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This Web Hosting Agreement
(this “Agreement”) is between Batavia Hosting
and the person (individual or legal entity) whose signs
Batavia Hosting’s service order and set up form (the “Order”)
incorporating this Agreement by reference (“Customer”).
This Agreement governs Customer’s use of Batavia Hosting’s
Web hosting service.
Table of Contents
Services
Term
Payments
Law/AUP
Customer Information
Indemnification
Disclaimer of Warranties
Limitation of Damages
Suspension of
Services/Termination
Request for Customer
Information
Back Up Copy
Notices
Force Majeure
Miscellaneous
1. Services.
Subject to the terms of this
Agreement, and contingent on Customer’s satisfaction of
Batavia Hosting’s credit approval requirements, Batavia
Hosting agrees to provide the web hosting services described
in the Order for the fees stated in the Order.
2. Term.
The initial service term of the
Agreement shall begin on the date that Batavia Hosting
generates an e-mail message to Customer announcing the
activation of the Customer’s account (the “Service
Commencement Date”) and shall continue for the number of
months stated in the Order (the “Initial Term”). Upon
expiration of the Initial Term, this Agreement shall
automatically renew for up to three successive renewal terms
of the same length as the Initial Term (each a “Renewal
Term”) unless Batavia Hosting or Customer provides the
other with written notice of non-renewal at least three (3)
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.”
3. Payments.
(a) Fees.
Fees are payable in advance on
the first day of each billing cycle. Customer’s billing cycle
shall be monthly or annually as indicated on the Order,
beginning on the Service Commencement Date. Batavia Hosting
may require payment for the first billing cycle before
beginning service. If the Order provides for credit/debit
card billing, Customer authorizes Batavia Hosting to bill
subsequent fees to the credit/debit card on or after the first
day of each successive billing cycle during the Term of this
Agreement; otherwise Batavia Hosting will invoice Customer via
electronic mail to the Primary Customer Contact listed on the
Order. Invoiced fees may be issued before the 1st
day of each billing cycle, and the fees shall be due on the
first day of each billing cycle.
Payments must be made in United
States dollars. Customer is responsible for providing Batavia
Hosting with changes to billing information (such as credit
card expiration, change in billing address) At its option,
Batavia Hosting may accrue charges to be made to a
credit/debit card until such charges exceed $10.00. Batavia
Hosting may charge interest on overdue amounts at the lesser
of 1.5% per month or the maximum non-usurious rate under
applicable law. Batavia Hosting may suspend the service
without notice if payment for the service is overdue. Fees
not disputed within ten (10) days of due date are conclusively
deemed accurate. Customer agrees to pay Batavia Hosting’s
reasonable reinstatement fee following a suspension of service
for non-payment, and to pay Batavia Hosting’s reasonable costs
of collection of overdue amounts, including collection agency
fees, attorney fees and court costs.
(b) Fee Increases.
Batavia Hosting may increase
its fees for services effective the first day of a Renewal
Term by giving notice to Customer of the new fees at least
forty sixty (60) days prior to the beginning of the Renewal
Term, and if Customer does not give a notice of non-renewal as
provided in Section 2 above, the Customer shall be
deemed to have accepted the new fee for that Renewal Term and
any subsequent Renewal Terms (unless the fees are increased in
the same manner for a subsequent Renewal Term).
(c) Taxes.
At Batavia Hosting’s request
Customer shall remit to Batavia Hosting all sales, VAT or
similar tax imposed on the provision of the services (but not
in the nature of an income tax on Batavia Hosting), regardless
of whether Batavia Hosting fails to collect the tax at the
time the related services are provided.
(d) Early Termination.
Customer acknowledges that the
amount of the fee for the service is based on Customer’s
agreement to pay the fee for the entire Initial Term, or
Renewal Term, as applicable. In the event Batavia Hosting
terminates the Agreement for Customer’s breach of the
Agreement in accordance with Section 9 (Termination),
or Customer terminates the service other than in accordance
with Section 9 (Termination) for Batavia Hosting’s
breach, the unpaid fees for each billing cycle remaining in
the Initial Term or then-current Renewal Term, as applicable,
are due on the business day following termination of the
Agreement.
4. Law/AUP.
Customer agrees to use the
service in compliance with applicable law and Batavia
Hosting’s Acceptable Use Policy posted at
http://www.bataviahost.com/?p=aup
(the “AUP”), which is hereby incorporated by reference
in this Agreement. Customer agrees that Batavia Hosting may,
in its reasonable commercial judgment consistent with industry
standards, amend the AUP from time to time to further detail
or describe reasonable restrictions and conditions on
Customer’s use of the Services. Amendments to the AUP are
effective on the earlier of Batavia Hosting’s notice to
Customer that an amendment has been made, or the first day of
any Renewal Term that begins subsequent to the amendment.
Customer agrees to cooperate with Batavia Hosting’s reasonable
investigation of any suspected violation of the AUP. In the
event of a dispute between Batavia Hosting and Customer
regarding the interpretation of the AUP, Batavia Hosting’s
commercially reasonable interpretation of the AUP shall
govern.
5. Customer Information.
Customer represents and
warrants to Batavia Hosting that the information he, she or it
has provided and will provide to Batavia Hosting for purposes
of establishing and maintaining the service is accurate. If
Customer is an individual, Customer represents and warrants to
Batavia Hosting that he or she is at least 18 years of age.
Batavia Hosting may rely on the instructions of the person
listed as the Primary Customer Contact on the Order with
regard to Customer’s account until Customer has provided a
written notice changing the Primary Customer Contract.
6. Indemnification.
Customer agrees to indemnify
and hold harmless Batavia Hosting, Batavia Hosting’s
affiliates, and each of their respective officers, directors,
agents, and employees from and against any and all claims,
demands, liabilities, obligations, losses, damages, penalties,
fines, punitive damages, amounts in interest, expenses and
disbursements of any kind and nature whatsoever (including
reasonable attorneys fees) brought by a third party under any
theory of legal liability arising out of or related to the
actual or alleged use of Customer’s services in violation of
applicable law or the AUP by Customer or any person using
Customer’s log on information, regardless of whether such
person has been authorized to use the services by Customer.
7. Disclaimer of
Warranties.
BATAVIA HOSTING DOES NOT
WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY
APPLICABLE LAW BATAVIA HOSTING DISCLAIMS ANY AND ALL
WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
8. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE
TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY
KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE
OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE
AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE
AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE
IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE
LIABILITY OF BATAVIA HOSTING AND ANY OF ITS EMPLOYEES, AGENTS
OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF
CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A
PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER
FOR THREE MONTHS OF SERVICE.
9. Suspension/Termination.
(a) Suspension of Service.
Customer agrees that Batavia
Hosting may suspend services to Customer without notice and
without liability if: (i) Batavia Hosting reasonably
believes that the services are being used in violation of the
AUP; (ii) Customer fails to cooperate with any
reasonable investigation of any suspected violation of the AUP;
(iii) Batavia Hosting reasonably believes that the
suspension of service is necessary to protect its network or
its other customers, or (iv) as requested by a law
enforcement or regulatory agency. Customer shall pay Batavia
Hosting’s reasonable reinstatement fee if service is
reinstituted following a suspension of service under this
subsection.
(b) Termination.
The Agreement may be terminated
by Customer prior to the expiration of the Initial Term or any
Renewal Term without further notice and without liability if
Batavia Hosting fails in a material way to provide the service
in accordance with the terms of the Agreement and does not
cure the failure within ten (10) days of Customer’s written
notice describing the failure in reasonable detail. The
Agreement may be terminated by Batavia Hosting prior to the
expiration of the Initial Term or any Renewal Term without
further notice and without liability as follows: (i)
upon ten (10) days notice if Customer is overdue on the
payment of any amount due under the Agreement; (ii)
Customer materially violates any other provision of the
Agreement, including the AUP, and fails to cure the violation
within thirty (30) days of a written notice from Batavia
Hosting describing the violation in reasonable detail;
(iii) upon one (1) days notice if Customer’s Service is
used in violation of a material term of the AUP more than
once, or (iv) upon one (1) days notice if Customer
violates Section 5 (Customer Information) of this Agreement.
Either party may terminate this agreement upon ten (10) days
advance notice if the
other party admits insolvency, makes an assignment for the
benefit of its creditors, files for bankruptcy or similar
protection, is unable to pay debts as they become due, has a
trustee or receiver appointed over all or a substantial
portion of its assets, or enters into an agreement for the
extension or readjustment of all or substantially all of its
obligations.
10. Requests for Customer
Information.
Customer agrees that Batavia
Hosting may, without notice to Customer, (i) report to
the appropriate authorities any conduct by Customer or any of
Customer’s customers or end users that Batavia Hosting
believes violates applicable law, and (ii) provide any
information that it has about Customer or any of its customers
or end users in response to a formal or informal request from
a law enforcement or regulatory agency or in response to a
formal request in a civil action that on its face meets the
requirements for such a request.
11. Back Up Copy.
Customer agrees to maintain a
current copy of all content hosted by Batavia Hosting
nothwithstanding any agreement by Batavia Hosting to provide
back up services.
12. Changes to Batavia
Hosting’s Network.
Upgrades and other changes in
Batavia Hosting’s network, including, but not limited to
changes in its software, hardware, and service providers, may
affect the display or operation of Customer’s hosted content
and/or applications. Batavia Hosting reserves the right to
change its network in its commercially reasonable discretion,
and Batavia Hosting shall not be liable for any resulting harm
to Customer.
13. Notices.
Notices to Batavia Hosting
under the Agreement shall be given via electronic mail to the
e-mail address posted for customer support on
http://www.bataviahost.com/?p=cu Notices to Customer shall be
given via electronic mail to the individual listed as the
Primary Customer Contact on the Order. Notices are deemed
received on the day transmitted, or if that day is not a
business day, on the first business day following the day
delivered. Customer may change his, her or its notice address
by a notice given in accordance with this Section.
14. Force Majeure.
Batavia Hosting shall not be in
default of any obligation under the Agreement if the failure
to perform the obligation is due to any event beyond Batavia
Hosting’s control, including, without limitation, significant
failure of a portion of the power grid, significant failure of
the Internet, natural disaster, war, riot, insurrection,
epidemic, strikes or other organized labor action, terrorist
activity, or other events of a magnitude or type for which
precautions are not generally taken in the industry.
15. Governing Law/Disputes.
The Agreement shall be governed
by the laws of the Republic of Indonesia, exclusive of its
choice of law principles, and the laws of the United States of
America, as applicable. The Agreement shall not be governed
by the United Nations Convention on the International Sale of
Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR
RELATING TO THE AGREEMENT SHALL BE THE STATE AND HIGH COURTS
IN NORTH JAKARTA, DKI JAKARTA, AND EACH PARTY AGREES NOT TO
DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS
THERETO.
16. Miscellaneous.
Each party acknowledges and
agrees that the other party retains exclusive ownership and
rights in its trademarks, service marks, trade secrets,
inventions, copyrights, and other intellectual property.
Neither party may use the other party’s name or trade mark
without the other party’s prior written consent.
The parties intend for their
relationship to be that of independent contractors and not a
partnership, joint venture, or employer/employee. Neither
party will represent itself to be agent of the other. Each
party acknowledges that it has no power or authority to bind
the other on any agreement and that it will not represent to
any person that it has such power or authority.
This Agreement may be amended
only by a formal written agreement signed by both parties.
The terms on Customer’s purchase order or other business forms
are not binding on Batavia Hosting unless they are expressly
incorporated into a formal written agreement signed by both
parties. A party’s failure or delay in enforcing any
provision of the Agreement will not be deemed a waiver of that
party’s rights with respect to that provision or any other
provision of the Agreement. A party’s waiver of any of its
right under the Agreement is not a waiver of any of its other
rights with respect to a prior, contemporaneous or future
occurrence, whether similar in nature or not. The captions
in the Agreement are not part of the Agreement, but are for
the convenience of the parties. The following provisions
will survive expiration or termination of the Agreement:
Fees, indemnity obligations, provisions limiting liability and
disclaiming warranties, provisions regarding ownership of
intellectual property, these miscellaneous provisions, and
other provisions that by their nature are intended to survive
termination of the Agreement. There are no third party
beneficiaries to the Agreement. Neither insurers nor the
customers of resellers are third party beneficiaries to the
Agreement. Customer may not transfer the Agreement without
Batavia Hosting’s prior written consent. Batavia Hosting’s
approval for assignment is contingent on the assignee meeting
Batavia Hosting’s credit approval criteria. Batavia Hosting
may assign the Agreement in whole or in part.
This Agreement together with
the Order and AUP constitutes the complete and exclusive
agreement between the parties regarding its subject matter and
supercedes and replace any prior understanding or
communication, written or oral.
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