This Web Hosting Agreement is between FAPVPS, INC., a web hosting provider, formed under the laws of the State of New York with its principal office at New York, and the person whose signs FAPVPS, INC.'s Service Order and/or Set Up Form incorporating this Agreement acting on their own behalf, or as an authorized agent representing another party, and referred to throughout this Agreement as “Customer”. This Agreement governs Customer use of FAPVPS, INC.'s Web hosting service.
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of FAPVPS, INC.'s credit approval requirements, FAPVPS, INC. agrees to provide the web hosting services described in the Order for the fees stated in the Order. FAPVPS, INC. is not responsible for pricing, typographical, or other errors in any offer by FAPVPS, INC. and reserves the right to cancel any orders resulting from such errors. FAPVPS, INC. may invoice or credit customers to correct such orders instead of terminating the order.
The initial service term of the Agreement shall begin on the date that FAPVPS, INC. generates an e-mail message to Customer announcing the activation of the Customer's account and shall continue for the number of months stated in the Order. Upon expiration of the Initial Term, this Agreement shall automatically renew unless FAPVPS, INC. or Customer provides the other with written notice of non-renewal at least ten (10) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
(a) Fees. Fees are payable in advance or the first day of each billing cycle. Customer's billing cycle shall be monthly, quarterly, semi-annually, or annually as indicated on the Service Order, beginning on the Service Commencement Date. FAPVPS, INC. may require payment for the first billing cycle before beginning service. If the Service Order provides for credit/debit card billing, Customer authorizes FAPVPS, INC. 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 FAPVPS, INC. 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 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
(b) Fee Increases. FAPVPS, INC. may increase its fees for services and/or hosting plans effective the first day of a Renewal Term by giving notice to Customer of the new fees at least thirty (30) days prior to the beginning of the Renewal Term. Notice of new fees will be posted on the FAPVPS, INC. website. Customers will be notified by email at least thirty (30) days before before the increase will go into effect. No further notice of fee increase is required. 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 FAPVPS, INC.'s request Customer shall remit to FAPVPS, INC. all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on FAPVPS, INC.), regardless of whether FAPVPS, INC. 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 FAPVPS, INC. 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 FAPVPS, INC.'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.
(e) Cancellations. To properly cancel an account, the customer must login to the billing area and request a cancellation. If the client does not properly request a cancellation, FAPVPS, INC. can continue to bill the customer for services, whether the customer uses it or not. For more information and steps on how to request a cancellation, visit the article in our Knowledgebase.
4. Law/Acceptable Use Policy.
Customer agrees to use the service in compliance with applicable law and FAPVPS, INC.'s Acceptable Use Policy posted at http://fapvps.com/aup.html (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that FAPVPS, INC. may, in its reasonable commercial judgment consistent with industry standards, amend the AUP periodically with restrictions and conditions on Customer's use of the Services. Customers will be notified by email at least fourteen (14) days before amendments to the AUP or TOS will go into effect. In case FAPVPS, INC. deems it necessary to make an emergency amendment, a 72 hour notice will be given to customers before the changes go into effect. In case FAPVPS, INC.'s Customer agrees to cooperate with FAPVPS, INC.'s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between FAPVPS, INC. and Customer regarding the interpretation of the AUP, FAPVPS, INC.'s commercially reasonable interpretation of the AUP shall govern.
5. Customer Information.
Customer represents and warrants to FAPVPS, INC. that all information provided to FAPVPS, INC. for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to FAPVPS, INC. that he or she is at least 18 years of age. FAPVPS, INC. 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.
Customer agrees to indemnify and hold harmless FAPVPS, INC., FAPVPS, INC.'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.
FAPVPS, INC. DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW FAPVPS, INC. 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 FAPVPS, INC. 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.
(a) Suspension of Service. Customer agrees that FAPVPS, INC. may suspend services to Customer without notice and without liability if: (i) FAPVPS, INC. 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) FAPVPS, INC. 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 FAPVPS, INC.'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 FAPVPS, INC. 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 FAPVPS, INC. 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 ten (10) days of a written notice from FAPVPS, INC. 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.
(c) Refunds. Refunds are to be discussed with FAPVPS, INC.. The customer cannot place a chargeback or dispute in Paypal or other methods of payments. If the customer violates this agreement, FAPVPS, INC. is allowed to fine the customer with an amount of up to the amount due by the client for the next 2 billing cycles. If the client can prove a valid reason for a refund, or if FAPVPS, INC. defaults on a guarantee, the client will be entitled for the current billing cycle refund only, or a partial refund. Any prior payments will not be refunded.
10. Requests for Customer Information.
Customer agrees that FAPVPS, INC. 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 FAPVPS, INC. 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 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 as is required by law.
11. Back Up Copy.
Customer agrees to maintain a current copy of all content hosted by FAPVPS, INC. notwithstanding any agreement by FAPVPS, INC. to provide backup services.
12. Changes to FAPVPS, INC.'s Network.
Upgrades and other changes in FAPVPS, INC.'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. FAPVPS, INC. reserves the right to change its network in its commercially reasonable discretion, and FAPVPS, INC. shall not be liable for any resulting harm to Customer.
FAPVPS, INC. under the Agreement shall be given via electronic mail to the e-mail address [email protected]. 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 the notice address through a notice given in accordance with this Section.
14. Uptime SLA Credits
FAPVPS, INC. offers a 99.9% uptime service level agreement on all VPS products. Uptime is defined as your main IP being accessible from the internet. For every 1% we are below our SLA, the customer may request a 10% credit on next months bill up to a maximum of 50%. Our SLA does not cover planned downtime, scheduled maintenance, upgrades for your VPS, service suspensions for AUP violations, overdue invoices, downtime caused by software you installed on your VPS, Denial of Service attacks, client mistakes.
15. Force Majeure.
FAPVPS, INC. shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond FAPVPS, INC.'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.
16. Governing Law/Disputes.
The Agreement shall be governed by the laws of the State of New York, 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.
This Agreement together with the Service Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.