Instant Pro Hosting - Instant Professional Web Hosting - Term's of Service

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Term's of Service Agreement

Instant Pro Hosting - Term's of Service Agreement

This Term's of Service Agreement (this “Agreement”) is between Instant Pro Hosting and the person (individual or legal person) who orders Instant Pro Hosting’s service, hereby referred to in this Agreement by reference (“Customer”). This Agreement governs the Customer’s use of Instant Pro Hosting’s web hosting service.

1. Services. Subject to the terms of this Agreement and contingent on the Customer’s satisfaction of Instant Pro Hosting’s credit approval requirements, Instant Pro Hosting agrees to provide the web hosting services described in the order for the fees stated in the order.

2. Term. The initial service term of the Agreement shall begin on the date that Instant Pro Hosting generates an e-mail message to the Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of having the same number of full calendar months as the Initial Term (each a “Renewal Term”) unless Instant Pro Hosting or the Customer provides the other with written notice of non-renewal at least ten (10) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”

3. Payments.

(a) Fees. Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be a calendar month or twelve calendar months, as indicated on the order. The first service fee shall include a prorated portion of the monthly fee for the first partial month of service plus the fee for the first full billing cycle. Instant Pro Hosting may require payment in full of the first fee before beginning service. If the order provides for credit/debit card billing, Customer authorizes Instant Pro Hosting to bill subsequent fees to the credit/debit card on or after the first day of each billing cycle during the Term of this Agreement; otherwise Instant Pro Hosting will invoice the Customer via electronic mail to the Primary Customer Contact listed on the order. Invoiced fees will be issued seven (7) days before the start of each billing cycle, and the fees shall be due on the first (1st) day of the each billing cycle, but in no event earlier than the first day of each billing cycle.

Payments must be made in United States dollars. The Customer is responsible for providing Instant Pro Hosting with changes to billing information (such as credit card expiration, change in billing address). At its option, Instant Pro Hosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Instant Pro Hosting may charge a late fee of $4.95 on invoices four (4) days overdue. Instant Pro Hosting may suspend the service without notice if payment for the service is seven (7) days overdue. Instant Pro Hosting may remove the seven (7) day grace period on overdue payments if the customer pays an invoice late over a three (3) month period. Fees not disputed within ten (10) days of due date are conclusively deemed accurate. Customer agrees to pay Instant Pro Hosting’s reasonable reinstatement fee of $19.95 following a suspension of service for non-payment, and to pay Instant Pro Hosting’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.

(b) Fee Increases. Instant Pro Hosting may increase its fees for services effective the first day of a Renewal Term by giving notice to the Customer of the new fees at least sixty (60) days prior to the beginning of the Renewal Term, and if the Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).

(c) Taxes. At Instant Pro Hosting’s request Customer shall remit to Instant Pro Hosting all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Instant Pro Hosting), regardless of whether Instant Pro Hosting fails to collect the tax at the time the related services are provided.

(d) Early Termination. The Customer acknowledges that the amount of the fee for the service is based on the Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Instant Pro Hosting terminates the Agreement for the Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Instant Pro Hosting’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.

(e) Account Credit. The Customer acknowledges that any amount of money added to the customer's account in credit, either by Instant Pro Hosting or the customer, is non-refundable. If the customer has enough credit to pay an unpaid invoice in full when it is generated, the credit will automatically be used to pay the unpaid invoice.

(f) Refunds. No refunds are available except under the provisions of section 17 of this Agreement.

4. Law/AUP. The Customer agrees to use the service in compliance with applicable law and Instant Pro Hosting’s Acceptable Use Policy posted at http://www.instantprohosting.com/aup.html (the “AUP”), which is hereby incorporated by reference in this Agreement. The Customer agrees that Instant Pro Hosting may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on the Customer’s use of the Services. Amendments to the AUP are effective on the earlier of Instant Pro Hosting’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. The Customer agrees to cooperate with Instant Pro Hosting’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Instant Pro Hosting and the Customer regarding the interpretation of the AUP, Instant Pro Hosting’s commercially reasonable interpretation of the AUP shall govern.

5. Customer Information. The Customer represents and warrants to Instant Pro Hosting that the information he, she or it has provided and will provide to Instant Pro Hosting for purposes of establishing and maintaining the service is accurate. If the Customer is an individual, the Customer represents and warrants to Instant Pro Hosting that he or she is at least 18 years of age. Instant Pro Hosting may rely on the instructions of the person listed as the Primary Customer Contact on the order with regard to the Customer’s account until the Customer has provided a written notice changing the Primary Customer Contract.

6. Indemnification. Customer agrees to indemnify and hold harmless Instant Pro Hosting, Instant Pro Hosting’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of the Customer’s services in violation of applicable law or the AUP by the Customer or any person using the Customer’s log on information, regardless of whether such person has been authorized to use the services by the Customer.

7. Disclaimer of Warranties.

INSTANT PRO HOSTING DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW INSTANT PRO HOSTING DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.

8. Limitation of Damages.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF INSTANT PRO HOSTING AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

9. Suspension/Termination/Cancellation.

(a) Suspension of Service. The Customer agrees that Instant Pro Hosting may suspend services to the Customer without notice and without liability if: (i) Instant Pro Hosting reasonably believes that the services are being used in violation of the AUP; (ii) The Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Instant Pro Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. The Customer shall pay Instant Pro Hosting’s reasonable reinstatement fee if service is re instituted following a suspension of service under this subsection.

(b) Termination. The Agreement may be terminated by the Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Instant Pro Hosting fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within three (3) days of the Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by Instant Pro Hosting prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon one (1) days notice if the Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within one (1) days of a written notice from Instant Pro Hosting describing the violation in reasonable detail; (iii) upon one (1) days notice if the Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if the Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

(c) Cancellation. A request for cancellation is required to be submitted by the customer if the customer no longer wishes to use services provided by Instant Pro Hosting. The Cancellation Request must be submitted via the Client Area by submitting a ticket to the Cancellations Department clearly stating the Customer's name and the service they wish to cancel. No other form of cancellation is accepted. The cancellation request must be submitted at least ten (10) days before the end of the current billing cycle.

10. Requests for Customer Information. The Customer agrees that Instant Pro Hosting may, without notice to the Customer, (i) report to the appropriate authorities any conduct by the Customer or any of the Customer’s customers or end users that Instant Pro Hosting believes violates applicable law, and (ii) provide any information that it has about the Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

11. Back Up Copy. The Customer agrees to maintain a current copy of all content hosted by Instant Pro Hosting notwithstanding any agreement by Instant Pro Hosting to provide back up services. Instant Pro Hosting does not warrant or guarantee the integrity of any back up taken by Instant Pro Hosting. Instant Pro Hosting allows free back up restores as defined by the customer's web hosting packages. Any back up restores performed by Instant Pro Hosting outside the allowed number of free back up restores defined by the customers web hosting packages are charged at $14.95 per restore. No back ups or restores are available while an account is suspended or after an account has been terminated.

12. Changes to Instant Pro Hosting’s Network. Upgrades and other changes in Instant Pro Hosting’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of the Customer’s hosted content and/or applications. Instant Pro Hosting reserves the right to change its network in its commercially reasonable discretion, and Instant Pro Hosting shall not be liable for any resulting harm to the Customer.

13. Notices. Notices to Instant Pro Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.instantprohosting.com/support_center.html. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. The Customer may change his, her or its notice address by a notice given in accordance with this Section.

14. Force Majeure. Instant Pro Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Instant Pro Hosting’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

15. Governing Law/Disputes. The Agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN LOS ANGELES COUNTY, CALIFORNIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

16. Miscellaneous. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on the Customer’s purchase order or other business forms are not binding on Instant Pro Hosting unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. The Customer may not transfer the Agreement without Instant Pro Hosting’s prior written consent. Instant Pro Hosting’s approval for assignment is contingent on the assignee meeting Instant Pro Hosting’s credit approval criteria. Instant Pro Hosting may assign the Agreement in whole or in part.

17. Money Back Guarantee. Within 30 days of the service commencement date, the customer is able to request a refund of all costs associated with any web hosting package. No refunds are available under this guarantee if the customer has breached this agreement. The cost of domain names, setup fees, software installation fees and administrative fees are non-refundable under this guarantee. If a domain name is registered free of charge for the customer with a web hosting package, the cost of the domain name if it were bought separately ($11.95) will be subtracted from the total refundable amount.

18. 99% Uptime Guarantee. If the customers shared web hosting server should suffer a physical downtime which causes the servers overall uptime to fall below 99% over the period of one month, the customer will be credited one month of web hosting The maximum amount of credit that can be issued under this guarantee is no more than the customers recurring monthly payment amount. Approval of the credit is upon justification and at the discretion of Instant Pro Hosting. 3rd party monitoring systems can not be used as justification because of the monitors network capacity/transit availability. The servers downtime is determined by reviewing Apache and operating system logs. The customer must contact Instant Pro hosting within 7 days of the downtime or the credit will be forfeited. Scheduled downtime, emergency maintenance and network downtime do not count towards the servers overall downtime.

19. Account Security Codes. When placing an order with Instant Pro Hosting, the customer will be prompted to create a Security Code. The Security Code must be different to the customers password. The customer must setup a Security Code or the order will be canceled. The Security Code must be supplied to Instant Pro Hosting staff when and if it is requested. In an instance where the customer is unable to provide the correct Security Code, the request made by the customer will be denied. The Security Code can only be changed by the Instant Pro Hosting Management Department. Requests to any other department will be denied.

This Agreement together with the order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.