Terms of Services Agreement (TOS)
This Web Hosting Agreement (this “Agreement”) is between Precise Virtual Development, LLC. (“Precise Business Class Web Hosting”), a United States Web Hosting Limited Liability Corporation, and the person (individual or legal person) whose signs Precise Business Class Web Hosting’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of Precise Business Class Web Hosting’s Web hosting service.
Table of Contents
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Precise Business Class Web Hosting’s credit approval requirements, Precise Business Class 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 Precise Business Class Web 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 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”) unlessl Precise Business Class 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.”
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Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be quarterly, semi-annually or annually as indicated on the Order, beginning on the Service Commencement Date. Precise Business Class Web Hosting may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Precise Business Class 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 Precise Business Class 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 Precise Business Class Web Hosting with changes to billing information (such as credit card expiration, change in billing address) At its option, Precise Business Class Web Hosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Precise Business Class 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. Precise Business Class 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 Precise Business Class Web Hosting’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Precise Business Class Web Hosting’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
Clients have an option to add funds to your account as credit to your client account with us. You can deposit funds (credits) to your account so that invoices are automatically paid when they are generated. Funds added through this system can be monitored and managed by through our client portal at any time. All deposit credits are non-refundable.
Precise Business Class 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).
Reactivation of Service
In the event that your account is deactivated due to nonpayment, please review your account online for the overdue amount. Your payment must include the $25.00 late fee for your account(s) to be reactivated. You may fax credit card information to Precise Virtual Development by completing and printing the reactivation form or you may send us a money order via your preferred overnight courier or mail service.
At Precise Business Class Web Hosting’s request Customer shall remit to Precise Business Class 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 Precise Business Class Web Hosting), regardless of whether Precise Business Class Web Hosting fails to collect the tax at the time the related services are provided.
4. Law / AUP. [BACK TO TABLE OF CONTENTS]
Customer agrees to use the service in compliance with applicable law and Precise Business Class Web Hosting’s Acceptable Use Policy posted at http://www.getpvd.net/leagal_tos.php (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that Precise Business Class 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 Precise Business Class 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 Precise Business Class Web Hosting’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Precise Business Class Web Hosting and Customer regarding the interpretation of the AUP, Precise Business Class Web Hosting’s commercially reasonable interpretation of the AUP shall govern.
5. Customer Information. [BACK TO TABLE OF CONTENTS]
Customer represents and warrants to Precise Business Class Web Hosting that the information he, she or it has provided and will provide to Precise Business Class Web Hosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Precise Business Class Web Hosting that he or she is at least 18 years of age. Precise Business Class 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.
6. Indemnification. [BACK TO TABLE OF CONTENTS]
Customer agrees to indemnify and hold harmless Precise Business Class Web Hosting, Precise Business Class 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.
7. Unauthorized Access / Disclaimer of Warranties. [BACK TO TABLE OF CONTENTS]
Precise Virtual Development is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Precise Virtual Development’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
Precise Business Class Web Hosting does not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property. We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. Unless otherwise agreed, all Supplemental Services are performed on an “AS IS, AS AVAILABLE” basis. We do not promise to retain the data back up for longer than the agreed data retention period..
8. Limitation of Damages. [BACK TO TABLE OF CONTENTS]
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 POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Precise Business Class 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.
9. Suspension/Termination. [BACK TO TABLE OF CONTENTS]
Suspension of Service.
Customer agrees that Precise Business Class Web Hosting may suspend services to Customer without notice and without liability if: (i) Precise Business Class 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) Precise Business Class 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.
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 Precise Business Class 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 Precise Business Class 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 Precise Business Class 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.
10. Cancellations & Money Back Guarantee. [BACK TO TABLE OF CONTENTS]
In the event that you are not satisfied with our services, customers may cancel their hosting services at any time by logging into our Customer Billing Area and clicking the “Cancellation Request” button for your hosting plan. All hosting prepayment fees will be refunded, excluding any setup, and/or administrative fees, within 60 days.
In the event that you wish to terminate early your quarterly, semi-annually, or annual hosting services after the first 30 days within the first contractual year, you may cancel with a written, or faxed notice of cancellation. Any waived setup fees may be forfeited and deemed payable.
Monthly service agreements will remain active until the 27th day of the month in which you have requested cancellation. Plan requests received after the 27th of the month will be processed on the 27th of the following month.
In the event that your account is terminated by Precise Virtual Development after the first 30 days of service, for AUP violations, non-payment, or illegal activity, Precise Virtual Development reserves the right to collect the remainder of any quarterly, semi-annually, or annually contracted services. In the event of delinquent accounts 90 days or more past due, any previously waived setup fees may be forfeited and deemed payable. Addtionally, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys’ fees, collection agency fees, and court costs in addition to a 1.5% daily finance charge.
Money Back Guarantee.
Precise Business Class Web Hosting offers a risk free, 30 day money back guarantee on all shared hosting plans and reseller solutions. Under no circumstances are there to be refunds for our setup fee, administrative fees, or domain registration fee ($12.95).
All refund requests after the initial 30 days of service will be refunded at a proactive rate for the unused time. Precise Business Class Web Hosting reserves the right to null and void the money back guarantee for any violation of this Terms of Service Agreement, Acceptable Use Policy, or any reason deemed as just by Precise Business Class Web Hosting.
Only first-time signups will be allowed to utilize our 30 day money back gurantee. For example, if you have had an account with us, canceled and signed up again, you will not be allowed to utilize our money back guarantee. This also applies for current customers who sign up for a second account.
11. Requests for Customer Information. [BACK TO TABLE OF CONTENTS]
Customer agrees that Precise Business Class 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 Precise Business Class 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.
12. Back Up Copy. [BACK TO TABLE OF CONTENTS]
Customer agrees to maintain a current copy of all content hosted by Precise Business Class Web Hosting nothwithstanding any agreement by Precise Business Class Web Hosting to provide back up services.
13. Changes to Precise Business Class Web Hosting’s Network. [BACK TO TABLE OF CONTENTS]
Upgrades and other changes in Precise Business Class 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. Precise Business Class Web Hosting reserves the right to change its network in its commercially reasonable discretion, and Precise Business Class Web Hosting shall not be liable for any resulting harm to Customer.
14. Notices. [BACK TO TABLE OF CONTENTS]
Notices to Precise Business Class Web Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on our Client Support Portal . 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.
15. Force Majeure. [BACK TO TABLE OF CONTENTS]
Precise Business Class 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 Precise Business Class 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.
16. Governing Law / Disputes /Miscellaneous [BACK TO TABLE OF CONTENTS]
The Agreement shall be governed by the laws of the State of California, 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 SOMERSET COUNTY, NEW JERSEY, 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 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 Precise Business Class 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 Precise Business Class Web Hosting’s prior written consent. Precise Business Class Web Hosting’s approval for assignment is contingent on the assignee meeting Precise Business Class Web Hosting’s credit approval criteria. Precise Business Class Web 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 supercedes and replace any prior understanding or communication, written or oral.
17. Domains. [BACK TO TABLE OF CONTENTS]
NOT INCLUDED IN THE SERVICES: Without limitation, the following are not included in the Services: We cannot and do not check to see whether the domain name(s) you select, or the use you make of the domain name(s), or other of the Service(s), infringes legal rights of others. It is your responsibility to know whether or not the domain name(s) you select or use infringes legal rights of others. We might be ordered by a court to cancel, modify, or transfer your domain name; it is your responsibility to list accurate contact information in association with your account and to communicate with litigants, potential litigants, and governmental authorities. It is not our responsibility to forward court orders or other communications to you. We will comply with court orders unless you contact us to contest the order.
EXPIRATION AND RENEWAL OF SERVICE(S): You acknowledge that it is your responsibility to keep your own records and to maintain your own reminders regarding when your domain name registration or other Services are set to expire. As a convenience to you, and not as a binding commitment, we and/or your Primary Service Provider may notify you via an email message or via your account when renewal fees are due. Should these fees go unpaid, your Services will expire or be cancelled. Payment must be made by credit card or such other method as we may allow or require from time to time. If you select automatic renewal of the Service(s), we may attempt to renew the Service(s) a reasonable time before expiration, provided your credit card or other billing information is available and up to date. You acknowledge that it is your responsibility to keep your billing information up to date and that we are not required to, but that we may, contact you to update this information in the event that an attempted transaction is not processed successfully. *please note: for certain TLDs, the automatic renewal option is not available
ACCOUNT CONTACT INFORMATION AND DOMAIN NAME WHOIS INFORMATION: As further consideration for the Service(s), you agree to provide certain current, complete and accurate information about you, both with respect to your account information and with respect to the WHOIS information for your domain name(s). You agree to maintain and update this information as needed to keep it current, complete and accurate. With respect to you, the administrative, technical, and billing contacts for your domain name registration(s) and other Service(s), you must submit the following: name, postal address, e-mail address, voice telephone number, and where available, fax number. You agree that the type of information you are required to provide may change and you understand that, if you do not provide the newly required information, your registration or and/or other Service(s) may be suspended or terminated or may not be renewed. Not providing requested information may prevent you from obtaining all Service(s). You may provide information regarding the name-servers assigned to your domain name(s) and, if we are providing name-server services to you, the DNS settings for the domain name. If you do not provide complete name-server information, or if you purchase “Name Only” Services, you agree that we may supply this information (and point your domain name to a website of our choosing) until such time as you elect to supply the name-server information or until such time as you elect to upgrade from “Name Only” Services
18. Right to Refusal of Service. [BACK TO TABLE OF CONTENTS]
Precise Business Class Web Hosting may refuse to accept any customer or any website for participation in the Precise Business Class Web Hosting Hosting Network as determined by Precise Business Class Web Hosting at its sole discretion.
This Terms of Service Agreement together with the Order and Acceptable Use Policy 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.