Terms of Service
• Merchant Host Hub does not allow pornographic material.
• Merchant Host Hub does not allow unsolicited email and requires opt-in list managers to include at least one single action method of unsubscribing in each email. We reserve the right to limit incoming or outgoing email at any time.
• Merchant Host Hub reserves the right to terminate your account at any time without a refund. Reasons for termination include, but are not limited to:
1. Abuse of the machines – either intentional or due to improper coding
2. Committing or Promoting any type of illegal activity including fraud, mailbombing, denial of service attacks, storing and/or housing and/or linking to illegal content, including but not limited to, “warez”, “hacking”/”cracking”/”key generators”.
3. The Services to traffic in illegal drugs, gambling and/or obscene materials.
4. The Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third-party.
5. Additionally, Merchant Host Hub reserves the right to terminate your account if at any time your site has pornography and/or nudity of any kind, including but not limited to, adult pornography, Anime, child pornography, “adult content” and/or the written word of a sexual nature.
6. Use of ad-servers, attempts to circumvent quota system owned by ‘nobody’, certain podcasting sites, use of torrent software, proxies, excessive resource usage or ‘core dumping’.
7. Attempts to circumvent any of our security policies, procedures or systems.
This User Agreement (“Agreement”) is an agreement between MERCHANT HOST HUB (“Company”) and the party set forth in the related order form (“Customer” or “You”) incorporated herein by reference (together with any subsequent order forms submitted by Customer, the “Order Form”), and applies to the purchase of all services ordered by Customer on the Order Form (collectively, the “Services”).
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY’S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
1. Acceptable Use Policy. Under this Agreement, Customer shall comply with Company’s then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, which currently can be viewed under the Legal Details section of this website, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Service (the “Customer Content”). Customer Content includes content of Customer’s customers and/or users of Customer’s website. Accordingly, under this Agreement, You will be responsible for Your customers’ content and activities on Your website. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the AUP. In the event Company takes corrective action due to a violation of the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer’s customers due to any corrective action that Company may take (including, without limitation, disconnection of Services).
2. Term; Termination; Cancellation Policy.
a. The initial term of this Agreement shall be as set forth in the Order Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew. ADDITIONALLY, AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
i. If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel, you acknowledge, agree and authorize Merchant Host Hub to continue billing your credit card and you remain responsible for any uncollected amounts.
ii. Additionally, in an effort to ensure your domain registration renewal processes successfully, Merchant Host Hub may process the renewal charge up to two weeks in advance of your expiration date unless you explicitly request otherwise.
b. This Agreement may be terminated
i. by either party by giving the other party thirty (30) days prior written notice subject to a minimum $50.00 charge as an early cancellation fee payable by Customer,
ii. by Company in the event of nonpayment by Customer,
iii. by Company, at any time, without notice, if, in Company’s sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of this Agreement and related agreements, AUP, or Customer’s use of the Services disrupts or, in Company’s sole and absolute discretion and/or judgment, could disrupt, Company’s business operations and/or
iv. by Company as provided herein.
c. If You cancel this Agreement, upon proper notice to Company, prior to the end of the Initial Term or any Term thereafter,
i. You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation;
ii. Company may (but is not obligated to) refund to You all pre-paid fees for basic hosting services for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees and any discount applied for prepayment, provided that, You are not in breach of any terms and conditions of this AUP, User Agreement, Spamming Policy or Domain Policy; and/or
iii. You shall be obligated to pay one hundred percent (100%) of all charges for all Services for each month remaining in the Term including SSL Certificates, Dedicated IP Addresses, ID Protect and Registered Domain Names (other than basic hosting fees as provided in (ii) above). Any cancellation request shall be effective thirty (30) days after receipt by Company, unless a later date is specified in such request.
d. Company may terminate this Agreement, without penalty,
i. if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable; or
ii. immediately, if Company determines that Customer’s use of the Services, the Web site or the Customer Content violates any Company term or condition, including this AUP, User Agreement, Spamming Policy, or Domain Policy. If Company cancels this Agreement prior to the end of the Term for Your breach of this Agreement and related agreements, including the AUP, User Agreement, Spamming Policy, or Domain Policy or Customer’s use of the Services disrupts our network, Company shall not refund to You any fees paid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, You shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term and Company shall have the right to charge You an administrative fee of a minimum of $50.00.
e. Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 2(e), 3, 4, 10, 11, 13, 15 and 16 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
3. Customer’s Responsibilities.
a. Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Website.
b. Customer will cooperate fully with Company in connection with Company’s performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer’s performance of its obligations under this Agreement will extend the time for Company’s performance of its obligations that depend on Customer’s performance on a day for day basis. Customer will notify Company of any change in Customer’s mailing address, telephone, electronic mail or other contact information.
c. Customer assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Customer Website and any goods or services described therein, as well as any rules, terms or conditions of use.
d. Because the Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site, including all back-ups. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Company to provide the Services, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Services will be available on Company’s Web site. Customer shall periodically access Company’s Web site to determine if Company has made any changes thereto. Company shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Company to provide the Services.
e. Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content.
4. Customer’s Representations and Warranties.
a. Customer hereby represents and warrants to Company, and agrees that during the Initial Term and any Term thereafter Customer will ensure that:
i. Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
ii. Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
iii. Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; and
iv. Customer has used its best efforts to ensure that the Customer Content is and will always remain free of all computer viruses, worms, Trojan horses and other malicious code.
b. Customer shall be solely responsible for the development, operation and maintenance of Customer’s web site, online store and electronic commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer’s products, including, without limitation
i. the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products,
ii. ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and
iii. ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its website and online store.
c. Customer grants Company the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
d. In addition to transactions entered into by Customer on Your behalf, Customer also agrees to be bound by the terms of this Agreement for transactions entered into on Customer’s behalf by anyone acting as Customer’s agent, and transactions entered into by anyone who uses Customer’s account, whether or not the transactions were on Customer’s behalf.
5. License to Company. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Services under the Order:
a. digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and
b. make archival or back-up copies of the Customer Content and the Customer Web site.
c. Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
d. Company, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, Customer Content and/or web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. Customer further agrees that Company shall not be liable to Customer for any loss or damages that may result from such conduct.
6. Billing and Payment.
a. Customer will pay to Company the service fees for the Services in the manner set forth in the Order Form.
b. Company may increase the Service Fees (i) in the manner permitted in the service description and (ii) at any time on or after expiration of the Initial Term.
c. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company’s net income). All such taxes will be added to Company’s invoices for the fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid, accept as may be otherwise stated in the Terms of Service.
d. Unless otherwise specified, all fees and related charges shall be due and payable within thirty (30) days after the date of the invoice. If any invoice is not paid within seven (7) days after the date of the invoice, Company may charge Customer a late fee of $15.00 for; in addition any amounts payable to Company not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
e. If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.
f. If any check is returned for insufficient funds Company may impose a minimum processing charge of $25.00.
g. If any amount due to Company remains unpaid seven (7) days after such payment is due, Company, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
h. There may be a minimum $50.00 charge to reinstate accounts that have been suspended or terminated.
i. Wire transfers will be assessed a minimum $35.00 charge.
j. There may be a minimum $35.00 charge for all credit card chargebacks.
k. Customer acknowledges and agrees that Company may pre-charge Customer’s fees for the Services to its credit card supplied by Customer during registration for the Initial Term.
l. YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION 2.
7. Company as Reseller or Licensor. Company is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third-party (“Non-Company Product”). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Company Product either sold, licensed or provided by Company to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Company’s obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Customer by the manufacturer of such Non-Company Product. Customer is entitled to use any Non-Company Product supplied by Company only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Customer through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
8. Internet Protocol (IP) Address Ownership. If Company assigns Customer an Internet Protocol (“IP”) address for Customer’s use, the right to use that IP address shall belong only to Company, and Customer shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Services, during the term of this Agreement. Company shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Company, and Company reserves the right to change or remove all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
9. Caching. Customer expressly
a. grants to Company a license to cache the entirety of the Customer Content and Customer’s web site, including content supplied by third parties, hosted by Company under this Agreement and
b. agrees that such caching is not an infringement of any of Customer’s intellectual property rights or any third-party’s intellectual property rights.
10. CPU Usage. Customer agrees that Customer shall not use excessive amounts of CPU processing on any of Company’s servers. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
11. Bandwidth and Disk Usage. Company shall provide Customer with a specific volume of bandwidth, disk space and other resources, such as email and/or file-transfer-protocol (“FTP”) accounts. The Services are intended for normal use only. Any activity that results in excessive usage inconsistent with normal usage patterns is strictly prohibited. Customer agrees that such bandwidth and disk usage shall not exceed the amounts set by Company for the Services (the “Agreed Usage”). These allotments are optimized and dedicated towards serving the Content and Customer’s electronic mail services related solely to Customer’s web hosting account(s) with Company. Customer shall not use any bandwidth and/or disk usage for materials other than the Customer’s Web site, Customer Content and/or Customer’s electronic mail services. For example, Customer may not use bandwidth or disk usage as offsite storage area for electronic files or as a provisioning service for third-party electronic mail or FTP hosts. Company will monitor Customer’s bandwidth and disk usage. Company, in its sole discretion, shall have the right to take any corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage or other improper storage or usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, removal or deletion of Customer’s Web site, Customer Content, Customer’s electronic mail services and/or other materials or termination of this Agreement, which actions may be taken in Company’s sole and absolute discretion. If Company takes any such corrective action under this section, Customer shall not be entitled to a refund or credit of any fees paid prior to such action. Customer will comply with all applicable laws, rules and regulations regarding Customer’s Web site, Customer Content and/or Customer’s electronic mail services and will each, including bandwidth, disk space and other resources only for lawful purposes. Customer may not utilize: the Services to copy material from third parties (including text, graphics, music, videos or other copyrightable material) without proper authorization; the Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third-party; the Services to traffic in illegal drugs, illegal gambling, obscene materials or other any products or services that are prohibited under applicable law; the Services to export encryption software to points outside the United States in violation of applicable export control laws; the Services to forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message. If Company learns or discovers that Customer is violating any law related to Customer’s Web site, Customer Content and/or Customer’s electronic mail services, use of bandwidth, disk usage or Agreed Usage, Company may be obligated to inform the necessary law enforcement and/or any related agency(ies) of such conduct and may provide such agency(ies) with information related to Customer, Customer’s Web site, Customer Content and/or Customer’s electronic mail.
12. Parked Domain Services. In addition to the applicable terms and conditions contained herein:
a. If Customer signs up to register and park a domain name with Company, Customer agrees to pay Company the annual fee a set forth on our web site (the “Parked Page Services”). Customer’s annual billing date will be determined based on the month Customer establishes the Parked Page Services with Company. Payments are non-refundable. If for any reason Company is unable to charge Customer’s payment method for the full amount owed Company for the service provided, or if Company is charged a penalty for any fee it previously charged to Your payment method, Customer agrees that Company may pursue all available remedies to obtain payment. Customer agrees that among the remedies Company may pursue to effect payment, shall include but will not be limited to, immediate cancellation without notice to Customer of Customer’s service. Company reserves the right to charge a reasonable service fee for administrative tasks outside the scope of its regular services. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, and disputes that require legal services. These charges will be billed to the payment method we have on file for Customer.
b. Customer agrees to be responsible for notifying Company should Customer desire to terminate use of any of the Parked Page Services, including, but not limited to, those purchased. Notification of Customer’s intent to terminate must be provided to Company no earlier than thirty (30) days prior to Customer’s billing date but no later than ten (10) days prior to the billing date. In the absence of notification from Customer, Company will automatically continue the Parked Page Services indefinitely and will charge Customer’s payment method that is on file with Company, at Company’s then current rates. It is Customer’s responsibility to keep their payment method information current, which includes the expiration date if using a credit card. In the event Customer terminates the Parked Page Services, moving their web site off the Company hosting servers is Customer’s responsibility. Company will not transfer or FTP such web site to another provider. Any change by Customer of their name-server is not deemed cancellation of the Parked Page Services.
c. Company will provide Customer with the Parked Page Services as long as Customer abides by the terms and conditions set forth herein and in each of Company’s policies and procedures.
d. By using any of the Parked Pages Services, Customer agrees that Company may point the domain name or DNS to one of Company’s or Company’s affiliates web pages, and that they may place advertising on Customer’s web page and that Company specifically reserves this right. Customer shall have no right to any compensation and shall not be entitled and shall have no right to receive any funds related to the monetization of Customer’s Parked Pages.
e. Customer agrees to indemnify and hold harmless Company for any complications arising out of use of the Parked Page Services, including, but not limited to, actions Company chooses to take to remedy Customer’s improper or illegal use of a web site hosted by Company. Customer agrees it is not be entitled to a refund of any fees paid to Company if, for any reason, Company takes corrective action with respect to any improper or illegal use of the Parked Page Services.
f. If a dispute arises because of one or more of Customer’s Parked Pages, Customer will indemnify, defend and hold Company harmless for damages arising out of such dispute. Customer also agrees that if Company is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a web site hosted by Company, that Company, in its sole discretion, may take whatever action Company deems necessary regarding further modification, assignment of and/or control of the web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
13. Property Rights.
a. Company hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Services. Customer may not use Company’s technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Company to Customer any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company.
b. Company owns all right, title and interest in and to the Services and Company’s trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems (“Marks”). Noting in this Agreement constitutes a license to Customer to use or resell the Marks.
14. Disclaimer of Warranty. Customer agrees to use all Services and any information obtained through or from Company, at Customer’s own risk. Customer acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company’s host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN “COMPANY PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
15. Limited Warranty.
a. Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees pro-rated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
b. The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer’s equipment or any third-party equipment not within the sole control of Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
16. Limitation of Liability.
a. IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
b. COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
d. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Customer’s indemnification obligations.
e. Notwithstanding anything to the contrary in this Agreement, Company’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
f. Customer understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Customer or one if its customers or a reseller, that corrective action may adversely affect other customers of Customer or other reseller customers, and Customer agrees that Company shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Company.
g. This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
17. Indemnification. Customer agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer’s use of the Services, (ii) any violation by Customer of the AUP, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
18. Arbitration Agreement and Class Action Waiver.
a. Purpose. This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and Merchant Host Hub. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial.
Please read this Arbitration Agreement carefully. It provides that all disputes between you (sometimes referred to as “Customer”) and Merchant Host Hub (sometimes referred to as “Company”) shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this Arbitration Agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees, if otherwise authorized by applicable law).
For the purpose of this Arbitration Agreement, “Merchant Host Hub” means Merchant Host Hub and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Merchant Host Hub regarding any aspect of your relationship with Merchant Host Hub, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
b. WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
c. Pre-Arbitration Dispute Resolution. For all Disputes you must first give Merchant Host Hub an opportunity to resolve the Dispute. You must commence this process by mailing written notification to 6100 Center Drive, Los Angeles, CA, 7014 E Timberon, Wichita, KS 67206. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Merchant Host Hub does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
d. Arbitration Procedures. If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or Merchant Host Hub may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration and shall in no event be commenced as a representative or class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.
For arbitration before the AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Arbitration Agreement governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because your contract with Merchant Host Hub, the Terms of Service, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
e. Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
f. Location of Arbitration and Fees. In the event a dispute shall arise between You and Merchant Host Hub, it is agreed that such disputes shall be exclusively resolved pursuant to binding arbitration in Merchant Host Hub’s current location of Wichita, KS and any fees that You may incur due to dispute are Your responsibility unless otherwise set forth under the terms of resolution.
g. Class Action Waiver. The parties agree that the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and Merchant Host Hub specifically agree in writing to do so following initiation of the arbitration. Neither you, nor any other Member of Merchant Host Hub and/or user of Merchant Host Hub services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding.
h. Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and Merchant Host Hub are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Merchant Host Hub might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). You give up those rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
i. Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.
j. Continuation. This Arbitration Agreement shall survive the termination of your contract with Merchant Host Hub and your use of Merchant Host Hub services.
a. Independent Contractor. Company and Customer are independent contractors, and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint ventures. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
b. Governing Law; Jurisdiction. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Services will be governed by the laws of the state of Kansas, U.S.A., excluding its conflict of law provisions.
c. Headings. The headings herein are for convenience only and are not part of this Agreement.
d. Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company’s web site.
e. Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
f. Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer’s electronic mail address as maintained in Company’s billing records.
g. Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
h. Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
i. Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
j. Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.
k. Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
l. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
m. Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
n. Marketing. Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.
Domain Name Registration Agreement
1. THIS REGISTRATION AGREEMENT (“Agreement”), is between Registrar and you, on behalf of yourself or the entity you represent (“Registrant”), as offered through MERCHANT HOST HUB, the Reseller participating in the Registrar’s distribution channel for domain name registrations. Any reference to “Registry” or “Registry Operator” shall refer to the registry administrator of the applicable top-level domain (“TLD”). This Agreement explains the Registrars obligations to Registrant, and Registrant’s obligations to Registrar, for the domain registration services. By agreeing to the terms and conditions set forth in this Agreement, Registrant agrees to be bound by the rules and regulations set forth in this Agreement, and by a registry for that TLD.
2. DOMAIN NAME REGISTRATION. Domain name registrations are for a limited term, which ends on the expiration date communicated to the Registrant. A domain name submitted through the Merchant Host Hub will be deemed active when the relevant registry accepts the Registrant’s application and activates Registrant’s domain name registration or renewal. Merchant Host Hub cannot guarantee that Registrant will obtain a desired domain name, even if an inquiry indicates that a domain name is available at the time of application. Merchant Host Hub is not responsible for any inaccuracies or errors in the domain name registration or renewal process.
3. FEES. Registrant agrees to pay Merchant Host Hub the applicable service fees prior to the registration or renewal of a domain. New domain name registrations only, have a 30-day money back guarantee, renewal or transfers fees are non-refundable. If Registrant’s domain name registration is suspended, cancelled or transferred prior to the end of your current registration term, fees are non-refundable.
4. TERM. This Agreement will remain in effect during the term of the domain name registration as selected, recorded and paid for at the time of registration or renewal. Should the domain name be transferred to another registrar, the terms and conditions of this Agreement shall cease.
5. EXPIRATION, RENEWAL AND FORFEITURE. The registered domain name will expire on the expiration date specified in the registration term, and as communicated to the Registrant. Registrant will receive reminders immediately prior to the expiration inviting Registrant to renew the domain name. If Registrant fails to renew the domain name in a timely fashion, the registration will expire, and Merchant Host Hub may, at its discretion, elect to assume the registration and may hold it in its own account, delete it, or sell it to a third party. During the period following the expiration of a domain name, the domain name will cease to resolve, the Whois registration records may be revised to include that of Registrar or Merchant Host Hub, and visitors to Registrant’s website may be directed to a default web page. This default web page may feature advertisements posted by Registrar for its own account. Registrant acknowledges and agrees that Registrant’s right and interest in a domain name ceases upon its expiration. Registrant is solely responsible for informing itself of the date of expiration and renewing its registration in a timely manner. If Registrar, in its sole discretion, elects to renew the registration, Registrant will be entitled to a grace period of forty (40) days during which Registrant may re-register the domain name. Additional costs for the redemption and re-registration will apply.
6. EXPIRED REGISTRATION RECOVERY POLICY Domain expiration notices will be sent via email thirty (30) days and five (5) days prior to a domain expiration date and three (3) days after a domain expires. There is a $250 Redemption Fee, plus applicable annual Domain Name renewal fee for any expired Domain Name that may still be in the redemption period.
7. REGISTRANT INFORMATION. Registrant must provide the following information as part of the domain name registration process, and promptly correct and update during the term of the registration:
a. Name and postal address of the Registered Name Holder;
b. Registered name;
c. Names of the primary nameserver and secondary nameserver(s) for the Registered Name;
d. Name, postal address, e-mail address, and voice and fax (if available) telephone numbers of the administrative contact for the domain name;
e. Name, postal address, e-mail address, and voice and fax (if available) telephone numbers of the billing contact for the domain name; and
f. Name, postal address, e-mail address, and voice and fax (if available) telephone numbers of the technical contact for the domain name.
8. ACCURATE INFORMATION. Registrant represents and warrants that:
a. The statements that Registrant makes in connection with the domain name registration, maintenance, or renewal are complete and accurate;
b. Registrant information will be kept current;
c. Registrant will not permit others to use the domain name in violation of any ICANN or registry policies, applicable laws or regulations, or legal rights of others;
d. Registrant will respond to inquiries from Merchant Host Hub or the Registrar addressed to the email address of the Registrant, the administrative, billing or technical contact with respect to a domain name concerning the accuracy of contact details.
Registrant acknowledges that a breach of this Section 8 will constitute a material breach of the Agreement, which will entitle either Merchant Host Hub or a registry to terminate this Agreement immediately upon such breach without any refund and without notice to Registrant.
9. ICANN REQUIRED DISCLOSURES. Domain name registration requires sharing the Registrant’s information, in whole or in part, with the applicable Registry Operator and with ICANN. As required by ICANN, this information must be made publicly available by means of Whois, and the Registry Operator also may be required to make this information publicly available by Whois. Registrar may be required to archive this information with a third-party escrow service. Registrant consents to and gives permission for all such required disclosures. Further, Registrant represents and warrants that, if Registrant is providing information about a third party, Registrant has notified the third party of the required disclosures and the purpose for the disclosures and Registrant has obtained the third party’s consent to such disclosure. ICANN may establish or modify the guidelines, limits or requirements that relate to the amount and type of information that Registrar may or must make available to the public or to private entities, and the manner in which such information is made available.
10. SUSPENSION AND CANCELLATION. Merchant Host Hub may in its sole discretion, suspend or cancel Registrant’s domain name registration:
a. if Registrant breaches this Agreement;
b. if Registrant fails to provide payment or accurate contact or billing information;
c. in the event there was an error in the registration process for such domain name;
d. as required by ICANN or a Registry Operator;
e. to protect the integrity and stability of Merchant Host Hub and any applicable registry;
f. to comply with any applicable laws, government rules, requests of law enforcement and court orders;
g. in compliance with any dispute resolution process, or
h. to avoid any liability, civil or criminal.
11. DISPUTE RESOLUTION. Registrant is bound by all ICANN consensus policies and all policies of any relevant Registry Operator, including the Uniform Rapid Suspension Procedure, The Uniform Domain Name Dispute Resolution policy (UDRP), along with the UDRP rules and all supplemental rules of any UDRP provider. ICANN may change the UDRP at any time. If a third party challenges the registration or reservation of the Registrant’s domain name, Registrant will be subject to the provisions specified in the dispute policy adopted by the applicable registry. In the event a domain name dispute arises, Registrant will indemnify and hold Merchant Host Hub harmless pursuant to the terms and conditions contained in the applicable policy. If Merchant Host Hub is notified that a complaint has been filed with a judicial or administrative body regarding a domain name, Merchant Host Hub may, at its sole discretion, suspend use of the domain name and the ability to make modifications to the registration records until:
a. Merchant Host Hub is directed to do so by the judicial or administrative body, or
b. Merchant Host Hub receives notification from both parties that the dispute has been settled.
If Registrant or Registrant’s domain name becomes the subject of litigation, Merchant Host Hub may deposit control of Registrant’s domain name record into the registry of the judicial body by supplying a party with a registrar certificate.
12. ID PROTECTION SERVICE. If Registrant elects to use the Whois privacy registration service, the following terms and conditions will apply:
ID PROTECTION SERVICE AGREEMENT
PLEASE BE ADVISED THAT IF YOU ELECT TO USE ID PROTECTION SERVICES AS SET FORTH HEREIN, THE REGISTRAR OR ITS AFFILIATES WILL NOT ESCROW CERTAIN DOMAIN REGISTRATION INFORMATION.
PLEASE READ THIS ID PROTECTION SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY. BY USING THE ID PROTECTION SERVICES (“IDP SERVICES”), YOU AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU AGREE THAT THE “SERVICE PROVIDERS” (DEFINED BELOW) MAY AMEND THIS AGREEMENT BY POSTING THE AMENDED AGREEMENT ON THE WEBSITE WHERE YOU OBTAINED THE IDP SERVICES. YOU AGREE THAT ANY NEW, DIFFERENT OR ADDITIONAL FEATURES THAT CHANGE THE IDP SERVICES WILL AUTOMATICALLY BE SUBJECT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SUBSEQUENT AMENDMENTS HERETO, DO NOT USE, ACCESS, OR CONTINUE TO USE THE IDP SERVICES. CONTINUED USE OF THE IDP SERVICES AFTER CHANGES TO THIS AGREEMENT HAVE BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.
This Agreement is by and between Whois Privacy Protection, Inc., a Nevada corporation (“Backend Service Provider”), the party, if any, other than the Backend Service Provider who makes the IDP Services available to You (“Primary Service Provider;” Backend Service Provider and Primary Service Provider, if any, being together referred to herein as the “Service Providers”), Your heirs, executors, administrators, agents, successors and assigns (“You,” “Your,” and other appropriate formatives). This Agreement sets forth the terms and conditions of Your relationship with the Service Providers and Your use of the IDP Services. You acknowledge that You have read, understand and agree to be bound by all the terms and conditions of this Agreement for transactions entered into by: (i) You on Your behalf; (ii) anyone acting as Your agent; (iii) anyone who uses the account You establish to obtain the IDP Services, whether or not the transactions were on Your behalf and/or authorized by You. You agree that You will be bound by representations made by third parties You use to obtain the IDP Services. You further agree to abide by the terms and conditions promulgated by the Internet Corporation for Assigned Names and Numbers (“ICANN”), including the Uniform Domain Name Dispute Resolution Policy (“Dispute Resolution Policy,” http://www.icann.org/dndr/udrp/policy.htm) any policy which ICANN may establish with respect to WHOIS information, and the terms and conditions of Your domain name registration with Your registrar (the ICANN-accredited person or entity through which You register a domain name). This Agreement is in addition to domain name registration agreement(s) entered into by You and a registrar when You register or renew domain name registration(s).
1. THE IDP SERVICES
If You subscribe to the IDP Services, each domain name registration which You control and which You designate (“IDP Domains”) will thereafter be registered in the name of the Backend Service Provider, as registrant. Your name, postal address, email address, phone and fax numbers shall be kept confidential, subject to Section 5 of this Agreement. The following information (and not Your personal information) will be made publicly available in the “Whois” directory for each IDP Domain:
• The Backend Service Provider’s email address, postal address and phone and facsimile number for the registrant, administrative, technical, and billing contacts (“IDP Addresses”);
• The primary and secondary domain name servers You designate for the IDP Domain;
• The IDP Domain’s original date of registration and expiration date;
• The identity of Your registrar, domain name service provider (if different from registrar) and the status of the IDP Domain with the registrar (such as, “active,” “Registrar Lock,” “clienthold,” etc.).
Backend Service Provider may modify its information from time to time in such a way which may constitute a “Change of Registrant” under ICANN’s Transfer Policy (the “Transfer Policy”). In such a case, You and Backend Service Provider explicitly opt out of any 60-day inter-registrar transfer lock that would otherwise be imposed under the Transfer Policy due to any such Change of Registrant. In addition, You and Backend Service Provider explicitly authorize the registrar of the IDP Domain to act as its “Designated Agent” (as defined in the Transfer Policy) to approve each “Change of Registrant” (as defined in the Transfer Policy) on its behalf.
While You will not be listed as the registrant for the IDP Domains, and other than as described in this Agreement, the Backend Service Provider will not act to control the IDP Domain(s). You will retain the right to sell, transfer, or assign each IDP Domain; You will retain the right to control and set the DNS settings for the IDP Domain(s); You will retain the right to renew each IDP Domain name registration upon expiration (subject to Your registrar’s applicable rules and policies); and You will remain responsible to resolve any and all monetary or other legal claims that arise in connection with Your IDP Domain(s), subject to the remaining provisions of this Agreement.
IMPORTANT: THE IDP SERVICES ARE NOT A GENERAL MAIL FORWARDING SERVICE. You agree that You will not provide any third party with the IDP Addresses for the purpose of having such third party transmit communications to You through the Backend Service Provider. Third parties may obtain the IDP Addresses listed in the Whois directory by their own initiative, but You agree that You will not be the one to provide the IDP Addresses to such third parties.
2. PROVISION OF PERSONAL INFORMATION
You agree that for each IDP Domain, You will provide to the Service Providers and maintain as current and accurate, the following information:
• Your name, address, email address, postal address, phone and fax numbers;
• The name, address, email address, postal address, phone and fax numbers for the IDP Domain’s administrative, technical, and billing contacts;
• The primary and secondary domain name servers for the IDP Domain;
You agree to: (i) update this information immediately as it changes over time; (ii) respond within five (5) business days to any inquiries made by either Service Provider to determine the validity of personal information provided by You; (iii) promptly respond to messages regarding correspondence addressed to or involving Your IDP Domain(s), as more fully set forth in section 6 below. If You do not supply primary and secondary domain name servers, You agree that Backend Service Provider may point Your IDP Domain(s) to an IP address of Backend Service Provider’ choosing until such time as You supply primary and secondary domain name servers.
3. RENEWALS AND FEES
If You have selected automatic renewal of the IDP Services through the account which You use to manage Your IDP Services (“Your Account”), You agree i) that the IDP Services shall be automatically renewed 30 days prior to the end of Your IDP Services term, ii) that the Service Provider will attempt to charge the credit card You have on file with the Service Provider at the then current rates, and iii) You waive any requirement to obtain You ongoing affirmative consent to any such automatic renewal. If You do not wish to automatically renew the IDP Services, You agree that the exclusive method for communicating this to the Service Provider shall be by logging into Your Account to ensure that the auto-renewal or renewal option is not selected. You understand that You must do this at least 31 days prior to the end of the then current IDP Service term. It is Your responsibility to keep Your credit card information current and accurate, including the expiration date. If Service Provider is unable to collect renewal or other fees, You agree that a Service Provider may contact You, but is not obliged to do so, and You agree that Service Provider may suspend or terminate the IDP Services as a result of inability to obtain payment.
For domain name registrations which are serviced by a registrar other than a Service Provider: If available as an option and if such option selected by You, You agree that either Service Provider shall be authorized to contact Your domain name registration service provider on Your behalf (and using the credit card provided by You) to renew the domain name registration of associated IDP Domains.
If Backend Service Provider elects to begin charging fee(s) to forward communications to You (see below), You agree that You may be required to pay such fees before the communications will be forwarded. Backend Service Provider may change its service and forwarding fees at any time. Backend Service Provider may also charge reasonable fees for administrative tasks outside the scope of regular services. These may include, but are not limited to, customer service issues that require personal service and disputes that require legal services. You are responsible for paying all fees and taxes associated with using Backend Service Provider’s services. Payment shall be made by credit card unless other options are indicated in Your Account. You agree that charges may appear on the credit card statement under a descriptive provider identifier, such as “Domain Name Registration Services.” Fees are non-refundable. If for any reason there is a charge back for any fee previously charged to the credit card by Backend Service Provider, You agree that Backend Service Provider may, without notice, pursue all available remedies in order to obtain payment. Without limitation on other remedies which may be available under such circumstances, You agree that Backend Service Provider may assume complete ownership of the IDP Domain(s), that the IDP Domain(s) may be sold to third parties, or that the IDP Domain(s) may be to pointed to IP numbers of Backend Service Provider’s choosing, and that Backend Service Provider may immediate cancel Your Account and all services provided to You.
IMPORTANT TERMS REGARDING RELATIONSHIP OF TERM OF IDP SERVICES AND REGISTRATION TERM OF AN ASSOCIATED IDP DOMAIN: You understand that Your IDP Services term begins on the date Your attempt to procure the IDP Services is accepted by the Service Provider(s) and that it shall run for the unit of time which You order (typically, this would be one year). You understand that the IDP Services term may be different than the registration term of the IDP Domain which is associated with the IDP Services. If an IDP Domain expires and is deleted before the end of the term of the associated IDP Services, then the IDP Services associated with the domain will end when the IDP Domain is deleted and You understand that there will be no refund for any resulting unused portion of an IDP Services term. If the IDP Services term ends while the registration term for an IDP Domain is still ongoing, then the IDP Services will no longer be provided, the personal information specified in section 2 shall be listed in the WHOIS output for the (then former) IDP Domain, and the communications forwarding services specified in section 6 will no longer be provided.
4. YOUR REPRESENTATIONS & WARRANTIES
You represent and warrant that all information provided by You pursuant to this Agreement is truthful, complete, current and accurate and You represent and warrant that You will maintain all information in this status throughout the term of this Agreement. You also represent and warrant that You are using the IDP Services in good faith and that You have no knowledge or reason to believe that Your IDP Domain or the content found at any associated IP address infringes upon or conflicts with the legal rights of any third party or any third party’s trademark or trade name. You also warrant that neither the IDP Services nor IDP Domain(s) will not be used in connection with any illegal or morally objectionable activity (as defined below in section 5), or, in connection with the transmission of unsolicited commercial email (“Spam”).
5. SERVICE PROVIDER’S SUSPENSION OR TERMINATION OF SERVICE AND DISCLOSURE OF YOUR PERSONAL INFORMATION
In the event of any of the following:
• If the IDP Domain(s) is (are) alleged to violate or infringe a third party’s trademark, trade name, copyright interests or other legal rights of third parties;
• If You breach any provision of this Agreement or an anti-Spam policy of either Service Provider;
• If You breach any provision of Your registrar’s Registration Agreement;
• If necessary to protect the integrity and stability of the applicable domain name registry;
• If necessary to comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
• If Backend Service provider is named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of Your use of the IDP Services or an IDP Domain;
• If necessary to comply with ICANN’s Dispute Resolution Policy or other policies promulgated by ICANN (including policies which may preclude use a service such as ID Protect);
• If necessary to avoid any financial loss or legal liability (civil or criminal) on the part of Backend Service Provider, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees;
• OR if it comes to Backend Service Provider’s attention that You are alleged to be using the IDP Services for purposes of engaging in, participating in, sponsoring or hiding Your involvement in illegal or morally objectionable activities, including but not limited to, activities which are designed, intended to or otherwise: (i) appeal primarily to prurient interests; (ii) defame, embarrass, harm, abuse, threaten, or harass; (iii) violate state or federal laws of the United States and/or foreign territories; (iv) involve hate crimes, terrorism or child pornography; (v) are tortious, vulgar, obscene, invasive of a third-party’s privacy, race, ethnicity, or are otherwise objectionable; (vi) impersonate the identity of a third party; (vii) harm minors in any way; or (viii) relate to or transmit viruses, Trojan Horses, access codes, backdoors, worms, timebombs or any other code, routine, mechanism, device or item that corrupts, damages, impairs, interferes with, intercepts or misappropriates any software, hardware, firmware, network, system, data or personally identifiable information, THEN
You understand and agree that Backend Service Provider has the absolute right and power, in its sole discretion and without any liability to You whatsoever, to suspend the IDP Services, close Your Account, terminate provisionment of the IDP Services, list the information You provided in section 2 in the Whois output or provide the information You provided in section 2 to a claimant, resolve any and all third-party claims, whether threatened or made, arising out of Your use of IDP Domain, or take any other action which Backend Service Provider deems necessary.
In the event Backend Service Provider takes any of the actions set forth above or in the event You elect to cancel the IDP Services for any reason, neither Service Provider will refund any fees paid by You for the IDP Services.
You also acknowledge and agree that Backend Service Provider may, in its sole discretion and without any liability to You whatsoever, cancel the IDP Services during the first thirty (30) days after You procured the IDP Services, and/or suspend Your rights under this Agreement and list the IDP Addresses during resolution of a dispute or investigation of allegations.
6. FORWARDING COMMUNICATIONS
You agree that Backend Service Provider will review communications sent to the IDP Addresses associated with Your IDP Domain. For communications received via certified or traceable courier mail (such as UPS, FedEx, or DHL), or first class U.S. postal mail which does not appear to be unsolicited commercial mail, Backend Service Provider may either i) forward such communication to You or ii) may attempt to communicate to You a scanned copy of a page of the communication to ascertain Your desires with respect to forwarding the communication to You. You specifically acknowledge that Backend Service Provider may elect to not forward to You (nor to otherwise communicate with You) regarding first class postal mail or email, fax, postal mail or telephone communications which appear to be unsolicited communications which offer or advertise the sale of goods or services or which solicit charitable contributions, or communications which appear to arise from Your having used the IDP Services as a general mail forwarding service (see section 1, above). You authorize Backend Service Provider to either discard all such communications or return all such communications to sender unopened. You agree to waive any and all claims arising from Your failure to receive communications directed to Your domain name but not forwarded to You by Backend Service Provider, including failures which arise from Backend Service Provider’s mistake in judging whether a communication appears to be an unsolicited communication.
Email. The Whois directory generally requires an email address for every purchased domain name registration. When You purchase IDP Services, Backend Service Provider creates an email address for that domain, “email@example.com”. Thereafter, when messages are sent to the email address listed in the IDP Address, Backend Service Provider forwards such messages to the email address You listed in section 2. If such email address becomes non-functioning or if email to such address bounces, Backend Service Provider is not obligated to attempt to contact You through other means. You agree that Backend Service Provider may elect, in Backend Service Provider’s sole discretion, to allow You to access Your Account and view email sent to the IDP Addresses, though such alternative means of servicing Your Account is an option and not a requirement.
Your Obligation to Respond to communications from the Backend Service Provider: When Backend Service Provider receives a communication which may warrant forwarding to You, per the terms of this Agreement, Backend Service Provider will send an email to the email address You provided to Backend Service Provider pursuant to section 2. The email message will identify the sender of the correspondence and the date received. As an alternative, You agree that Backend Service Provider may allow You to access Your Account to view full or partial scanned copies of (non-email) communications sent to the IDP Addresses and that You may be required to interact with Your Account to have the physical originals of such communications forwarded to You and that if You do not interact with Your Account in the ways indicated upon accessing Your Account, that the communications may not be forwarded to You. In either event, You will have seventy-two (72) hours to decide whether to have the communication(s) forwarded. If You do not respond within this time period, the communication(s) will not be forwarded. Method of forward will be determined by Backend Service Provider. Communication(s) may not be immediately forwarded upon Your election; there may be a delay and communication(s) may be aggregated to be forwarded together. The Backend Service Provider may begin charging fees for forwarding communications or may change the method by which communications are forwarded without written notice.
In the event You do not respond to communications from the Backend Service Provider regarding communications received at the IDP Address, Backend Service Provider may immediately reveal the information You provided pursuant to section 2 and/or cancel the IDP Services regarding either the IDP Domain in question or with respect to all of Your IDP Domains, depending on the circumstances. This means the Whois directory will revert to displaying Your name, postal address, email address and phone number. This action would be taken because Backend Service Provider will not become involved in any legal or other matters between You and third parties.
7. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL EITHER THE PRIMARY OR BACKEND SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO THIS AGREEMENT, YOUR DOMAIN NAME REGISTRATION, THE IDP SERVICES, USE OR INABILITY TO USE THE PRIMARY OR BACKEND SERVICE PROVIDER(S) WEB SITE(S) OR THE MATERIALS AND CONTENT OF THE WEB SITE(S) OR ANY OTHER WEB SITES LINKED TO SUCH WEB SITE(S) OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO BACKEND SERVICE PROVIDER OR ANY THIRD PARTY. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF EITHER THE PRIMARY OR BACKEND SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. BECAUSE CERTAIN JURISDICTIONS DO NOT PERMIT THE LIMITATION OR ELIMINATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRIMARY AND BACKEND SERVICE PROVIDERS’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF ANY PROVISION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE UNENFORCEABLE, ONLY SUCH PROVISION SHALL BE REMOVED AND THE REMAINDER SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY LAW.
You further understand and agree that the Primary and Backend Service Providers disclaim any loss or liability resulting from: (i) the inadvertent disclosure or theft of Your personal information; (ii) access delays or interruptions to our web site or the web sites of affiliated parties; (iii) data non-delivery or misdelivery between You and the Service Providers; (iv) the failure for whatever reason to renew the IDP Services; (v) the unauthorized use of Your Account or any of the Service Provider’s services; (vi) errors, omissions or misstatements by either Service Provider; (vii) deletion of, failure to store, failure to process or act upon email messages sent to or forwarded to either You or the email address listed for Your IDP Domain; (viii) processing of updated information regarding Your Account; (ix) any act or omission caused by You or Your agents (whether authorized by You or not).
YOU AGREE THAT, IN ANY EVENT, THE PRIMARY AND BACKEND SERVICE PROVIDERS’ RESPECTIVE MAXIMUM LIABILITY TO YOU SHALL BE CAPPED BY THE LESSER OF THE AMOUNT OF FEES PAID BY YOU TO EACH SERVICE PROVIDER IN THE PRECEDING YEAR WITH RESPECT TO THE SERVICES WHICH GAVE RISE TO THE LIABILITY OR $100.00 PER IDP DOMAIN.
You agree to release, defend, indemnify and hold harmless the Primary and Backend Service Providers, and their parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers and employees and Your registrar, from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney’s fees, arising out of or related in any way to this Agreement, the IDP Services, the web sites of the Service Providers, Your Account, and/or Your use of Your IDP Domain.
9. BACKEND SERVICE PROVIDER WARRANTY DISCLAIMER
THE BACKEND SERVICE PROVIDER, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, THE WEB SITES OF THE BACKEND SERVICE PROVIDER OR ANY WEB SITES LINKED TO SUCH WEB SITES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL BACKEND SERVICE PROVIDER SERVICES, AS WELL AS THE BACKEND SERVICE PROVIDER WEB SITE, ARE PROVIDED “AS IS”. YOUR SUBSCRIPTION TO AND USE OF BACKEND SERVICE PROVIDER’S SERVICES AND ITS WEB SITE ARE ENTIRELY AT YOUR RISK. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. IF ANY PROVISION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE UNENFORCEABLE, ONLY SUCH PROVISION SHALL BE REMOVED AND THE REMAINDER SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY LAW.
10. COPYRIGHT & TRADEMARK
11. MISCELLANEOUS PROVISIONS
a. Severability; Construction; Entire Agreement.
You agree that if any part of this Agreement shall be held to be illegal, unenforceable or invalid, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, enforceable and valid, and the legality, enforceability and validity of the remaining provisions of this Agreement shall not be affected or impaired. The headings herein will not be considered a part of this Agreement. You agree that this Agreement, including the policies it incorporates by reference, constitute the complete and only Agreement between You and Backend Service Provider regarding the services contemplated herein.
b. Governing Law; Venue; Waiver of Trial by Jury.
This Agreement shall be governed in all respects by the laws and judicial decisions of King County, Washington, excluding its conflicts of laws rules. You agree that any action relating to or arising out of this Agreement, shall be brought exclusively in the courts of King County, Washington. For the adjudication of domain name registration disputes and disputes under this Agreement, You agree to submit to the exclusive subject matter and personal jurisdiction of the state and Federal courts located in King County, Washington, You agree that venue shall be proper in such jurisdiction, and You agree to waive any objection You may have to jurisdiction and venue in such forum. You agree to waive the right to trial by jury in any proceeding, regardless of venue, that takes place relating to or arising out of this Agreement and You agree that service upon You may be accomplished by depositing the summons and complaint in the United States mail, first-class mail, postage pre-paid, addressed to the address provided by You in section 2, which service shall be deemed to be effective five days after deposit.
c. Term of Agreement; Survival.
The term of this Agreement begins on the date Your attempt to procure the IDP Services is accepted by the Service Provider(s). The term shall run for the unit of time which You ordered when You procured the IDP Services, unless terminated or suspended sooner according to the terms of this Agreement. Sections 6 (Forwarding Communications), 7 (Limitation of Liability), 8 (Indemnity), 9 (Warranty Disclaimer) and 11 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.
13. POLICY. Registrant agrees that its registration of the domain name shall be subject to suspension, cancellation, or transfer pursuant to a Merchant Host Hub, registry, ICANN or government-adopted policy, or pursuant to any registrar or registry procedure not inconsistent with a Merchant Host Hub, registry, ICANN or government-adopted policy,
a. to correct mistakes by Merchant Host Hub or a registry in registering the name or
b. for the resolution of disputes concerning the domain name.
14. NO GUARANTEE. Registrant acknowledges that registration of a chosen domain name does not confer immunity from objection to the registration, reservation or use of the domain name.
15. AGENCY. If Registrant intends to license use of a domain name to a third party, Registrant is deemed the domain name holder of record and is responsible for providing Registrant’s own full contact information adequate to facilitate timely resolution of any problems that arise in connection with the domain name. Registrant shall accept liability for harm caused by wrongful use of the domain name, unless it promptly discloses the licensee’s identity and current contact information (as provided by the licensee) to a party providing the Registered Name Holder reasonable evidence of actionable harm. Registrant represents that it will secure the agreement of any third party to the terms and conditions in this Agreement.
16. MODIFICATIONS TO AGREEMENT. Merchant Host Hub may modify this Agreement, or any other related and/or applicable agreement, as is necessary to comply with its agreements with ICANN, a registry or any other entity or individual, as well as to adjust to changing circumstances. Your continued use of the registered domain name will constitute your acceptance of this Agreement with any revisions. If you do not agree to any change, you may request that your domain name be cancelled or transferred to a different accredited registrar and agree that such cancellation or transfer will be your exclusive remedy if you do not wish to abide by any change to this Agreement, or any other related and/or applicable agreement.
17. ANNOUNCEMENTS. Merchant Host Hub reserves the right to distribute information to Registrant that is required by ICANN or Registry policy.
18. LIMITATION OF LIABILITY. Registrant agrees that Merchant Host Hubs’ entire liability, and Registrant’s exclusive remedy, with respect to the domain registration service provided under this Agreement and any breach of this Agreement is solely limited to the amount Registrant paid for the initial registration of the domain name. Merchant Host Hub, ICANN and the applicable registries shall not be liable for any lost profits, revenues, or data, financial losses or indirect, special, consequential, exemplary, or punitive damages. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states, liability is limited to the extent permitted by law.
19. INDEMNITY. Registrant will defend, indemnify, and hold harmless Merchant Host Hub, ICANN, the applicable registries, and their respective directors, officers, employees, agents, affiliates, and contractors, from all liabilities, claims and expenses, including attorney’s fees, arising out of or relating to
a. Registrant’s registration and use of the domain name registered;
b. use of the domain name in violation of this Agreement; or
c. Registrant’s violation of any third party right, including Intellectual Property Rights. This indemnification obligation will survive the termination or expiration of this Agreement.
20. TRANSFER OF OWNERSHIP. The person named as Registrant on the Whois shall be the “Registered Name Holder.” The person named as administrative contact at the time the controlling account was secured shall be deemed the designate of the Registrant with the authority to manage the domain name. Registrant agrees that prior to transferring ownership of the domain name to another person (the “Transferee”) Registrant shall require the Transferee to agree, in writing to be bound by all the terms and conditions of this Agreement. If the Transferee fails to be bound in a reasonable fashion (as determine by Merchant Host Hub in its sole discretion) to the terms and conditions in this Agreement, any such transfer will be null and void. Registrant explicitly authorizes Merchant Host Hub to act as their Designated Agent, as stipulated by the ICANN Transfer Policy, to approve a Change of Registrant on their behalf.
21. BREACH. Registrant agrees that failure to abide by any provision of this Agreement, any ICANN, Registry, URDP or Dispute operating rule or policy, may be considered by Merchant Host Hub to be a material breach, and that Merchant Host Hub may provide written notice, describing the breach, to Registrant. If within fifteen (15) calendar days of the date of such notice, Registrant fails to provide evidence, which is reasonably satisfactory to Merchant Host Hub, that Registrant has not breached its obligations under the Agreement, then Merchant Host Hub may delete the registration the domain name. Any such breach by Registrant shall not be deemed to be excused simply because Merchant Host Hub did not act earlier in response to that, or any other, breach by Registrant.
22. DISCLAIMER OF WARRANTIES. Except for the express warranties in this Agreement, Merchant Host Hub does not make any other warranty of any kind, whether express, implied, statutory or otherwise, including warranties or merchantability, fitness for a particular purpose, and non-infringement. Merchant Host Hub is not responsible or liable for the deletion or of failure to store any content and other communications maintained or transmitted through the use of the domain name registration service. Merchant Host Hub does not warrant that the domain name registrations service will be error free or uninterrupted. The domain name registration service is not intended for high risk activities.
23. INCONSISTENCIES WITH REGISTRY POLICIES. In the event that this Agreement may be inconsistent with any term, condition, policy or procedure of an applicable Registry, the term, condition, policy or procedure of the applicable Registry shall prevail.
24. NON-WAIVER. Merchant Host Hub failure to require performance by Registrant of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Merchant Host Hub of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
25. NOTICES. Any notice, direction or other communication given under this Agreement shall be in writing and given by sending it via e-mail or via regular mail. In the case of e-mail, valid notice shall only have been deemed to be given when an electronic confirmation of delivery has been obtained by the sender. E-mail notification to Merchant Host Hub must be sent to firstname.lastname@example.org. Any notice to Registrant will be sent to the e-mail address provided by Registrant in the Whois record. Any e-mail communication shall be deemed to have been validly and effectively given on the date of such communication, if such date is a business day and such delivery was made prior to 4:00 p.m. EST, otherwise it will be deemed to have been delivered on the next business day. In the case of regular mail notice, valid notice shall be deemed to have been validly and effectively given five (5) business days after the date of mailing
Postal notices to Merchant Host Hub shall be sent to:
Merchant Host Hub
7014 E Timberon
Wichita, KS 67206
and in the case of notification to Registrant shall be sent to the address specified in the “Administrative Contact” in the Whois record.
26. ENTIRETY. Registrant agrees that this Agreement, the applicable dispute policy and the rules and policies published by Merchant Host Hub and any applicable Registry or other governing authority, are the complete and exclusive Agreement between Merchant Host Hub and Registrant regarding the domain registration service.
27. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not be construed to create any obligation by either Merchant Host Hub or Registrant to any non-party to this Agreement. Enforcement of this Agreement, including any provisions incorporated by reference, is a matter solely for the parties to this Agreement.
28. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN ONTARIO AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
29. INFANCY. Registrant attests to be of legal age to enter into this Agreement.
30. FORCE MAJEURE. Registrant acknowledges and agrees that neither Merchant Host Hub nor the applicable Registry shall be responsible for any failures or delays in performing the respective obligations hereunder arising from any cause beyond its reasonable control, including but not limited to, acts of God, acts of civil or military authority, fires, wars, riots, earthquakes, storms, typhoons and floods.
32. CONTROLLING LANGUAGE. If Registrant is reading this Agreement in a language other than the English language, Registrant acknowledges and agrees that the English language version hereof shall prevail in case of inconsistency or contradiction in interpretation or translation.
33. TLDs. The following additional provisions apply to any domain names that you register through Merchant Host Hub with the various registries at: (https://www.icann.org/resources/pages/dndr-2012-02-25-en) and all domain name registrants must comply with these requirements; these policies are subject to modification;
1. MERCHANT HOST HUB (“the Company”) maintains a zero-tolerance policy for use of its network in any manner associated with the transmission, distribution or delivery of any bulk e-mail, including unsolicited bulk or unsolicited commercial e-mail (“SPAM”). You may not use any our services or network to send SPAM. In addition, e-mail sent, or caused to be sent, to or through our network may not:
• Use or contain invalid or forged headers;
• Use or contain invalid or non-existent domain names;
• Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
• Use other means of deceptive addressing;
• Use a third party’s internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party;
• Contain false or misleading information in the subject line or otherwise contain false or misleading content;
• Fail to comply with additional technical standards described below;
• Otherwise violate the Company’s terms and conditions.
The Company does not permit or authorize any attempt to use its network in a manner that could damage, disable, overburden or impair any aspect of any of our services, or that could interfere with any other party’s use and enjoyment of any the Company product or service. We monitor all traffic to and from our servers. Customers suspected of using the Company’s products and services for sending SPAM will be investigated. It is the Company’s policy to immediately remove and deactivate any offending web site sending SPAM.
Customers may be asked to produce records that verify that explicit affirmative permission was obtained from a recipient before a mailing was sent. The Company may consider the lack of such proof of explicit affirmative permission of a questionable mailing.
Customers are prohibited from maintaining open mail relays on their servers. Ignorance of the presence or operation of an open mail relay is not and will not be considered an acceptable excuse for its (the open mail relay) operation.
Customers are prohibited from providing hosting services for websites that have been included in SPAM. Hosting includes, but is not limited to, hosting website(s), providing DNS services as well as website redirect services.
If the Company believes that unauthorized or improper use is being made of any product or service, it may, without notice, take such action as it, in its sole discretion, deems appropriate, including blocking messages from an internet domain, mail server or IP address. The Company may immediately terminate any account on any product or service which it determines, in its sole discretion, is transmitting or is otherwise connected with any e-mail that violates this policy.
The Company reserves the right to suspend and/or cancel permanently any and all services provided to a User without any notification. If a Customer is in violation of any term or condition of this SPAM Policy, the Acceptable Use Policy, User Agreement or uses of our services to disrupt or, in the Company’s sole judgment, could disrupt the Company’s business operations, the Company reserves the right to charge such Customer an administrative fee equal to $10000 per each piece of SPAM sent.
To report an incidence of SPAM, please send an email to abuse@MerchantHostHub.com.
Nothing in this policy is intended to grant any right to transmit or send e-mail to, or through, our network. Failure to enforce this policy in every instance does not amount to a waiver of the Company’s rights.
Unauthorized use of the Company’s network in connection with the transmission of unsolicited e-mail, including the transmission of e-mail in violation of this policy, may result in civil and criminal penalties against the sender and those assisting the sender, including those provided by state and federal laws.
Domain Name Dispute Claims
Please refer to the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) if you have a concern or dispute concerning a domain name. The UDRP covers domain names disputes; this Policy specifically excludes domain name disputes. Please see http://www.icann.org/udrp/udrp.htm.
Disk Space & Bandwidth
The purpose of a MERCHANT HOST HUB hosting account is to host web sites. Using a hosting account primarily for online file storage or archiving electronic files is prohibited.
MERCHANT HOST HUB’s hosting plans are shared hosting environments, so to ensure fast & reliable service to all our clients, accounts that adversely affect server or network performance must correct these issues or will be asked to upgrade to a virtual or dedicated server.
Higher levels of bandwidth usage than allotted per customer hosting plan will incur overcharges on a monthly basis. MERCHANT HOST HUB provides full access to web reports for network traffic monitoring and reporting within customer’s cPanel Dashboard.
ARIN (the American Registry for Internet Numbers) is becoming very stringent with IP addresses, and refuses to grant them without a strict accounting of use of existing IP’s; we must therefore require periodic updates of IP address use.
Any IP numbers which remain unused after a 30-day period, according to our periodic ‘ping’ testing, will be subject to reassignment. No prior notice will be given, but we will email you at your current contact address to inform you that we have taken back the IP numbers. You can of course request more when you are ready to use them. Any work incurred in reclaiming unused IP numbers which have been registered as nameservers will be billed at our current administrative services rates.
Merchant Host Hub may assign customer a reasonable amount of IP addresses (Internet Protocol) on a temporary basis or for the life of the contract. Client agrees that IP addresses are not portable and acknowledges that IP addresses are the sole property of Merchant Host Hub and are assigned as part of the services. Furthermore, client acknowledges that use of IP addresses not allocated by Merchant Host Hub to customer or users is expressively prohibited and will incur a penalty fee. This fee would be calculated on a standard engineer’s hourly rate fee of $150 separate from any other service or incident fees prepaid by customer.
Customers are prohibited from transmitting on or through any of MERCHANT HOST HUB’s services, any material that is, in MERCHANT HOST HUB’s sole discretion, unlawful, obscene, threatening, abusive, libelous, or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law.
MERCHANT HOST HUB’s services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statute. MERCHANT HOST HUB’s reserves the right to remove such illegal material from its servers.
The customer is responsible for keeping his billing data with MERCHANT HOST HUB up-to-date and accurate. Furnishing false data on any contract or application, including fraudulent use of credit card numbers, is grounds for immediate termination, and may subject the offender to civil or criminal liability.
The resale of MERCHANT HOST HUB’s products and services is not permitted, unless specifically permitted and documented in a written agreement.
To insure the quality of service of our shared hosting clients, Merchant Host Hub reserves the right to require high resource utilizing clients to upgrade to hosting plans that provide said resources.
The initial term of this Agreement shall be as set forth in the Order Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew.
ADDITIONALLY, AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE MERCHANT HOST HUB TO AUTOMATICALLY BILL AND/OR CHARGE YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
This Agreement may be terminated:
by giving MERCHANT HOST HUB thirty (30) days prior written notice,
by MERCHANT HOST HUB in the event of nonpayment by Customer,
by MERCHANT HOST HUB at any time, without notice, if, in MERCHANT HOST HUB’s sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of this Agreement and related agreements, AUP, or Customer’s use of the Services disrupts or, in MERCHANT HOST HUB’s sole and absolute discretion and/or judgment, could disrupt, MERCHANT HOST HUB’s business operations.
MERCHANT HOST HUB reserves the right to cancel service(s) at any time. All fees paid in advance of cancellation, that may be refundable as stated in the Terms of Service, will be pro-rated and refunded by MERCHANT HOST HUB to customer if MERCHANT HOST HUB initiates its right of cancellation and customer is NOT in violation of these Terms and Conditions. If cancellation is caused by customers and/or its client’s breach of the Terms and conditions, then customer agrees that no refund is due. Customer understands that service(s) can be canceled at any time effective the end of the contract.
Upon termination, either by Merchant Host Hub or Customer, for any reason, Customer is responsible for deleting his/her host registrations from domain registrar(s) immediately. Customer further agrees to pay Merchant Host Hub all reasonable administrative costs if Merchant Host Hub must intervene in deregistering the hosts.
MERCHANT HOST HUB is not responsible for any damages your business may suffer.
MERCHANT HOST HUB does not make implied or written warranties for any of our services.
MERCHANT HOST HUB denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and all service interruptions caused by MERCHANT HOST HUB.
The Customer will not use its network nor space provided by MERCHANT HOST HUB to violate any law. In the event Customer violates existing law, MERCHANT HOST HUB shall have the right to terminate all service set forth in this Agreement. In the event MERCHANT HOST HUB is informed by government authorities of inappropriate or illegal use of MERCHANT HOST HUB facilities or other networks accessed through MERCHANT HOST HUB, MERCHANT HOST HUB may terminate customer’s service.
MERCHANT HOST HUB will cooperate fully with investigations of violation of systems or network security at other sites.
MERCHANT HOST HUB will cooperate with law enforcement authorities in the investigation of possible criminal violations.
Customers who violate systems and/or network security, may incur in criminal or civil liability.
MERCHANT HOST HUB reserves the right to amend its policies at any time. If you have any questions concerning the above stated terms and conditions, then please Contact us.
ACCEPTANCE OF AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE SERVICE AND ARE NOT RELYING ON ANY REPRESENTATION AGREEMENT, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.