1. General Terms.
In consideration of hosting services to be delivered, Customer
agrees to be bound by the following terms and conditions:
1.1. Customer agrees to pay, in advance of each monthly service
term, for hosting services to be rendered.
1.2. Customer agrees to a no-refund policy in advance. Setup fees
and monthly web hosting service fees are non-refundable.
1.3. Non-Payment of services shall result in a 5-day notice of disconnection.
All payment failures must be cured within 5 business days from invoice due date
or account will be suspended. Account termination will result from invoices
overdue for 30 days.
1.4. Webdesigns is not and shall not responsible for data
integrity for any accounts that are terminated, disconnected, or interrupted
because of Customer’s failure to pay for Webdesigns’s services.
1.5. Customers agree to pay all taxes applicable to your
account.
2. Agreement for Services.
2.1. Webdesigns will provide, and Customer will purchase and pay
for, the Web hosting services (the “Services”), according to the service fees
specified in the Order for the applicable Service Description. Customer
acknowledges that the service, and service fees have been communicated to the
Customer, and that Customer is aware of all applicable charges as per the
Agreement. Customer also understands that no promotional offers will apply to
their individual service unless said promotional offers are specified in this
Agreement.
3. Payment.
3.1. Establishment and provision of service is contingent upon
receipt of payment from Customer to Webdesigns.
3.1.1. Customer must pay in full for the Services before
Webdesigns begins to provide the Services to Customer. Invoices are generated 5
days before renewal and customer agree that if paying by credit card, recurring
billing will be billed and charged automatically on the date the invoice is
generated and that Webdesigns may apply the amount due at any time to the
credit card listed on file.
3.1.2. Setup fees will be charged and are due at the time of
the Customer’s initial request of the Services requiring setup.
3.2. Payment is due on the defined monthly recurring billing date
of each month. All returned cheques will be charged a $20.00 service fee.
Service will be interrupted on accounts that reach 5 days past due. Accounts
that are not collectable by Webdesigns will be turned over to an outside agency
for collection. If your account is turned over for collection, you agree to pay
to Webdesigns a “Processing and Collection” Fee of not less than Fifty ($50.00)
Dollars nor more than One Hundred Fifty ($150.00) Dollars.
4. Delinquent Accounts.
Webdesigns may temporarily deny service or terminate this
Agreement upon failure of Customer to pay charges when due. Such termination or
denial will not relieve Customer of responsibility for the payment of all accrued
service fees, and any collection fees to which Webdesigns may be entitled under
this Agreement or under applicable law.
5. Account Cancellation.
Customers may voluntarily cancel their account at any time, for
any reason or for no reason, by contacting us at webdesigns@distinctivechoicecc.com.
Once a Customer has cancelled
their account before the renewal date, no more charges will be billed to the
account. Cancellations on or after renewal will be charged renewal fees.
Customer can terminate their
account for any reason or for no reason. However, Customer understands and
agrees that Webdesigns does not provide pro-rated or any other kinds of refunds
on cancellations. All fees Customer has paid shall be nonrefundable.
6. Refunds and Disputes.
IMPORTANT NOTICE: EXCEPT AS EXPLICITLY PROVIDED IN THIS SECTION
6, ALL PAYMENTS TO WEBDESIGNS ARE NONREFUNDABLE.
All payments to Webdesigns are
nonrefundable. This includes any setup fees and monthly fees regardless of
usage. All billing disputes must be reported within thirty (30) days of the
time the dispute occurred. Disputed charges to your credit card issuer, also
known as chargebacks, which, in Webdesigns’s sole discretion, are invalid under
the terms and conditions of this Agreement, will result in service
interruption, and reconnection fees to restore the desired service.
Without waiving any of its other
rights under this Agreement, Webdesigns offers to its Customers a 30-day
money-back guarantee on fees for hosting services only (the “30-Day
Guarantee”). If for any reason you cancel your account by filling in the
account cancellation form and submitting it to Webdesigns, within thirty (30)
days of the beginning of your service, Webdesigns will refund your money with
no questions asked; provided, however, that you have never previously obtained
a refund under the 30-Day Guarantee. If you have ever previously obtained a
refund under the 30-Day Guarantee, your account will be canceled, but no money will
be refunded to you.
Please note that the amount
refunded to you will be the amount you paid for hosting services only, and will
not include any of the following fees:
Setup fees,
Fees for domain name
registrations,
Fees charged for exceeding your allotted
disk storage space or bandwidth,
SSL certificate fees,
Web design fees,
Web site marketing fees,
Any add-on services, features,
software, and
Any other fees for services
involving a third party.
The 30-Day Guarantee is subject
to all of the following limitations:
You are entitled to a maximum of
one (1) 30-Day Guarantee.
If you do not cancel your
account within thirty (30) days of the beginning of your service, your right to
the 30-Day Guarantee shall expire forever and may not be revived under any
circumstances, without the prior express written approval of Webdesigns.
You may not transfer or assign
the 30-Day Guarantee to any third party.
You agree that you will not
circumvent the restrictions on the 30-Day Guarantee described in this document,
or attempt to circumvent those restrictions by any means, including, but not
limited to, the following actions:
If you violate any provision of
any of the following policies of Webdesigns, you will not be eligible for the
30-Day Guarantee:
Terms of Service (TOS);
Acceptable Use Policy (AUP); or
No-Spam Policy (NSP).
Changes to your service,
including, but not limited to, adding new services, removing services, or
changing the type of hosting plan you have do NOT make you eligible for an
additional 30-Day Guarantee. The 30-Day Guarantee applies to your first order
of Web hosting services from Webdesigns and does not apply to any changes to
your service at any time.
7. Customer agrees not to engage in any activity that violates any
international, foreign, federal, state, or local laws.
8. Webdesigns reserves the right
to discontinue service to any Customer it deems, in its sole discretion,
violates any condition of service including, but not limited to, the following:
8.1. the Acceptable Use Policy, or
8.2. the No-Spam Policy.
9. Backups.
9.1. In order to allow us to provide the best service to you,
Webdesigns accounts are backed up daily and weekly. However, these backups are
intended for Webdesigns’s administrative purposes only, to allow us to provide
excellent service to our customers. As part of its commitment to first-rate
customer service, Webdesigns always seeks to create complete and accurate
backups of customer accounts.
9.2. Even the best and most complete and redundant backup systems
can and do fail for a variety of reasons, despite the best efforts of the Web
hosting service. THEREFORE, WEBDESIGNS DOES NOT GUARANTEE THE AVAILABILITY,
COMPLETENESS, CURRENCY, OR INTEGRITY OF THESE BACKUPS OR THE DATA THEY CONTAIN.
Consequently, you must not rely upon the availability, completeness, currency,
or integrity of these backups.
9.3. Customers are responsible for maintaining their own backups
on their own personal computers or other computers.
9.4. Webdesigns does not provide any sort of compensation for
lost, inaccurate, incomplete, or outdated data in the event that Webdesigns’s
backups do not function properly, regardless of the reason(s) for any such
malfunction, even if the malfunction was due to the fault or negligence of
Webdesigns or any of its employees or agents, and regardless of whether
Webdesigns had been informed of the possibility of such malfunction, or any
fault or negligence that might cause it.
9.5. In the event that you need to recover data from a backup,
Webdesigns will use reasonable efforts to restore data to your account from the
appropriate backup. HOWEVER, PLEASE NOTE THAT THIS SERVICE IS INTENDED TO COMPLEMENT
YOUR OWN BACKUPS TO YOUR OWN COMPUTER, AND IS NOT A SUBSTITUTE FOR THOSE
BACKUPS. AGAIN, WEBDESIGNS DOES NOT GUARANTEE THE AVAILABILITY, COMPLETENESS,
CURRENCY, OR INTEGRITY OF ITS BACKUPS.
9.6. You understand and agree that Webdesigns’s backup policy
does not create any warranties for whose breach Webdesigns can be held
liable.
10. Customer agrees to defend,
indemnify, and hold harmless Webdesigns, and the parents, subsidiaries,
successors, assigns, employees and agents of Webdesigns against any losses,
claims, damages, liabilities, penalties, actions, proceedings or judgments
(collectively, “Losses”) to which an indemnified party may become subject and
which Losses arise out of, or relate to this Agreement or Customer’s use of the
Services, and to reimburse an indemnified party for all legal and other
expenses, including reasonable attorneys’ fees incurred by such indemnified
party in connection with investigating, defending, or settling any Loss whether
or not in connection with pending or threatened litigation in which such
indemnified party is a party.
11. WEBDESIGNS SHALL NOT BE
LIABLE UNDER ANY CIRCUMSTANCES FOR :
11.1. ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE,
LOSS OF USE, OR LOSS OF DATA RESULTING FROM THE USE OF WEBDESIGNS’S SERVICES BY
CUSTOMER OR ANY THIRD PARTIES, REGARDLESS OF THE FORM OF ACTION OR THEORY OF
LIABILITY, OR
11.2. ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES,
MISDELIVERIES OR SERVICE INTERRUPTIONS.
12. WEBDESIGNS PROVIDES THE
SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR
IMPLIED. WEBDESIGNS DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT OF ANY
THIRD-PARTY RIGHTS, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION,
USE, AND SUITABILITY OF THE SERVICES AND WEBDESIGNS SHALL HAVE NO LIABILITY
THEREFOR.
13. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, WEBDESIGNS DISCLAIMS, ALL WARRANTIES, REPRESENTATIONS OR
OTHER ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION ACCESSED
FROM, OR THROUGH, THIS SERVICE, THE SYSTEMS WHICH PROVIDE IT, AND THE INTERNET,
INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR
NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS.
14. WEBDESIGNS DOES NOT ASSUME
ANY LIABILITY FOR THE COMPLETENESS, ACCURACY, OR USEFULNESS OF ANY INFORMATION
DISCLOSED OR MATERIALS ACCESSED THROUGH ITS SERVICES, ITS SYSTEMS, ITS
NETWORKS, OR THE INTERNET.
15.No Waiver of Rights by
Webdesigns.
Any failure by Webdesigns to enforce this Agreement in every
instance in which it might apply does not amount to a waiver of any of
Webdesigns’s rights.
16. Arbitration.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS
CONTACT OR ANY BREACH THEREOF IN EXCESS OF $250.00 SHALL BE SETTLED BY
ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN
ARBITRATION ASSOCIATION, AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR
MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
17. Notices.
17.1. From Webdesigns to Customer.
Webdesigns will notify you by e-mail of any notices that
Webdesigns is required to provide to you under this Agreement, at the most
current e-mail address you have provided to Webdesigns.
By entering this Agreement, you
consent to receive notices by e-mail. You are solely responsible for ensuring
that Webdesigns has your most current e-mail address, and Webdesigns shall not
be responsible for any lost, misdirected, bounced, forwarded, or undeliverable
e-mail that Webdesigns sends to the most current e-mail address you have
provided to Webdesigns.
17.2. From Customer to Webdesigns.
Unless otherwise specified in
this Agreement, notices to Webdesigns shall be sent to webdesigns@distinctivechoicecc.com.
18. Governing Law.
This Agreement shall be governed
by and construed in accordance with the laws of the Republic of South Africa,
without regard to choice of law or conflicts of law provisions that would cause
the application of the law of another jurisdiction.
19. Currency.
All monetary amounts to which this Agreement refers shall be in
United States dollars.
20. Entire Agreement.
This Agreement, including all of its component parts, comprises
the entire agreement between you (the Customer) and Webdesigns, and supersedes
any prior or previous agreements between you and Webdesigns with respect to the
subject matter of this Agreement; provided, however, that you agree that you
shall be subject to any additional terms and conditions of which Webdesigns
notifies you from time to time, pursuant to this Agreement.
21. No Oral Modification of this
Agreement.
This Agreement may not be modified orally.
22. Assignment.
22.1 Customer shall not assign or attempt to assign its
obligations under this Agreement without Webdesigns’s prior and express written
consent to such assignment.
22.2. Webdesigns may assign any or all of its rights and
obligations under this Agreement at any time without prior notice to or consent
of Customer.
23. Consent to Jurisdiction;
Venue.
Jurisdiction and venue for arbitration or litigation of any
dispute, controversy, or claim arising out of, in connection with, or in
relation to this Agreement, or the breach thereof shall be proper only in a
venue determined Webdesigns.
24. Choice of Law.
For all purposes, this Agreement shall be deemed to have been
made within the Republic of South Africa.
25. Force Majeure.
Webdesigns shall not be liable or deemed to be in default for any
delay or failure in performance under this Agreement or interruption of service
resulting directly or indirectly from acts of God, civil or military authority,
acts of public enemy, war, terrorism, riots, civil disturbances, insurrections,
accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor
disputes, shortages of suitable parts, materials, labor or transportation,
magnetic interference, interruptions of electrical power or other utility
service, unavailability of any telecommunications or wireless service or
connection to any telecommunications or wireless service, or any cause beyond
the reasonable control of Webdesigns.
26. Severability of Terms of
this Agreement.
In the event that any portion of this Agreement is held to be
unenforceable, the unenforceable portion shall be construed in accordance with
applicable law as nearly as possible to reflect the original intentions of the
parties hereto, and the remainder of the provisions shall remain in full force
and effect.
27. Limitation of Actions
Arising Under this Agreement.
Any cause of action you may have with respect to Webdesigns’s
performance or alleged non-performance of this Agreement must be commenced
within one (1) year after the claim or cause of action arises or such claim or
cause of action is forever barred.
28. Denial of Service
Webdesigns reserves the right to refuse or discontinue service to
anyone at our sole discretion.
29. Abuse of Webdesigns Staff or
Support Personnel.
29.1. At Webdesigns, we take pride in providing excellent service
to all of our customers. It is our policy always to treat our customers with
the highest level of respect and courtesy. In return, we expect the same
respect and courtesy from you.
29.2. If our staff feels that
you are consistently engaging in abusive content toward them, or addressing
them in a demeaning or rude manner, your account(s) may be suspended and you
may be asked to take your business elsewhere. In the event that we terminate
service for abusive conduct, customers will be given five (5) days’ notice to find
a new Web host. We will issue a refund only for the unused portion of pre-paid
service.
29.3. Abusive conduct includes,
but is not limited to, the following behaviors:
Repeatedly addressing members of
our staff in a demeaning or rude manner;
Using profanity in any oral or
written communications with our staff, by any medium of communication,
including but not limited to e-mail, instant messages, chat, text messaging,
fax, postal mail, telephone, voice over Internet Protocol (VoIP), or in-person
communication;
Yelling or shouting at our
staff;
Deliberately using all capital
(uppercase) letters in any written communication to our staff;
Insulting our staff because of
their personal characteristics, or on the basis of their race, ethnicity,
national origin, sex, sexual orientation, religion, or housing or economic
status; or
Deliberately providing false
information to our staff for the purpose of harassing them or wasting their
time.