(Last updated: March 29, 2016)
This Master Services Agreement (“MSA”), which includes the agreements, policies, and documents referenced in this MSA, governs Hostway’s relationship with persons using Hostway Services (as defined below). By ordering or using Hostway Services, you agree to this MSA as updated from time to time in accordance with the amendment provisions in this MSA. Depending on the type of Hostway Services applicable, you 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 your 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:
These General Terms apply to all persons using Hostway Services.
All other defined terms not listed in this section are defined in their respective sections below and apply to the MSA as a whole (and not limited to the section the term is defined in).
“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.
“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.
“Client” (or “you”) means the person (individual, company, etc.) named in the Order Form as the Client or, in the absence of your name on such Order Form, the person otherwise using Hostway Services.
“End User” means any third party who accesses or uses the Hostway Services via Client or any Affiliate of Client.
“Hostway” means Hostway Services, Inc., a Delaware corporation, or such other Hostway company as named in the applicable Order Form.
“Hostway Services” (or “Services”) means the products, services, and licenses provided to Client by Hostway, whether or not used or paid for by Client, including the following:
“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.
“Order Form” means Hostway’s online or hard copy form or Statement of Work, which (a) is an integral part of this MSA, and (b) describes the Hostway Services to be provided to you.
“Service Fees”means the money amounts or rates, specified in the applicable Order Form or which Client is otherwise 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.
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 unavailability of Third Party Products. In providing the Hostway Services 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. 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.
Client will agree to, be bound by, and comply with the terms of any license or other agreement for Third Party Products. 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. 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.
Upon your submission or execution of an Order Form, Hostway will assign you a combination of alphanumeric characters designated by Hostway which (a) is unique to you, (b) identifies the Client and the Client Account, and (c) is used to track the Hostway Services ordered by, or provided to, Client (“Client ID”, or also known as “customer ID”). “Client Account” means the account, exclusively attributed to Client and the Client ID, set up by Hostway and used for the administration of billing and the provisioning of Hostway Services to Client. Once the Client Account and associated Client ID has been set up, Hostway will provide you with access to Hostway’s online portal or interface tool (known as ServicePlexTM, Client PortalTM, or such other account management tool as Hostway may designate) for you to manage the Client Account and associated Hostway Services (“Client Portal”).
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 your Client Account to accurately reflect staff departures or changes in service providers you 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 your 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.
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).
In each instance 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.
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.
As applicable, 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 continuous root administrative access to provide the Hostway Services, including Technical Support.
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.
If your Order Form includes certain Hostway Services which involve moving Client Data from your former hosting provider to Hostway (“Migration Services”), then the Migration Services are also subject to all of the additional following terms:
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 of Client’s 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.
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.
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.
Client will not take any action or use any of Hostway’s intellectual property in a manner that (a) acquires, or may reasonably acquire, any rights, title, or interest in or to Hostway’s intellectual property by Client or a third party, or (b) compromises or diminishes Hostway’s rights, title, or interest in or to Hostway’s intellectual property. If Client does acquire any rights, title, or interest in or to any of Hostway’s intellectual property, by operation of law or otherwise, then Client will immediately assign such rights, title, or interest to Hostway at Client’s sole cost. 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.
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.
If the Hostway Services provided to you includes domain name registration services where Hostway or a third party provider is named as the Registrant or Admin Contact in your place (“Proxy Services”), you agree that if Hostway or the third party provider does not receive a response to a communication sent to you 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.
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.
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.
Under no circumstances will Hostway be liable to you 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 you, 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, demand, action, or proceeding (including law suits and administrative proceedings) (collectively “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 loss, liability, damage, penalty, cost, or expense (including reasonable lawyer fees, witness compensation, and court fees) (collectively “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, (b) gross negligence or willful misconduct, or (c) 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.
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 activity which is, or may reasonably be deemed to (a) contravene applicable laws, including regulations, policies, and rules thereto, (b) create 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) be a material violation of this MSA, or (d) be generally considered materially objectionable in the Internet community (any of which is an “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.
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 Client’s Account if Client engages in any Abuse of Services as determined by Hostway at its sole determination. Upon a suspension of Hostway Services, Hostway will notify Client in writing about the suspension. A suspension based on an Abuse of Services may be implemented until the Abuse of Services 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 you engage in any Abuse of Services, you 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.
If you purchase a domain through Hostway, Hostway may exercise its suspension and termination rights in this MSA against such domain name registration for reasons including (a) your 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. You acknowledge that you will not receive any refund whatsoever for any such suspension, termination, transfer, or modification to your domain name registration.
You may terminate this MSA, a particular Order Form, or your Client Account in accordance with the Billing Terms below. Hostway may terminate this MSA or a particular Order Form for convenience upon 30 calendar days’ written notice to Client. 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. Client acknowledges that (a) termination of this MSA or the applicable 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. Upon any termination of this MSA or your Client Account, Hostway may delete all of Client’s 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.
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.
You must be at least 18 years of age or the age of majority in the state, province, or country of your 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 you are a parent or legal guardian who accepts this MSA and submits an Order Form on behalf of a Minor, then you 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. You will remain primarily liable for (a) and (b) mentioned above even after the Minor has reached the age of majority unless you execute 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.
You acknowledge that the Internet and information technology industries (and the laws, regulations, policies, and risks associated with them) are constantly and rapidly changing. As such, you acknowledge that Hostway, at its sole discretion, may update this MSA from time to time to address the changes affecting this MSA and the Hostway Services. If Hostway makes any amendment to this MSA or any portion thereof, such as the Supplemental Terms, Hostway may post a notice on Hostway’s Legal webpage at http://www.hostway.com/legal/. Your continued use of Hostway Services following notice of the amendment constitutes your agreement and acceptance of the amendments.
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.
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.
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.
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.
All references in this MSA to particular titles, headings, and sections will be references to the titles, headings, and sections of this 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 this MSA. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning will refer to this MSA in its entirety and not to any particular provision of this 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 this MSA.
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 this 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.
This 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.
This MSA, which includes the agreements, policies, and documents referenced in this MSA, 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.
These Billing Terms apply to all persons using Hostway Services.
You will pay to Hostway the Service Fees stated in the Client Portal. You acknowledge that Service Fees will start accruing from the time the Client Account is created and Hostway Services are made available to you, whether or not you use the Hostway Services. Unless stated otherwise, all money amounts stated in this MSA and the Client Portal are in U.S. Dollars.
The billing period applicable to Client for which Service Fees are billed to Client (“Billing Cycle”) will start from the time Hostway creates the Client Account and makes the particular Hostway Services available to you. The Billing Cycle may vary depending on the billing period selected by Client and depending on the particular Hostway Services (different Hostway Services may have different Billing Cycles). Resellers are limited to the monthly Billing Cycle. Unless you choose to manually renew your Hostway Services, the Billing Cycle will automatically renew for the same successive period until you cancel your Client Account or terminate this MSA in accordance with the cancellation provisions and termination provisions herein. If you elect to manually renew your Hostway Services, you are solely responsible, and Hostway is not responsible, for ensuring the timely renewal of your Hostway Services to avoid service interruption. You 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. You acknowledge 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 you order such features. Add-on features are non-refundable.
If you fail to pay the Service Fees on or before the Due Date, then Hostway may charge you 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 Services Fees unpaid past the Due Date. If your Client Account has Service Fees unpaid past the Due Date, then Hostway may suspend your 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 your Client Account in its entirety if the Service Fees remain past due following reasonable notification from Hostway to the contact person listed in your Client Account. You are solely responsible, and Hostway is not responsible, for keeping your contact information up to date and for any failure to receive such notification of Client Account cancellation.
You will pay the Service Fees via the payment method indicated in the Order Form, which will be selected from one of the following:
Check or Money Order. If you elect to pay by check, then you 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 you by Hostway, and (b) include your Client ID on the check. Hostway may charge you 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. You are 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 you elect to pay by credit card, then you will provide Hostway with a valid credit card number, associated full name on the credit card, expiration date, and card verification number. You will notify Hostway in writing of all changes to your credit card, including card number, expiration date, and billing address. For credit card payments, you hereby authorize Hostway to automatically charge your credit card each Billing Cycle for Service Fees. You hereby also consent to Hostway charging you $25.00 for each credit card chargeback received by Hostway. You acknowledge that recurring Service Fees will be charged to your credit card each Billing Cycle until you cancel 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 you elect to pay by bank wire or ACH, then Hostway will provide you with the bank wire or ACH details. You 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. You will pay for all administrative and processing fees associated with the bank wire or ACH and you acknowledge that Hostway may charge you for such amounts. You are solely responsible, and Hostway is not responsible, for ensuring that the Client ID is accurately included in the transmission details to avoid Late Charges.
If you wish to reactivate a closed Client Account, then you will be charged a reactivation fee of $19.95. A further fee of $99.95 will be charged to your Client Account if Hostway restores your data to your Client Account as part of the reactivation. Hostway may charge you a fee of $19.95 for certain changes to your Client Account (“Account Change Requests”), including requests to:
There is no upgrade fee for upgrading to a higher priced hosting plan, but you will be charged any difference between the setup fees applicable to your new and former hosting plans. For Account Change Requests, contact .
Client acknowledges that (a) termination of this MSA or the applicable 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. If you want to cancel your Client Account or domain name registration or both, you will specify which of them you are cancelling. The Billing Cycle will automatically renew until cancelled. To cancel your Client Account or particular Hostway Services, 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 . The cancellation process is not complete or effective until Hostway confirms the closure of your Client Account by providing you a confirmation number either over the phone or through email at your contact information recorded on your Client Account. You acknowledge that there are no pro-rated refunds after the first 30 calendar days of being provided Hostway Services. Cancellation requests must be received at least 30 calendar days before the end of your Billing Cycle or your 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, your ISP, or any other secondary issues not directly related to the Hostway Services. Cancellation of your Hostway Services does not relieve you from paying all outstanding balances owed on your Client Account.
Hostway will maintain records of the Hostway Services provided to you and the billing thereof. If there is an inconsistency between Hostway’s records as stated in the Client Portal and your records, then Hostway’s records will be deemed the controlling records. If you want 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 .
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, you will be liable for Late Charges and all costs of collection, including attorney's fees, court costs, and collection agency fees.
Depending on the type of Hostway Services that you order, you 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 your use of the applicable Hostway Services to the extent of the conflict.
Refunds for Hostway Services pertaining to Web Hosting and E-Commerce are available for shared hosting plans and virtual private server (“VPS”) plans only. Refunds applicable to Hostway’s enterprise hosting plans are subject to the Enterprise Hosting Master Services Agreement. Each shared hosting plan and VPS plan carries a 30-day money back guarantee. If you cancel your shared hosting plan or VPS plan within the first 30 calendar days of your first Billing Cycle in accordance with Hostway’s cancellation process, you may request a refund of the Service Fees (excluding setup fees) you 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 Hosting Master Services Agreement; (d) Hostway Services ordered through Hostway’s reseller program; (e) domain parking plus; and (f) overage fees.
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.
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.
You are not permitted to install your own chat rooms because chat rooms tend to require significant system resources. However, for a small charge, Hostway may provide you with Java chat rooms.
Hostway may allow programs to run in the background, which programs will be considered by Hostway on a case-by-case basis. You will incur extra Service Fees based on system resources used and operational maintenance needed. If you wish to run background programs, contact Hostway at to arrange the setup.
You are not permitted to operate IRC or IRC bots.
You are not configured for the purposes of distributing software or multimedia products. If you wish to distribute software and/or multimedia files, contact to make special arrangements.
You are not permitted to use your Web Hosting and E-Commerce Client Account to distribute or store unusual amounts of graphics, audio, or video files (collectively “Multimedia Files”). If your 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 your Client Account.
If you store any database on Hostway’s Web Hosting and E-Commerce servers, you must limit the size to 10% of the total disk space allotted for the particular domain name associated with your Client Account.
The Enterprise Hosting Master Services Agreement as posted online at http://www.hostway.com/legal/msa_enterprisehosting.html and as amended from time to time supplements (is in addition to) the General Terms and Billing Terms above and apply only to those using Hostway Services relating to Hostway’s Managed Hosting, Virtual Private Cloud, FlexCloud Hosting, and Hybrid Hosting.
To view the Enterprise Hosting Master Services Agreement, please click the following link: http://www.hostway.com/legal/msa_enterprisehosting.html.
The Colocation Master Services Agreement as posted online at http://www.hostway.com/legal/msa_colocation.html and as amended from time to time supplements (is in addition to) the General Terms and Billing Terms above and apply only to those using Hostway Services relating to Hostway’s Colocation services.
To view the Colocation Master Services Agreement, please click the following link: http://www.hostway.com/legal/msa_colocation.html.