First Line Hosting
Division of E-Builders, Inc.
Terms of Service
Web Hosting Agreement
This
Web Hosting Agreement (this “Agreement”) is between E-Builders, Inc., a corporation formed under the laws of the State of Texas with its principal office at P.O. Box 248, Rockwall,
Texas (“E-Builders”) and the person (individual or legal person) whose signs E-Builders’s
service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of E-Builders’s First Line Hosting Web hosting
service.
1. Services. Subject
to the terms of this Agreement, and contingent on Customer’s satisfaction of E-Builders’s
credit approval requirements, E-Builders 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 E-Builders generates an e-mail
message to Customer announcing the activation of the Customer’s account (the “Service
Commencement Date”) and shall
continue for the first partial month of service plus the number of full
calendar 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 having the same number of full calendar
months as the Initial Term (each a “Renewal Term”) unless E-Builders or Customer provides the other
with written notice of non-renewal at least thirty (30) 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 a calendar month or twelve calendar
months, as indicated on the Order. The first service fee shall include a prorated portion of the monthly
fee for the first partial month of service plus the fee for the first full
billing cycle. E-Builders may
require payment in full of the first fee before beginning service. If the Order provides for credit/debit
card billing, Customer authorizes E-Builders to bill subsequent fees to the
credit/debit card on or after the first day of each billing cycle during the
Term of this Agreement; otherwise E-Builders
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.
Payments must be made in
United States dollars. Customer is responsible for providing E-Builders with
changes to billing information (such as credit card expiration, change in
billing address) At its
option, E-Builders may accrue charges to be made to a credit/debit card until
such charges exceed $10.00. E-Builders
may charge interest on overdue amounts at the lesser of 1.5% per month or the
maximum non-usurious rate under applicable law. E-Builders may suspend the service without notice if payment
for the service is overdue. Fees
not disputed within sixty (60) days of due date are conclusively deemed
accurate. Customer agrees to pay E-Builders’s reasonable reinstatement fee following
a suspension of service for non-payment, and to pay E-Builders’s reasonable
costs of collection of overdue amounts, including collection agency fees,
attorney fees and court costs.
(b) Fee
Increases. E-Builders 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 five (45) 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 E-Builders’s
request Customer shall remit to E-Builders all sales, VAT or similar tax
imposed on the provision of the services (but not in the nature of an income
tax on E-Builders), regardless of whether E-Builders 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 E-Builders 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 E-Builders’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
E-Builders’s Acceptable Use Policy posted at http://www.firstlinehosting.com/aup.php (the “AUP”), which is hereby
incorporated by reference in this Agreement. Customer agrees that E-Builders 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 E-Builders’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 E-Builders’s reasonable investigation
of any suspected violation of the AUP. In the event of a dispute between E-Builders and Customer regarding the
interpretation of the AUP, E-Builders’s commercially reasonable interpretation
of the AUP shall govern.
5. Customer
Information. Customer represents and warrants to E-Builders
that the information he, she or it has provided and will provide to E-Builders
for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer
represents and warrants to E-Builders that he or she is at least 18 years of
age. E-Builders 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 E-Builders,
E-Builders’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.
E-Builders DOES NOT WARRANT
OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY
SECURE. TO THE EXTENT
PERMITTED BY APPLICABLE LAW E-Builders 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 E-Builders
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 E-Builders may suspend services to
Customer without notice and without liability if: (i) E-Builders 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) E-Builders 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 E-Builders’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 E-Builders
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 E-Builders
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 E-Builders 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 E-Builders 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 E-Builders
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 E-Builders
nothwithstanding any agreement by E-Builders to provide back up services.
12. Changes to E-Builders’s Network. Upgrades and other changes in E-Builders’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. E-Builders reserves the right to change
its network in its commercially reasonable discretion, and E-Builders shall not
be liable for any resulting harm to Customer.
13. Notices. Notices
to E-Builders under the Agreement shall be given via electronic mail to the
e-mail address posted for customer
support on http://www.firstlinehosting.com. 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. E-Builders
shall not be in default of any obligation under the Agreement if the failure to
perform the obligation is due to any event beyond E-Builders’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 State of Texas, 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 FEDERAL COURTS IN DALLAS COUNTY, TEXAS, 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 E-Builders 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 E-Builders’s prior written consent. E-Builders’s approval for assignment is
contingent on the assignee meeting E-Builders’s credit approval criteria. E-Builders 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.
