1. Services. Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Warthog Hosting’s credit approval requirements, Warthog Hosting agrees to provide the web hosting and other services described in the Order for the fees stated in the Order.
2. Term. The initial service term of the Agreement shall begin on the date that Warthog Hosting generates an e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the length of time stated in the Order (the “Initial Term”). This Agreement shall automatically renew unless Warthog 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.”
3. Payments.
(a) Fees. Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly or annually as indicated on the Order, beginning on the Service Commencement Date. Warthog Hosting may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Warthog 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 Warthog 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. Warthog Hosting may request for a valid driver license with picture ID and a scanned copy of your Credit Card for any hosting purchase.
Payments must be made in United States dollars. Customer is responsible for providing Warthog Hosting with changes to billing information (such as credit card expiration, change in billing address) At its option, Warthog Hosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Warthog Hosting may charge a set fee on overdue amounts at $10.00 per month after a 5 day Grace Period. Warthog Hosting may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (30) days of due date are conclusively deemed accurate. Customer agrees to pay Warthog Hosting’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Warthog Hosting’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases. Warthog 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 Warthog Hosting’s request Customer shall remit to Warthog Hosting all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Warthog Hosting), regardless of whether Warthog 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 Warthog 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 Warthog 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 Policy. Customer acknowledges that all Shared Hosting and Shared hosting account add-ons and domain names are NON-Refundable. We do offer a 30 day money back policy for all Shared Hosting Accounts. The days begin when you place the order with us. Warthog Hosting offers a no money back policy on Virtual Private Server Reseller Accounts. Warthog Hosting reserves the right at anytime to deny a refund if we find that the TOS or AUP has been violated. If we believe that you abused the server we reserve the right to not issue a refund on VPS accounts. Warthog Hosting Reserves the right at anytime to deny a refund.
(f) Cancellation. The Client Agrees they must cancel the Paypal subscription to avoid future charging to your account. Under no circumstances is Warthog Hosting obligated to refund the extra payments, although refunds would always be considered if contacted. The client must cancel service by submitting a ticket to the billing department to avoid being charged. You must submit a ticket 30 days prior to avoid debt collections. Once your ticket has been received and processed, your account will be terminated at the end of its billing cycle.
(g) Subscription Payments. At any given time, if a subscription is cancelled via Paypal, you will have to contact us in 48 hours or your account will automatically be marked as cancelled. Please do not cancel the subscription if you plan to keep your account active. Under no circumstances is Warthog Hosting obligated to reactive your account prior the 48 hours given to contact us.
4. Law/AUP. Customer agrees to use the service in compliance with applicable law and Warthog Hosting’s Acceptable Use Policy posted at http://www.warthoghosting.com/aup.html (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that Warthog 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 Warthog 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 Warthog Hosting’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Warthog Hosting and Customer regarding the interpretation of the AUP, Warthog Hosting’s commercially reasonable interpretation of the AUP shall govern.
5. Customer Information. Customer represents and warrants to Warthog Hosting that the information he, she or it has provided and will provide to Warthog Hosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Warthog Hosting that he or she is at least 18 years of age. Warthog 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. Warthog Hosting reserves the right to share your information to selected 3rd party companies such as (PayPal, 2Checkout, Merchants, and etc) for business related reasons.
6. Indemnification. Customer agrees to indemnify and hold harmless Warthog Hosting, Warthog 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 attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties. Warthog Hosting DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW WARTHOG 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.
8. Limitation of Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Warthog 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.
9. Suspension/Termination.
(a) Suspension of Service. Customer agrees that Warthog Hosting may suspend services to Customer without notice and without liability if:
(i) Warthog 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) Warthog Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers;
(iiii) Requested by a law enforcement or regulatory agency. Customer shall pay Warthog Hosting’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection which will be 50% of the service cost after our 24 hours notice.
(iiiii) Warthog Hosting will suspend your account without notice if your maximum amount of resources is met for your account.
(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 Warthog 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 five (5) days of Customer’s written notice describing the failure in reasonable detail. The Agreement may be terminated by Warthog Hosting prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows:
(i) Upon five (5) 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 twenty four (24) hours of a written notice from Warthog 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 thirty (30) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Requests for Customer Information. Customer agrees that Warthog Hosting may, without notice to Customer,
(a) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that Warthog Hosting believes violates applicable law, and
(b) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up. Customer agrees to maintain a current copy of all content hosted at Warthog Hosting, not with standing any agreement by Warthog Hosting to provide back up services. The Customer understands it is their responsibility to backup all data on a Shared, Reseller, Virtual private server account, or Virtual Private Server Reseller Account. Warthog Hosting will not be liable for any lost data.
12. Changes to Warthog Hosting’s Network. Upgrades and other changes in Warthog 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. Warthog Hosting reserves the right to change its network in its commercially reasonable discretion, and Warthog Hosting shall not be liable for any resulting harm to Customer.
13. Notices. Notices to Warthog Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.warthoghosting.com/about.html Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
14. Force Majeure. Warthog 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 Warthog 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.
15. Governing Law/Disputes. The Agreement shall be governed by the laws of the State of Maryland, 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 BALTIMORE COUNTY, BALTIMORE, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
16. Miscellaneous. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer’s purchase order or other business forms are not binding on Warthog 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 Warthog Hosting’s prior written consent. Warthog Hosting’s approval for assignment is contingent on the assignee meeting Warthog Hosting’s credit approval criteria. Warthog Hosting may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.
17. Interaction with Warthog Hosting staff and its associates. Any vulgar language, yelling (CAPS) or harassment to any staff member of Warthog Hosting or its associates, through any support method, will result in immediate termination of account without refund. If a dispute arises we will try our best to resolve the issue.
18. Modification, Installation, and Troubleshooting of 3rd Party Scripts. Warthog Hosting does not provide support for any type of 3rd party scripts. It is the responsibility of the client to modify, install, and troubleshoot any 3rd party scripts on their hosting account.
Last Updated: January 29, 2010