This Web Hosting Agreement ("this "Agreement") is between PosibleHost ("PosibleHost"), and the person (individual or legal person) whose signs PosibleHost's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of PosibleHost's Web hosting service.
PLEASE READ THIS AGREEMENT CAREFULLY.
Table of Contents
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of PosibleHost's credit approval requirements, PosibleHost 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 PosibleHost 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") unless PosibleHost or Customer provides the other with written notice of non-renewal at least fifteen (15) 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."
Fees are payable in advance from three (3) days prior to the beginning of, to the first day of a new billing cycle.
Customer's billing cycle shall be monthly, quarterly, semi-annually or annually as indicated on the Order, beginning on the Service Commencement Date.
PosibleHost may require payment for the first billing cycle before beginning service.
If the Order provides for credit/debit card billing, Customer authorizes PosibleHost to bill subsequent fees to the credit/debit card up to 3 days prior to, on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise PosibleHost will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order.
Invoiced fees will be issued three (5) days prior to the 1st day of each billing cycle, and the fees shall be due on the first day of the new billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing PosibleHost with changes to billing information (such as credit card expiration, change in billing address) At its option, PosibleHost may accrue charges to be made to a credit/debit card until such charges exceed $10.00.
PosibleHost may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law.
PosibleHost may suspend the service without notice if payment for the service is overdue.
Fees not disputed within thirty (7) days of due date are conclusively deemed accurate. Customer agrees to pay PosibleHost's reasonable reinstatement fee following a suspension of service for non-payment, and to pay PosibleHost's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
- Fee Increases.
PossibleHost 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).
At PosibleHost's request Customer shall remit to PosibleHost all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on PosibleHost), regardless of whether PosibleHost fails to collect the tax at the time the related services are provided.
- Early Termination.
Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event PosibleHost terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for PosibleHost's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
Customer agrees to use the service in compliance with applicable law and PosibleHost's Acceptable Usage Policy posted at http://www.posiblehost.com/aup.html (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that PosibleHost 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 PosibleHost'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 PosibleHost's reasonable investigation of any suspected violation of the AUP.
In the event of a dispute between PosibleHost and Customer regarding the interpretation of the AUP, PosibleHost's commercially reasonable interpretation of the AUP shall govern.
4.- Customer Information:
Customer represents and warrants to PosibleHost that the information he, she or it has provided and will provide to PosibleHost for purposes of establishing and maintaining the service is accurate.
If Customer is an individual, Customer represents and warrants to PosibleHost that he or she is at least 18 years of age.
PosibleHost 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 Contact.
Customer agrees to indemnify and hold harmless PosibleHost´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.
6.- Disclaimer of Warranties:
PosibleHost DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW POSIBLEHOST DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
7.- Limitation of Damages:
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF PosibleHost 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.
- Suspension of Service.
Customer agrees that PosibleHost may suspend services to Customer without notice and without liability if: (i) PosibleHost 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) PosibleHost 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.
Customer shall pay PosibleHost's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
It remains the sole discretion of PosibleHost if an account is eligible for reinstatement.
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 PosibleHost 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 PosibleHost 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 PosibleHost 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 4 (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.
9.- Cancellations and Money Back Guarantee:
- Customer is free to cancel their account at any time by filling out our cancellation form. Similarly, PosibleHost reserves the right to cancel any account at any time, for any reason,including, but not limited to, a breach of this Agreement or the AUP.Web hosting plans customers are submit service cancellations request by using the cancellation form at least 30 days prior to its next monthly billing cycle.
- If an account with a thirty (7) day money-back guarantee is purchased and canceled within thirty (7) days of sign up, the Customer will, upon request, receive a full refund of all hosting fees.
Requests for these refunds should be made through our Billing Team. However, due to abuse, we only refund if the service has been down for over the uptime guarantee.(Excluding network maintenance and hardware upgrades) We have the right to refuse any refunds to anyone, at anytime. Dedicated servers and VPS servers are not eligible for refunds.
Money back guarantee only applicable to those products and services that specified with this offer. Any other products or services with no specification in money back guarantee are not entitling to any money back or refund. Under the money back guarantee, only first-time accounts are eligible for a refund. For example, if you've had an account with us before, canceled and signed up again, you will not be eligible for a refund. This is to protect our refund guarantee from being abused.
PosibleHost reserved the right to determine the definition of first-time account. If you cancel your account after the first thirty days have passed, or after your account is renewed then unfortunately we will not be able to issue any refunds. Please note: upgrades to hosting service, domain registration and transfer and SSL certificates are non-refundable.
Semi-dedicated plan only offers a 7 Day money back guarantee, not 30 days.
No full refund will be honored on Dedicated servers, the 60 day money back guarantee does not apply.
10.-Requests for Customer Information:
Customer agrees that PosibleHost 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 PosibleHost 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.
11.-Back Up and Data Loss:
Customer agrees to maintain a current copy of all content hosted by PosibleHost notwithstanding any agreement by PosibleHostto provide back up services.
12.-Changes to the PosibleHost Network:
Upgrades and other changes in PosibleHost'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. PosibleHost reserves the right to change its network in its commercially reasonable discretion, and PosibleHost shall not be liable for any resulting harm to Customer.
Notices to PosibleHost under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.PosibleHost.com.
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.
PosibleHost shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond PosibleHost'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.
PosibleHOST provides 24x7 technical support to their subscribers, we limit our technical support to our area of expertise.
The following is our guidelines when providing support:
- PosibleHost provides support related to your server or virtual site physical functioning.
- PosibleHost does not offer technical support for application specific issues such as cgi programming, html, or any other issue.
- PosibleHost does not provide technical support for YOUR customers.
Make sure to review our online Knowledgebase Areas before contacting our Technical Support!
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 PosibleHost 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 PosibleHost's prior written consent. PosibleHost's approval for assignment is contingent on the assignee meeting PosibleHost's credit approval criteria.
PosibleHost may assign the Agreement in whole or in part.
18.-Disputes on paypal:
We have a zero-tolerance for Paypal disputes here at PosibleHost. If you are found to open disputes, unautorized claims, or chargebacks, your service may be terminated without any refunds at all.
LATE FEES: HOSTING & SERVERS
- Any invoice that is marked as late will be charged with a 25% late fee
- 5 days after a payment is due an invoice will be marked as late.
- 30 days after invoice date we remove the account from our servers
- Charge Back Fee: $50.00
- Customer and PosibleHost.com agree that the actual damages to PosibleHost.com resulting from late payment by Customer would be impractical and difficult to determine, and that the above described late fees and charges represent a reasonable and bargained for estimate of those damages at the time this contract is signed.
ALL level of resellers (including your own sub-resellers) are responsible for maintaining accuracy and accountability of their cPanel accounts. Any cPanel account considered not active MUST BE terminated and removed from the server to ensure reliability, efficiency and security of the server. Failure to do so, will result in the cPanel account being removed by PosibleHost personnel after a full backup has been taken and provided to the reseller. The term active is defined as the cPanel/domain must be pointing to a resource that is within PosibleHost control. If the domain is not hosted on or pointed to PosibleHost servers, it is considered to be inactive and therefore needs to be removed.
ALL levels of resellers are to provide tier 1 support to their clients and sub-resellers. PosibleHost will not directly support your clients directly unless a purchase of one of our support plans has been made. As a reseller, you may open a support ticket and a member of the support staff will be glad to assist you and point you in the right direction if you cannot provide the support needed.
The following scripts are banned from use on our servers and may not be uploaded or run. Reasons for banning them include adverse effects on server load, invitations to hackers/spammers/criminal activity, etc. This includes but is not limited to:
- IRC egg drops
- Proxy servers
- Mail bombers
- Anonymous mailers
- IP spoofers
- Port scanners
- HyIP and ForEx (Foreign Exchange) sites are prohibited.
- Paid-to-Click (PTC) sites are not allowed. If discovered, the account will be immediately suspended and deleted.
- Telnet or SSH Access Scripts
- nph-proxy (and other scripts what operates like proxy)
- UBB (Ultimate Bulletin Board, all versions)
- FormMail.cgi, FormMail.pl from Matt's Script Archive are not allowed.
You may not set up a 'gateway' site on any of the PosibleHost servers. A 'gateway' site is one which serves only as an entrance to the actual site located on a non-PosibleHost server.
Any type of account script or control that interferes with root control of any account will be viewed as a hack attempt or threat and the complete account will be immediately suspended when found. An email will be sent to the account owner and the site suspension will not be lifted until the account has been completely cleaned and verified by PosibleHost personnel.
Rapid Leech and other forms of leeching products as well as continuously streaming media is prohibited unless you have purchased one of PosibleHost's streaming media plans.
Any CGI based message forums which use flat file databases are often found to use excessive system resources, to avoid disappointment in advance, please use a PHP/ASP message forum. The use of web cam applications which maintain a constant FTP connection uploading an image at regular intervals is also forbidden as this is considered to be 'streaming content.'
Furthermore, users shall not include content, or internet links to content on the site that contain, promote, or involve any of the following. Violation will authorize PosibleHost personnel to automatically suspend, delete, retain and submit all illegal content to local and/or federal authorities. If any of the below content is discovered, PosibleHost reserves the right to refuse the original owner the content. Examples include but are not limited to:
- Child Pornography
- Hate content
- Threatening, racial, or otherwise abusive content
- Any and all content inciting, instructing, or promoting illegal activities
- Fraud, MLM (Multi-Level Marketing), Pyramid/Ponzi schemes or any other activities deemed to be fraudulent
- Hacking/Cracking, cracks, SPAM software or any material that contains a virus or any other harmful code
PosibleHost cannot be held liable for system downtime, crashes, or data loss. We cannot be held liable for any predicted estimate of profits in which a client would have gained if their site was functioning. Certain services provided by PosibleHost are resold. Thus, certain equipment, routing, software, and programming used by PosibleHost are not directly owned or written by PosibleHost. Moreover, PosibleHost holds no responsibility for the use of our clients accounts. If any terms or conditions are failed to be followed, the account in question will be automatically deactivated. We reserve the right to remove any account without advanced notice for any reason without restitution as PosibleHost sees fit. FURTHERMORE, PosibleHost retains the right to change any or all of the above Policies, Guidelines, and Disclaimer without notification.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, written or oral.