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This Web Hosting Agreement (this “Agreement”) is between PolarWeb Ltd, business id: 2018231-5 (later PolarWebServices), a company formed under the laws of the Country of Finland with its principal office at Tuhkanummentie 12 as 1, 00970 Helsinki, Finland. PolarWebServices and the person (individual or legal person) whose signs PolarWebservices’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of PolarWebServices’s Web hosting services, Domain/DNS services and all other services provided by PolarWebServices.
Table of Contents
1. Services.
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of PolarWebServices’s credit approval requirements, PolarWebServices 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 PolarWebServices generates an e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the number of months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of the same length as the Initial Term (each a “Renewal Term”) unless PolarWebServices or Customer provides the other a notice of non-renewal at least thirty (10) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. Notice of non-renewal must be submitted through PolarWebServices\'s help desk using the 'account cancellation' form. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
3. Payments.
(a) Fees.
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly or annually as indicated on the Order, beginning on the Service Commencement Date. PolarWebServices may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes PolarWebServices to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise PolarWebServices will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing PolarWebServices with changes to billing information (such as credit card expiration, change in billing address) At its option, PolarwebServices may accrue charges to be made to a credit/debit card until such charges exceed $10.00. PolarWebServices may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. PolarWebServices may suspend the service without notice if payment for the service is 3 days or more overdue. PolarWebServices may terminate the service without notice if payment for the service is 7 days or more overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay PolarWebServices’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay PolarWebServices’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases.
PolarWebServices may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term). However PolarWebServices will never increase its fees from what those fees where on the date of activation of Customer\'s account (see Term) for Shared Hosting services.
(c) Taxes. At PolarWebServices’s request Customer shall remit to PolarWebServices all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on PolarWebServices), regardless of whether PolarWebServices fails to collect the tax at the time the related services are provided. Notice: PolarWebServices will charge VAT (value added tax) from all it\'s Customers located in EU area.
(d) Early Termination. Customer acknowledges that the amount of the fee for the service is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event PolarWebServices terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 10 (Termination), or Customer terminates the service other than in accordance with Section 10 (Termination) for PolarWebServices’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)Credit Card/PayPal/Moneybookers Disputes/Chargebacks. PolarWebServices has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment is subject to a fine, suspension and account termination at PolarWebServices\'s discretion. A charge of $45.00 per chargeback will be assessed to all accounts that receive a chargeback.
4. Chargebacks/Fraudulent Payments
Chargebacks will result in the immediate deletion of any and all accounts held by the credit card holder, PayPal account holder or MoneyBookers account holder issuing the chargeback as well as in the immediate deletion of any and all services provided to the customer. There is a $25 administrative fee for any illegitimate chargebacks placed against us. Any illegitimate chargebacks or threatened illegitimate chargebacks are grounds for immediate account cancellation. Any Fraudulent Payments such as payments made using stolen funds are grounds for immediate account cancellation. Any payments placed on hold by a payment processor are grounds for immediate account cancellation.
5. 30 days money back guarantee
Usage:
- The PolarWebServices Money Back Guarantee applies to all Shared Hosting Packages.
- The PolarWebServices Money Back Guarantee does not apply to any Dedicated Hosting Server (DHS) packages. All monthly and setup fees for DHS are non-refundable.
- All electronically delivered softwares, scripts, web designs or graphics are non-refundable
- The PolarWebServices Money Back Guarantee starts on the date the customer\'s order has been activated.
Domain Names:
No refund for domain name registration fees.
Bandwidth:
No refund for any unused bandwidth. When taking advantage of the 14 days Money Back Guarantee, a customer whose account exceeds the included bandwidth will be required to pay any additional bandwidth accrued.
Miscellaneous
- No refund on any additional or optional services or features added from the Control Panel by the customer or by PolarWebServices Technical Support.
- Customers switching from one PolarWebServices package to another PolarWebServices package shall be deemed to have exhausted the 14-days period, and are no longer eligible for the Money Back Guarantee.
- Each customer can only use the Money Back Guarantee once, and for only one account.
- Any customer who has breached or whose account has been suspended or terminated due to the breach of any part of the PolarWebServices General Terms & Conditions including but not limited to the section on Payment of Fees within the Terms and Conditions documentation and the Acceptable Use policy has automatically forfeited the right to use the PolarWebServices Money Back Guarantee.
6. Law/AUP.
Customer agrees to use the service in compliance with applicable law and PolarWebServices’s Acceptable Use Policy posted at https://polarwebservices.com/aup.html (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that PolarWebServices may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of PolarWebServices’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with PolarWebServices’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between PolarWebServices and Customer regarding the interpretation of the AUP, PolarWebServices’s commercially reasonable interpretation of the AUP shall govern.
7. SLA (Service level agreement)
Customer agrees to PolarWebServices\'s SLA (service level agreement) posted at https://polarwebservices.com/sla.html.
8. Customer Information.
Customer represents and warrants to PolarWebServices that the information he, she or it has provided and will provide to PolarWebServices for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to PolarWebServices that he or she is at least 18 years of age. PolarWebServices may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
9. Indemnification.
Customer agrees to indemnify and hold harmless PolarWebServices, PolarWebServices’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.
10. Disclaimer of Warranties.
POLARWEBSERVICES DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW PolarWebServices DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
11. 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 PolarWebServices 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 ONE MONTH OF SERVICE.
12. Suspension/Termination.
(a) Suspension of Service. Customer agrees that PolarWebServices may suspend services to Customer without notice and without liability if: (i) PolarWebServices reasonably believes that the services are being used in violation of the AUP; (ii) if Customer is more than three (3) days overdue on the payment of any amount due under the Agreement; (iii)Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iv) PolarWebServices reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (v) as requested by a law enforcement or regulatory agency. Customer shall pay PolarWebServices’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
(b) Termination. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if PolarWebServices fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by PolarWebServices prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) if Customer is more than seven (7) days 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 fifteen (15) days of a written notice from PolarWebServices describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 8 (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.
13. Requests for Customer Information.
Customer agrees that PolarWebServices may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that PolarWebServices believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy.
Customer agrees to maintain a current copy of all content hosted by PolarWebServices notwithstanding any agreement by PolarWebServices to provide back up services.
14. Changes to PolarWebServices’s Network.
Upgrades and other changes in PolarWebServices’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer’s hosted content and/or applications. PolarWebServices reserves the right to change its network in its commercially reasonable discretion, and PolarWebServices shall not be liable for any resulting harm to Customer.
15. Notices.
Notices to PolarWebServices under the Agreement shall be given via PolarWebServices\'s help desk for customer support on https://polarwebservices.com/helpdesk.php. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
16. Domain names/DNS.
Each party agrees to ICANN Uniform Domain Name Dispute Resolution Policy (http://www.icann.org/udrp/udrp-policy-24oct99.htm). Each party acknowledges and agrees that ICANN may change this policy and PolarWebServices will not provide further notice to customer regarding these changes.
17. Force Majeure.
PolarWebServices shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond PolarWebServices’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.
18. Governing Law/Disputes.
The Agreement shall be governed by the laws of the Country of Finland, exclusive of its choice of law principles, 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 DISTRICT COURT OF HELSINKI, FINLAND, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
19. Miscellaneous.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on PolarWebServices unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without PolarWebServices’s prior written consent. PolarWebServices’s approval for assignment is contingent on the assignee meeting PolarWebServices’s credit approval criteria. PolarWebServices may assign the Agreement in whole or in part.
PolarWebServices may, at any time, choose to edit, add and/or delete portions of this agreement and impose changes without prior notification to the Customer. The Customer will be informed of any and all changes to this policy (see 13. Notifications). If any modification is unacceptable to the Customer, customer\'s only recourse is to terminate this agreement by canceling customer\'s account and all services provided to the customer by PolarWebServices. The Customer don\'t have a right to modify any part of this agreement.
This Agreement together with the Order, SLA, AUP and ICANN Uniform Domain Name Dispute Resolution Policy constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
19. Links to all parts of this agreement.
Last modified 20.11.2006 |
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