This web hosting agreement (this "Agreement") is between Crucial Web Hosting, Ltd. ("Crucial Web Hosting"), a limited liability corporation formed under the laws of the state of Arizona, with its principal office located in Queen Creek, Arizona, and the person (individual or legal person) who signs Crucial Web Hosting's service order and setup form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of Crucial Web Hosting's web hosting service.
Table of Contents
- Domain Names & Domain Transfers
- Customer Information
- Abusive Clientele
- Disclaimer of Warranties
- Limitation of Damages
- Termination/Suspension of Services
- Request For Customer Information
- Backup Copy
- Network Changes
- Force Majeure
- Governing Law/Disputes
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Crucial Web Hosting's credit approval requirements, Crucial Web Hosting agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that Crucial Web Hosting generates an email message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless Crucial Web Hosting or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
(a) Fees. Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly or annually as indicated on the Order, beginning on the Service Commencement Date. Crucial Web Hosting may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Crucial Web Hosting to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise Crucial Web Hosting will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing Crucial Web Hosting with changes to billing information (such as credit card expiration, change in billing address). At its option, Crucial Web Hosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Crucial Web Hosting may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Crucial Web Hosting may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay Crucial Web Hosting's reasonable reinstatement fee following a suspension of service for non-payment, and to pay Crucial Web Hosting's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees, and court costs.
(b) Fee Increases. Crucial Web Hosting may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
(c) Taxes. At Crucial Web Hosting's request, Customer shall remit to Crucial Web Hosting all sales, VAT, or similar tax imposed on the provision of the services (but not in the nature of an income tax on Crucial Web Hosting), regardless of whether Crucial Web Hosting fails to collect the tax at the time the related services are provided.
(d) Early Termination. Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Crucial Web Hosting terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Crucial Web Hosting's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
(e) Money Back Guarantee. The thirty (30) day money back guarantee (the "Guarantee") offer is only applicable to credit card payments for Split-Shared™ hosting plans within the first 30 days of a hosting account sign up. Other forms of payment and hosting plans are non-refundable. Split-Dedicated™ and fully dedicated server payments are non-refundable. SSL certificates and domain registrations (including the value of any used free domain registrations included with the plan) are not refundable under any circumstances. Setup fees are non-refundable. Money back guarantee refund requests must be submitted within the 30 day period after sign up to qualify. Please refer to the money back guarantee page for more details. Cancellations outside our 30 day money back guarantee are not eligible for a refund or proration.
(f) Anti-Spam Policy. Any violation of Crucial Web Hosting's Terms of Service or Anti-Spam Policy may, at Crucial Web Hosting's own discretion, result in immediate termination of Customer's account without refund.
Cancellations must be done in writing electronically via the cancellation form provided on our site. Once we receive your cancellation and have confirmed all necessary information with you via ticket, we will inform you with response to the cancellation ticket that your request has been received, then, within 72 hours, confirmation that your account has been canceled. Upon submission of the cancellation form you should immediately receive an automatic email with a ticket number assigned to your request. We require that cancellations of service are done through the online form to (a) confirm your identity, (b) confirm in writing you are prepared for all files/emails to be removed, and (c) document the request. This process reduces the likelihood of mistakes, fraudulent/malicious requests, and ensures you are aware that the files, emails, and account may be removed immediately after a cancellation request is processed.
Crucial Web Hosting has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment is subject to a $50.00 USD re-activation fee, immediate suspension, and/or account termination of their account at Crucial Web Hosting's discretion.
If you want a refund or have a billing related issue from us, simply make a request at the Support Center and we will do a computation of and provide the necessary refund.
Any chargeback made by you which involves a chargeback fee will be charged to your account. Moreover, we will suspend your account until full settlement of the chargeback and fee. Thus, it is important to communicate with us first before doing any chargebacks with your bank or credit card.
Domain Names & Domain Transfers
In order for your domain name to point to the server your new account is located on, you must change your DNS nameservers at your registrar. Our nameservers are located in your welcome email.
Please be aware that the above process is not known as a domain transfer. A domain transfer is if you want to physically transfer your domain to Crucial Web Hosting and away from your original registrar. As of May 11, 2008, we do not accept domain transfers.
Crucial Web Hosting will take necessary steps to register domain names on behalf of the client when requested. However, clients are responsible for renewing their domain names.
Crucial Web Hosting does not take responsibility for failing to renew domain names. If your domain name was registered via our company, you must check and take appropriate actions to renew a domain that is about to expire.
Customer agrees to use the service in compliance with applicable law and Crucial Web Hosting's Acceptable Use Policy (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that Crucial Web Hosting may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Crucial Web Hosting's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Crucial Web Hosting's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Crucial Web Hosting and Customer regarding the interpretation of the AUP, Crucial Web Hosting's commercially reasonable interpretation of the AUP shall govern.
The Customer certifies that he or she is at least eighteen (18) years of age, or that their parent or legal guardian will act as the "Customer" in terms of this contract.
Customer represents and warrants to Crucial Web Hosting that the information he, she or it has provided and will provide to Crucial Web Hosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Crucial Web Hosting that he or she is at least eighteen (18) years of age. Crucial Web Hosting may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.
Crucial Web Hosting may, at its discretion, suspend or terminate service of any client that is abusive to Crucial Web Hosting and/or Crucial Web Hosting employees. Examples of such activity include, but are not limited to:
- Verbal abuse, such as cursing, yelling, threatening, etc.
- Ongoing disregard for warnings or notices
- Consistent mistakes, errors, and/or changes causing unnecessary workload
- Spamming Crucial Web Hosting email addresses, ticket systems, or servers
- Continuous involvement in DDoS activity, hacked services, or other ongoing non-permitted usage
- Consistent late payments or responses
- Issuing a chargeback or bouncing a payment
- Continuous activation of problematic end-users
- Activity which affects the service(s) of other Crucial Web Hosting clients
Customer agrees to indemnify and hold harmless Crucial Web Hosting, Crucial Web Hosting's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
Disclaimer of Warranties
Crucial Web Hosting DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW Crucial Web Hosting DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Crucial Web Hosting AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
Termination/Suspension of Services
(a) Suspension of Service. Customer agrees that Crucial Web Hosting may suspend services to Customer without notice and without liability if: (i) Crucial Web Hosting reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Crucial Web Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Crucial Web Hosting's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
(b) Termination. The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Crucial Web Hosting fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by Crucial Web Hosting prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Crucial Web Hosting describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
Requests For Customer Information
Customer agrees that Crucial Web Hosting may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that Crucial Web Hosting believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
Customer agrees to maintain a current copy of all content hosted by Crucial Web Hosting notwithstanding any agreement by Crucial Web Hosting to provide backup services.
Upgrades and other changes in Crucial Web Hosting's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Crucial Web Hosting reserves the right to change its network in its commercially reasonable discretion, and Crucial Web Hosting shall not be liable for any resulting harm to Customer.
Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
Crucial Web Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Crucial Web Hosting's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement shall be governed by the laws of the State of Arizona exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN MARICOPA COUNTY, ARIZONA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trademark without the other party's prior written consent.
The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority.
This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Crucial Web Hosting unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Crucial Web Hosting's prior written consent. Crucial Web Hosting's approval for assignment is contingent on the assignee meeting Crucial Web Hosting's credit approval criteria. Crucial Web Hosting may assign the Agreement in whole or in part.
Any text, file, image, photo, video, or other materials (collectively, "Content") that you submit to Crucial Web Hosting in the event of a public contest ("Contest"), fall under the ownership rights of Crucial Web Hosting. By submitting any Content on or through a Contest, you hereby grant to Crucial Web Hosting, Ltd. a license to use, modify, publicly display, reproduce, and distribute such Content solely on and through Crucial Web Hosting services.
This license applies only to Content submitted to a Contest held by Crucial Web Hosting. Without this license, Crucial Web Hosting would be unable to, for example, modify an image to satisfy technical requirements. Crucial Web Hosting does not claim any ownership rights on Content that you store on your website though, this only applies to contests.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.