Terms Of Service
The following terms of service (these "Terms of Service" or this "Agreement") govern the provision by Absolute Hosting to the customer executing this online transaction ("Customer"), of the products and services described in (i) the Order Form submitted in connection with this online transaction (the "Order Form"), (ii) the Service Level Agreement (as in effect from time to time and set forth on Absolute Hosting's website, the “SLA”) governing the Customer’s limited right to recover certain service credits and (iii) Absolute Hosting’s technical support descriptions (collectively clauses (i) through (iii), the "Products and Services"). These Terms of Service shall be effective as of the date that Customer executes its online transaction and thereby accepts these Terms of Services (the “Effective Date”). These Terms of Service hereby incorporate by reference the SLA, Absolute Hosting’s Acceptable Usage Policy (as in effect from time to time as set forth on Absolute Hosting’s website, the “AUP”) and the Order Form each of which is made a part of these Terms of Service and collectively referred to herein as the Agreement.” Customer’s use of Absolute Hosting’s Website, Network, and the Products and Services is also subject to Customer’s acceptance and compliance with these Terms of Service, the AUP, the SLA and the Order Form. Capitalized terms used herein without being defined herein shall have the meaning ascribed to such capitalized term in the SLA or AUP, as applicable.
PLEASE READ THIS AGREEMENT CAREFULLY. This is a binding agreement between Customer and Absolute Hosting and includes automatic renewal terms. By submitting an Order Form online or by using Products and Services, Customer hereby agrees to the terms and conditions of the Agreement. THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS. PARAGRAPH 11 REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Changes to this Agreement
2. Services and Monthly Commitments
3. Term and Renewal
4. Domain Registration
5. Customer Cancellation or Non-Renewal
CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL PRODUCTS AND SERVICES SHALL CONTINUE TO RENEW AND CUSTOMER WILL CONTINUE TO BE BILLED FOR ALL PRODUCTS AND SERVICES UNLESS CUSTOMER CANCELS THE PRODUCTS AND SERVICES AS PROVIDED IN THIS SECTION.
Customer may terminate this Agreement with respect to all, and not less than all, of the Products and Services without liability (except for Charges due through the effective date of such termination) upon the occurrence of a material breach by Absolute Hosting of its obligations to provide the Products and Services according to the terms of this Agreement that is not cured within fifteen (15) business days after written notice from Customer describing such breach in detail is received by Absolute Hosting (“Customer Termination”). In the event of a Customer Termination, Customer shall pay (1) all outstanding amounts payable through the effective date of such termination and (2) if the Products and Services include software for which Absolute Hosting does not then provide general customer support, Customer shall pay to Absolute Hosting an amount equal to Absolute Hosting's cost of such software for the entire Initial Term and any applicable Renewal Periods. If Customer terminates this Agreement for any reason other than a Customer Termination, Customer shall pay to Absolute Hosting an amount equal to all unpaid Charges through the effective date of such termination and (A) in the case of any Product and Service subscribed for on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable and (B) in the case of any Product and Service subscribed for other than on a month-to-month basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable, calculated based upon the then-current Minimum Monthly Commitment payable by Customer upon the date of termination. CUSTOMER ACKNOWLEDGES THAT CUSTOMER WILL NOT BE ENTITLED TO ANY REFUND OR CREDIT IN THE EVENT THAT ANY PRODUCT OR SERVICE THAT IS PROVIDED ON THE BASIS OF A ONE-YEAR TERM IS TERMINATED, WITH OR WITHOUT CAUSE, PRIOR TO THE EXPIRATION OF THE ONE-YEAR TERM. CUSTOMER HEREBY WAIVES ALL RIGHTS TO ANY SUCH REFUND OR CREDIT.
Upon termination of this Agreement, Absolute Hosting and Customer shall have no obligations to each other, except as provided for in this Agreement. Upon termination of this Agreement, Customer shall (i) pay all Charges and other amounts due and owing to Absolute Hosting under these Terms of Service, (ii) immediately remove from Absolute Hosting's premises all property owned by Customer, including, but not limited to, immediately removing all of Customer’s data from Absolute Hosting Network (including all servers owned or operated by Absolute Hosting), and (iii) return to Absolute Hosting all software, access keys, and any other property provided to Customer by Absolute Hosting under this Agreement. Any physical property of Customer not removed from Absolute Hosting’s premises within forty- five (45) days after such termination shall become the property of Absolute Hosting, which may, among other things, dispose of such property without the payment of any compensation to Customer. Sections 8, 9, and 11 shall survive the expiration, cancellation, or termination of this Agreement for any reason.
9. Disclaimers; Limitation on Company Liability.
10. Miscellaneous Terms
a. Bandwidth. Customer agrees that bandwidth usage shall not exceed the number of Gigabytes per month for the Products and Services ordered by Customer on the Order Form (the "Agreed Usage”) without overage fees and/or penalties occurring. Absolute Hosting will monitor Customer's bandwidth and reserves the right to take corrective action if Customer's bandwidth exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Products and Services, or termination of these Terms of Service, which actions may be taken by Absolute Hosting in its sole and absolute discretion. If Absolute Hosting takes any corrective action under these Terms of Service, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. Bandwidth usage is measured on a monthly basis with the server start date serving as the beginning of the monthly bandwidth measuring cycle. Only outgoing traffic is counted and applied towards the Agreed Usage. In the event that Customer exceeds the Agreed Usage, Absolute Hosting may, at its sole discretion, collect overage fees, in the amount of $0.05 per GB from Customer, or to the extent that Customer has a credit card on file with Absolute Hosting, apply such charge against Customer’s credit card. Data transfer in excess of the Agreed Usage shall be automatically billed to Customer. Unused Agreed Usage or bandwidth allocations cannot be carried over to future months or applied to other servers.
Customer consents to Absolute Hosting’s use of Customer’s name and logo during the term of service solely to identify Customer as a client of Absolute Hosting.
b. Notices. Unless otherwise specified herein, all notices, requests and other communications hereunder shall be sufficiently given if in writing and delivered personally or sent by facsimile transmission, internationally recognized overnight courier, or registered or certified mail (return receipt requested) to the address or facsimile number of Customer listed in Absolute Hosting’s records or if to Absolute Hosting then to the address set forth below. Such notices or other communications shall be deemed to have been given (a) on the date delivered (if delivered personally), (b) on the date that return confirmation is received (if sent by facsimile), (c) on the business day after being sent by an internationally recognized overnight air courier, or (c) five days after being sent (if sent by registered or certified mail).
Absolute Hosting, LLC
c. Waiver. It is agreed that no waiver by any party hereto of any breach or default of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
d. Severability. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.
e. Force Majeure. Neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is occasioned by any occurrence or contingency beyond its reasonable control, including war, strike, fire, Act of God, earthquake, flood, lockout, embargo, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party; provided that such party shall use commercially reasonable efforts to promptly mitigate any damages or losses.
f. Non-Solicitation. During the term of this Agreement and for twelve (12) months following termination of this Agreement, Customer agrees that it shall not solicit for employment with Customer (or with any other party) any employee of Absolute Hosting or interfere in the employment relationship between Absolute Hosting and any of its employees with whom Customer has had contact in connection with this Agreement.
g. Ownership. Absolute Hosting shall be the sole owner of all intellectual property, and all derivatives thereof, that Absolute Hosting may develop in the course of providing the Products and Services. Each party to this Agreement retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses, or address blocks assigned to Customer in connection with the Products and Services.
h. Customer Hardware. Absolute Hosting acknowledges and agrees that the hardware provided by Customer to Absolute Hosting to be used in connection with any Products and Services (the “Customer Hardware”) is the property of Customer and shall be tagged and identified as such. Absolute Hosting shall not pledge, hypothecate or otherwise encumber the Customer Hardware in any way and upon demand by Customer shall surrender the Customer Hardware to Customer, unless Customer fails to remove such Customer Hardware as provided for in Section 4 above.
i. Third-Party Beneficiaries. There shall be no third party beneficiaries to the Agreement, including customers, employees, agents, or insurers.
j. Assignment. This Agreement shall not be assignable by Customer without Absolute Hosting’s prior written consent. Absolute Hosting may assign the Agreement in whole or in part upon written notice to Customer. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.
11. Agreement to Arbitrate
a. Dispute Notice. In the event of a Dispute, Customer or Absolute Hosting must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Absolute Hosting must be addressed to the address listed for Notices in Section 10(b), above (the “Absolute Hosting Notice Address”). The Dispute Notice to Customer will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Absolute Hosting and Customer do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, Customer or Absolute Hosting may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
b. Binding Arbitration. In the event Customer and Absolute Hosting do not reach an agreement to resolve the Dispute as stated in the preceding paragraph, Customer and Absolute Hosting further agree: (a) to arbitrate all Disputes between the parties pursuant to the provisions in the Agreement; (b) the Agreement memorializes a transaction in interstate commerce; (c) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (d) this Section shall survive termination of the Agreement. ARBITRATION MEANS THAT CUSTOMER WAIVE CUSTOMER’S RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND CUSTOMER’S GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award Customer the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
c. Small Claims Court. Notwithstanding the foregoing, Customer may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
d. WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. CUSTOMER AND Absolute Hosting AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
e. Arbitration Procedure. If a party elects to commence arbitration, the arbitration shall be governed by the rules of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Section, except that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. If there is a conflict between the JAMS Rules and the rules set forth in this Section, the rules set forth in this Section shall govern. Customer may, in arbitration, seek any and all remedies otherwise available to Customer pursuant to federal, state, or local laws. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of the Agreement. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to, any claim that all or any part of the Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Customer may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Hillsborough County, Florida, at your option.
i. Initiation of Arbitration Proceeding. If either Customer or Absolute Hosting decide to arbitrate a Dispute, we agree to the following procedure:
•Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. Customer can find a copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for Arbitration”).
•Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to:
•Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
ii. Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by Absolute Hosting or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Absolute Hosting is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
iii. Arbitration Fees. If you recover more in the arbitration than the last offer of resolution or settlement made to you by Absolute Hosting, Absolute Hosting shall pay, or (if applicable) reimburse Customer for, all JAMS filing, administration, and arbitrator fees for any arbitration commenced (by you or Absolute Hosting) pursuant to provisions of the Agreement.
f. Amendments to this Section. Notwithstanding any provision in this Agreement to the contrary, Customer and Absolute Hosting agree that if Absolute Hosting makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Absolute Hosting’s address) in this Section, Absolute Hosting will obtain Customer’s affirmative assent to the applicable amendment. If Customer does not affirmatively assent to the applicable amendment, Customer is agreeing that Customer will arbitrate any Dispute between us in accordance with the language of this Section.
g. Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void, with the exception of Section 11(h). The terms of this Section shall otherwise survive any termination of these Policies and Procedures.
h. Exclusive Venue for Other Controversies. Absolute Hosting and Customer agree that any controversy that is not covered by the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the Superior Court of Hillsborough, Florida, or the United States District Court for the Southern District of Florida, and each party hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts for any such controversy
i. Survival. The terms of this Section 11 shall otherwise survive any termination of these Terms of Service.
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