Master Services Agreement (MSA)
Last updated: July 30, 2021
MASTER SERVICES AGREEMENT
This Master Services Agreement (“MSA”), which includes the agreements, policies, and documents referenced in this MSA, governs Hostway’s relationship with any persons using the Hostway Services (as defined below). Upon the date Client submits an Order Form or starts using the Hostway Services (as applicable), Client agrees to be bound by this MSA as updated from time to time in accordance with the amendment provisions herein. Depending on the type of Hostway Services applicable, Client may be subject to certain Supplemental Terms as described herein. If there is any conflict between this MSA and such Supplemental Terms, then the Supplement Terms will govern Client’s use of the applicable Hostway Services to the extent of the conflict.
This MSA is comprised of the following and includes such further agreements, policies, and documents as referenced in each of the following:
1. General Terms (For Everyone)
2. Billing Terms (For Everyone)
4. Supplemental Terms (For Each Service)
4.1 Web & Apps (For Website Hosting, Domains, E-Commerce, Email, and Other Web Solutions Only)
4.2 Professional Services (For IT Assessment, Migration Services, and other Professional Services Only)
4.3 Enterprise Services (For Cloud Hosting and Managed Hosting Only)
4.4 Colocation (For Colocation Hosting Only)
1. GENERAL TERMS
These General Terms apply to all persons using Hostway Services.
1.1.1 All other defined terms not listed in this section are defined in their respective sections below or in the applicable Supplemental Terms and apply to the MSA as a whole (and not limited to the section the term is defined in).
“Abuse of Services” means Client’s use of the Hostway Services (including making any component of the Hostway Services available to Client’s resellers, customers or End Users) in a manner that (a) contravenes applicable laws, including regulations, policies, and rules thereto, (b) creates legal liability or other actual or potential material risk or harm to Hostway, its Affiliates, Hostway’s other clients and end users, or Hostway Systems, (c) is a material violation of the MSA, or (d) is generally considered materially objectionable in the Internet community, including but not limited to child pornography, racism, hate speech.
“Affiliate” means any person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such first person, with “control” meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, and “person” broadly construed to include any natural person or any incorporated or unincorporated entity or association, trust, joint venture, joint stock company or other entity.
“Billing Cycle” means the recurring period of time for which Service Fees are payable by Client to Hostway as specified in the Order Form, Client Portal, or invoice (as applicable).
“Business Day” (or “business day”) means the period from 8:00 A.M. to 5:00 P.M. Central Time on a day which is not a weekend or statutory holiday in Chicago, Illinois, USA.
“Claim” means any claim, demand, action, or proceeding (including law suits and administrative proceedings).
“Client” means the person (individual, company, etc.) named in the Order Form as the Client or, in the absence of Client’s name on such Order Form, the person otherwise using Hostway Services.
“Client Account” means the account set up by Hostway, attributed exclusively to Client, identified by the Client ID, and used for the provisioning and administration of the Hostway Services to Client.
“Client Data” means personal information relating to Client and data owned or controlled by Client, including (a) names, addresses, and other personally identifiable information pertaining to Client, (b) usage data collected by Client regarding Client’s own use of Enterprise Services, (c) Client’s content hosted on Hostway Systems, including Client’s Uniform Resource Locators, Web pages and other website data, software and applications, Protected Healthcare Information as such term is further described in the appropriate section below, and (d) any of the same relating to or owned by an End User.
“Client ID”, or “customer ID” means the combination of alphanumeric characters designated by Hostway which (a) is unique to Client, and (b) identifies the Client and the Client Account to Hostway.
“Client Portal” means Hostway’s online portal or interface tool (known as Sitecontrol™, Client Portal™, or such other account management tool as Hostway may designate) for Client to manage the Client Account and associated Hostway Services.
“Effective Date” means The Effective Date of each Order Form is the later of the date that the Order Form is executed by Client and submitted to Hostway or the date that the Hostway Services are made available to Client (in whole or in part).
“End User” means any third party who accesses or uses the Hostway Services via Client or any Affiliate of Client.
“End User Data” means personal information relating to an End User and data owned or controlled by the End User, including (a) names, addresses, and other personally identifiable information pertaining to End User, (b) usage data collected by Client or End User regarding an End User’s own use of the Hostway Services, and (c) an End User’s content hosted on Hostway Systems, including End User’s Uniform Resource Locators, Web pages and other website data, software and applications, Protected Healthcare Information.
“Hostway” means Hostway Services, Inc., a Delaware corporation, or such other Hostway company as named in the applicable Order Form.
“Hostway Data” means any data relating to Hostway, all Hostway Services or Hostway Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by Hostway regarding Client’s use of the Hostway Services, and (e) all other data owned or controlled by Hostway.
“Hostway Services” (or “Services”) means the products, services, and licenses provided to Client by Hostway, whether or not used or paid for by Client, which may include any combination of the following:
(a) Web and Apps. Including Website Hosting, Domain names, E-Commerce, Email & Applications Hosting, other web solutions, and as further defined in the applicable Supplemental Terms below;
(b) Enterprise Services. Including Cloud Hosting, Managed Hosting, and as further defined in the applicable Supplemental Terms below;
(c) Professional Services. Including Migration Services, IT Assessment Services, and as further defined in the applicable Supplemental Terms below;
(d) Colocation Hosting;
(e) Add-ons and other related products and services to (a) through (d) above;
(f) Technical Support;
(g) Any other product or service specified in any of the supplemental terms or applicable Order Forms.
“Hostway Systems” means the technology (including systems, networks, facilities, infrastructure, computer servers, other hardware, software, online application program interfaces, Internet Protocol addresses, and other technologies) owned, licensed, controlled, or otherwise used by Hostway to provide Hostway Services to Client, and, as applicable, to End Users and Client Affiliates.
“Intellectual Property” means any and all rights, title, interest, and ownership, whether by registration, statute, common law or other operation of law, in and to: (a) copyrights, (b) patents, (c) trademarks, (d) trade secrets, (e) any other proprietary, intellectual, or industrial property rights of any kind or nature, (f) registrations and registration applications of the foregoing in any jurisdiction, (g) in Hostway’s case, Hostway Data and Hostway Systems, and (h) in Client’s case, Client Data.
“Late Charges” means the interest, equal to 1.5% monthly and 18% annual (or the maximum permitted by law if lesser), to be applied to any portion of the Service Fees not paid by Client to Hostway before the applicable due date.
“Losses” means any loss, liability, damage, penalty, cost, or expense (including reasonable lawyer fees, witness compensation, and court fees).
“Migration Services” means services which involve moving Client Data from Client’s former hosting provider to Hostway.
“Minimum Term” means the specific period described in the Order Form, during which time Client may not terminate the Order Form, any Hostway Services ordered thereunder, or this MSA.
“MSA” means this document and all Supplemental Terms that are attached hereto and incorporated herein by reference.
“Order Form” means Hostway’s online or hard copy form or statement of work, which (a) references, incorporates, and is an integral part of this MSA (including the applicable Supplemental Terms), and (b) describes the Hostway Services to be provided to Client.
“Party” means either Hostway or Client individually and “Parties” means both of them collectively.
“Refresh” means a new order for the replacement of a particular Hostway Service with a similar Hostway Service of equivalent function upon the expiration of the Initial Term. (For example, a replacement of aging hardware).
“Renewal Term” means the period or successive periods starting from the expiration of the Minimum Term specified in the applicable Order Form for which the Order Form and the Hostway Services thereunder are renewed.
“Representatives” means, collectively, a Party’s shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders.
“Service Fees” means the money amounts or rates, specified in, as applicable, the Order Form, Client Portal, invoice from Hostway, or which Client has otherwise agreed to pay to Hostway in consideration of the Hostway Services provided, whether used by Client or not.
“Technical Support” means the assistance and advice Hostway’s technical support staff provides to Client, as part of the Hostway Services, via electronic mail, telephone, or other means of communication as designated by Hostway (including Hostway’s ticketing system).
“Third Party Products” means the equipment, software, products or services procured from a Third Party Vendor which Hostway, in turn, provides to Client as part of, or in combination with, Hostway’s own products and services which are part of the Hostway Services.
“Third Party Vendor” means a third party vendor who provides Hostway with Third Party Products to be, in turn, provided to Client by Hostway as part of, or in combination with, the Hostway Services.
“Third Party Vendor Audit” means an audit performed by either Hostway or a Third Party Vendor with respect to the Third Party Products.
1.1.2 Order of Precedence. Unless stated expressly in an Order Form or any Supplemental Terms, if there is an inconsistency or conflict between the terms of those documents and the MSA, then the terms of this MSA will govern.
1.1.3 References. All references in the MSA to particular titles, headings, and sections will be references to the titles, headings, and sections of the MSA only, unless specific reference is made otherwise. Such titles, headings, and sections are for reference purposes only and will have no effect on the interpretation of the MSA. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning will refer to the MSA in its entirety, which includes all Order Forms and Supplemental Terms, and not to any particular provision of the MSA. Bolding, underlining, or italicizing of words herein are for ease of reference only and the application or omission of them will have no effect on the interpretation of the MSA.
1.1.4 Without Limitation. When used for listing purposes, the term “including” and “includes” will be deemed to mean “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in the MSA that the masculine, feminine or neutral gender is used, it will be construed as including all applicable genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires.
1.1.5 Translations. The MSA was written in the English language. If there is any discrepancy between the English version and a version in any other language, then the English version will control in all respects.
1.2 Term & Renewal
1.2.1 Term. This MSA will continue in full force and effect until all Order Forms and the Client Account are terminated in their entirety. The term of each Order Form will commence upon the Effective Date and will continue for the duration of the Minimum Term, and any successive Renewal Terms, until terminated by a Party in accordance with this MSA. In the event that Minimum Term and Renewal Term are not specified in the Order Form, the term of each will be one month.
1.2.2 Renewal. Upon expiration of the Minimum Term, the Order Form will automatically renew for successive Renewal Terms until either Party terminates the Order Form, or the Client Account and the MSA in their entirety, in accordance with the termination provisions herein. In the event that Client wishes to Refresh any particular Hostway Service instead of renewing as-is, Client may execute a Renewal Order Form which will specify the particular Hostway Service to be Refreshed. Hostway will add the Refreshed Hostway Service to the Client Account upon execution of the Renewal Order Form and billing of the Service Fees will commence accordingly. Unless otherwise specified by Client, the expiring Hostway Service will automatically renew month-to-month in order to allow Client to migrate to the Refreshed Hostway Service, and Client will pay for both Hostway Services until Client notifies Hostway in writing to turn off the expiring Hostway Service.
1.3 Hostway Services
In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with this MSA, including all applicable Supplemental Terms, Hostway will provide to Client the Hostway Services as described in the Order Form. In furtherance of providing the Hostway Services to Client, Hostway hereby grants to Client a worldwide, limited, non-exclusive, non-transferable, fully revocable license to use Hostway Systems in connection with the Hostway Services as permitted in this MSA. Hostway may, at its sole discretion, add to, modify, remove, or re-price any particular product or service from the Hostway Services based on factors including the unavailability of any relevant Third Party Products. To prevent downtime caused by outdated components or malfunction of the Hostway Systems and to protect the security of the Hostway Systems, Client hereby consents to (a) Hostway upgrading, repairing, or replacing the Hostway Systems that are hosting Client Data at any time with or without notice to Client, and (b) Hostway migrating Client Data within the Hostway Systems at any time with or without notice to Client. Hostway may (at Hostway’s sole discretion) provide any of the Hostway Services (in whole or in part) through an Affiliate of Hostway, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the Hostway Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within the Hostway Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access. In the event that Client refuses or fails to permit such access, Client understands and agrees that Hostway is not responsible for any malfunction or delay in the performance of the Hostway Services resulting therefrom. In connection with Technical Support, 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.
Except for the Hostway Systems specifically licensed to Client hereunder, Client is solely responsible, and Hostway is not responsible, for sourcing and paying for network resources used to connect Client to the Internet.
1.5 Third Party Products
Client will agree to, be bound by, and comply with the terms of any license or other agreement for Third Party Products that may be required by the applicable Third Party Vendor (such as, but not limited to, the three named in this Section 1.5). Client acknowledges that Client’s use of Third Party Products is subject to Client’s agreement to, and compliance with, the terms and conditions of the Third Party Vendors who provide the respective Third Party Products. The Third Party Vendors are permitted to perform directly Third Party Audits on the Hostway Systems (including any computer server or other hardware licensed to Client by Hostway as part of the Hostway Services) with regards to their respective Third Party Products. All trademarks and other Intellectual Property rights associated with or attached to a Third Party Product belong solely to the relevant Third Party Vendor and are used by Hostway subject to license from such Third Party Vendor. Except as permitted in the licenses which are a part of the Third Party Products, nothing herein grants to Client any right, title, or interest in or to a Third Party Vendor’s Intellectual Property. Hostway makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of Third Party Products. Client acknowledges that Third Party Products may, at any given time, be no longer be available or may be revoked at the discretion of the Third Party Vendor. Any mention of Third Party Products by Hostway, its employees, or any third party entity related to Hostway is for information purposes only and does not constitute an endorsement or recommendation by Hostway. Hostway disclaims any and all liabilities for any representation or warranty made by the Third Party Vendors of the Third Party Products.
The following Third Party Vendors and their license terms are hereby incorporated into this MSA by reference:
a) If Client orders Microsoft Azure Public Cloud or Office 365 Services, then Client certifies that Client has read and agrees to all of the following Microsoft terms:
• Microsoft Cloud Agreement: http://download.microsoft.com/download/2/C/8/2C8CAC17-FCE7-4F51-9556-4D77C7022DF5/MCA2017Agr_NA_ENG_Sep20172_CR.pdf
• Microsoft Online Services Terms: http://www.microsoftvolumelicensing.com/Downloader.aspx?DocumentId=13867
By executing an Order Form for Microsoft Azure Public Cloud or Office 365 Services, Client expressly accepts the terms of the Microsoft terms.
b) If Client orders Amazon AWS Public Cloud Services, then Client certifies that Client has read and agrees to all of the following Amazon terms:
• Amazon Customer Agreement: https://aws.amazon.com/agreement/
• Amazon AWS Service Level Agreement: https://aws.amazon.com/legal/service-level-agreements/
c) If Client orders Managed Hosting Services that includes Red Hat licenses, then Client certifies that Client has read and agrees to the following Red Hat terms:
• The Red Hat Cloud Services Subscription Agreement set forth at www.redhat.com/licenses/cloud_cssa/.
d) If Client orders Website Builder, then the following terms apply:
The Website Builder product utilizes images provided by Third Party Vendors (“Stock Photos”). These Stock Photos are provided to Client for Client’s use subject to the limited license set forth herein. Client will not:
o Use the Stock Photos to create an official logo, company name, trademark or an element thereof;
o Use the Stock Photos in a way that infringes any intellectual property rights or a third party’s trademark rights or that would lead to a complaint about deceptive advertising or unfair competition;
o Use the Stock Photos for SPAM mailings or in connection with unsolicited emails;
o Display, use or post the Stock Photos in a way that would lead to the conclusion that the model in the Stock Photos approves or endorses the items or services of any venture or trademark;
o Show a person depicted in the Stock Photos in sensitive scenarios that could reasonably be considered offensive or unflattering to that person (e.g., related to mental and physical deficits, sexual or implied sexual activity or preferences, crime, physical or mental abuse or ailments);
o Use the Stock Photos for pornographic, illegal or immoral purposes; and/or
o Use the Stock Photos in items or products that could embarrass or humiliate a person or model in the Stock Photos.
Any use of the Stock Photos in violation of this limited license will be considered copyright infringement. Client will be liable for all damages caused by such copyright infringement, including any claims made by third parties. Hostway reserves the right to recall Client’s license of any Stock Photos that Client has used in a manner that constitutes copyright infringement.
The foregoing is not an exhaustive list of the Third Party Products and Third Party Vendors that may be used by Hostway in the course of providing the Hostway Services
1.6 Client Account
Upon Client’s submission or execution of an Order Form, Hostway will create a unique Client Account and Client ID for Client. Once the Client Account and associated Client ID have been set up, Hostway will provide Client with appropriate login credentials and access to the Client Portal.
1.7 Client Account Ownership
The legal owner of the Client Account is the person who is identified as the “Client” in the applicable Order Form or, in the absence of such name in the Order Form, the person otherwise using Hostway Services. It is Client’s sole responsibility, and not Hostway’s responsibility, to ensure that (a) Client’s correct full legal name is stated on the Order Form and in the Client Account, (b) Client’s current name and other contact information is kept up-to-date with Hostway, (c) the Client ID and associated password are kept secure and disclosed only to those with a need to know, and (d) Hostway receives all documentation reasonably requested by Hostway to ascertain the correct legal owner of the Client Account in the event of a dispute or verification of Client’s identification. The includes regularly updating the Client Account to accurately reflect staff departures or changes in service providers Client may have used to subscribe for Hostway Services (e.g., website design companies or online media management companies) who may have used their name as the contact person for the Client Account. In the event of a dispute, or in the event of a reorganization or dissolution of the Client, the legal ownership of the Client Account will be as follows in order of precedence: (1) the company or organization listed on the Client Account in Hostway’s database; (2) the individual who submitted or executed the Order Form; (3) the individual who is the cardholder of the credit card used to pay the most recent Service Fees for the Client Account.
1.8 Domain Name Ownership
Client acknowledges that (a) the person listed as the “Registrant” of the domain name in the public Whois registry is the legal owner of that domain name, (b) the person listed as the “Admin” (or administrative contact) of the domain name in the Whois registry has access to the username and password, which gives such person the ability to change the Whois information, (c) ownership and administration (including registration renewal and billing) of a particular domain name is independent of the ownership and administration of the Client Account even if the domain name is associated with the Client Account, (d) it is Client’s sole responsibility, and not the responsibility of Hostway, to ensure that the Registrant and Admin information are up-to-date in the Whois registry, and (e) domain names are subject to the standard terms and conditions, as amended from time to time, of the ICANN-accredited domain name registrar and applicable registry, which Client is bound by at the time Client registers the domain name(s).
1.9 Identification Verification
Each time Client wishes to communicate with Hostway about the Client Account or Client Data, Client will abide by Hostway’s then-current security measures and identification verification processes, including answering identification verification questions over the phone and submitting a proof of identity form. Hostway is not responsible or obligated to restore access to the Client Account to any person if that person is unable to meet Hostway’s security measures and procedures to Hostway’s sole reasonable satisfaction.
1.10 Ownership Disputes
Hostway has no responsibility to act as an arbiter, mediator or other authority in the event of a dispute over the ownership of the Client Account or domain name associated with the Client Account or any other dispute between Client and a third party (including Client’s current or former employees, contractors, agents or vendors). Hostway may suspend Client’s access to, or place an administrative lock on, the Client Account and associated domain name(s) pending an investigation into the ownership thereof.
1.11 Hostway Access
Hostway reserves the right to physically access the Hostway Systems at any time, including any computer servers and other hardware licensed to Client as part of the Hostway Services. In addition, Client will provide Hostway with continuous root administrative access to all computer servers and other Hostway Systems licensed to Client and under Client’s control as part of the Hostway Services. Client acknowledges that Hostway requires such access to in order to provide the Hostway Services, including Technical Support. The access provided hereunder may also be used by Hostway for the purposes of conducting or performing an audit or report, whether by Hostway directly or by an authorized third party, or pursuant to compliance with any applicable statute, government regulation, or Third Party Vendor requirement (such as in the course of a Third Party Audit).
1.12 Client Access
Client will not physically access any of the Hostway Systems, including computer servers and other hardware licensed to Client as part of the Hostway Services. Client may access the Client Account through the Client Portal using only Client’s own authentication credentials (username and password). Client is prohibited from accessing or attempting to access the client account, billing data, or other data of any other person using the Hostway Services.
1.13 Email Accounts
All email accounts, including POP email accounts, which have not been logged into for a period of 4 consecutive months or more will be deemed abandoned and Hostway may, at its sole discretion, delete the email account (“Abandoned Mailbox”) and all emails residing in the Abandoned Mailbox (“Abandoned Emails”). In such case, Hostway will send an email to the master email account identified under the Client Account to notify that the Abandoned Mailbox and the Abandoned Emails will be deleted if the Abandoned Mailbox is not logged into within 14 calendar days. Hostway may delete all content and data stored in any of Client’s spam folders, junk mail folders, and email accounts for 30 calendar days or more.
1.14 Client Data
Client represents and warrants that Client is the owner of, or is duly authorized or licensed by the legal owner to, hold, store, upload, create, destroy, use, run, implement, modify, edit, or otherwise manage the Client Data. In the event that Client Data includes any software or application that is not provided by Hostway, Client is solely responsible for supporting such software or application including maintaining the licenses and installing updates and upgrades to such software or application. Hostway is in no way liable for the support of such software or application, including Client’s use or misuse thereof. Client is solely liable, and Hostway will not be liable, for any unpaid licenses installed by Client on Hostway Systems that are reported in the course of a Third Party Vendor Audit. Client further warrants that the access by Hostway of any and all materials and data as furnished by Client to Hostway in the provision of the Hostway Services will not violate or conflict with any Intellectual Property or privacy rights of any third parties including copyrights, patents and trademarks, protected health information, or personally identifiable information. Client warrants that it is authorized to permit Hostway to use all relevant code for the purposes of performing the Hostway Services hereunder. In the event that Client requests Hostway’s assistance or participation in any third party audit of the Client Data or of Client’s use of the Hostway Services, Hostway agrees to reasonably cooperate with Client (at Client’s expense) to respond to any audit inquiries solely as related to the Hostway Services.
1.15 Protected Health Information
If Client uses, transmits, or otherwise handles any information related to an individual’s past, present, or future physical or mental health condition, any treatment for that condition, and any payment for that treatment which information identifies the individual or could reasonably be used to identify the individual (such information referred to as “Protected Health Information” or “PHI”), then Client will: (a) inform Hostway in writing of Client’s intended use of the Hostway Services for PHI, (b) comply with all requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing rules and regulations, (c) comply with all requirements of the Health Information Technology for Economic and Clinical Health Act, codified at 42 U.S.C. §§17931-17953 (“HITECH”) and its implementing rules and regulations, and (d) execute, as between Client and Hostway, a Business Associate Agreement as mandated by HIPAA and HITECH (in Hostway’s standard form), whereby Client is the covered entity and Hostway is the business associate or whereby Client is the business associate and Hostway is the subcontractor if Client is the service provider of a covered entity (as the terms “covered entity”, “business associate”, and “subcontractor” are defined by HIPAA and HITECH). In addition to Client’s indemnification obligations under this MSA, Client will further indemnify Hostway (including Hostway’s Representatives) from and against any Claims against Hostway or Losses incurred by Hostway that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding Protected Health Information, or (ii) Client’s breach of HIPAA, HITECH, or any other relevant statute.
1.16 Migration Services
If Client’s Order Form includes Migration Services, then Client agrees that:
(a) The Migration Services may be performed by Hostway and/or a Third Party Vendor at Hostway’s sole discretion;
(b) The Migration Services require Client’s former hosting provider to provide Hostway (and the Third Party Vendor, as applicable) with valid administrative access to permit the migration of Client Data to Hostway Systems, and it is Client’s sole responsibility (not the responsibility of Hostway or the Third Party Vendor) to obtain such valid administrative access;
(c) Client’s failure to provide Hostway (and the Third Party Vendor, as applicable) with valid administrative access from Client’s former hosting provider will result in the inability for Hostway (including the Third Party Vendor) to provide, and Client to use, Migration Services;
(d) Client represents and warrants that the Client Data is compliant with the terms of this MSA and all applicable laws and regulations, and that Client is the legal owner of the Client Data or otherwise duly authorized by the legal owner to initiate the migration of the Client Data to the Hostway Systems;
(e) The Migration Services, or other Hostway Services, do not include installation or implementation of any custom software, library, database, or service that existed in Client’s previous hosting environment, and it is Client’s sole responsibility (not the responsibility of Hostway or the Third Party Vendor) to install and configure any such custom software, library, database once the Migration Services are completed;
(f) Hostway, including the Third Party Vendor, is not obligated to make any website, programming, script, content, or data changes to the Client Data at any time during or after the migration to the Hostway Systems;
(g) Any Client Data migrated to Hostway Systems by Hostway, including the Third Party Vendor, is migrated ”as is” from the former hosting provider, and Hostway does not make any warranty of any kind (either express or implied), and hereby expressly disclaims any and all liability, regarding any migrated Client Data, including (a) the format, quality, readability, configuration, accuracy, completeness, retrievability, functionality or restorability of the Client Data to its original state prior to the migration, and (b) the functionality, compatibility or reliability of any migrated Client Data with any Hostway Services or Hostway Systems, including architecture, firewall, operating systems, software, updates and upgrades thereto;
(h) Hostway (including the Third Party Vendor) provides the Migration Services “as is” without warranties of merchantability or fitness for a particular purpose and, except for Hostway’s gross negligence or willful misconduct, under no circumstances will Hostway be liable for (a) any loss of Client Data, (b) third party fees related to the recovery or restoration of Client Data, or (c) damage to Client’s servers or Client Data; and
(i) Client’s use of the Migration Services is at Client’s sole risk and Client will remain solely responsible (and Hostway and the Third Party Vendor will not be responsible) for the content of the Client Data at all times.
In addition, the Migration Services will further by governed by the Professional Services Supplemental Terms.
1.17 Data Backup
Unless the Order Form expressly includes Hostway’s data backup services as part of the Hostway Services to be provided, 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’s data or the management of such backup. Client acknowledges that for any of Hostway data backup services, Client’s data is backed up onto Hostway Systems “as is” and that Hostway’s backup services do not include any software, application, or other method for monitoring, remediating, or preventing viruses, malfunctions, corruptions, or other security issues with Client’s 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 which may be 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 Client’s data, and (c) locally backup all essential data on Client’s own systems independent of Hostway (including at Client’s own premises) for purposes requiring data recovery or retrieval. Client is solely responsible, and Hostway is not responsible, for the backup of any of Client’s data which may have resided on Hostway Systems at one time but which no longer resides on Hostway Systems at the time Hostway’s backup services, if expressly included in the Order Form, is implemented. Hostway expressly disclaims the usability, functionality, or accuracy of Client’s data backed up using Hostway’s backup services. Hostway makes no warranty of any kind (either express or implied) regarding any of Hostway’s backup services, including (a) the format, readability, configuration, accuracy, completeness, retrievability, functionality or restorability of Client’s data backed up on Hostway Systems to its original state, and (b) the functionality, compatibility or reliability of any of Hostway’s backup services with any firewall or software or updates and upgrades thereto. If expressly included in the Order Form, then Hostway provides its backup services “as is” without warranties of merchantability or fitness for a particular purpose. Under no circumstances will Hostway be liable for any loss of Client’s data or for third party fees related to the recovery or restoration of Client’s data. Client’s use of Hostway’s backup services is at Client’s sole risk.
1.18 Data Security
1.19 Data Disclosures
Client hereby consents to Hostway disclosing Client’s data 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 Hostway or Client 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.
1.20 Data Transfers
1.20.1 Cross-Border Data Transfers. Client acknowledges that the Hostway Services and Third Party Products may be provided from the U.S.A. or any other country in which Hostway, its Affiliates, and its Third Party Vendors maintain their business operations. As such, Hostway, its Affiliates, and its Third Party Vendors may transmit, store, access, process, and use (collectively “Process”) Client’s data in, to, or from the U.S.A. or any other country in which Hostway, it Affiliates, and its Third Party Vendors maintain their business operations. In furtherance of the MSA and the applicable Order Form, and in connection with the provisioning of Hostway Services and Third Party Products to Clients, Client acknowledges that Client Data may not remain in the country such data originated from. Client hereby consents to Hostway, its Affiliates, and its Third Party Vendors Processing Client Data in the U.S.A. or any other country in which Hostway, it Affiliates, and its Third Party Vendors maintain their business operations.
1.20.2 Consent Revocation; Migration; Deletion. Client may revoke its consent to having Client Data Processed in the U.S.A., or such other jurisdiction in which Hostway’s Affiliates and Third Party Vendors may reside, by providing Hostway with written notice of Client’s revocation of consent (“Consent Revocation”). Upon receipt of the Consent Revocation, Hostway will cooperate with Client in transferring all Client Data to a lawful destination of Client’s choice (“Migration”). Client acknowledges that the Migration entails the actions of Client (and, if applicable, Client’s vendor or new hosting service 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 Client with reasonable Migration assistance as part of the Enterprise Services, in which case, Hostway may charge (and Client will pay in advance) the Services Fees Hostway normally charges for migrations of the magnitude and complexity Client requires for the Migration. Client acknowledges that Client must complete the Migration, and remove all Client Data off of Hostway Systems, within 60 calendar days of the date Hostway received the Consent Revocation (“Migration Period”). If any Client Data remains on Hostway Systems beyond the Migration Period, then Hostway may permanently delete such Client Data and all backups and copies thereof. It is Client’s sole responsibility, and not Hostway’s responsibility, to perform backups and keep copies of Client Data as needed by Client.
1.20.4 EU Data. If Client engages in the “processing” of any “personal data” (as such terms are defined in the EU General Data Protection Regulation 2016/679 (“GDPR”)) from the European Union, then Client will: (a) inform Hostway in writing of Client’s intended use of the Hostway Services for processing personal data from the EU, (b) comply with all requirements of the GDPR and all implementing rules, associated policies, and directives, (c) execute, as between Client and Hostway, a data processing agreement in compliance with the GDPR (on Hostway’s standard form), whereby Client is the data controller and Hostway is the data processor or whereby Client is the data processor and Hostway is the sub-processor (or level 2 processor) if Client is the service provider of a data controller (as the terms “processor”, “controller”, and “sub-processor” are defined by the GDPR), (d) adhere to the GDPR, including the designation of Client’s data protection officer and execution by Client of data processing agreements with data controllers and Client’s own sub-processors, and (e) ensure that Client is fully transparent about the nature and purpose of its processing of personal data. In addition to Client’s indemnification obligations under this MSA, Client will further indemnify Hostway (including Hostway’s Representatives) from and against any Claims against Hostway or Losses incurred by Hostway that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding processing of personal data from the EU, or (ii) Client’s breach of the GDPR or other applicable law.
1.21 Hostway’s Intellectual Property
In no way will any license granted by Hostway in this MSA 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. 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 Hostway Services and in accordance with this MSA. Hostway may change or remove Internet Protocol numbers and addresses at its sole discretion. Except as otherwise expressly permitted in this MSA, Client may not use Hostway’s Intellectual Property without obtaining the prior written consent, in each instance, of Hostway. Hostway’s Intellectual Property includes any data relating to Hostway, the Hostway Services, or Hostway Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by Hostway regarding Client’s use of Hostway Services, and (e) all other data owned or controlled by Hostway.
1.22 Other Restrictions
Client will not take any action or use any of Hostway’s Intellectual Property or any Third Party Vendor’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 or any Third Party Vendor’s Intellectual Property by Client or a third party, or (b) compromises or diminishes Hostway’s rights, title, or interest in or to Hostway’s Intellectual Property or any Third Party Vendor’s rights, title, or interest in or to their 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. 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 Hostway Services, 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.
1.23 Resellers, Customers & End Users
Client is solely responsible, and Hostway is not responsible, for the activities of any End User and for the activities of Client’s resellers and customers. Client will ensure that the use of Hostway Services by Client’s resellers, customers, and End Users will not be in contravention this MSA. If Hostway receives complaints about Client’s resellers, customers or End Users (including complaints about infringement of a third party’s Intellectual Property), subject to Hostway’s rights in this MSA to suspend Hostway Services, Hostway may at its sole discretion (a) send a notice directly to the reseller, customer or End User requesting them to cease, remedy, and resolve the matter, or (b) forward the complaint to Client whereupon Client will take immediate action to ensure that the matter is resolved to Hostway’s satisfaction. If the particular activity continues or the complaint is otherwise unresolved, then Client may be subject to termination or other action as Hostway may deem appropriate.
1.24 Domain Name Proxy Services
If the Hostway Services provided to Client includes domain name registration services where Hostway or a third party provider is named as the Registrant or Admin Contact in Client’s place (“Proxy Services”), Client agrees that if Hostway or the third party provider does not receive a response to a communication sent to Client within 48 hours of such communication being sent, then Hostway or the third party provider, as applicable, may suspend the Proxy Services or terminate all services (including, as applicable, all Hostway Services) at its sole discretion.
1.25 Other Representations & Warranties
Client represents and warrants to Hostway as follows:
(a) Client has the full authority to execute, deliver, and perform under the MSA, the MSA is valid, binding, and enforceable against Client in accordance with the terms herein, and no provision requiring Client’s performance is in (a) conflict with Client’s obligations under any other agreement, (b) violation of any law applicable to Client, or (c) contravention of Client’s by-laws or other governing rules, as applicable;
(b) Client is duly organized, authorized, and in good standing under the laws of the jurisdiction of its organization and is duly authorized to do business in all other jurisdictions in which Client’s business makes such authorization necessary or required; and
(c) Client’s purpose for entering into this Agreement and using or delivering the Hostway Services is not to engage in, or be part of, any activity that is, or may reasonably be deemed, objectionable in the Internet community, unethical, unlawful or illegal.
Notwithstanding anything to the contrary in this MSA, Hostway (a) makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, completeness, non-infringement, or validity of the Hostway Services, Hostway Systems, or Third Party Products, and (b) provides all aspects of the Hostway Services, Hostway Systems, and Third Party Products “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Client acknowledges that Client uses the Hostway Services, Hostway Systems, and Third Party Products at Client’s sole risk. No verbal advice or written information given by Hostway, its employees, licensors or the like, will create a warranty and Client will not rely on any such advice or information as a warranty.
1.27 Force Majeure
Hostway will not be liable for delays in its performance of this MSA caused by circumstances beyond Hostway’s reasonable control including natural disasters and other “acts of God”, fire and other destruction, sabotage, terrorism, war, insurrection, embargo and other acts of any governmental body, or strikes and other labor disturbances (“Force Majeure”). If Hostway is affected by a Force Majeure, Hostway will (a) promptly give written notice to Client, and (b) make reasonable efforts to reduce to a minimum and mitigate the effect of the Force Majeure.
1.28 Limitation of Liability
Under no circumstances will Hostway be liable to Client for any consequential, indirect, special, general, incidental, reliance, exemplary, or punitive damages arising out of or relating to this MSA or the Hostway 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 Hostway has been advised of the possibility of such damages. Hostway’s aggregate liability to Client, if any, arising out of or relating to this MSA or the Hostway Services will not exceed the aggregate amount of Service Fees paid hereunder during the 3 calendar months immediately preceding the event giving rise to the liability. No Claim by Client against Hostway, relating to this MSA or the Hostway Services, 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.
If Hostway, or any Representative of Hostway, incurs any Losses because of any Claim arising out of or in connection with the acts or omissions of Client or its employee, contractor, or agent which amount to (a) breach of this MSA (including a breach of any representations or warranties made by Client herein), (b) gross negligence or willful misconduct, (c) misrepresentation, or (d) alleged or actual violations by Client of any law, regulation or rule, then Client will indemnify, reimburse, and compensate Hostway and, as applicable, Hostway’s Representatives, for all Losses, as they accrue and become payable by Hostway, and defend, hold harmless, and protect Hostway, including Hostway’s Representatives, from and against all Claims. “Representatives” means, collectively, shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders. In addition, if Hostway (including Hostway’s Representatives) incurs Losses because of any Claim arising out of, or in connection with, the acts or omissions of any of Client’s resellers, customers, or End Users, then Client will indemnify, reimburse, and otherwise compensate Hostway for all Losses related thereto, as they accrue and become payable by Hostway, and defend, hold harmless, and protect Hostway from and against all Claims related thereto.
Hostway agrees to give prompt written notice to Client of the Losses and the Claim for which indemnification is sought, and Client will have the right to control the defense and settlement of any Claim at the sole expense of Client. Hostway agrees to fully cooperate in the defense or settlement of any Claim at the sole expense of Client. Notwithstanding the foregoing, the failure of Hostway to give prompt notice, cooperate, or timely mitigate will not affect Hostway’s rights to indemnification, except (and only to the extent) that Client’s ability to provide indemnification is impeded or frustrated, or Losses would have been avoided or mitigated. Client will obtain the prior written agreement of Hostway for any settlement or proposal of settlement, which will not be unreasonably withheld
1.30 Abuse of Services
Client will use the Hostway Services, and access the Hostway Systems, only in a manner that is legal, lawful, ethical, and generally acceptable in the Internet community. Client will not engage in, and will ensure that Client’s resellers, customers, and End Users do not engage in any Abuse of Services. Without limiting the generality and scope of the definition of Abuse of Services in this MSA, Abuse of Services include (i) infringement of a person’s Intellectual Property or other rights, (ii) publishing or transmitting material which is threatening, obscene, or defamatory, (iii) non-compliance with applicable anti-spam legislation, including the U.S. Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act), as amended, and Canada’ Anti-Spam Legislation (CASL), as amended, (iv) violation of applicable import or export control laws, regulations, and policies, and (v) system or network security violations. System or network security violations include the following: (A) unauthorized access to or use of data, systems or networks, including any attempt to ping, probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network); (B) interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system, denial of service attacks, and broadcast attacks; (C) forging any TCP-IP packet header or any part of the header information in an email or a newsgroup posting; (D) creating or sending Internet viruses, worms or Trojan horses; (E) engaging in any other activity which is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Hostway Services and Hostway Systems (or any connected network, system, service or equipment) or conduct their business over the Internet. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Hostway Services) is not engaged in any activity which is, or may reasonably be deemed, an Abuse of Services.
1.31 Executive Order 13224
Client will not use the Enterprise Services, in whole or in part, to do business with any person who has been determined to have committed or supported, or who poses a risk of committing or supporting, acts of terrorism or who otherwise is subject to the prohibitions of Executive Order 13224. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Hostway Services) is not, and has not been designated, (a) a “suspected terrorist” as defined in Executive Order 13224, (b) owned or controlled by a “suspected terrorist” as defined in Executive Order 13224, or (c) a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all amendments thereto.
Client will not use the Hostway Services, in whole or in part, to do business with any country, person or group sanctioned by the United Nations, U.S.A., or Canada, including those identified by the Office of Foreign Assets Control, as updated from time to time. Client will not export the Hostway Services, in whole or in part, to any country, person or group sanctioned by the United Nations, U.S.A., or Canada. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Hostway Services) is not, and has not been designated, (a) a resident of a country sanctioned by the United Nations, U.S.A., or Canada, or (b) a person or member of a group sanctioned by the United Nations, U.S.A., or Canada. Client further represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Hostway Services) is not engaged in any activity which is, or may reasonably be deemed, in contravention of any of the abovementioned sanctions.
Hostway may, at its sole discretion and without prior notice, immediately suspend the Hostway Services and the Client Account if Hostway determines that Client is engaging, or has engaged, in any Abuse of Services or if the Client Account is involved in any way, whether directly or indirectly, in an attack on another person’s server or system (“Third Party Server”) or Hostway Systems. Hostway will promptly notify Client in writing upon suspending Hostway Services pursuant to an Abuse of Services. A suspension based on an Abuse of Services or an attack on a Third Party Server may be implemented until the Abuse of Services or threat has been remedied to Hostway’s sole reasonable satisfaction. Service Fees will continue to accrue during the suspension and Client will ensure timely payment of all Service Fees due. If Client engages in or the Client Account is involved in any Abuse of Services, Client will be responsible for all costs, including labor and other resources, to remedy any damage done to Hostway Systems or attend to complaints received by Hostway.
1.34 Revocation of Domain Name
If Client purchases a domain through Hostway, Hostway may exercise its suspension and termination rights in this MSA against such domain name registration for reasons including (a) Client’s Abuse of Services or other breach of this MSA, or (b) Hostway’s receipt of an arbitration award or order from a court of competent jurisdiction instructing the suspension, termination or transfer of ownership of the domain name. Client acknowledges that Client will not receive any refund whatsoever for any such suspension, termination, transfer, or modification to Client’s domain name registration.
1.35 Survival Clauses
The provisions of this MSA which by their nature continue beyond the termination of this MSA will survive such termination, including the provisions of this MSA relating to ownership, Intellectual Property, representations and warranties, disclaimer, limitation of liability, indemnification, and governing law and jurisdiction.
1.36 Minimum Age Requirement
Client must be at least 18 years of age or the age of majority in the state, province, or country of Client’s residence in order to agree to this MSA and submit an Order Form. If the person wishing to use Hostway Services is under such age of majority (a “Minor”), then such person must have a parent or legal guardian accept this MSA, and submit the Order Form, in the name of the parent or legal guardian in order for the Minor to use Hostway Services. If Client is a parent or legal guardian who accepts this MSA and submits an Order Form on behalf of a Minor, then Client will be the legal owners of the Client Account and primarily liable for (a) the use of Hostway Services by the Minor, and (b) for the Minor’s compliance with this MSA, including timely payment of all Service Fees. Client will remain primarily liable for (a) and (b) mentioned above even after the Minor has reached the age of majority unless Client executes a valid assignment of the Client Account to transfer ownership to the Minor. Any agreement to this MSA or submission of an Order Form by a Minor will be deemed null and void to the extent that Hostway will not be liable in any way as a result of the Minor’s age or legal incapacity or the Minor’s use of the Hostway Services.
Client may not assign or otherwise transfer Client’s respective rights or obligations under this MSA without the prior written consent of Hostway, which will not be unreasonably withheld. Without requiring Client’s prior consent, Hostway may assign or otherwise transfer this MSA, and Hostway’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 Hostway’s business, stock or assets. Any assignment or transfer in violation of this MSA will not have any effect against Hostway. This MSA will be binding and have effect upon Hostway and Client and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than Hostway and Client and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities in connection with this MSA. 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 this MSA.
1.38 Waiver; Severability; Cumulative Rights
No waiver by Hostway of a breach of any provision of this MSA will take effect or be binding upon Hostway unless expressly waived in writing, and such waiver will extend and apply only to the particular breach so waived and will not limit or affect the rights of Hostway in respect of any future breach or in respect of a breach of any other provision hereof. If any portion of this MSA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability will not affect the validity of the remainder of this MSA. Any specific right or remedy provided in this contract will not be exclusive but will be cumulative of all other rights and remedies.
1.39 Non-Solicitation and Relationship of Parties
While a Client of Hostway and for a period of 1 year thereafter, Client will not, individually or in association or in combination with any other person or entity, directly or indirectly solicit for employment, entice away from Hostway, induce, or procure services directly from any employee of Hostway. Nothing in this MSA will be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between Hostway and Client. Each of Hostway and Client will be deemed an independent contractor at all times and will not have any right or authority to assume or create any obligation on behalf of the other party except as may be expressly permitted herein. This MSA is for the sole benefit of Hostway and Client only and does not create any rights on the part of any third party, including Client’s resellers, customers or End Users.
Hostway and Client each acknowledge that the relationship between them in connection with the Hostway Services and this MSA is non-exclusive and that Hostway may grant a license to use, market, sublicense, or distribute the Hostway Services, including providing access to the Hostway Systems, to other parties who may engage in the same or similar activities as Client, or who may compete with Client or Client’s goods or services.
1.41 No 3rd Party Beneficiary
The MSA is for the sole benefit of the Parties and does not create any rights on the part of any third party, including Client’s resellers, customers, and End Users. Client acknowledges that Hostway’s obligations under the MSA are to Client only. Client is solely responsible, and Hostway is not responsible, for ensuring Client satisfies all of Client’s obligations to Client’s resellers, customers, and End Users.
1.42 Governing Law
This MSA will be governed and construed in accordance with the laws of the State of Illinois without giving effect to any rule of conflicts of law. Any Claim against a Party in connection with the subject matter of this MSA (or the MSA itself) will be brought in Chicago, Illinois. This MSA will not be governed by or construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods.
1.43 Dispute Resolution
All Claims arising out of or relating in any way to this MSA (including requests for specific performance) will be submitted to mandatory binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted pursuant to the AAA’s then current Commercial Arbitration Rules. The arbitration hearing will be conducted in the English language and will take place in Chicago, Illinois before a single arbitrator selected in accordance with the Commercial Arbitration Rules. The parties will each bear the costs of the arbitration in equal shares. The parties will also bear their own legal fees (including lawyer fees and witness costs) in connection with the arbitration and the arbitrator may not reallocate the legal fees in conjunction with the award. Any award rendered by the arbitrator will be confirmed in a state or federal court of competent jurisdiction in Chicago, Illinois and each of Hostway and Client hereby irrevocably submits and consents to, and waives any objection to, personal jurisdiction and venue in such court.
Any notice or other communication between the Parties required or permitted under this MSA will be in writing and will be delivered by commercial courier or transmitted by electronic mail. It is Client’s responsibility to ensure that Client’s contact information is kept up to date with Hostway, and Hostway will not be liable for Client missing any notice or communication as a result of an outdated or seldom accessed address, phone number, or email address.
Client acknowledges that the Internet and information technology industries (and the laws, regulations, policies, and risks associated with them) are constantly and rapidly changing and, as such, Client further acknowledges that Hostway, at its sole reasonable discretion, may update the MSA from time to time to address the changes affecting the MSA and the Hostway Services. If Hostway makes any amendment to the MSA or any portion thereof, such as any Supplemental Terms, Hostway may post a notice on Hostway’s Legal webpage at http://www.hostway.com/about/legal/. Client’s continued use of Hostway Services following notice of the amendment constitutes Client’s agreement and acceptance of the amendments.
1.46 Complete Agreement
This MSA, which includes the Order Forms, Supplemental Terms, and all other agreements, policies, and documents referenced herein, constitutes the complete agreement between Hostway and Client relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto – whether verbal, written, or otherwise.
2. Billing Terms
These Billing Terms apply to all persons using Hostway Services.
2.1 Service Fees
Client will pay to Hostway the Service Fees on or before each due date as specified in the Client Portal or invoice (as applicable). Except where Service Fees are calculated based on Client usage or as otherwise provided in the Supplemental Terms, Client acknowledges that Service Fees will start accruing from the time the Client Account is created and Hostway Services are made available to Client, whether or not Client uses the Hostway Services. If the Order Form includes Hostway Services that are billed based on usage, then Client’s Service Fees will vary accordingly in each Billing Cycle depending on Client’s actual usage. If the Order Form includes Hostway Services that are billed based on the time and materials used by Hostway (including any of its Affiliates or Third Party Vendors) such as Professional Services, then Client acknowledges and agrees that Client’s Service Fees are subject to change from the amount described in the Order Form depending on Hostway’s actual time and materials used, provided that Hostway will obtain Client’s prior approval for any additional billable time that exceeds the amount described in the Order Form.
Client’s Billing Cycle will start from the time Hostway creates the Client Account and makes the particular Hostway Services available to Client. The Billing Cycle may vary depending on the billing period selected by Client and depending on the particular Hostway Services ordered (different Hostway Services may have different Billing Cycles). Resellers are limited to the monthly Billing Cycle. Unless Client chooses to manually renew Client’s Hostway Services, the Billing Cycle will automatically renew for the same successive period until Client cancels the Client Account or terminates this MSA in accordance with the cancellation provisions and termination provisions herein. If Client elects to manually renew the Hostway Services, Client is solely responsible, and Hostway is not responsible, for ensuring the timely renewal of the Hostway Services to avoid service interruption. Client may elect to change the Billing Cycle, but the new Billing Cycle will take effect only at the end of the current Billing Cycle and upon renewal. The Billing Cycle will end upon the applicable anniversary date the Billing Cycle began (“Due Date”), which will be for Service Fees in advance with adjustments in arrears for Service Fees based on usage, if applicable. The Billing Cycle applies to Service Fees for all Hostway Services except domain name registrations, which are paid according to registration periods as set by the domain name registrar. Client acknowledges that 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. Add-on features to Hostway Services added to the Client Account may be charged monthly or according to the Billing Cycle or otherwise based on an alternate payment schedule as agreed by Hostway when Client orders such features. Add-on features are non-refundable.
2.3 Past Due Amounts
If Client fails to pay the Service Fees on or before the Due Date, then Hostway may charge Client Late Charges to be applied to any portion of the Services Fees unpaid past the Due Date. If the Client Account has Service Fees unpaid past the Due Date, then Hostway may suspend the Client Account (and the Hostway Services associated with it) with or without notice at any time at Hostway’s sole discretion. Hostway may also terminate this MSA and cancel the Client Account in its entirety if the Service Fees remain past due following reasonable notification from Hostway to the contact person listed in the Client Account. Client is solely responsible, and Hostway is not responsible, for keeping Client’s contact information up to date and for any failure to receive such notification of Client Account cancellation.
2.4 Payment Methods
Client will pay the Service Fees via the payment method indicated in the Order Form, which will be selected from one of the following:
(a) check or money order;
(b) credit card (Visa, MasterCard, American Express, Discover); or
(c) bank wire or Automated Clearing House (“ACH”).
Check or Money Order. If Client elects to pay by check, then Client will (a) make the check payable to Hostway Services, Inc. at Hostway’s principal place of business as specified in the Client Portal or such other notice provided to Client by Hostway, and (b) include the Client ID on the check. Hostway may charge Client a $25.00 administrative fee for checks or money orders returned as non-sufficient funds (“NSF”) as well as any other bank fees incurred by Hostway because of the NSF. Client is solely responsible, and Hostway is not responsible, for ensuring that the Client ID is accurately and legibly written on the check to avoid Late Charges.
Credit Card. If Client elects to pay by credit card, then Client will provide Hostway with a valid credit card number, associated full name on the credit card, expiration date, and card verification number. Client will notify Hostway in writing of all changes to Client’s credit card, including card number, expiration date, and billing address. For credit card payments, Client hereby authorizes Hostway to automatically charge Client’s credit card each Billing Cycle for Service Fees. Client hereby also consents to Hostway charging Client the chargeback fee assed against Hostway from the credit card company for each credit card chargeback received by Hostway. Client acknowledges that recurring Service Fees will be charged to Client’s credit card each Billing Cycle until Client cancels the Client Account or otherwise terminate the Order Form or this MSA in accordance with the cancellation provisions and termination provisions of this MSA.
Bank Wire or ACH. If Client elects to pay by bank wire or ACH, then Hostway will provide Client with the bank wire or ACH details. Client will submit payments of all Service Fees, before the Due Date, to the bank account designated by Hostway and include the Client ID in the transmission details. Client will pay for all administrative and processing fees associated with the bank wire or ACH and Client acknowledges that Hostway may charge Client for such amounts. Client is solely responsible, and Hostway is not responsible, for ensuring that the Client ID is accurately included in the transmission details to avoid Late Charges.
Chargeable Tax. The Service Fees quoted by Hostway, whether on Hostway’s website, this MSA, any Order Form, quotation, or sales proposal provided to Client, or in Client’s Customer Portal or on Client’s invoice, do not include sales or any other taxes which may be applicable. If any federal, state, provincial or other goods and services tax (excluding any tax levied on property or income) is applicable to Client’s purchase of the Hostway Services (“Tax”) and is required by law to be collected from Client by Hostway, then (a) Hostway will charge Client for such Tax in addition to the Service Fees, (b) Client consents to such Tax being charged to Client, and (c) Hostway will remit such collected Tax to the applicable tax authority.
Audit Cooperation. If Hostway is audited by a tax authority or other governmental entity with legal authority over the matter, Client agrees to reasonably cooperate with Hostway (at Hostway’s expense) in order to respond to any audit inquiries in a proper and timely manner so that the audit, and any resulting controversy, may be resolved expeditiously.
Tax Exemption. If a Tax exemption is available and Client complies with the exemption procedures thereto, including submitting to Hostway all documentation evidencing the exemption, then Hostway will not charge or collect such Tax during the effective period of such exemption.
Withholding Tax. If any applicable tax authority requires withholding taxes be paid on money amounts payable by Client to Hostway pursuant to the MSA (“Withholding Tax”), then Client will (i) be entitled to deduct such Withholding Tax from the money amounts payable to Hostway hereunder, (ii) remit such amounts to the appropriate tax authority, and (iii) provide to Hostway, on a quarterly (every 3 calendar months) basis, the statements of the Withholding Taxes paid.
2.6 Other Fees
If Client wishes to reactivate a closed Client Account, then Client will be charged a reactivation fee of $19.95. A further fee of $99.95 will be charged to the Client Account if Hostway restores Client Data to the Client Account as part of the reactivation. Hostway may charge Client a fee of $19.95 for certain changes to the Client Account (“Account Change Requests”), including requests to:
(a) change to a lower priced hosting plan on the same platform;
(b) change hosting plans from one operating system platform to a different operating system platform;
(c) separate one or more hosting plans contained under one Client Account into separate Client Accounts (the fee for this Account
Change Request is charged to each new Client Account).
There is no upgrade fee for upgrading to a higher priced hosting plan, but Client will be charged any difference between the setup fees applicable to Client’s new and former hosting plans. For Account Change Requests, contact firstname.lastname@example.org .
2.7 Termination and Account Cancellation
This MSA will continue through the Minimum Term and any Renewal Term stated in an Order Form. Client may terminate this MSA, a particular Order Form, or the Client Account in its entirety, only in accordance with the terms herein. Hostway may terminate this MSA or a particular Order Form for convenience upon 30 calendar days’ written notice to Client. Without limiting Hostway’s rights under Abuse of Services and Suspension above, Hostway may also terminate this MSA or a particular Order Form for Client’s material breach upon 2 business days’ written notice to Client if such material breach is uncured within such time.
To cancel the Client Account or particular Hostway Services after the expiration of the Minimum Term or during a Renewal Term, Client must contact Hostway’s customer service department on a Business Day (Monday through Friday, excluding holidays, 8:00 A.M. to 5:00 P.M. Central Time) at 1-888-255-0151 or email email@example.com, and must specify the exact Hostway Services, or domain name, that Client is cancelling. The cancellation process is not complete or effective until Hostway confirms the closure of the Client Account by providing Client a confirmation number either over the phone or through email at Client’s contact information recorded on the Client Account. Client acknowledges that there are no pro-rated refunds after the Hostway Services are made available to Client. Cancellation requests must be received at least 30 calendar days before the end of Client’s Billing Cycle or Client’s Billing Cycle will automatically renew for a successive Billing Cycle. Hostway does not monitor, and will not automatically cancel, plans for any problems arising out of or related to domain name transfers, non-usage, InterNIC, Client’s ISP, or any other secondary issues not directly related to the Hostway Services. Cancellation of Client’s Hostway Services does not relieve Client from paying all outstanding balances owed on the Client Account.
Upon any termination of this MSA or the Client Account, Hostway may delete all Client Data residing on Hostway Systems. 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 Hostway Services. Client acknowledges that (a) termination of this MSA or an particular Order Form does not automatically cancel the registration of any of the domain names associated with the Client Account, and (b) the cancellation or expiration of Client’s domain names associated with the Client Account does not automatically terminate this MSA or the other Hostway Services.
This MSA, and all Order Forms, will automatically terminate if Client makes a general assignment for the benefit of Client’s creditors, Client appoints or has appointed on its behalf a receiver, trustee in bankruptcy or similar officer to take charge of all or part of its assets, Client files or has a petition filed against Client for bankruptcy, or Client is otherwise adjudicated insolvent or bankrupt.
2.8 Billing Disputes
Hostway will maintain records of the Hostway Services provided to Client and the billing thereof. If there is an inconsistency between Hostway’s records as stated in the Client Portal and Client’s records, then Hostway’s records will be deemed the controlling records. If Client wants to dispute the amounts, then contact Hostway’s customer service department on a Business Day (Monday through Friday, excluding holidays, 8:00 A.M. to 5:00 P.M. Central Time) at 1-888-255-0151 or email firstname.lastname@example.org. Disputes Client may have over any portion of Service Fees will not exempt Client’s payment obligations for undisputed Service Fees whether such non-disputed amounts pre-date, post-date, or are concurrently dated with the disputed amounts. If Client fails to provide to Hostway written notice of a disputed amount of Service Fees within 7 calendar days after the Service Fees are made available through the Client Portal, then Client will be deemed to have accepted the amounts owed and will be obligated to pay such amounts.
2.9 Price Changes
Hostway may, at its reasonable discretion, add to, modify, remove, or re-price any particular product or service from the Hostway Services with or without notice. Price changes become effective on the next Billing Cycle.
Client Accounts in arrears with past due and unpaid Service Fees are subject to collections. In the event of collection, Client will be liable for Late Charges and all costs of collection, including attorney’s fees, court costs, and collection agency fees.
Unless stated otherwise, all money amounts stated by Hostway, including on Hostway’s website, this MSA, any Order Form, quotation, or sales proposal provided to Client, the Customer Portal, and any invoice issued by Hostway are in U.S. Dollars.
4. Supplemental Terms
Depending on the type of Hostway Services that Client orders, Client may be subject to certain Supplemental Terms as described herein. If there is any conflict between this MSA and such Supplemental Terms, then the Supplement Terms will govern Client’s use of the applicable Hostway Services to the extent of the conflict. The Supplemental Terms are collectively an integral part of this MSA and supplement the General Terms and Billing Terms above and are hereby incorporated into this MSA by reference.
4.1 Web & Apps Supplemental Terms
These Web & Apps Supplemental Terms apply only to those Clients and End Users using Hostway Services relating to Web Hosting, Domains, Emails and E-Commerce and other Applications or Web Solutions.
4.1.1 Refund Policy
Refunds for Hostway Services pertaining to Web Hosting and E-Commerce are available for shared hosting plans and virtual private server (“VPS”) plans only. Each shared hosting plan and VPS plan carries a 30-day money back guarantee. If Client cancels a shared hosting plan or VPS plan within the first 30 calendar days of Client’s first Billing Cycle in accordance with Hostway’s cancellation process, Client may request a refund of the Service Fees (excluding setup fees) Client have paid in advance. Cancellations received after the first 30 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 following services do NOT qualify for the 30-day money back guarantee: (a) add-on features to Hostway Services; (b) domain name registrations; (c) Enterprise Services as defined under the Enterprise Supplemental Terms; (d) Hostway Services ordered through Hostway’s reseller program; (e) domain parking plus; and (f) overage fees.
4.1.2 Server Resources
Any website that uses a high amount of server resources (including CPU time, memory usage, and network resources) will be given the option to either pay additional Service Fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade to Enterprise Services (including Managed Hosting or Cloud Hosting). Hostway will be the sole arbiter of what is considered to be a high server usage level. All Web Hosting and E-Commerce plans come with a limit of 5,000 files per Client Account. Each block of 5,000 files after the initial 5,000 will incur an additional charge of $9.95 per month. Any Web Hosting and E-Commerce plan deemed to be adversely affecting server performance or network integrity may be shut down without prior notice.
4.1.3 CGI Scripts
Any script that poses a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. Hostway does not permit CGI script sharing with domains not hosted by Hostway or scripts which may be abused for UCE purposes.
4.1.4 Chat Rooms
Client is not permitted to install chat rooms because chat rooms tend to require significant system resources. However, for a small charge, Hostway may provide Client with Java chat rooms.
4.1.5 Background Running Programs and Cron Jobs
Hostway may allow programs to run in the background, which programs will be considered by Hostway on a case-by-case basis. Client will incur extra Service Fees based on system resources used and operational maintenance needed. If Client wishes to run background programs, contact Hostway at email@example.com to arrange the setup.
Client is not permitted to operate IRC or IRC bots.
4.1.7 Software Distribution
Client is not configured for the purposes of distributing software or multimedia products. If Client wishes to distribute software and/or multimedia files, contact firstname.lastname@example.org to make special arrangements.
4.1.8 Multimedia Files
Client is not permitted to use the Client Account to distribute or store unusual amounts of graphics, audio, or video files (collectively “Multimedia Files”). If the Client Account’s disk space usage for storing Multimedia Files exceeds 70% of its total usage, in terms of total size or number of files, Hostway may suspend or cancel the Client Account.
If Client stores any database on Hostway’s Web Hosting and E-Commerce servers, Client must limit the size to 10% of the total disk space allotted for the particular domain name associated with the Client Account.
4.2 Professional Services Supplemental Terms
These Professional Services Supplemental Terms apply only to those Clients and End Users using Hostway Services relating to IT Assessment, Migration Services, or other services requiring time and materials or deemed professional services by Hostway.
“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.
“Professional Services” means, as specified in the applicable Order Form, (a) Hostway’s products and services relating to Migration Services, and (b) certain Third Party Products.
4.2.2 Professional Services
In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with these Professional Services Supplemental Terms, the Order Form, and the MSA, Hostway will perform, and provide to Client, the Professional Services as described in the Order Form. Hostway may (at Hostway’s sole discretion) provide any of the Professional Services (in whole or in part) through an Affiliate of Hostway, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the Professional Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within the Hostway Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access.
4.2.3 Service Fees for Professional Services
Service Fees for Professional Services are based on time estimates and are subject to change (because of factors such as unknown variables and project scope modifications). If Service Fees increase by less than $600, then Client may approve such increase via email, the Client Portal, or other applicable project management system offered by Hostway or Third Party Vendors. Increases in Service Fees of $600 or more will require an amendment to the Order Form reflecting the change in scope of Professional Services. Client acknowledges that Professional Services will be performed only during the hours of 8am to 5pm Eastern Time, Monday through Friday, except statutory holidays. Requests for Professional Services to be performed outside of such times will be subject to Hostway approval and premium additional Service Fees.
4.2.4 Ordering Professional Services
(a) Requirement. All Professional Services which Client wishes to receive from Hostway must be stated in the Order Form. Hostway is not responsible for any non-delivery of Professional Services, including missed launch dates or other deficiencies, if the Professional 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 Professional Services Supplemental Terms.
(b) 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 Professional 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 Professional 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 Professional Services, or other reasons beyond Hostway’s reasonable control.
4.2.5 Service Modifications
(a) At Client’s Request. If Client wishes to add to or otherwise modify the Professional 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 Professional Services may affect Service Fees as described above.
(b) By Hostway. Hostway may at any time, at its reasonable discretion, add to, modify, remove, or re-price any particular product or service from the Professional Services based on factors including unavailability of Third Party Products.
4.3 Enterprise Supplemental Terms
The Enterprise Supplemental Terms posted online at https://hostway.com/about/enterprise-hosting-master-services-agreement/, as amended from time to time, are collectively an integral part of this MSA and supplement the General Terms and Billing Terms above. The Enterprise Supplemental Terms apply only to those Clients and End Users using Hostway Services relating to Hostway’s Managed Hosting, Virtual Private Cloud, FlexCloud Hosting, and Hybrid Hosting.
To view the Enterprise Supplemental Terms, please click the following link: https://hostway.com/about/enterprise-hosting-master-services-agreement/.
4.4 Colocation Supplemental Terms
The Colocation Supplemental Terms as posted online at https://hostway.com/about/colocation-master-services-agreement/, as amended from time to time, are collectively an integral part of this MSA and supplements the General Terms and Billing Terms above. The Colocation Supplemental Terms apply only to those Clients and End Users using Hostway Services relating to Hostway’s Colocation services.
To view the Colocation Supplemental Terms, please click the following link: Colocation Master Services Agreement.