacement services as described in this MSA;
- if you become the subject of any bankruptcy proceeding or other insolvency proceeding; or
- if we are legally required to do so. Upon such a termination, you will remain liable to us for any accrued amounts owed prior to the effective date of our termination, including, but not limited to, Early Termination Fees, if any, as described in this MSA. If we provide a cure period, you waive all legal notices to vacate our network and/or remove equipment, after expiration of that cure period.
- Either party may terminate a particular element of the Service if there is a force majeure event, as defined in this MSA, hat continues for more than thirty (30) calendar days, or the other party becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization, liquidation or dissolution proceeding in bankruptcy or under any other insolvency law, makes an assignment for the benefit of creditors, or admits in writing its inability to pay debts when due.
- Upon termination of this MSA, it is your responsibility to ensure that you configure technical aspects of your business, such as mail, WHOIS, and items outside of our control, to ensure that those items are directed away from us. We have no responsibility to maintain backups following termination (including as regards Hosted Personal Data), nor to forward email to another provider or to point DNS for your domain names away from us.
- The Parties Own Their Intellectual Property. Each party retains the intellectual property owned by, or licensed to, them. To perform, and use, the Services the parties each grant to the other a limited license to use and distribute that intellectual property only as strictly necessary to provide or use the Service. Other than as set out in the prior sentence, or in this MSA, neither party grants to the other, and neither shall have, any right, title, claim or interest in, or to, the other party’s intellectual property, or that which is licensed to any party, nor will a party decompile, dissemble, or reverse engineer the other party’s intellectual property, or that which is licensed to a party. Suggestions provided to us used by us to improve the Service are our intellectual property.
We Stand Up for Each Other.
- We agree to indemnify, defend and hold you, your employees, directors and officers (“Your Indemnified Parties”) from any and all third party actions, liability, damages, costs and expenses (including, but not limited to, those attorneys’ fees and expenses charged to us) arising from, or relating to, personal injury or property damage resulting solely from our gross negligence or willful misconduct. You waive and release all claims against Our Indemnified Parties (as defined in section b), and agree that Our Indemnified Parties shall not be liable for injury to person or damage to property sustained by Your Indemnified Parties caused by the Services, or otherwise relating to this MSA, except if such injury or damage results solely from our gross negligence or willful misconduct.
You agree to indemnify, defend and hold us, third parties who provide aspects of the service to us, contractors, subcontractors, affiliates, employees, directors and officers (“Our Indemnified Parties”) from any and all third party actions, liability, damages, costs and expenses (including, but not limited to, those attorneys’ fees and expenses charged to us) arising from, or relating to:
- personal injury or property damage resulting from your acts, or inaction, or those of any individual or entity identified as Your Indemnified Parties below, as well as End Users;
- any claim by you, Your Indemnified Parties, or End Users, other than a claim based solely on our gross negligence or willful misconduct;
- any claim by your customers, including End Users, relating to, or arising out of, your, or any End Users’ services or the Services provided under this MSA;
- any claim that you have failed to fulfill a contractual obligation with a third party;
- any claim resulting from your failure to obtain consents or licenses necessary for you, or your End Users, to use the Services; and
- any claim by a party claiming by, though, or under you, or an End User, to the extent that such a claim, if sustained would result in any greater obligation or liability to us than what we have undertaken to you in this MSA.
Each of Us Stands Behind this MSA.
- Each party warrants to the other that it has the power, authority and legal right to enter into this MSA and to perform its obligations set out in it, and pursuant to any provisions or agreements incorporated into it.
- You warrant that you either own, or have licensed the right to use, the technology necessary to use the Services, the data transmitted using the Services, and any technology you place on our network. You agree to provide us with evidence of these licenses or rights on our reasonable request, and to procure similar warranties from your End Users. In particular, you represent and warrant that the material placed on, or transmitted through, the Services does not infringe any third party patent, copyright, trademark or trade secret right, and that you have used commercially reasonable efforts to ensure that the material is free from viruses and is not being placed on our Services to enable access to them by parties other than you.
- NOTWITHSTANDING ANY ORAL OR WRITTEN COMMUNICATIONS BETWEEN US AND YOU ABOUT OR IN CONNECTION WITH THE SERVICES, EXCEPT AS EXPRESSLY STATED IN THIS MSA OR IN ANY DESCRIPTION OF OUR PRODUCTS, AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR 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, NON-INTERRUPTION, NON-INTERFERENCE, NON-INFRINGEMENT, OR THAT THE SERVICES ARE COMPLETELY SECURE OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS MSA, THE SERVICES AND EQUIPMENT PROVIDED UNDER OR ASSOCIATED WITH THIS MSA ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.
Our Liability is Limited.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY MAKING A CLAIM BASED ON OUR PROVIDING THE SERVICES TO YOU FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES; (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE). THIS LIMITATION APPLIES EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES. OUR MAXIMUM LIABILITY SHALL BE ONE (1) MONTH’S FEES (OR THE EQUIVALENT THEREOF) ACTUALLY RECEIVED BY US DURING THE MONTH PRIOR TO YOUR CLAIM. IF THIS DISCLAIMER IS PROHIBITED BY THE LAW GOVERNING THIS MSA, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT ALLOWED BY LAW. AS FURTHER LIMITATION, OUR MAXIMUM LIABILITY RELATING TO ANY SERVICE THAT HAS A NON-RECURRING CHARGE WILL EQUAL THE AMOUNT OF THE NON-RECURRING CHARGE FOR SUCH SERVICE ON THE OCCASION GIVING RISE TO THE CLAIM. OUR OBLIGATION TO INDEMNIFY YOU, WHICH IS SET OUT IN PARAGRAPH 10, IS NOT LIMITED BY THIS PARAGRAPH.
TO THE EXTENT THE SERVICES CONTAIN SOFTWARE PROVIDED BY MICROSOFT, NEITHER MICROSOFT, NOR ITS SUPPLIERS SHALL BE SUBJECT TO ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE MICROSOFT PRODUCTS OR SOFTWARE.
We Each Agree to Keep Certain Information Confidential.
If any Confidential Information is required to be disclosed based on this paragraph, the party required to make such a disclosure shall, where legally permitted, immediately inform the other party of the requirements of such a disclosure to enable the Disclosing Party to take protective measures to preserve the confidentiality of such Confidential Information as fully as possible in the context of such a permitted disclosure. It is not a violation of this paragraph for a party to disclose Confidential Information to its employees or agents, its legal, financial and accounting advisors, and to its lenders which need to know that Confidential Information, provided that the Disclosing Party notifies any recipient of its confidential and proprietary nature.
Each of the parties agree that if one party (“Disclosing Party”) provides Confidential Information to the other party (“Receiving Party”), that Confidential Information shall be held in confidence, and the Receiving Party shall give the Confidential Information the same care and protection as it gives generally to its own confidential and proprietary information, but no less than reasonable care, in order to avoid disclosure to, or unauthorized use by, any third party. All Confidential Information, unless otherwise specified in writing, shall remain the property of the Disclosing Party, and shall be used by the Receiving Party only for its intended purpose. All Confidential Information, including all copies of it, shall be either returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired, or upon the request of the Disclosing Party, each at the option of the Disclosing Party. The provisions of this paragraph shall not apply to any Confidential Information which:
- becomes publicly available, other than through disclosure by the Receiving Party;
- is required to be disclosed by any governmental authority, applicable law, or by court order;
- is independently developed by the Receiving Party;
- becomes available to the Receiving Party without restriction from a third party; or
- becomes relevant to the settlement of any dispute or enforcement of either party’s rights under this MSA.
- “Data Protection Legislation” means all applicable laws relating to data protection and privacy including (without limitation) the EU General Data Protection Regulation (2016/679) and any implementing national laws, the EU Privacy and Electronic Communications Directive 2002/58/EC as implemented in each jurisdiction, and any amending or replacement legislation from time to time.
- You are the data controller and we are the data processor in respect of any personal data submitted via and processed by the Services under this MSA (“Hosted Personal Data”).
- You warrant, undertake and agree to comply with your obligations under Data Protection Legislation in respect of the Hosted Personal Data, and ensure that your instructions to us in respect of the Hosted Personal Data are lawful.
- only process the Hosted Personal Data in accordance with the instructions set out under this MSA or otherwise given from time to time by you in writing and agreed by us (subject to the provisions of section 7). Where permitted by law, we will notify you we are required to process the Hosted Personal Data other than in accordance with your instructions;
- ensure our personnel with access to Hosted Personal Data are bound by obligations of confidentiality;
- upon written request and at your expense, taking into account the nature of the processing and the information available to us, reasonably assist you in ensuring compliance with your obligations under Data Protection Legislation; and
- upon written request we will make available to you such information as is reasonably necessary to demonstrate compliance by us with our obligations to you in respect of the situations where we are your data processor under this section 13 (Data Protection). On a case by case basis, we will consider any reasonable requests to access our premises for the purposes of auditing our compliance with our obligations as a data processor in this section 13 (Data Protection), taking into account our need to preserve the security of our infrastructure and other customers’ data. We reserve the right to charge an appropriate fee for complying with any such requests.
- You agree that we may subcontract the processing of the Hosted Personal Data to any of our associated companies and/or any sub-contractor (a “Sub-processor”). We will ensure Sub-processors are subject to contractual obligations which provide the same standard of protection for Hosted Personal Data as those imposed on us under these Terms. We will inform you of any intended changes concerning the addition or replacement of any Sub-processor within a reasonable time prior to implementation of such change. In the event you object to such change, you shall be entitled to terminate this MSA on 30 days’ notice as your sole and exclusive remedy. We will be responsible for the performance of our Sub-processors.
- You agree that Hosted Personal Data may be processed by us and our Sub-processors outside the European Economic Area in order to carry out the Services and our other obligations under this MSA, in accordance with our Privacy Shield certification (see section 4 for further information on our Privacy Shield certification).
The Hosted Personal Data processing activities carried out by us under this MSA may be described as follows:
- Subject matter: The provision of the Services, as described in the Order Form.
- Duration: The duration of the Services.
- Nature and purpose: To enable us to provide the Services.
- Data categories: Information relating to individuals provided to us via the Services, by (or at the direction of) you or End Users.
- Data subjects: Individuals about whom the information is provided to us via the Services by (or at the direction of) you or End Users.
- We Take Security Seriously. We implement and maintain technical and organisational security measures to safeguard the Hosted Personal Data from unauthorized or unlawful processing or accidental loss, damage or destruction. However, many of the resources associated with the Services are co-managed with you. You are solely responsible for the security of those aspects of the Services that are co-managed, and you agree to manage them in a way that does not impact the security of our network as a whole. The Services are configured for standard deployment. This configuration may not meet your security needs. It is your responsibility to configure the Services to meet your Security needs. We are not responsible for the manner in which you customize the configuration to suit your needs or its results. Should we determine that there has been unauthorized access to the Services (“Breach”), we may consult with a professional security agency to determine our best course of action and if advised, we agree to notify you in writing as soon as we have determined our course of action with regard to a breach (“Breach Notification”). We may take action, including suspending all, or part of the Services, to isolate and mitigate the cause of a Breach. We have no liability to you for the effects of that suspension. The Breach Notification may contain preliminary and unconfirmed information; however, it is provided to you to assist in your efforts to mitigate the effects of a Breach. To the extent you rely on a Breach Notification, you do so at your own risk. We each agree to reasonably cooperate with each other to investigate the facts and circumstances involved in a Breach. To the extent our cooperation requires us to devote time and resources above and beyond those extended by us in conjunction with a typical Breach investigation, or should we be asked to cooperate with a governmental investigation, you will be billed at our standard consulting Fees. Any information we provide to you in conjunction with a Breach, including the Breach Notification, shall be our Confidential Information.
- Compliance with Laws. Each party agrees that it will obtain and maintain all permits, licenses or certificates that are required by any regulatory body for the provision or use of the Services. Each party will comply with all applicable laws in performing its obligations, and exercising its rights under this MSA. Unless specifically set out in your Order Form, we do not warrant, nor have we represented to you that the Services meet any particular industry standard.
- We own the IP addresses used by the Services. Upon termination, they must be relinquished by you. The Services will have either a shared or dedicated IP address. We cannot guarantee this IP address will never change. We make a reasonable effort to avoid IP address changes but due to many factors, including network configuration changes, you will be given advance e-mail notification of such a change.
- We will use your name and email address to send newsletters on occasion to you. These newsletters may include information on promotions, services, and the company. Out of respect for your privacy, we provide you a way to unsubscribe in each promotional email. You may opt-out of these communications by clicking the unsubscribe link provided. We will send you strictly service-related announcements on occasion when it is necessary to do so; for example, if there is network maintenance you will receive an email.
- Neither you, nor any End Users, may remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Services or products used to provide the Services. We, or an entity acting on our behalf, will provide the support, if any, expressly set out in this MSA for products and software licensed by Microsoft. Any license provided to you is provided with “Restricted Rights” applicable to private and public licensees, including restrictions on use, duplication or disclosure by the U.S. Government as set forth in this MSA and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
- This MSA will be construed and controlled by the laws of the State of Utah, and each party consents to exclusive jurisdiction and venue in the federal courts sitting in Salt Lake City, Utah, unless no federal subject matter jurisdiction exists, in which case the parties consent to exclusive jurisdiction and venue in state courts in Logan, Utah. The parties waive all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action or suit to enforce any right or remedy under this MSA or to interpret any provisions of this MSA, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
- This MSA may only be amended in writing upon agreement of the parties. However, the AUP may be amended as provided in this MSA.
- The fact that one party fails to exercise, partially exercises, or delays exercising a right, remedy or power available to it in this MSA is not a waiver or preclusion of a right to do so in the future. The waiver by a party of time for performance, or extension of the time to do so, shall not constitute a waiver of the act or condition itself.
- Either party may assign this MSA to an affiliate if the original signatory to the MSA remains fully responsible for the rights and obligations of the affiliate. Otherwise, you may only assign this MSA with our written consent. However, the Services may be performed by our corporate subsidiaries, its agents or subcontractors, without your consent. Any other attempt to assign, without written consent, shall be null and void. This MSA shall be binding upon and inure to either party’s benefit and their respective successors and permitted assigns.
- Should a particular provision be held to be illegal or unenforceable in any jurisdiction, that provision shall be effective to the extent of such illegality or unenforceability, without invalidating the remaining provisions, and the provision at issue shall be restated to reflect the original intentions of the parties, to the greatest extent possible, and in accordance with the law. Section, paragraph and other titles are for ease of reference only, and they are not considered to be part of this MSA.
- This MSA, together with all documents incorporated by reference, states the entire agreement between the parties. Except for pre-existing obligations of confidentiality, non-disclosure and non-competition, with respect to the subject of this MSA, it supersedes all previous proposals, negotiations and other written or oral communications between the parties.
- This MSA is the result of negotiations between equally situated parties. Each party has had the ability to protect their legal and other interests, and have had, and do have, a full and complete opportunity to review, analyze, evaluate, negotiate, edit and draft the terms of this MSA. Accordingly, this MSA shall not be strictly construed or enforced against any party, and any ambiguity in any term or condition contained in this MSA shall not be interpreted in favor of one party and against another party, based upon any rule of construction whose premise is draftsmanship of this MSA or up on the relative bargaining position of the parties.
- If there is a conflict between the terms of this MSA, Order Form and AUP, they shall have the following precedence: AUP, Order Form and MSA.
- The parties are independent contractors. Unless in the Order Form the Customer specifically grants us the right to enter into contracts on its behalf, neither party shall have the right to enter into contracts on the other’s behalf. Under no circumstances will either party have the authority to make any representations, claims or warranties of any kind on behalf of the other party, its affiliates, agents, subcontractors, licensors or third-party suppliers.
- If the Customer is based in the state of California, it is advised that, if applicable under California Civil Code Section 1789.3, it may initiate a complaint about the Service through our trouble ticket system, or as set out in the applicable SLA. If the Customer is not satisfied with the resolution provided by us, the Customer may contact us, in writing, at the address set out in paragraph 17(o), and the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1020 N. Street #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254. The charges for the Services are set out in the applicable Order Form. This paragraph shall not change, alter or indicate a waiver of the party’s choice of jurisdiction and venue set out in paragraph 17(c).
- The rights and obligations of the parties set out in this MSA that would by their nature or context be intended to survive the expiration or termination of this MSA, shall survive. In particular, but without limiting the preceding sentence, the parties’ rights and obligations under the following sections of this MSA shall survive: 3, 5, 8, 9, 11(c), 12, 13, 14, 17 (c), (f), (g), (h), (i), (j), (m), (o), and 19 (g).
- Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation, acts of God, telecommunications interruptions, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by the Force Majeure shall notify the other party as soon as possible, but in no event less than ten (10) days from the beginning of the Force Majeure event.
Notices regarding our SLA and AUP shall be provided to the addresses set out in those documents. All other notices that are required, permitted or necessary under this MSA must be in writing, and they are deemed to have been received on the earlier of:
- actual receipt;
- the date of receipt set out on any indication of delivery (other than facsimile or email confirmation); or
- on the fourth (4th) business day after being deposited in a governmentally operated postal service, and addressed as below.
If to us:
Hosting Services Inc.
Legal - Re: MSA
517 W. 100 N. Suite 225
Providence, UT 84332
These Paragraphs Apply Only to Dedicated Server Customers.
If your Order Form states that the Services included “Dedicated Servers,” the following paragraphs apply to those Services described as Dedicated Servers, and only to those Services. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
- For Dedicated Servers, the Service includes the equipment, facilities, programming, data files, software, services and resources that we use to enable you to outsource your data and Internet requirements with access through our network. Dedicated Services are provisioned by the date set out on your Order.
- You agree to provide to us any material that is necessary for us to configure, and if set out in the Order Form, customize the Service (“Dedicated Material”). The Dedicated Material must be provided to us in a server ready manner, capable of being placed on the Services without more than administrative effort on our part.
- Where applicable, you shall provide to us administrative access to the operating system on the managed service.
- We will promptly replace any defective hardware used on the Service as set out in our MSA.
- We reserve the right to relocate the equipment used to provide the Service at any time. You will have no physical access to this equipment.
- Your incoming and outgoing bandwidth will be monitored and combined, and where applicable, you will be charged Overage Fees set out in the Order Form.
These Paragraphs Apply Only to Managed Services Customers.
If your Order Form states that the Services included “Managed Services,” the following paragraphs apply to those Services described as Managed Servers, and only to those Services. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
- For Managed Services, the Service refers to the operation and maintenance of the infrastructure used to provide the Services, including equipment, programming, data files, software, services and resources, as set out in the Order Form.
We agree to monitor the network, physical infrastructure, servers and applications on a 24x7x365 basis. You acknowledge and agree that:
- the performance of the Managed Services is subject to industry best practices, the technical limitations of the devices being managed and the equipment and infrastructure of the Customer; and
- certain Managed Services may expose vulnerabilities and could result in the disruption of Services in some circumstances.
- The support you are eligible to receive is determined by the plan you select on the Order Form. The support included in each plan is set out on the Order Form. The amount and type of support may be changed at any time without notice. While we strive to provide the highest level of support for the Services, you are ultimately responsible for the final result and condition of the Services.
- Your acceptance of this MSA authorizes us to log in and access your server as necessary for installing and configuring the Managed Services, for general server maintenance, and for other purposes reasonably required by us to provide the Managed Services to you.
- Software Patches: We will monitor and install any third-party software that is in a stable branch of a repository base package system (“Patch”). These Patch installations shall be completed within thirty (30) calendar days of the software release, or as requested by you if you decline scheduled patches.
- Firewall Settings: We will select all your initial firewall settings for Managed Services. You may request changes to your initial firewall settings by submitting a ticket. If approved, your initial firewall settings will be changed within one (1) business day after our receipt of your ticket.
- If the Managed Services include backup services, we will use reasonable efforts to comply with your backup preferences (“Backup Services”). If you purchase off-the-shelf Backup Services, we have designed those Backup Services in a general manner. It is your responsibility to configure them to serve your unique needs. If you purchase custom Backup Services, we will rely on your instructions to configure those Backup Services. You agree to release us from liability should these instructions be incomplete, or fail to provide us with sufficient information to configure custom Backup Services that may have captured particular data.
- You agree to provide us any material that is necessary for us to configure, and if set out in the Order Form, customize the Service (“Managed Services Material”). The Managed Services Material must be provided to us in a server ready manner, capable of being placed on the Services without more than an administrative effort on our part.
Our unlimited shared hosting is designed to meet the needs of most small businesses and personal websites; it is not designed to meet the needs of large businesses or client services that fall outside the average usage pattern for shared hosting and may be better suited for hosting plans that provide expanded features. Accounts with a large number of files (inode counts in excess of 200,000), databases exceeding 5GB in size or a cumulative size of all databases in excess of 10GB can have a significant impact on server performance. We reserve the right to request that the number of inodes (files and directories) and/or database sizes be reduced to help ensure server performance. Failure to comply with these requests may result in termination of your account. If your use of the Services exceeds either:
- the description set out on the Order Form; or
- that of similarly situated Customers, we reserve the right to modify the Services so that they meet this criteria, or place you in a new service plan.
These Paragraphs Apply Only to Cloud Services.
If your Order Form states that the Services included “Cloud Services,” the following paragraphs apply to those Services described as Cloud Services, and only to those Services. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
- Your incoming and outgoing bandwidth will be monitored and combined, and you will be charged the Fees set out in the Order Form.
- Cloud Services may have limitations on both the bandwidth and/or throughput you may use. These limitations are generally set out on your Order Form. However, you may not use the Services in a way that jeopardizes our ability to provide services to other Customers or the stability of our network. Should we determine that you have used the Services in this manner, we reserve the right to limit your use of the Services to minimize these effects. Following our limitation of this use, we will notify you in writing of steps you may take to mitigate these effects. If you do not accept these steps, we reserve the right to impose permanent limitations on your use of the Services.
These Paragraphs Apply Only to Domain Name Services.
If your Order Form states that the Services included “Domain Name Services” or “Domain Name Registration,” the following paragraphs apply to those Services described as Domain Services, and only to those Services. Should any of these paragraphs differ from prior paragraphs, these paragraphs shall prevail:
- The Domain Services will be provided to you through our third-party vendors, [ENOM] (“Domain Name Vendor”). By purchasing domain name services through us, you are bound by the Domain Name Vendor terms and conditions, which can be found at http://www.enom.com/terms/ and are hereby incorporated into this MSA. We strongly encourage you to review the Domain Name Vendor terms and conditions prior to your purchase of the Domain Services.
- You understand and agree that your domain name is not actually registered until you receive a registration confirmation from us. We have no liability for the failure of a domain name to register during the registration process.
- It is your responsibility to maintain, secure, update and keep strictly confidential all domain name, login IDs and passwords.
- Only you, and not us or Domain Name Vendor, are responsible for determining whether the domain name(s) you select, or the use you or others make of the domain name(s), infringes the legal rights of others. It is your responsibility to know whether or not the domain name(s) you select or use or allow others to use infringe the legal rights of others.
The Domain Name Vendor may reject your domain name application, or discontinue providing Domain Services to you, for any reason within thirty (30) calendar days of a Domain Service initiation or renewal. Outside of this period, Domain Name Vendor may terminate or suspend the domain name at any time for cause, which without limitation, includes:
- registration of prohibited domain name(s);
- abuse of the domain name;
- payment irregularities;
- allegations of illegal conduct;
- failure to keep your account or WHOIS information accurate and up-to-date;
- failure to respond to inquiries from Domain Name Vendor for over ten (10) calendar days; or
- if your use of the Domain Services involves us in a violation of any third party's rights or acceptable use policies, including, but not limited to, the transmission of unsolicited email or the violation of any copyright. No refund will be made when there is a suspension or termination of Domain Services for cause.
- Either the Domain Name Vendor or we will notify you when renewal fees are due. It is your responsibility to keep current payment details on file with us. We have no liability should your domain name registration lapse because either we, or our partners, are unable to process your payment information.
- The Domain Name Vendor owns all database, compilation, collective and similar rights, title and interests worldwide in its domain name database, and all information and derivative works generated from the domain name database.
- YOU REPRESENT AND WARRANT THAT NEITHER THE REGISTRATION OF A DOMAIN NAME, NOR THE MANNER IN WHICH IT IS DIRECTLY OR INDIRECTLY USED, NOR THE USE OF OTHER OF THE DOMAIN SERVICES, INFRINGES THE LEGAL RIGHTS OF A THIRD PARTY OR WILL OTHERWISE SUBJECT DOMAIN NAME VENDOR OR US TO A LEGAL CLAIM. THE DOMAIN SERVICES ARE INTENDED FOR USE BY PERSONS WHO ARE AT LEAST 18 YEARS OLD, AND BY USING THE DOMAIN SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ALL INFORMATION PROVIDED BY YOU IN CONNECTION WITH YOUR PROCUREMENT OF THE DOMAIN SERVICES IS ACCURATE. ALL DOMAIN SERVICES ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS.
- You agree to be bound by the domain name transfer agreement located here: https://archive.icann.org/en/transfers/policy-12jul04.htm
- Unless this MSA contains another dispute resolution policy, you agree to be bound by the ICANN Uniform Dispute Resolution Policy here: http://www.icann.org/dndr/udrp/policy.htm
- Only the owner may transfer a domain name or respond to a transfer request. You must unlock your domain prior to requesting a transfer. You must secure an EPP Authorization Code in order to transfer domains to an EPP registry.
These Paragraphs Apply Only to Managed Security Clean-up Services and are subject always to the terms of the MSA. If your Order Form states that the Services include “Managed Security Clean-up Services,” the following paragraphs shall apply, unless contrary to the prior paragraphs in this MSA.
- “Managed Security Clean-up Services” refers to the management of the various aspects of an account from a security perspective.
Once you purchase the Managed Security Clean-up Services, we will:
- back-up your account using a cPanel tool;
- where possible, investigate the security of your account to determine how it was compromised;
- back-up the uncompromised version of the application software relevant to your website (“Application”);
- re-install and upgrade the Application to the most recent version, provided the relevant plug-in, themes and configurations in use on your current Application version are compatible with the most recent Application version. (Application upgrades by us, are limited to customers that currently have a version of the Application that is no more than one major version older than the current version. Customers with versions of the Application that are two or more versions older than the current version shall be responsible for upgrading the Application themselves);
- provide you with a list of accounts that require passwords to be changed in order to prevent security compromises in future;
- adjust your PHP security settings;
- check any automated tasks scheduled to run on your Application to determine they are legitimate;
- conduct a scan of your account using Pyscan and or Maldet. We will remove any malware codes identified as a result of the scan;
- check your database for rogue users, or other content used to provide back door access to the Application;
- set up the correct access rights ownership and or user permissions and remove any unnecessary user permissions;
- harden the Application, applying recommendations used in accordance with good practice; and
- provide you with instructions to effectively clean all computers and mobile devices used to publish updates to the Application.
The Managed Security Clean-up Services will not cover the following:
- Rectification of issues that were present in your Application prior to the commencement of the Managed Security Clean-up Services that are unrelated to the security compromise;
- Cleaning up custom applications that have not been created by us;
- Cleaning up applications that breach our Terms of Service, specifically in relation to the size and content of the application.
Before you purchase the Managed Security Clean-up Services, you must:
- confirm in writing that you accept the terms of this MSA; and
- provide us with details of any customizations (for example, application plug-ins) that apply to your account.
Once you have purchased the Managed Security Clean-up Services, you must:
- upgrade your Application to a version that is no more than one major version older than the current version if you wish to benefit from the reinstallation and upgrade of the Application by us;
- test your Application to verify that it is fully functionality; and
- follow the instructions that we provide to you, to effectively clean all computers and mobile devices used to publish updates to the Application.
- After the Managed Security Clean-up Service is complete, we recommend that you independently take appropriate steps to maintain the security of your account. You specifically confirm that you understand that we are not responsible for the continued security of your Application following completion of the Managed Security Clean-up Service.
- If you purchase Managed Security Clean-up Services from us, they are provided on an as-is and as-available basis, as a supplement to, and not in lieu of, your own efforts to ensure the security of your account. Whilst we will use commercially reasonable efforts to ensure the effective operation of the Managed Security Clean-up Services, you expressly agree that no application software program or service is error-free or fail-safe. In the event of an interruption or failure of the Managed Security Clean-up Services, our only obligation is to restore your account to operating condition.
- IN NO EVENT WILL WE BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING A CLAIM BASED ON OUR PROVIDING THE SERVICES TO YOU) FOR LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA.
- These Paragraphs Apply Only to Migration Support and are subject always to the terms of the Service Agreement. If we have agreed to provide Migration Support to you, the following paragraphs shall apply, unless contrary to the prior paragraphs in this Service Agreement.
- Before we commence Migration Support you must:
- confirm in writing that you accept the terms of this Service Agreement;
- provide us with details of any customizations (for example, application plug-ins) that apply to your account, website or application.
- Before we commence Migration Support it is recommended that you:
- test your Application to verify that it is fully functional;
- properly and fully back-up all data and copies of all computer programs and data which are held and which may be affected by the provision of Migration Support to enable straightforward recovery and/or reinstatement of any and all data and/or computer programs lost or damaged (whether in whole or part) through provision of Migration Support.
- In connection with the provision of Migration Support, you:
- shall ensure that during the period the Migration Support is carried out a representative (“Representative”) is available (and present) when required;
- warrant that the Representative: (a) is a technologically competent person; (b) has substantial experience and knowledge of your IT system (to include but without limitation all network and information systems; all computer hardware; databases; all software and firmware) and (c) is duly authorized to instruct HSI when required;
- acknowledge and agree that HSI shall not be liable. whether in contract, tort (including negligence), misrepresentation, under statute or otherwise to you for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly by you as a result of disruptions to the Services, downtime, outages or inaccurate information received from you or your Representative, or as a result of HSI performing maintenance of any hardware or software;
- acknowledge and agree that HSI shall not be liable for any costs, liability, claims, losses, damages or expenses suffered or incurred directly or indirectly because of or in connection with any materials and/or instructions supplied by you or your Representative which are incomplete, incorrect, inaccurate, illegible or defective in any other way; and/or failure or delay by a third party to provide infrastructure, internet connectivity or other goods and/or services necessary for HSI to comply with its obligations in the Agreement; and/or a Force Majeure occurrence.
- Whilst we will use commercially reasonable efforts to ensure the effective operation of your website or application during and after Migration Support, you expressly agree that no application software program or service is error-free or fail-safe. In the event of an interruption or failure due to the Migration Support, our only obligation is to restore your account to operating condition.
- Before we commence Migration Support you must:
By using Hosting Services, Inc. you agree to the above terms of service.
Last Updated: 06/28/19