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, the "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), the website hosting service provider offering these services to you,
if any, (the "Primary Service Provider") and the backend service provider eNom,
Inc. (the "Backend Service Provider").
These terms and conditions may be modified from time to time. Modifications made
to this Agreement will become effective 30 days after the modifications are posted.
This Agreement shall be posted through the interface which you use to configure
and/or otherwise order the Services (the "Services Interface"). You agree that you
will check the terms and conditions periodically and that, if you no longer agree
to the terms and conditions of this Agreement, that you will stop using the Services
and that you will terminate the Services as described below in paragraph 4.
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.
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 a name other than the name of
the Primary Service Provider (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 the Primary Service Provider to verify the charges and
the manner of billing. You agree that any chargeback by a credit card company (or
similar action by another payment provider) of a charge related to the Services,
for whatever reason, is a material breach of this Agreement and is grounds for termination.
You further agree that, upon a chargeback by you, you agree and acknowledge that
eNom may suspend your access to any account you have with eNom and your use of any
domain names, websites, website content, email, or other data hosted on eNom 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.
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
and that the resulting fees shall be charged to the credit card associated with
your account. You agree to hereby waive any requirement which might otherwise be
imposed by law which would require that either the Primary Service Provider or the
Backend Service Provider obtain your affirmative consent for on-going billings and
that your continuing consent to be billed for such renewal(s) may be presumed until
such time as you terminate the Services through the Services Interface. 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 either the Primary Service
Provider or the Backend Service Provider) are not reliable means of communication
and that such a termination attempt shall not binding until accepted and acknowledged
by either the Primary Service Provider or the Backend Service Provider. 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 neither the Primary Service
Provider nor the Backend Service Provider shall be obligated to contact you to update
such information in the event that the charges are denied.
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.
Your use of the Services may be suspended and/or this Agreement may be terminated
if either the Primary Service Provider or the Backend Service Provider determines
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 either the Primary Service Provider
or the Backend Service Provider. 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 either the Primary Service Provider or the Backend Service Provider
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
either the Primary Service Provider or the Backend Service Provider. You understand
that taking control of a domain name includes, without limitation, acts such as
listing such controlling party as the "registrant" and/or "administrative contact"
for the domain name and controlling the DNS settings for the domain name.
Either the Primary Service Provider or the Backend Service Provider may elect to
terminate this Agreement without cause and discontinue the Services upon 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 enrolment to receive the Services, either the Primary Service
Provider or the Backend Service Provider 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 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 either the Primary Service Provider
or the Backend Service Provider to provide the Services to other users of the Services.
You acknowledge that email and/or online communication systems (chat, account notices,
etc.) will be the primary means of communication between yourself and the Primary
Service Provider and/or the Backend Service Provider. 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 either the Primary Service
Provider or the Backend Service Provider may result in suspension or cancellation
of Services without any refund of pre-paid fees, if any.
You acknowledge that neither the Primary Service Provider nor Backend Service Provider
are 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
the Primary Service Provider or Backend Service Provider 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.
You agree that any personally identifying information provided by you shall be used
Provider, if any, and by the of the Backend Service Provider according to the privacy
policy posted at http://www.enom.com/help/privacy.asp.
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 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 either the Primary
Service Provider or Backend Service Provider 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 NEITHER THE PRIMARY SERVICE PROVIDER NOR
BACKEND SERVICE PROVIDER WILL 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 THE CONTROL OF THE PRIMARY SERVICE PROVIDER OR BACKEND SERVICE
PROVIDER; (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 NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND
SERVICE PROVIDER WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
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 EITHER THE PRIMARY SERVICE PROVIDER OR BACKEND SERVICE PROVIDER HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY
OF EITHER THE PRIMARY SERVICE PROVIDER OR THE BACKEND SERVICE PROVIDER 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 THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE
PROVIDER SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
INDEMNIFICATION: YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD THE PRIMARY SERVICE PROVIDER
AND BACKEND SERVICE PROVIDER, THEIR CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS
AND AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS 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 EITHER THE PRIMARY SERVICE PROVIDER AND/OR BACKEND SERVICE
PROVIDER MAY BE INVOLVED IN A SUIT INVOLVING A THIRD PARTY AND WHICH IS RELATED
TO THE SERVICES UNDER THIS AGREEMENT, EITHER THE PRIMARY SERVICE PROVIDER AND/OR
BACKEND SERVICE PROVIDER MAY SEEK WRITTEN ASSURANCES FROM YOU IN WHICH YOU PROMISE
TO INDEMNIFY AND HOLD SUCH PARTIES HARMLESS FROM THE COSTS AND LIABILITIES DESCRIBED
IN THIS PARAGRAPH. SUCH WRITTEN ASSURANCES MAY INCLUDE THE POSTING OF PERFORMANCE
BONDS OR OTHER GUARANTEES. YOUR FAILURE TO PROVIDE SUCH ASSURANCES MAY BE CONSIDERED
A BREACH OF THIS AGREEMENT BY YOU.
You agree that the Backend Service Provider shall not be liable for the actions,
inactions, negligence, or intentional misconduct of the Primary Service Provider.
You acknowledge and agree that neither the Primary Service Provider nor the Backend
Service Provider are agents for one another.
DISCLAIMER OF WARRANTIES: NEITHER THE PRIMARY SERVICE PROVIDER NOR BACKEND SERVICE
PROVIDER MAKE ANY REPRESENTATIONS NOR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS
OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS
SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. 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 EITHER THE PRIMARY SERVICE PROVIDER OR BACKEND
SERVICE PROVIDER 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.
GOVERNING LAW: this Agreement, your rights and obligations and all actions contemplated
by this Agreement shall 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. You agree that any action to
enforce this Agreement or any matter relating to your use of the Services shall
be brought exclusively in the United States District Court for the Western District
of Washington, or if there is no jurisdiction in such court, then in a state court
in King County, Washington state. You consent to the personal and subject matter
jurisdiction of any state or Federal court in King County, Washington state in relation
to any dispute arising under this Agreement. You agree that service of process on
you by either the Primary Service Provider or Backend Service Provider in relation
to any dispute arising under this Agreement may be served upon you by first class
mail to the address listed by you in your contact information or by electronically
transmitting a true copy of the papers to the email address listed by you in your