WEB SITE HOSTING AGREEMENT
This Web Site Hosting Agreement (“Services Agreement” or “Agreement”) is made as of the date located in the confirmation of purchase E-mail (“Effective Date”) between Host (“Host”), Ally Drez, L.L.C, and customer.
RECITALS
Host provides web site hosting and related services, and desires to provide such services to Customer.
Customer desires that Host provide such services to it in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, based on the foregoing recitals and the promises contained in this Agreement, the parties hereto hereby agree as follows:
1. Definitions.
1.1 “Confidential Information” has the meaning set forth in Section 9.
1.2 “Customer Content” means all text, pictures, sound, graphics, video and other data supplied by Customer to Host for inclusion on the Web Site, as such materials may be modified from time to time.
1.3 “Intellectual Property Rights” means any and all (a) rights associated with works of authorship, including but not limited to copyrights, moral rights, and mask works, (b) Trademark and trade name rights and similar rights, (e) trade secret rights, (d) patents and (e) All other intellectual and industrial property rights in any jurisdiction throughout the world.
1.4 “Web Site” means the Web Site found within your hosting package, which your domain is pointing to.
2. Hosting Services. Host shall host the Web Site, in accordance with the terms set forth in Exhibit A. Host shall not be responsible for the maintenance of the Web Site. However, Customer may engage Host to maintain the Web Site, or provide other services related thereto, pursuant to a separate written agreement. Host shall place all content for the Web Site on the hosting server promptly after the execution of this Agreement. Host shall include any content, advertising or links on the Web Site, as requested by Customer. Host shall not place any content, links or advertisements on the Web Site without the prior written consent of Customer.
3. Payments. Customer shall pay Host the fees set forth in Exhibit A, on the schedule set forth therein. All fees quoted include, and Host shall pay, all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes based on Customer’s net income. Host shall invoice Customer monthly, quarterly or yearly for the hosting services, based on customer selection upon signing up. Customer shall remit the amount set forth in such invoice within 30 days of the invoice date.
4. Term and Termination.
4.1 Term. This Agreement shall commence as of the Effective Date and remain in effect for a period of one year, unless terminated earlier pursuant to Section 4.2. This Agreement will renew for successive one-year periods, unless either party gives notice of its intent not to renew at least 60 days prior to the end of the then-current term.
4.2 Termination. This Agreement may be terminated immediately upon written ·
(a) by either party if the other party breaches any material provision of this Agreement and fails to cure such breach within 30 days after receipt of written notice of such breach;
(b) by Customer upon 30 days written notice to Host if Customer, in good faith, determines that the hosting services for the Web Site do not meet industry, technical and professional standards for traffic capacity, user experience, and availability; or
(c) by either party if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed or (v) institutes any proceedings for the liquidation or winding up; provided, however, that, in the case any of the foregoing is involuntary, such party shall only be in breach if such petition or proceeding has not been dismissed within 90 days.
4.3 Effect of Termination. Sections 4.3 and 5 through 9 will survive expiration or earlier termination of this Agreement. Upon the termination of this Agreement for any reason and upon request by Customer at any time, Host will promptly deliver; in their original format all Customer Content and copies thereof and deliver to Customer a complete copy of all materials on the Web Site. In addition, upon the termination for any reason or expiration of this Agreement, Host shall promptly provide to Customer all assistance required by Customer in the transition of the Web Site from Host to any third party specified by Customer. Such assistance shall include, without limitation, providing electronic versions of all content, including software code, contained on the Web Site, as well as any other assistance necessary in the transition of the Web Site to a third party.
5.Warranties.
5.1 Host Warranties. Host represents and warrants that any materials provided or used by it or under this Agreement will not (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy, (b) violate any law, statute, ordinance or regulation or (c) contain any (i) ‘back door’, ‘time bomb’, ‘Trojan horse’, ‘worm’, ‘drop dead device’, ‘virus’ or other software code designed to permit access .or use of the user’s computer system by a non-authorized party, disable, damage or erase any software or data on the user’s system, or perform any other unauthorized action on the user’ s system or (ii) preprogrammed preventative routines or similar devices which could prevent Customer from exercising any of the rights granted under this Agreement, or from utilizing the Web Site.
5.2 Customer Warranties. Customer represents and warrants that the Customer Content will not (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.
6. Disclaimers and Limits on Liability.
6.1 EXCLUSION OF DAMAGES. EXCEPT FOR A BREACH BY HOST OF ITS OBLIGATIONS UNDER SECTION 9, AND EACH PARTY’S OBLIGATION OF INDEMNITY UNDER SECTION 8, NEITHER PARTY SHALL BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS OR OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 LIMITATION ON DAMAGES. EXCEPT FOR A BREACH .BY HOST OF ITS OBLIGATIONS UNDER SECTION 9, AND EACH PARTY’S OBLIGATION OF INDEMNITY UNDER SECTION 8, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED $500.00.
6.3 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
7. License and Ownership. Customer grants Host a limited, nonexclusive, non-transferable, worldwide, royalty-free license; during the term of this Agreement to use, solely in connection with Host’s hosting of the Web Site, (a) any Customer Content provided by Customer and (b) Customer’s trademarks, trade names, logos and designations, solely as included in the Customer Content. Customer shall own all right, title and interest in and to (i)all user data collected by Host or Customer via the Web Site and (ii} the Customer Content and the trademarks, trade names, logos and designations of Customer, including all Intellectual Property Rights therein. Host shall not use or disclose any user data collected by Host or Customer via the Web Site without Customer’s prior written consent in each instance. All rights not expressly granted in this Agreement are reserved by Customer.
8. Indemnity.
8.1 Indemnity. Each party hereto shall indemnify, defend and hold harmless the other party and its employees, representatives, agents, affiliates, directors, officers and shareholder against any and all claims, suits, actions, or other proceedings brought against it, or any of them, arising out of or relating to any claim resulting from its breach of Section 9 or any of the representations and warranties set forth in Section 5.
8.2 Mechanics of Indemnity. A party shall be entitled to indemnification only if the party seeking indemnification within 10 days of its discovery of a potential claim notifies the other party in writing of such claim or potential claim in sufficient detail to enable the indemnifying party to evaluate the claim (provided, however, that the failure of the indemnified party to provide prompt notice shall only relieve the indemnifying party from its obligations hereunder to the extent that such late notice prejudiced its defense or resulted in increased costs, damages, or expenses) and (b) the party seeking indemnification cooperates in all reasonable respects, at the indemnifying party’s cost and expense, with the investigation, trial and defense of such claim and any appeal arising therefrom. A party seeking indemnification shall not compromise any claim or enter into any settlement without the written consent of the indemnifying party. The indemnified party may in addition retain separate counsel of its own choosing at its own cost. Notwithstanding any of the foregoing; Customer shall have the right to take sole and exclusive control of its own defense at the expense of Host, if it reasonably believes that it must do so to protect the business, goodwill or its reputation of Customer or .
9. Confidential Information. Customer’s “Confidential Information” is any Customer Content which Customer designates as confidential, and any other materials of Customer which Customer designates as confidential or which, based on the circumstances surrounding disclosure; Host should reasonably believe to be confidential; Customer’s “Confidential Information” also includes, any personal or business information regarding Customer. Host shall hold the Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use the Confidential Information for any purpose other than as necessary to perform under this Agreement. Without limiting the foregoing, Host shall treat the Confidential Information with at least the same degree of care it uses to prevent the disclosure of its confidential information, but in no event less than reasonable care. Host shall promptly notify Customer of any actual or suspected misuse or unauthorized disclosure of the Confidential Information. Upon termination of this Agreement, Host shall return all tangible copies of any Confidential Information. Confidential Information, shall not include information that the Host can prove (a) was generally available to the public at the time it received the information from the Customer, (b) was known to it, without restriction, at the time of disclosure, by the Customer, (c) is disclosed with the prior written approval of Customer, (d) was independently developed by it without any use of the Confidential Information; (e) becomes known to the it, without restriction, from a source other than the Customer without a duty of confidentiality to the Customer or (f) is disclosed.in response to an order or requirement of a court, administrative agency, or other governmental body; provided, however, that (i) the Host must provide prompt advance notice of the proposed disclosure to Customer and (ii) any Confidential Information so disclosed shall otherwise remain subject to the provisions of this Section 9.
10. General Provisions.
10.l Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the United States and the State of Florida, without regard to or application of Florida’s conflicts of law principles.
10.2 Arbitration and Venue. All disputes arising out of or relating to this Agreement shall be determined and settled by binding arbitration to take place exclusively in Broward County, Florida, in accordance with the commercial rules of the American Arbitration Association. Any award rendered by the arbitrator shall be final and binding on the parties, and may be entered as a judgment by any court of competent jurisdiction. The cost of the arbitrator shall be split evenly between the parties.
Notwithstanding the foregoing, in the event irreparable injury can be shown, either party may obtain injunctive relief exclusively in the appropriate state or Federal court in Broward County, Florida. The parties agree that any information disclosed to the other party during such arbitration, as well as all findings of the arbitrator, shall be deemed Confidential Information.
In the event of an arbitration or any other proceeding relating to the interpretation or enforcement of this Agreement or any breach hereof, the prevailing party in such arbitration or proceeding shall be entitled to recover from the other party all costs, expenses and reasonable attorneys’ fees (including all pre-arbitration, arbitration and appellate proceedings) incurred by the prevailing party in that arbitration or proceeding, in addition to any other relief to which such prevailing party may be entitled.
10.3 Waiver and Modification. The failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment, supplementation or other modification or other modification or supplementation of any provision of this Agreement will be effective only if it is in writing and signed by both parties.
10.4 Severability. If any provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, such determination will not affect the validity or enforceability of any other provision of this Agreement.
10.5 Headings. Headings are for convenience only and may not be construed to define, limit or affect the construction or interpretation of this Agreement or any provision.
10.6 Assignment and Subcontracting. This Agreement and Host’s rights, duties and obligations hereunder are personal to Host and Host may not assign its rights without Customer’s prior written consent in Customer’s sole discretion. Notwithstanding the foregoing, Host may subcontract its duties hereunder; provided, however, that Host shall remain liable for any breach of its obligations by Host or any subcontractor. The partys’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.
10.7 Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is Intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
10.8 Notice. All notices required or permitted under this Agreement must be in writing, and will be deemed given upon personal delivery or upon electronic delivery (email); if sent by facsimile, upon confirmation of receipt; if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing; or one working day after delivery to a commercial overnight carrier, with written verification of receipt. All communications shall be sent to the contact information set forth below or to such other contact information as may be designated by a party by giving written notice to the other party pursuant to this Section:
To Customer: per the contact information provided within the account.
To Host:
Ally Drez, L.L.C.
4860 Hebron Dr.
Merritt Island, FL 32953
1-833-ALY-DREZ (259-3739)
Email Address: support@allydrez.com
10.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
10.10 Entire Agreement. This Agreement, together with the exhibit attached hereto (which are incorporated herein by this reference), represents the entire agreement between the parties hereto concerning the subject matter of this Agreement and supersedes any and all prior or contemporaneous oral or written statements, agreements, correspondence, quotations and negotiations.
In Witness Whereof, each of the parties hereto have executed this Agreement as of the date first written in Project Scope / Service Agreement.
EXHIBIT A
Hosting Services and Fees
Uptime Guarantees:
We offer a Service uptime guarantee of 99% of available time per month. The service uptime guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you or your activities; (3) outages that do not affect core Service functionality; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.
Back-ups:
Unless a backup service is purchased, we are not responsible for Content residing within your hosting account. In no event shall we be held liable for any loss of any Content. It is your sole responsibility to maintain appropriate backup of your Content. Notwithstanding the foregoing, on some occasions and in certain circumstances, with absolutely no obligation, we may be able to restore some or all of your data that has been deleted as of a certain date and time when we may have backed up data for our own purposes. We make no guarantee that the data you need will be available.
If a website management package is purchased, backups are included. Backups are performed every day to an offsite AWS S3 bucket with a 30-day retention period.
Site Downloads
There are three different types of hosting:
If a shared hosting plan is purchased, each user has access to their cPanel account. They can download their website all they desire.
If a managed hosting package is purchased (client requests an Nginx hosting plan), they do not have access to download their website directly from the server. A request has to be sent to support@allydrez.com There is 24-hour turnaround time.
If a dedicated VPS/Server package is purchased, the client will be given SFTP access to their own server where they can download their website.
Bulk Emailing
Shared hosting accounts may not use their accounts as a mail server nor for mass mailing. Customers can, however, sign up for email services with their domains, for example, Mailchimp, as well as point their MX records to an off-server mail handler such as Gmail, but not limited to in order to utilize bulk mailing.
Server Logs
If the customer does not know how to access their own logs via cPanel or a dedicated VPS/Server then a request can be sent to support@allydrez.com. There is a 24-hour turnaround.
Response time
Ally Drez, L.L.C. monitors for tickets Monday – Sunday between the hours of 5 am to 8 pm EST. All tickets are responded to within a 24-hour turnaround given severity level. However, a basic “Tier 1” technical support and troubleshooting of servers beyond hardware-related problems are provided at the sole discretion of Ally Drez, L.L.C. and is in no way bound by a Service Level Agreement unless a website management package has been purchased. Additional support beyond the included hardware support is billable as a managed service at $100 per hour and can be purchased by contacting sales@allydrez.com.
Bandwidth
All disk usage & Bandwidth agreements are the responsibility of the customer to adhere to. If usage goes over the package registered, Ally Drez, L.L.C., will contact customer with over usage warning and an offer for an upgrade. If customer does not respond, Ally Drez, L.L.C., reserves the right to take corrective action for exceeding resources. These actions include but not limited to an upgrade in service, temporarily discontinuing services, additional charges or terminating current service. If an increase in resources are wanted, customer can contact Ally Drez, L.L.C., through the ticket system in their client portal, call 954-526-7722 or email sales@allydrez.com.
Server specs
Server specs are up to the client to choose what they want.
Security/ Database
All servers are updated regularly and monitored daily. When a major update is available for the OS, SQL databases, software and tools a notification will be sent out to customers via an email regarding a system upgrade – including the day and time in which the task will be performed. All updates and upgrades are performed during off-hours (10 pm to 5 am).
All servers have a firewall in place along with virus scans. However, unless a website management package is purchased, it is the sole responsibility of the customer to keep their website patched and a current database type selected.
All customers must read and agree to the terms and conditions, which outline security.
Prohibited uses
In addition to other terms as set forth in the Agreement, you are prohibited from using any services provided by Ally Drez, L.L.C.: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
This includes specific types of scripts. That is, any scripts or software on any shared or VPs hosting server that causes high server loads or otherwise negatively impacting server performance of other users.
Notice
Ally Drez, L.L.C., requires that all cancellations be made by the subscriber by canceling the subscription with their payment processor and in the Client Area on Ally Drez Web & IT Services website. In the event the customer cancels monthly subscription there is no refund provided unless a yearly subscription was paid in full. At such time, there will be a prorated amount refunded to the customer starting from the following month of cancellation unless action was performed within the first 5 days of a monthly billing cycle. For website solutions where the customer enters into a payment agreement where the cost of development is broken down into monthly payments versus paying upfront, a one-year minimum contract for a hosting package is required. If the customer cancels service prior to that one year, the final balance on the remaining months of service is due.
Late Payment
All customers are responsible for paying on-time. All services are billed according to the dates they were initially activated. If an invoice remains unpaid beyond its due date, there will be a 5-day grace period. All services will be terminated if the payment has not been paid after the 5-day grace period unless there was a prior written agreement set into place between Ally Drez and the customer.
Server Set-up Fee
There is only a setup fee for custom builds, i.e. a customer wants a dedicated VPS/server with a specific OS, applications and tools. These fees start at $500.