This Web Hosting Agreement (this "Agreement") is between commonAcre Hosting & Design
and the person (individual or legal person) whose signs commonAcre’s service
order and set up form (the "Order") incorporating this Agreement by reference
("Customer"). This Agreement governs Customer’s use of commonAcre’s Web
hosting service.
1. Services.
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction
of commonAcre’s credit approval requirements, commonAcre 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 commonAcre
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 commonAcre
or Customer provides the other with written notice of non-renewal at least thirty
(30) days prior to the expiration of the Initial Term or then-current Renewal
Term, as applicable. The Initial Term and any Renewal Term may be referred to
collectively in this Agreement as the "Term."
3. Payments.
(a) Fees.
Fees are payable in advance on the first day of each billing cycle. Customer’s
billing cycle shall be monthly or annually as indicated on the Order, beginning
on the Service Commencement Date. commonAcre may require payment for the first
billing cycle before beginning service. If the Order provides for credit/debit
card billing, Customer authorizes commonAcre 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 commonAcre 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
commonAcre with changes to billing information (such as credit card expiration,
change in billing address). At its option, commonAcre may accrue charges to be
made to a credit/debit card until such charges exceed $10.00. commonAcre may
charge interest on overdue amounts at the lesser of 1.5% per month or the maximum
non-usurious rate under applicable law in addition to an initial charge of $10.00. commonAcre may suspend the service without
notice if payment for the service is overdue. Fees not disputed within sixty
(60) days of due date are conclusively deemed accurate. Customer agrees to pay
commonAcre’s reasonable reinstatement fee following a suspension of service for
non-payment, and to pay commonAcre’s reasonable costs of collection of overdue
amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases.
commonAcre may increase its fees for services effective the first day of a Renewal
Term by giving notice to Customer of the new fees at least forty five (45) days
prior to the beginning of the Renewal Term, and if Customer does not give a notice
of non-renewal as provided in Section 2 above, the Customer shall be deemed to
have accepted the new fee for that Renewal Term and any subsequent Renewal Terms
(unless the fees are increased in the same manner for a subsequent Renewal Term).
(c) Taxes.
At commonAcre’s request Customer shall remit to commonAcre all sales, VAT or
similar tax imposed on the provision of the services (but not in the nature of
an income tax on commonAcre), regardless of whether commonAcre fails to collect
the tax at the time the related services are provided.
(d) Early Termination.
Customer acknowledges that the amount of the fee for the service is based on
Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term,
as applicable. In the event commonAcre terminates the Agreement for Customer’s
breach of the Agreement in accordance with Section 9 (Termination), or Customer
terminates the service other than in accordance with Section 9 (Termination)
for commonAcre’s breach, the unpaid fees for each billing cycle remaining in
the Initial Term or then-current Renewal Term, as applicable, are due on the
business day following termination of the Agreement.
4. Law/AUP.
Customer agrees to use the service in compliance with applicable law and commonAcre’s
Acceptable Use Policy posted at http://commonAcre.com/t1/content/view/58/163/
(the "AUP"), which is hereby incorporated by reference in this Agreement. Customer
agrees that commonAcre 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 commonAcre’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 commonAcre’s
reasonable investigation of any suspected violation of the AUP. In the event
of a dispute between commonAcre and Customer regarding the interpretation of
the AUP, commonAcre’s commercially reasonable interpretation of the AUP shall
govern.
5. Customer Information.
Customer represents and warrants to commonAcre that the information he, she or
it has provided and will provide to commonAcre for purposes of establishing and
maintaining the service is accurate. If Customer is an individual, Customer represents
and warrants to commonAcre that he or she is at least 18 years of age. commonAcre
may rely on the instructions of the person listed as the Primary Customer Contact
on the Order with regard to Customer’s account until Customer has provided a
written notice changing the Primary Customer Contract.
6. Indemnification.
Customer agrees to indemnify and hold harmless commonAcre, commonAcre’s affiliates,
and each of their respective officers, directors, agents, and employees from
and against any and all claims, demands, liabilities, obligations, losses, damages,
penalties, fines, punitive damages, amounts in interest, expenses and disbursements
of any kind and nature whatsoever (including reasonable attorneys fees) brought
by a third party under any theory of legal liability arising out of or related
to the actual or alleged use of Customer’s services in violation of applicable
law or the AUP by Customer or any person using Customer’s log on information,
regardless of whether such person has been authorized to use the services by
Customer.
7. Disclaimer of Warranties.
commonAcre DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW commonAcre
DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
8. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR
FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE,
ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED
OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE
LIABILITY OF commonAcre AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER
ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND
INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY
CUSTOMER FOR THREE MONTHS OF SERVICE.
9. Suspension/Termination.
(a) Suspension of Service.
Customer agrees that commonAcre may suspend services to Customer without notice
and without liability if: (i) commonAcre reasonably believes that the services
are being used in violation of the AUP; (ii) Customer fails to cooperate with
any reasonable investigation of any suspected violation of the AUP; (iii) commonAcre
reasonably believes that the suspension of service is necessary to protect its
network or its other customers, or (iv) as requested by a law enforcement or
regulatory agency. Customer shall pay commonAcre’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 commonAcre
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 commonAcre prior to the expiration of the Initial Term or any
Renewal Term without further notice and without liability as follows: (i) upon
ten (10) days notice if Customer is overdue on the payment of any amount due
under the Agreement; (ii) Customer materially violates any other provision
of the Agreement, including the AUP, and fails to cure the violation within thirty
(30) days of a written notice from commonAcre 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 mo re than once, or (iv) upon
one (1) days notice if Customer violates Section 5 (Customer Information) of
this Agreement. Either party may terminate this agreement upon ten (10) days
advance notice if the other party admits insolvency, makes an assignment for
the benefit of its creditors, files for bankruptcy or similar protection, is
unable to pay debts as they become due, has a trustee or receiver appointed over
all or a substantial portion of its assets, or enters into an agreement for the
extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information.
Customer agrees that commonAcre 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 commonAcre 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 commonAcre
notwithstanding any agreement by commonAcre to provide back up services.
12. Changes to commonAcre's Network.
Upgrades and other changes in commonAcre’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. commonAcre reserves
the right to change its network in its commercially reasonable discretion, and
commonAcre shall not be liable for any resulting harm to Customer.
13. Notices.
Notices to commonAcre under the Agreement shall be given via electronic mail
to the e-mail address posted for customer support on http://www.commonAcre.com.
Notices to Customer shall be given via electronic mail to the individual listed
as the Primary Customer Contact on the Order. Notices are deemed received on
the day transmitted, or if that day is not a business day, on the first business
day following the day delivered. Customer may change his, her or its notice address
by a notice given in accordance with this Section.
14. Force Majeure.
commonAcre shall not be in default of any obligation under the Agreement if the
failure to perform the obligation is due to any event beyond commonAcre’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 Ohio, 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
HAMILTON COUNTY, OHIO, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION
AND WAIVES ALL OBJECTIONS THERETO.
16. Miscellaneous.
Each party acknowledges and agrees that the other party retains exclusive ownership
and rights in its trademarks, service marks, trade secrets, inventions, copyrights,
and other intellectual property. Neither party may use the other party’s name
or trade mark without the other party’s prior written consent. The parties intend
for their relationship to be that of independent contractors and not a partnership,
joint venture, or employer/employee. Neither party will represent itself to be
agent of the other. Each party acknowledges that it has no power or authority
to bind the other on any agreement and that it will not represent to any person
that it has such power or authority. This Agreement may be amended only by a
formal written agreement signed by both parties. The terms on Customer’s purchase
order or other business forms are not binding on commonAcre 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 commonAcre’s
prior written consent. commonAcre’s approval for assignment is contingent on
the assignee meeting commonAcre’s credit approval criteria. commonAcre may assign
the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive
agreement between the parties regarding its subject matter and supercedes and
replace any prior understanding or communication, written or oral.
