Table of Contents
1. Agreement
1.1. By accepting these terms, or signing the attached Order, you and HOSTNEY, LLC enter into an agreement for the provision of services. The Agreement comprises these Terms of Service, the Order, the Service Level Agreement (SLA), the Acceptable Use Policy (AUP), the Data Processing Addendum (DPA), the Privacy Policy, and any other terms or documents referenced in any of the aforementioned (collectively referred to as the "Agreement"). This Agreement sets out the exclusive terms and conditions between the Parties and supersedes any prior proposals, agreements, negotiations, or other written or oral communications with respect to the Services provided hereunder.
1.2. If there is a conflict between the terms of the Agreement, the order of precedence will be: 1) the Order, 2) these Terms of Service, and 3) any terms incorporated by reference by either of the above. The terms contained in any transactional documents, forms, or notices provided by you, such as purchase orders, order confirmations, or notices of receipt, shall be null and void, even if your customary business practices require our assent to such terms by signature or reference in an invoice.
1.3. We may update this Agreement from time to time, and the current version can be found on our website. Any significant changes will become effective 30 days after they are posted, except where changes are required by law, in which case they will be effective immediately. We will provide at least 90 days advance notice of materially adverse changes to these Terms of Service by email to the account owner or notification in the User Portal. Your continued use of the Services following such updates constitutes your acceptance of the same. If you do not agree to the terms of any modification, you may terminate the Agreement in accordance with the Termination section below.
2. Services
2.1. We will perform the Services in accordance with the terms of the Agreement and the SLA. You acknowledge that we may engage third-party service providers to deliver or enable certain aspects of the Services, provided that we are responsible to you for their performance as if we performed the Services ourselves. Your use of the Services must comply with the Agreement, including the AUP, and must be limited to their intended purposes. You are responsible for providing us with any information, assistance, or materials necessary for us to provide ongoing Services.
2.2. Scope of technical support
2.2.1. At HOSTNEY, we provide technical support to our customers via knowledge base articles, email, and support tickets. We're happy to provide you with free technical support where applicable. This includes help with any problems you may encounter with the functioning and performance of our services, such as uptime and stability issues. We're also here to assist you with using our User Portal properly, which includes all of the tools and features we offer, like auto-update services, caching, SSL certificates, backup services, and much more.
2.2.2. We kindly ask that our customers make an effort to read the technical documentation before opening a ticket for technical support. This will help us provide faster and more efficient service to all of our customers. If we suspect that the customer has not reviewed the documentation, we may kindly refer them to it before proceeding with the ticket.
2.3. Technical issues that fall outside of our free support scope include but are not limited to:
- Installation and configuration of third-party applications or plugins that are not provided by HOSTNEY;
- Website coding issues, database optimizations, server setup modifications, CMS plugin issues, and benchmark tests;
- Web design, development, and customization inquiries;
- Issues with website scripts, optimizations, SEO services, themes, plugins, or extensions;
- Malicious code clean-up and website security audits.
Please note that any free services provided by HOSTNEY come without warranty or SLA, and we reserve the right to terminate them at any time.
3. Delegate Access
3.1. In HOSTNEY's system, you can assign certain individuals as "Delegate Access Users" in the User Portal. They are permitted to make modifications to your account. It is your responsibility to manage your Delegate Access Users and ensure their information is up-to-date. By designating them as Delegate Access Users, you are giving them permission to make changes to your Services on your behalf.
3.2. Adding, modifying, or removing Delegate Access Users can only be done through the User Portal. We will not perform these actions on your behalf, and we will not provide support, assistance, or information to Delegate Access Users. To accept the Delegate Access invitation, these users must first create a HOSTNEY account and verify their identity.
3.3. You are responsible for ensuring that your Delegate Access Users comply with the terms of the Agreement. You acknowledge that you are fully liable for the actions and omissions of your Delegate Access Users, and for all expenses and liabilities incurred through your account, except where such use or liability is a result of our breach of the Agreement. Within the scope of their assigned permissions in the User Portal, a Delegate Access User can make changes to your Services, and you are responsible for paying any associated fees. You must promptly notify us in the event that you become aware of any violation of the Agreement's terms or unauthorized use of your account or that of your Delegate Access Users.
4. Payment
4.1. You are responsible for paying the fees specified on the Order form, in the currency indicated on the same form. The entire fee for the Term or Renewal Term mentioned on the order form must be paid in advance. HOSTNEY reserves the right to modify the fees at any time, without prior notice. Any changes to the fees will take effect immediately and will apply to your subsequent purchase or renewal.
4.2. Unless stated otherwise, all fees listed on our website are exclusive of applicable taxes. You are responsible for paying all taxes imposed on the services. Your payment method issuer may charge you a foreign transaction fee or other charges in specific cases. These fees, which may be shown as a separate charge or added to the final amount on your bank statement, are beyond HOSTNEY's control.
4.3. During the ordering process, if you choose to pay by card, you will need to provide your card information for verification purposes. Upon submitting an order, you are granting HOSTNEY authorization to verify and charge your card for the total amount of the order. If the issuer of your payment method declines to authorize the transaction to HOSTNEY, we will not be held responsible for failure to provide the service(s). HOSTNEY will not activate or renew your account(s) until all outstanding fees are paid in full. The provision of the service(s) by HOSTNEY is dependent on the payment of the fees by you. It is your responsibility to make sure that the fees are paid to us in a timely manner.
4.4. You acknowledge and agree that our payment providers will store your payment details for processing payment for any HOSTNEY service(s) that you purchase or renew. It is your responsibility to maintain at least one active payment method on file. HOSTNEY reserves the right to designate an alternative payment method as primary if we determine that the current one is inactive for any reason. You can manage your payment method(s) in the User Portal. Misusing or fraudulently using credit cards, charge cards, electronic funds transfers, or electronic checks constitutes a violation of this Agreement.
4.5. If you fail to pay any fees owed, for any reason, we may continue to try to collect payment from the payment method on file, suspend or terminate your services, and seek to recover the collection costs incurred by HOSTNEY, including but not limited to any court and legal fees as well as reasonable attorneys' fees. We are not liable for any deleted or lost Customer Content resulting from the suspension or termination of the service(s).
4.6. Trial services are provided to you at no cost. You are allowed to use these services only during your current subscription term and may not transfer them to other hosting accounts or third parties. If your Agreement is terminated, these services will also be terminated.
4.7. Upon receipt of invoices, payment is expected immediately. HOSTNEY reserves the right to suspend and/or terminate services until payment has been received. If the services are suspended due to your fault for any reason, it is important to note that fees will continue to accumulate until the expiration or termination of this Agreement's term, at the same rate as the regular subscription.
4.8. If you believe there is an error in your invoice, please notify us in writing as soon as possible. We agree to cooperate in good faith to resolve any billing disputes. If you file a chargeback with your credit card company in relation to such disputes, we may suspend services until the dispute is resolved. To reactivate your account, you must first pay all outstanding fees and a minimum charge of $25.00 plus applicable taxes.
4.9. Refunds are processed according to our Money Back Policy. We will issue the refund through the same payment method used for the initial transaction, unless we agree otherwise. HOSTNEY is not responsible for any delays in refunds caused by processing institutions or the expiration of the original payment method.
5. Renewal Policy
5.1. All our services are by default set to renew automatically. You can adjust the renewal settings and/or renew services manually from the User Portal at any time before a service is terminated. All available Renewal Terms and the respective renewal fees are set out in your User Portal.
5.2. We will attempt to renew services for which automatic renewal is enabled and charge the then-current renewal fee(s) fifteen (15) days prior to the expiration of the current Term.
5.3. If we are unable to process a renewal on the scheduled date, we reserve the right to make further attempts to charge your payment method(s) until the service(s) are renewed or until they expire. The primary payment method on file will always be charged first for renewals. If the primary payment method fails, we will make additional attempts to bill any other payment methods on file in your User Portal. Please note that we will not be held responsible for the service(s) being suspended or terminated due to the expiration or invalidity of your payment methods.
5.4. It is acknowledged and agreed by you that, despite the service being set to renew automatically and/or an active payment method being on file, the renewal of the service(s) may not be possible. You are responsible for ensuring that the fees have been paid and the renewal has been processed.
5.5. You understand and accept that the service(s) will end when the term expires, unless you choose to activate automatic renewal or manually renew the service(s). You also agree that HOSTNEY will not be held accountable or liable for any damages incurred by you or any third party, including but not limited to losses of profits, cost savings, revenue, business, data or use, or any other financial losses, if we cannot charge your payment method on file or you neglect to manually renew the service(s).
6. Money Back Policy
6.1. You have the option to cancel any purchased service if you no longer require it or if you are dissatisfied with its performance.
6.2. Our Money Back Policy pertains to initial orders of shared hosting. We offer a complete refund for services that are canceled within 30 days of activation during the initial period after an account has been activated. We will issue a full refund for renewal fees if the Renewal Term has not started and a cancellation is requested. After a service is canceled, refunds are processed within seven (7) business days. It is recommended that you make a backup of all user content before requesting a refund. If you do not back up your data and your account is terminated due to service cancellation, HOSTNEY will not be liable for any data loss.
6.3. Subject to national law, the Money Back Policy is your sole and exclusive recourse if you decide to withdraw from this Agreement, without affecting your consumer rights.
7. Confidentiality
7.1. Both parties agree to maintain the confidentiality of each other's Confidential Information. They will handle this information with trust and confidence, using it only as permitted and in connection with the agreement, while also providing the same level of protection that they would use for their own Confidential Information, with a minimum standard of reasonable care. However, if required by law or legal process, either party may disclose the other's Confidential Information. In such cases, the disclosing party will provide prompt notice to the other party and cooperate in minimizing the disclosure of Confidential Information. Upon termination or expiration of the agreement, the license to use the Confidential Information will immediately terminate, and each party will either return or destroy the Confidential Information in their possession or continue to protect it in accordance with the agreement. Finally, each party has the right to seek an injunction in court to prevent any breach or threatened breach of this confidentiality agreement.
8. Privacy and Security
8.1. The agreement stipulates that both parties must maintain the confidentiality of each other's Confidential Information. This information must be treated with trust and confidence and may only be used as permitted under the agreement, with the same level of protection that would be provided for each party's own Confidential Information, using reasonable care. However, if there is a legal requirement or legal process that necessitates the disclosure of the Confidential Information, either party may disclose it. In such cases, the party disclosing the information must promptly notify the other party and make efforts to minimize the disclosure of Confidential Information. When the agreement terminates or expires, the license to use the Confidential Information will end immediately, and each party must either return or destroy the Confidential Information in their possession or continue to protect it in accordance with the agreement. Finally, each party has the right to obtain an injunction in court to prevent any breach or threatened breach of this confidentiality agreement.
8.2. In the event that we discover unauthorized access to our network, and such access affects your services, we commit to informing you as soon as reasonably possible after conducting an investigation and fulfilling our legal obligations. Similarly, you also agree to inform us promptly if you detect any unauthorized access to the services.
8.3. During the term of the Agreement, we will comply with the Privacy Policy and fulfill the terms and obligations outlined in the DPA.
9. Termination
9.1. To ensure uninterrupted Services, this Agreement will undergo automatic renewal. However, you retain the option to terminate the Agreement at any point, as outlined in Section 5. The Agreement will be extended for successive Renewal Terms, each mirroring the preceding term's duration, unless either Party communicates their intent not to renew.
9.2. You have the option to conclude your account and terminate this Agreement whenever you wish, utilizing the User Portal. Upon termination, no refunds will be provided.
9.3. We reserve the right to terminate the Agreement before the Term concludes under the following circumstances: 1) in the event of a material breach of the Agreement by you, with no remediation within 10 days of our notice; 2) if your use of the Services is deemed to endanger our network or systems, violate the law, or disrupt services to other customers; 3) in response to abusive, harassing, or threatening behavior towards our employees; 4) for our convenience, with at least 30 days' notice; or 5) for any other reasons specified herein. Should termination be initiated for convenience, we will issue a prorated refund of any prepaid annual Fees for Services extending beyond the termination date. The refund will be adjusted to account for any outstanding amounts you owe.
9.4. Upon the completion of your account termination, you will lose access to both customer support and the User Portal. It's important to note that you are responsible for maintaining offline backups of your site continuously to ensure its data's safety.
10. Warranty
10.1. Each Party represents and warrants that it has the power, authority, and legal right to enter into the Agreement and perform the obligations and grant the licenses set out herein; and it will comply with all laws and regulations applicable to its performance under the Agreement.
10.2. You have the option to conclude your account and terminate this Agreement whenever you wish, utilizing the User Portal. Upon termination, no refunds will be provided.
10.3. We reserve the right to terminate the Agreement before the Term concludes under the following circumstances: 1) in the event of a material breach of the Agreement by you, with no remediation within 10 days of our notice; 2) if your use of the Services is deemed to endanger our network or systems, violate the law, or disrupt services to other customers; 3) in response to abusive, harassing, or threatening behavior towards our employees; 4) for our convenience, with at least 30 days' notice; or 5) for any other reasons specified herein. Should termination be initiated for convenience, we will issue a prorated refund of any prepaid annual Fees for Services extending beyond the termination date. The refund will be adjusted to account for any outstanding amounts you owe.
10.4. Upon the completion of your account termination, you will lose access to both customer support and the User Portal. Additionally, we won't be able to provide assistance with any site migration activities. It's important to note that you are responsible for maintaining offline backups of your site continuously to ensure its data's safety.
11. Indemnification
Under this agreement, you are obligated to indemnify, defend, and hold harmless HOSTNEY, its affiliates, subsidiaries, and vendors, as well as their respective officers, directors, agents, and employees from any and all liabilities, losses, damages, fines, penalties, amounts in interest, and other expenses (including reasonable attorney fees) resulting from a claim or demand brought by a third party due to your violation of the AUP. We reserve the right to manage the defense of any indemnified matter under this section and authorize any proposed settlement. You will be responsible for paying us the amounts incurred under this section as they arise.
12. Limitations
12.1. Although we conduct regular backups of your site and Customer Content (as stated in the Order), we cannot guarantee that data will not be lost or corrupted. We will provide assistance and try to resolve any identified or reported issues affecting your backups. However, you acknowledge that we have no liability for the reliability of your backups or if the content cannot be restored to a functional state. You accept the responsibility of keeping a complete and accurate copy of your Customer Content in a different location outside of the services.
12.2. The Agreement does not provide any other warranties beyond those expressly stated herein. Neither Party makes any warranties, whether express, implied, statutory or otherwise, except as specifically provided in the Agreement. HOSTNEY and its licensors specifically disclaim all implied warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, non-infringement, uninterrupted or error-free service, availability, accuracy, and any and all implied warranties arising from statute, course of dealing, course of performance, or usage of trade to the maximum extent permitted by applicable law. The services are provided on an as-is, as available basis, and with all faults, except as expressly set out in the Agreement.
12.3. Under no circumstances will our liability arising from or related to the Agreement, for any reason including but not limited to contract, tort, or any other theory of liability, exceed the total amount of fees that you have paid or owe us for the preceding three months.
12.4. We and our licensors shall not be liable for any indirect, special, incidental, consequential, or punitive damages, including any cover or lost profits, arising out of or in connection with the Agreement, regardless of whether we were advised of the possibility of such damages or not.
12.5. The remedies outlined in the SLA are the only options available to you in the event of downtime, unavailability, or other failures under the SLA.
12.6. The limitations stated in Section 11 will not be applicable if prohibited by the applicable law or in regard to your payment obligations for the provided Services.
12.7. By signing up for a HOSTNEY account, you declare that you are not bound by any restrictions that would prevent you from entering into an agreement with HOSTNEY, such as trade sanctions, embargoes, or other limitations. HOSTNEY reserves the right to terminate your account and all associated services, without refund, if it discovers that you have entered into an agreement with us in violation of trade sanctions against your person or country of origin.
13. HIPAA Disclaimer
13.1. HOSTNEY's services are not HIPAA compliant and therefore not suitable for the storage or control of access to sensitive data, such as medical or health information, or information about children. You acknowledge and agree that if you require secure storage of "protected health information" as defined under HIPAA, you are expressly prohibited from using our services for such purposes. Storing or allowing access to "protected health information" would be a material breach of these terms of service and could lead to immediate termination of the agreement. HOSTNEY will not sign any "Business Associate Agreements" and you acknowledge and agree that we are not considered a Business Associate or subcontractor under HIPAA.
14. Provisions
14.1. The Agreement cannot be assigned, either wholly or partially, without the prior written consent of the other Party, except in the event of a merger, reorganization, sale of assets, or similar transaction. If such an assignment occurs, the assigning Party will promptly notify the other Party. Any attempted assignment in violation of this Section will be invalid. The Agreement will remain binding on all authorized successors and assigns.
14.2. Force Majeure. We will not be considered to have breached any provisions of the Agreement, or be in default, if there is a delay, failure in performance, or interruption in the Services due to circumstances beyond our reasonable control. These circumstances may include but are not limited to, acts of God, civil or military authority, civil unrest, war, strikes, fire, laws, regulations, government actions, unavailability of third-party networks, or failures of telecommunication facilities.
14.3. Governing Law and Venue. The Agreement is governed by the laws of the State of Florida, without regard to its choice of law statutes. Subject to Section 13(4), any disputes must be brought in the state or federal courts located in Pinellas County, Florida. No claim may be brought as a class or collective action and you may not actively assert a claim arising out of the Agreement as a member of a class or collective action. The United Nations Convention on the International Sale of Goods shall not govern the Agreement. Each party waives any right to a jury trial in connection with any action or litigation arising out of, or related to the Agreement.
14.4. Arbitration. Both Parties agree that all disputes between them will be resolved by binding, individual arbitration under the American Arbitration Association’s rules. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. HOSTNEY, LLC will pay all arbitration fees (excluding attorney’s fees) for claims less than $2,000. HOSTNEY, LLC will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. You may opt out of this agreement to arbitrate. If you do so, neither Party may require the other to participate in an arbitration proceeding. To opt-out, you must notify us in writing within 30 days of the date that you first became subject to this arbitration provision at the following address: HOSTNEY, LLC 2690 Coral Landings Blvd #417, Palm Harbor, FL 34684, or by email to: legal@hostney.com. You must include your account name, contact address, and a clear statement that you wish to opt out of this arbitration agreement. If you choose to opt-out, or if this Section is found to be unenforceable for any reason, disputes will be resolved as provided in the Agreement. This Section will be interpreted in accordance with the Federal Arbitration Act.
14.5. Unless otherwise specified in this agreement, notices will be considered effective once they have been delivered and acknowledged, or in the case of postal delivery, five business days after being sent via first-class mail to the designated address. For notices to the user, we will use the address provided in the User Portal, send a notification through the User Portal, or send an email to an authorized user. To send notices to us, please use the following address: HOSTNEY, LLC 2690 Coral Landings Blvd #417, Palm Harbor, FL 34684, ATTN: Legal Department, or send a confirmed email to legal@hostney.com.
14.6. The Parties are allowed to announce their business relationship publicly and include the other Party's name and logo in their respective lists of customers or vendors, as long as the usage guidelines for the Party's trademarks are followed and the nature of their relationship is not misrepresented. However, any other use of a Party's trademarks or service marks requires prior written consent. Neither Party is permitted to disclose or advertise any other details of the Agreement or use the other Party's name, logo, or trademarks for a product or service that is similar to what they offer without prior written consent. Additionally, neither Party may claim to be a reseller or partner of the other Party or use any other similar designation, unless they are granted the license or authority under a separately executed agreement.
14.7. If any provision of the Agreement is found to be illegal or unenforceable in any jurisdiction, such provision will only be effective to the extent of such illegality or unenforceability and shall not affect the validity of the remaining provisions of the Agreement. If feasible, the illegal or unenforceable provision shall be modified to reflect the Parties' original intent. If you become aware that any part of this agreement is illegal in your jurisdiction, you are obligated to inform Hostney within 5 business days. This will allow for the creation of a new contract that complies with the legal requirements of your jurisdiction.
14.8. Any clause in the Agreement that requires action or adherence after the Agreement's termination or expiration, such as confidentiality, limitation of liability, and indemnification, will persist and remain valid.
14.9. The Agreement does not confer any rights or benefits to any third party. The Agreement shall not be interpreted as establishing a partnership or joint venture between the Parties. Each Party is independent and does not act as an agent, employee, or legal representative of the other Party. Neither Party can make any guarantees, statements, or warranties on behalf of the other Party or its affiliates, agents, subcontractors, licensors, or third-party suppliers.
14.10. If a Party chooses not to exercise or postpones exercising any right, remedy or power under the Agreement, such inaction or delay shall not be considered as a waiver of that right, remedy or power, whether under the Agreement or applicable laws or equity.
Definitions
1. The term "Agreement" is defined in Section 1(1) of the document.
2. The term "AUP" refers to the Acceptable Use Policy, which can be found at Acceptable Use Policy and may be subject to updates by us periodically.
3. The term "Delegate Access User" refers to a user who has been authorized by you to access and manage your account through the User Portal.
4. The term "Confidential Information" refers to information that is disclosed by one party to the other, either directly or indirectly, in writing, orally, or through inspection of tangible objects. This information is reasonably understood to be confidential due to its particular identification or designation, the circumstances of its disclosure, or the nature of the information itself. However, information that falls under any of the following circumstances is not considered Confidential Information: it is generally known or available to the public without breach of the Agreement by the receiving party; it is rightfully disclosed to the receiving party without restriction as to further use or disclosure; or it is independently developed by the receiving party without the use of or reference to the disclosing party's Confidential Information, as evidenced by documents and other competent evidence in the receiving party's possession. The Confidential Information is and shall remain the property of the disclosing party (or its licensors, as applicable), and no rights are granted to the Confidential Information other than those rights expressly granted in the Agreement.
5. The term "Customer," "you," or "your" refers to the entity that is entering into this Agreement with HOSTNEY, and this is confirmed by the actions taken by its authorized representative.
6. The term "Customer Content" refers to any materials or works of authorship, including text files, images, photos, videos, sounds, or other similar materials, owned by you or your end-users, which you request to store within the Services, excluding Account Information.
7. The term "Account Information" refers to the data related to your account and Authorized Users that HOSTNEY requires to provide the Services to you, including billing information and account settings.
8. The term "DPA" refers to the Data Processing Addendum found at Data Processing Addendum, which may be revised by us periodically.
9. The term 'Order' refers to the document, whether in the form of an order form or an online transaction, that outlines the Services and includes these Terms of Service.
10. The term "Party" refers to either the customer or HOSTNEY individually, while "Parties" refers to both the customer and HOSTNEY collectively.
11. The term "Privacy Policy" refers to the policy found at Privacy Policy which may be updated periodically, and outlines how HOSTNEY handles and protects personal information.
12. The term "Renewal Term" refers to any term following the Initial Term that is extended or renewed.
13. The term "Services" refers to the hosting, support, and other associated services that we provide to you in accordance with the description provided in the Order.
14. The term "SLA" means the Service Level Agreement located at Service Level Agreement as it may be updated by us from time to time.
15. The term "User Portal" refers to the website available at my.hostney.com, which we provide to our customers to manage their accounts and access the Services.
16. "HOSTNEY," "we," or "our" means HOSTNEY, LLC; a Florida company located at 2690 Coral Landings Blvd #417, Palm Harbor, FL 34684.