ENTERPRISE SUPPLEMENTAL TERMS
These Enterprise Supplemental Terms supplement, and collectively form, an integral part of Hostway’s online Master Services Agreement (“MSA”), as amended from time to time, posted online at http://hostway.com/legal/msa.html. If there is an inconsistency or conflict between the documents between the Parties, these Enterprise Supplemental Terms will take precedence. All capitalized terms that are not defined herein will take on the same definition as in the MSA.
“Backup Service(s)” means, individually or collectively, the Unmanaged Private Backup, Managed Backup, or Managed Private Backup as further defined below.
“Change Request Form” means Hostway’s written order form describing the modifications to an applicable Order Form requested by Client.
“Dedicated Server” means a computer server which (a) is licensed to Client by Hostway, (b) is for the exclusive access and use by Client, its End Users, and Client Affiliates only, and (c) is used to copy, store, or host Client Data on Hostway Systems.
“Enterprise Services” means, as specified in the applicable Order Form, (a) access to, and use of, Hostway Systems, (b) Hostway’s products and services relating to Hostway’s Managed Hosting, Virtual Private Cloud, FlexCloud Hosting, Hybrid Hosting, or other Hostway enterprise hosting plans, and (c) Third Party Products.
“Managed Backup” means the combination of (a) certain amount of space, as specified in the Order Form, on a Shared Server, and (b) Hostway’s provision to Client of processes, software or Third Party Products used to backup and store Client Data onto a Shared Server.
“Managed Private Backup” means Hostway’s license to Client of a Dedicated Server for Client to backup and store Client Data thereon and Hostway’s provision to Client of processes, software or Third Party Products used to backup and store Client Data onto the Dedicated Server.
“Maximum Storage” means the storage limit allotted to Client to backup and store Client Data onto Hostway Systems as part of the Unmanaged Private Backup, Managed Backup, or Managed Private Backup (as applicable and as specified in the relevant Order Form).
“Setup Fee” means the one-time fee specified in the applicable Order Form charged to Client for Hostway to customize and otherwise prepare the Hostway Systems according to the specifications in the Order Form.
“Shared Server” means a computer server which (a) is licensed to Client by Hostway, (b) is shared with other clients and end users of Hostway, and (c) is used to copy, store, or host Client Data on Hostway Systems.
“SLA” or “Service Level Agreement” means the terms governing the availability or uptime of Hostway Systems and the standards for Hostway’s technical support, as applicable, as posted online at http://www.hostway.com/customer-support/sla.html.[SM1]
“Termination Fees” means the money amount equal to the average monthly payment of Service Fees within the 6 consecutive calendar months immediately prior to such termination multiplied by the lesser of (a) the number of calendar months remaining in the Minimum Term calculated from the date of termination, or (b) 12 calendar months.
“Unmanaged Private Backup” means a Dedicated Server with a pre-installed backup software which Hostway licenses to Client for Client to backup and store Client Data onto the Dedicated Server.
2. ENTERPRISE SERVICES
2.1 Services. In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with the Enterprise Supplemental Terms, the MSA, and the Order Form, Hostway will perform, and provide to Client, the Enterprise Services as described in the Order Form. Hostway will not configure or provision the Enterprise Services for any particular Client Data, and it is at all times Client’s responsibility to ensure that the Client Data is compatible with the Enterprise Services, including transferring Client Data to the Hostway Systems. While Hostway may monitor key elements of the Hostway Systems used to provide Enterprise Services to Client, Client is solely responsible for monitoring Client’s own deployment and management of Enterprise Services, including those installed by Client, such as applications, specific network configurations, application vulnerabilities, virtual machines, virtual machine capacities, and resource consumption.
2.2 License. In furtherance of providing Enterprise Services to Client, Hostway hereby grants to Client a worldwide, limited, non-exclusive, non-transferable, license to use Hostway Systems and Enterprise Services in connection with Client Data and such other purposes as permitted in the Enterprise Supplemental Terms.
2.3 Order Forms.
2.3.1 Requirement. All Enterprise Services which Client wishes to receive from Hostway must be stated in the Order Form. Hostway is not responsible for any non-delivery of Enterprise Services, including missed launch dates or other deficiencies, if the Enterprise Services were not expressly stated in the Order Form signed by Client and a copy delivered to Hostway. Each Order Form is an integral part of the MSA and the Enterprise Supplemental Terms.
2.3.2 Conditions. Hostway’s completion of the deliverables described in the Order Form is subject to Client promptly giving Hostway all materials, data, and cooperation reasonably requested by Hostway, and otherwise specified in the Order Form, including materials, data, and cooperation from Client’s third party vendors, subcontractors or end-users involved in Client’s intended use of the Enterprise Services. Hostway will not have any obligation, responsibility or liability for delays, unavailability, or deficiencies (including delays in sourcing equipment and other components of the Hostway Systems or Enterprise Services) caused in whole or in part by factors such as Client’s unresponsiveness, Client’s third party suppliers, Third Party Vendors, non-fitness or non-functionality of source code for Client’s intended use of the Enterprise Services, or other reasons beyond Hostway’s reasonable control.
2.4 Service Modifications.
2.41 At Client’s Request. If Client wishes to add to or otherwise modify the Enterprise Services as described in a particular Order Form, then Client will send a written request to Hostway and, upon Hostway’s approval, the Parties may execute (a) a Change Request Form specifying the proposed modifications, which will be an integral part of the applicable Order Form, (b) an amendment to the Order Form reflecting the desired modifications, or (c) a new Order Form reflecting the desired modifications to replace the existing applicable Order Form. Client acknowledges that modifications to Enterprise Services may affect Service Fees.
2.4.2 By Hostway. Hostway may, at its reasonable discretion, add to, modify, remove, or re-price any particular product or service from the Enterprise Services based on factors including unavailability of Third Party Products. If Hostway intends to remove or make any material changes to any of the Enterprise Services affecting any Order Form, then Hostway will provide Client with at least 60 calendar days’ prior written notice via electronic mail identifying the changes and when such changes will take effect (“Modification Notice”). Notwithstanding the forgoing Modification Notice period, Client acknowledges that certain Enterprise Services, or components thereof, may be sourced from Third Party Vendors who may make modifications of their own with less than 60 calendar days’ prior notice, in which case Hostway may implement such changes to the correlating Enterprise Services with less than 60 calendar days’ prior notice to Client. If Client objects to the changes, then Client will have 14 calendar days from its receipt of the Modification Notice to notify Hostway in writing of Client’s objection (“Objection Period”). If Hostway is unable to accommodate Client’s objection or implement alternatives acceptable to Client, then Client’s sole remedy will be to terminate the Enterprise Supplemental Terms pursuant to the termination provisions contained herein. If Client does not provide Hostway with a written objection within the Objection Period, then Client will be deemed to have agreed to the changes identified in the Modification Notice. Termination of the Enterprise Supplemental Terms by Client within the Objection Period will exempt Client from Termination Fees.
2.5 SLA. Hostway will provide the Enterprise Services in accordance with the applicable SLA standards, and exceptions, as referenced in the Order Form and posted online at http://www.hostway.com/customer-support/sla.html [SM2] (or such other URL as Hostway may dictate from time to time). The SLA is incorporated herein by reference and states Hostway’s sole obligation, and Client’s exclusive remedy, for any unavailability of the Hostway Systems.
2.6 Technical Support.
2.6.1 Scope. Hostway will make Technical Support available to Client on a 24 hours a day, 7 days a week, 365 days basis. Unless otherwise specified in the Order Form, Hostway (not the Third Party Vendor) will provide Client with Technical Support for Third Party Products. Unless otherwise specified in the Order Form, Technical Support is limited to troubleshooting and repairing hardware or network connectivity failures.
2.6.2 Client Responsibilities. Client is responsible for incident management, problem management, and change management for aspects of the Enterprise Services where Client has administrative level control, including those deployed and managed by Client through such administrative level control, network interfaces implemented by Client, or the protocols and ports configured by Client. Client is also responsible for the creation, modification, and deletion of End User accounts, including End User Data, invitations, password modifications, user rights management, monitoring and alert management of Client’s applications, troubleshooting and remediation of errors related to such applications, and availability of the custom code, content, and data of Client and End User. For Hostway’s Virtual Private Cloud Hosting, Client is also responsible for all of the following:
(a) Provisioning and configuring Client’s virtual machine networks, virtual machine network interfaces, and the protocols and ports Client sets up to enable or restrict traffic between Client’s virtual machines or virtual machine networks;
(b) Capacity management of Client’s (i) virtual machines, (ii) applications, (iii) code, Client Data and other content, (iv) and purchased resources such as the deployment and use of Client’s virtual CPU, memory, networking, and storage; and
(c) the detection, classification, and remediation of all security events which are (i) isolated within the Client Account (as it pertains to Virtual Private Cloud Hosting), (ii) associated with Client’s virtual machines, operating systems, applications, Client Data and other content, (iii) surfaced through vulnerability scanning tools, or (iv) required for a compliance or certification program in which Client is required to participate in (to the extent not included in one of Hostway’s security offerings).
2.6.3 Client Logs. Client will log and keep records of all actions Client takes in connection with Hostway Systems, including server history, so that Hostway may provide Client with optimal Technical Support.
2.6.4 Disclaimer. Hostway makes no representation or warranty that Hostway will be able to find the cause of, or resolve, the problem for which Client contacts Hostway for Technical Support. Unless otherwise expressly specified in the Order Form, Hostway is not responsible for providing Technical Support, or any other support (including customer service, billing support, and sales support), to Client’s resellers, customers, and End Users.
3. DATA BACKUP
3.1 General. Unless a particular Backup Service is expressly included as part of the Enterprise Services in the applicable Order Form, Client is solely responsible, and Hostway is not responsible in any way, for the backup (copy and storage for purposes of retrieval or data loss recovery) of Client Data or the management of such backup. The backup of Client Data, as specified in a particular Order Form, applies to the Enterprise Services, and associated Client Data, specified in that particular Order Form only. Client acknowledges that the Backup Services specified herein are the only Enterprise Services pertaining to backups. Hostway will not be obligated to provide backup of Client Data, or management of such backup (if applicable), beyond the scope of the particular Backup Service, Unmanaged Private Backup, Managed Backup, or Managed Private Backup, specified in the Order Form.
3.2 Unmanaged Private Backup. If Unmanaged Private Backup is specified in the Order Form as part of the Enterprise Services, then Hostway will provide to Client the Unmanaged Private Backup as described herein. The Dedicated Server, which includes backup software, licensed to Client as part of the Unmanaged Private Backup is provided to Client “as is” and does not include any other products or services from Hostway or Third Party Vendors. Client acknowledges that for Unmanaged Private Backup:
(a) the backup software installed on the Dedicated Server is solely for Client to run Client’s backup process and to retrieve backed up Client Data and Hostway does not manage the backup software, the backup process, retrieval or restoration process, or any Client Data;
(b) the Maximum Storage described herein will apply; and
(c) Client is solely responsible, and Hostway is not responsible, for any management of the Unmanaged Private Backup including the following:
(i) creating, setting up, monitoring, and maintaining backup schedules (including frequency of backups and method or software used to create backups);
(ii) including or excluding files, folders, or data pertaining to the backup;
(iii) monitoring the success or failure of each backup and remediating failures thereof;
(iv) monitoring and maintaining the storage capacity of the Unmanaged Private Backup, including ordering additional storage from Hostway or deleting files if Client is approaching the Maximum Storage;
(v) performing data restore from the Unmanaged Private Backup to Client’s primary Dedicated Server; and
(vi) configuring changes to Client’s firewall and network settings to allow communication between the Unmanaged Private Backup and any other device in Client’s hosting environment.
3.3 Managed Backup. If Managed Backup is specified in the Order Form as part of the Enterprise Services, then Hostway will provide to Client the Managed Backup as described herein. Client acknowledges that with Managed Backup:
(a) Client Data is backed up onto a Shared Server, or multiple Shared Servers, designated by Hostway for Managed Backup, which means that Client Data may be stored on the same backup servers as Hostway’s other clients and end users;
(b) Hostway will configure Client’s backup settings with a set backup schedule and set data retention period;
(c) the Maximum Storage described herein will apply;
(d) Client Data will be backed up in daily increments for as long as Managed Backup remains part of the Enterprise Services;
(e) upon Client’s request submitted through Hostway’s ticketing system, restorations and changes to configurations or settings may be performed by Hostway subject to Hostway’s approval; and
(f) Client Data which is backed up via Managed Backup is retained on Hostway Systems for no more than Hostway’s standard retention period, unless a longer period is specified in the Order Form, after which Client consents to the deletion of the applicable Client Data from Hostway Systems.
3.4 Managed Private Backup. If Managed Private Backup is specified in the Order Form as part of the Enterprise Services, then Hostway will provide to Client the Managed Private Backup as described herein and work with Client to configure backups. Client acknowledges that with Managed Private Backup:
(a) Client Data is backed up onto a Dedicated Server, or multiple Dedicated Servers, designated by Hostway for Managed Private Backup, which means that Client Data will be stored on Hostway Systems in an environment exclusive to Client;
(b) Client has flexibility with respect to setting backup schedules, retention periods, and directory exclusions;
(c) the Maximum Storage described herein will apply;
(d) upon Client’s request submitted through Hostway’s ticketing system, restorations and changes to configurations may be performed by Hostway subject to Hostway’s approval; and
(e) Client Data which is backed up via Managed Private Backup is retained on Hostway Systems for no more than Hostway’s standard retention period, unless a longer period is specified in the Order Form, after which Client consents to the deletion of the applicable Client Data from Hostway Systems.
3.5 Maximum Storage. If Client reaches or surpasses the Maximum Storage for Unmanaged Private Backup or Managed Private Backup, then the backup of further Client Data will cease until Client either (a) orders and pays for an increase in Maximum Storage, or (b) makes space available within the current Maximum Storage by deleting Client Data already backed. If Client reaches or surpasses the Maximum Storage for Managed Backup, then Hostway may, at its sole discretion, either (a) immediately cease the backup of further Client data, or (b) automatically increase the Maximum Storage and charge Client the additional Service Fees for the increased Maximum Storage which will be the ongoing Maximum Storage. Any notice Hostway may provide to Client about the Maximum Storage for any of Unmanaged Private Backup, Managed Backup, or Managed Private Backup is a courtesy only and it is Client’s sole responsibility, and not the responsibility of Hostway, to ensure that the amount of Client Data copied and stored onto Hostway Systems remains below the Maximum Storage or that the permitted Maximum Storage stated in the applicable Order Form is increased in accordance with the Enterprise Supplemental Terms.
3.6 Safeguarding. Client acknowledges that for any of Unmanaged Private Backup, Managed Backup, and Managed Private Backup, Client Data is backed up onto Hostway Systems “as is” and that Unmanaged Private Backup, Managed Backup, and Managed Private Backup do not include any software, application, or other method for monitoring, remediating, or preventing viruses, malfunctions, corruptions, or other security issues with Client Data or the backup thereof. It is Client’s sole responsibility, and not the responsibility of Hostway, to (a) secure and protect (including encrypt) all Client Data backed up through Hostway Systems, (b) implement and maintain a disaster recovery plan, including adequate offsite backup commercially reasonable given the nature, scope, and sensitivity of the Client Data, and (c) locally backup all essential Client Data on Client’s own systems independent of Hostway (including at Client’s own premises) for purposes requiring data recovery or retrieval.
3.7 Disclaimer. Client is solely responsible, and Hostway is not responsible, for the backup of any Client Data which may have resided on Hostway Systems at one time but which no longer resides on Hostway Systems at the time Unmanaged Private Backup, Managed Backup, or Managed Private Backup is implemented. Hostway expressly disclaims the usability, functionality, or accuracy of Client Data backed up using Unmanaged Private Backup, Managed Backup, or Managed Private Backup. Hostway makes no warranty of any kind (either express or implied) regarding any Unmanaged Private Backup, Managed Backup, or Managed Private Backup, including (a) the format, readability, configuration, accuracy, completeness, retrievability, functionality or restorability of Client Data backed up on Hostway Systems to its original state, and (b) the functionality, compatibility or reliability of any Unmanaged Private Backup, Managed Backup, or Managed Private Backup with any firewall or software or updates and upgrades thereto. Hostway provides each of the Unmanaged Private Backup, Managed Backup, or Managed Private Backup “as is” without warranties of merchantability or fitness for a particular purpose. Except for Hostway’s gross negligence or willful misconduct, under no circumstances will Hostway be liable for (a) any loss of Client Data, or (b) third party fees related to the recovery or restoration of Client Data. Client’s use of Unmanaged Private Backup, Managed Backup, and Managed Private Backup is at Client’s sole risk.
3.8 Suspension or Termination of Backup Services. If Client has previously ordered any Backup Services, and then subsequently elects to suspend or terminate such Backup Services, Client will, immediately upon the suspension or termination date, become wholly responsible for the backing up of Client Data, and Hostway will have no further obligation whatsoever regarding the creation, retention, or restoration of any backups of Client Data, or for any Client Data residing on the Hostway Systems before, on, or after the suspension or termination date. Furthermore, Client will not ask Hostway to perform any additional work related to the Backup Services including but not limited to retaining or restoring any Client Data from any particular backup date.
4. DATA SECURITY
4.2 Security Breach. If Hostway becomes aware of any accidental or unlawful disclosure or unauthorized access to Client Data (“Security Breach”), then Hostway will (a) provide notice to Client, with details known to Hostway of the incident, as soon as reasonably practicable after Hostway becomes aware of a Security Breach, and (b) work with Client to re-secure the affected Hostway Systems and to prevent the recurrence of the same, or substantially similar type of, Security Breach. Notwithstanding anything to the contrary herein, Client is solely responsible, and Hostway is not responsible, for (x) Security Breaches caused, directly or indirectly, by acts or omissions of Client or End Users, or (y) Security Breaches affecting Dedicated Servers or Shared Servers under Client’s control (to the extent they are under Client’s control). If any of Client’s Dedicated Servers or Shared Servers is involved in an attack on another person’s server or system (“Third Party Server”) or Hostway Systems, Hostway may immediately deactivate Client’s Dedicated Server or Shared Server, as applicable, and conduct an investigation to determine the cause or source of the attack. If Client’s Dedicated Server or Shared Server is involved in an attack on a Third Party Server, then Client will be solely responsible, and Hostway will not be responsible, for all costs of remedying all damages done to Third Party Servers and Hostway Systems and for all other liabilities arising from the Security Breach.
4.3 SSAE 16. At least once per calendar year, scheduled at Hostway’s sole discretion, Hostway will retain an independent external auditor to conduct a Standards for Attestation Engagement No. 16 audit of Hostway’s internal systems and computer controls used for Hostway’s dedicated hosting services (“SSAE 16 Audit”). Upon Client’s written request and the Parties’ execution of Hostway’s standard Non-Disclosure Agreement, Hostway will provide Client with a copy of the then current report of the SSAE 16 Audit (“SOC1 Report”). Client acknowledges that (a) SSAE 16 Audits are conducted by the external auditor in arrears for the preceding year, (b) the SOC 1 Report for a given year may be unavailable from the external auditor before the expiration date of the previous year’s SOC 1 Report, (c) Hostway is not in breach of the Enterprise Supplemental Terms because of delays in delivering to Client a current SOC1 Report at or after the expiration of the previous period’s SOC1 Report, and (d) the SSAE 16 Audit is only for Hostway’s own internal systems and computer controls and does not include any report, detail, representation, or warranty pertaining to Client’s own internal systems and computer controls. It is Client’s sole responsibility, and not the responsibility of Hostway, to conduct Client’s own Standards for Attestation Engagement No. 16 audit, as necessary or applicable.
4.4 PCI-DSS. To the extent Hostway collects, processes, and stores Client’s credit card information on Hostway Systems, Hostway will follow the Payment Card Industry Data Security Standard (“PCI-DSS”). At least once per calendar year, scheduled at Hostway’s sole discretion, Hostway will conduct a self-assessment and retain a PCI-DSS service provider to perform vulnerability scans and issue applicable PCI-DSS compliance certificates. Client acknowledges that (a) PCI-DSS scans, questionnaires, and other assessment procedures may extend beyond the expiration date of the previous PCI-DSS certification period, (b) dealings with the PCI-DSS service provider may cause delays which are out of Hostway’s reasonable control, including occurrence of false positives during the scanning process, (c) PCI-DSS certificates of compliance for a given assessment period may be unavailable from the PCI-DSS service provider before the expiration date of the previous period’s certification, (d) Hostway is not in breach of the MSA because of delays in delivering to Client a current PCI-DSS certificate (or other proof) of compliance at or after the expiration of the previous period’s certification, and (e) the PCI-DSS certification is only for Hostway’s own PCI-DSS compliance and does not include any certification, representation, or warranty pertaining to Client’s own Payment Card Industry Data Security Standard requirements, as necessary or applicable.
4.5 Server Location. Subject to the cross-border Processing provisions and Client Data transfer restrictions mentioned herein, Hostway may (a) locate Hostway Systems, including computer servers, containing Client Data at any of Hostway’s data center premises, and (b) relocate Hostway Systems, including computer servers, containing Client Data to a new or different location owned or operated by Hostway. Subject to the cross-border Processing provisions and Client Data transfer restrictions mentioned herein, Client acknowledges that Hostway does not guarantee a particular data center location will be available for any specific period of time or that Hostway Systems provided to Client will remain at any given location.
4.6 Disclosure Orders. Client hereby consents to Hostway disclosing Client Data and other Confidential Information of Client required to be disclosed by any (a) law of the U.S.A., or (b) court order of any jurisdiction in the U.S.A. or other jurisdiction in which either Party operates its business. However, if and to the extent allowed by such law or court order, Hostway will promptly notify Client in writing of the legal obligation and, if Client chooses, Client may seek protective measures against the requirement at Client’s sole expense and reimburse Hostway for any reasonable expenses (including costs for legal advice, staff hours, and disbursements) incurred by Hostway in complying with such requirement.
5. INTELLECTUAL PROPERTY
5.1 No Ownership Grant. In no way will any license granted by Hostway in the MSA or these Enterprise Supplemental Terms be an assignment of rights, title, or ownership in any of Hostway’s Intellectual Property, including any of the Hostway Systems, and Hostway retains sole and exclusive right, title and ownership in and to all of Hostway’s Intellectual Property.
5.2 No Acquisition. Client will not take any action or use any of Hostway’s Intellectual Property in a manner that (a) acquires, or may reasonably acquire, any rights, title, or interest in or to Hostway’s Intellectual Property by Client or any third party, or (b) compromises or diminishes Hostway’s rights, title, or interest in or to Hostway’s Intellectual Property. If Client does acquire any rights, title, or interest in or to any of Hostway’s Intellectual Property, by operation of law or otherwise, then Client will immediately assign such rights, title, or interest to Hostway at Client’s sole cost.
5.3 Restrictions. Client will not, and will not permit any third party, including its resellers, customers or End Users, to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any of the Enterprise Services, including Hostway Systems and Third Party Products, to ascertain, derive, or appropriate for any reason or purpose the source code or source listings thereof or Trade Secrets contained therein.
5.4 IP Addresses. As between Hostway and Client, all Internet Protocol addresses provided to Client by Hostway belong exclusively to Hostway. Client acknowledges that Client has no right to use such Internet Protocol addresses except as permitted by Hostway in connection with the Enterprise Services and in accordance with the MSA and these Enterprise Supplemental Terms. Hostway may change or remove Internet Protocol numbers and addresses at its sole discretion.
5.5 Respective Ownership. Each Party will at all times retain sole and exclusive right, title and ownership in and to all of its own respective Intellectual Property. Except as otherwise expressly permitted in the MSA or these Enterprise Supplemental Terms, neither Party may use the other Party’s Intellectual Property without obtaining the prior written consent, in each instance, of the Party owning the Intellectual Property.
6. SERVICE FEES, BILLING & PAYMENT
The following terms are in addition to and modify the Billing Terms of the MSA, and are applicable specifically to Enterprise Clients:
6.1 Service Fees. Client will pay to Hostway (a) the Service Fees specified in all applicable Order Forms, and (b) all additional Service Fees chargeable hereunder for Enterprise Services not specified in an Order Form but rendered to Client by Hostway as requested by Client or as reasonably expected of Hostway or as necessary given the circumstances (including automatic increase in data storage space upon Client approaching, reaching or surpassing the Maximum Storage). Client acknowledges that Service Fees will accrue and be payable to Hostway by Client upon Hostway making the particular Enterprise Services available to Client (setting up, implementing, delivering, or providing access to such Enterprise Services) regardless of whether Client uses the Enterprise Services. If Client’s actual usage of any of the Enterprise Services exceeds what is stated in the Order Form, Client will pay Hostway in arrears for the overage at the then-current rate for the particular Enterprise Services.
6.2 Billing. Except as otherwise specified in the Order Form, notwithstanding the terms of the MSA, the Billing Cycle for each Order Form will commence upon the date that Hostway makes the particular Enterprise Services available to Client and sends an electronic mail to Client confirming the availability of the Enterprise Services (“Billing Start Date”). The Billing Cycle will recur monthly on the anniversary of the Billing Start Date until the relevant Order Form or entire Client Account is terminated in accordance with the Enterprise Supplemental Terms. Different components of certain Enterprise Services may have separate and different Billing Cycles depending on those particular Enterprise Services. The Service Fees will be due in advance at the beginning of each Billing Cycle with adjustments in arrears for Service Fees based on usage, if applicable. Unless expressly agreed to by Hostway in writing, Hostway does not provide invoices and that Client is solely responsibility for viewing information pertaining to the Billing Cycle and Due Date through the Client Portal and ensuring payment of Service Fees before the Due Date.
6.3 Past Due Amounts. In addition to the rights and remedies available to Hostway under the MSA, Hostway may suspend the Client Account or terminate the Order Form, in whole or in part, upon written notice to Client if Service Fees (a) remain unpaid in full for over 60 calendar days, or (b) are not timely paid by the Due Date for 3 or more Billing Cycles in a given 6-month period. Reactivation of a Client Account is subject to a reactivation fee of $19.95, and Hostway may charge Client a $99.95 reconnection fee plus additional fees at Hostway’s then current rates depending on the scope of work involved if Hostway is required to restore Client Data in order to reactivate the Client Account. Hostway will only restore Client Data if Client purchased Backup Services.
6.4 Termination Fees. If Client terminates an Order Form during the lesser of (a) the Minimum Term, or (b) the first 12 calendar months from the Effective Date, then Client will pay to Hostway the Termination Fees as liquidated damages (intended for Hostway to cover its upfront costs) and not as a penalty. Client will also be responsible for paying to Hostway any and all other applicable money amounts owed under the Order Form up to the date of termination.
6.5 Records. Hostway will maintain records of the Enterprise Services rendered to Client and the billing thereof. If there is an inconsistency between Hostway’s records and Client’s records pertaining to the Enterprise Services and Service Fees, then the Parties will use commercially reasonable efforts to reconcile the dispute within 30 calendar days. If at the end of such period the inconsistency remains unresolved, Hostway’s records will be deemed the controlling records, in which case Client may seek an independent and neutral third party to audit Hostway’s records and make a determination as to the accurate records or the correct amount. Client will bear the costs of the audit unless the audit discloses an error on the part of Hostway of more than 5%, in which case Hostway will be responsible for the difference and will reimburse the costs of the audit.
6.6 Refund Policy. Only new Client Accounts subject to a Minimum Term of 12 months or more may qualify for Hostway’s 90-day money back guarantee for Enterprise Services. The 90-day money back guarantee will apply only to the Enterprise Services ordered at the time the Client Account was created. If Client terminates the MSA or cancels the Client Account (in accordance with Hostway’s termination or cancellation process) within the first 90 calendar days after the Billing Start Date, then Client may request a refund of the Service Fees (excluding Setup Fees) Hostway has received from Client. Cancellations received after the first 90 days of the Billing Cycle do not qualify for any refund. Refunds will be provided to the original payee via the same payment method as the original payment. The 90-day money back guarantee does not apply to:
(a) existing clients, existing client accounts, or add-on features to existing Enterprise Services;
(b) Enterprise Services ordered after the Client Account creation and initial Order Form;
(c) cancellations of individual hosting plans under the Client Account;
(d) non-standard or custom ordered equipment;
(e) Third Party Products;
(f) domain name registrations;
(g) Enterprise Services ordered through Hostway’s reseller program;
(i) Setup Fees; and
(j) overage fees.
6.7 Promotional Credits. Only new Client Accounts subject to a Minimum Term of 12 months or more may qualify for Hostway’s one-time promotional credits of up to a maximum of the lesser of $500 or monthly Service Fees chargeable to Client. The promotional credits may be applied towards Client’s first Billing Cycle (first month) only. Any unused portion of the credits may not be applied towards subsequent Billing Cycles. Promotional credits do not apply to Third Party Products, Enterprise Services using Microsoft Azure, or Client Accounts receiving more than 10% discount on Service Fees. Credits incorrectly assessed may be recouped in subsequent Billing Cycles.
7. LIMITATION OF LIABILITY
7.1 Scope. Without limiting any of Hostway’s rights under the MSA, under no circumstances will either Party be liable to the other Party for any consequential, indirect, special, general, incidental, reliance, exemplary, or punitive damages arising out of or relating to the MSA or the Enterprise Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if such Party has been advised of the possibility of such damages.
7.2 Amount. Notwithstanding the terms of the MSA, except for either Party’s gross negligence or willful misconduct, neither Party’s aggregate liability to the other Party arising out of or relating to the MSA or the Enterprise Services will exceed the aggregate amount of Service Fees paid hereunder during the 6 calendar months immediately preceding the event giving rise to the liability.
7.3 Limitation Period. No Claim relating to the MSA or the Enterprise Services by a Party against the other Party will be effective after 1 calendar year (12 calendar months) from the time the event or cause of action comprising the basis of the Claim first occurred regardless of any statutory limitation period allowing for a longer period.
8.1 For Convenience. Notwithstanding the terms of the MSA, either Party may terminate an Order Form in whole or in part for convenience upon 60 calendar days’ written notice to the other Party subject to, in Client’s case, the Minimum Term and applicable Termination Fees. Termination of the Client Account or all Order Forms in their entirety will be deemed a cancellation of the MSA including these Enterprise Supplemental Terms, subject to the survival clauses specified therein and below.
8.2 Post Termination. Upon expiration or termination of the Client Account in its entirety for any reason:
8.2.1 No Further Activity. Except for any provision hereof contemplated by the MSA or Enterprise Supplemental Terms to survive the termination of the Client Account (including payment of Service Fees), the Parties will cease all activities related in any way to the MSA and Enterprise Supplemental Terms, including any resale, distribution, provision or use of the Enterprise Services. Subject to the post-termination data migration provisions herein, Client acknowledges that all Enterprise Services (including data backup, if ordered) will immediately cease upon termination of the MSA or cancellation of the Client Account. It is Client’s sole responsibility, and not the responsibility of Hostway, to ensure that all Client data is either retrieved prior to termination or otherwise backed up on systems other than Hostway Systems or using any Hostway Services.
8.2.2 Service Fees. Client will pay to Hostway all amounts due hereunder, including all Service Fees accrued prior to the effective date of termination.
8.2.3 Data Migration. Client will migrate all Client Data to a new hosting provider or otherwise remove all Client Data from Hostway Systems (“Migration”). Client will complete the Migration within 60 calendar days of the effective date of termination of the MSA and cancellation of the Client Account (“Migration Period”). If any Client Data remains on Hostway’s servers beyond the Migration Period, then Hostway may, at its sole reasonable discretion, (a) delete such Client Data, or (b) retain the Client Data on Hostway Systems and charge Client the Service Fees associated therewith, in which case Hostway may delete Client Data at any time if Client fails to timely pay the Service Fees. Client acknowledges that the Migration entails the actions of Client and its new hosting provider and does not entail any action on Hostway’s part other than to provide access to the Client Data. Upon Client’s written request, Hostway may provide reasonable Migration assistance, in which case, Hostway may charge (and Client will pay in advance) the fees Hostway ordinarily charges for Migration of the magnitude and complexity that Client requires.
8.4 Survival Clauses. The provisions of the MSA and these Enterprise Supplemental Terms which by their nature continue beyond the termination of the Client Account will survive such termination, including the provisions relating to post-termination, Intellectual Property, representations and warranties, limitation of liability, disclaimer, indemnification, Confidential Information, and governing law and jurisdiction.
Notwithstanding the terms of the MSA, neither Party may assign or otherwise transfer its respective rights or obligations under the Enterprise Supplemental Terms without the prior written consent of the other Party, except that either Party may assign or otherwise transfer the MSA or the Enterprise Supplemental Terms and such Party’s rights and obligations hereunder to (a) any of its Affiliates, or (b) to any third party who succeeds to all or substantially all of such Party’s business, stock or assets. Any assignment or transfer in violation of this Section will not have any effect against the other Party. The MSA and the Enterprise Supplemental Terms will be binding and have effect upon the Parties and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than the Parties and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities in connection with the MSA or the Enterprise Supplemental Terms. Notwithstanding the foregoing, Client acknowledges that Hostway may, at its sole option, perform any of its duties or obligations hereunder, by itself or with or through any of Hostway’s Affiliates, which will not be deemed an assignment of the MSA and the Enterprise Supplemental Terms.
10. COMPLETE AGREEMENT
These Enterprise Supplemental Terms are a part of and supplement the terms of the MSA, which includes all Order Forms and SOWs executed by the Parties, and all written amendments to the MSA made in accordance with the terms herein, and collectively they constitute the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto – whether verbal, written, or otherwise.