This Web Site Hosting Agreement (“Agreement”) is made as of the date in your purchase confirmation email (the “Effective Date”), between Ally Drez, L.L.C., doing business as Ally Drez Web & IT Services (“Ally Drez,” “Host,” “we,” or “us”), and the customer (“Customer,” “you,” or “your”).
Recitals
Host provides web site hosting and related services, and desires to provide such services to Customer. Customer desires that Host provide such services in accordance with the terms and conditions of this Agreement. Based on the foregoing recitals and the promises contained in this Agreement, the parties 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 copyrights, moral rights, and mask works, (b) trademark and trade name rights and similar rights, (c) 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 related services, 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, and shall not place any content, links, or advertisements on the Web Site without Customer’s prior written consent.
3. Payments
Customer shall pay Host the fees set forth in Exhibit A, on the schedule selected at signup (monthly, quarterly, or yearly). Fees are exclusive of taxes. Customer is responsible for all applicable sales, use, excise, and similar taxes, except for taxes based on Host’s net income. Fees are due on the billing date shown on the invoice. Late payments are handled as described in the Late Payment section of Exhibit A.
4. Term and Termination
4.1 Term. This Agreement commences on the Effective Date and remains in effect for one year, unless terminated earlier under Section 4.2. It renews for successive one-year periods unless either party gives notice of its intent not to renew at least 60 days before the end of the then-current term.
4.2 Termination. This Agreement may be terminated immediately upon written notice:
(a) by either party if the other party breaches any material provision of this Agreement and fails to cure the breach within 30 days after receipt of written notice of the breach;
(b) by Customer upon 30 days written notice to Host if Customer, in good faith, determines that the hosting services 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 liquidation or winding up. If any of the foregoing is involuntary, the party is only in breach if the petition or proceeding is not dismissed within 90 days.
4.3 Effect of Termination. Sections 4.3 and 5 through 9 survive expiration or termination. On termination, Customer may retrieve their website files as follows: customers on shared (cPanel) hosting have direct access to their cPanel account and may download their own files at any time; customers on a managed Nginx server will be provided a package of their website upon request to support@allydrez.com; customers on a dedicated VPS or server have SFTP access to retrieve their own files. Providing these files is the full extent of the transition assistance included at no charge. Any additional migration or transition work is billable as a managed service at $100 per hour. Host will return or delete Customer Content and Confidential Information as provided in this Agreement.
5. Warranties
5.1 Host Warranties. Host represents and warrants that any materials it provides or uses under this Agreement will not (a) infringe 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 to or use of a user’s computer system by a non-authorized party, disable, damage, or erase 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 that could prevent Customer from exercising the rights granted under this Agreement or from using the Web Site.
5.2 Customer Warranties. Customer represents and warrants that the Customer Content will not (a) infringe 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 via the Web Site and (ii) the Customer Content and Customer’s trademarks, trade names, logos, and designations, including all Intellectual Property Rights therein. Host shall not use or disclose any user data collected 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 shall indemnify, defend, and hold harmless the other party and its employees, representatives, agents, affiliates, directors, officers, and shareholders against any and all claims, suits, actions, or other proceedings brought against it 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 is entitled to indemnification only if (a) the party seeking indemnification, within 10 days of its discovery of a potential claim, notifies the other party in writing in sufficient detail to enable the indemnifying party to evaluate the claim (provided that failure to give prompt notice only relieves the indemnifying party to the extent the late notice prejudiced its defense or increased its 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 the claim and any appeal. 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 retain separate counsel of its own choosing at its own cost. Notwithstanding the foregoing, Customer may take sole and exclusive control of its own defense at the expense of Host if it reasonably believes it must do so to protect the business, goodwill, or reputation of Customer.
9. Confidential Information
Customer’s “Confidential Information” is any Customer Content that Customer designates as confidential, any other materials of Customer that Customer designates as confidential or that, based on the circumstances of disclosure, Host should reasonably believe to be confidential, and any personal or business information regarding Customer. Host shall hold the Confidential Information in confidence and shall not disclose it to third parties or use it for any purpose other than as necessary to perform under this Agreement. Host shall treat the Confidential Information with at least the same degree of care it uses to protect its own confidential information, and in no event less than reasonable care. Host shall promptly notify Customer of any actual or suspected misuse or unauthorized disclosure. Upon termination, Host shall return all tangible copies of any Confidential Information. Confidential Information does not include information that Host can prove (a) was generally available to the public at the time of receipt, (b) was known to it without restriction at the time of disclosure, (c) is disclosed with Customer’s prior written approval, (d) was independently developed without any use of the Confidential Information, (e) becomes known to it without restriction from a source other than Customer without a duty of confidentiality, or (f) is disclosed in response to an order or requirement of a court, administrative agency, or other governmental body, provided that Host gives Customer prompt advance notice of the proposed disclosure and any information so disclosed otherwise remains subject to this Section 9.
10. General Provisions
10.1 Governing Law. This Agreement is governed by and construed in accordance with the substantive laws of the United States and the State of Florida, without regard to Florida’s conflict-of-laws principles.
10.2 Arbitration and Venue. All disputes arising out of or relating to this Agreement shall be determined by binding arbitration to take place exclusively in Brevard County, Florida, in accordance with the commercial rules of the American Arbitration Association. Any award rendered shall be final and binding 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, if irreparable injury can be shown, either party may obtain injunctive relief exclusively in the appropriate state or federal court in Brevard County, Florida. Any information disclosed during arbitration, and all findings of the arbitrator, shall be deemed Confidential Information. In any arbitration or proceeding relating to the interpretation or enforcement of this Agreement, the prevailing party shall be entitled to recover from the other party all costs, expenses, and reasonable attorneys’ fees incurred, in addition to any other relief to which it 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, or modification of any provision of this Agreement is 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, that determination will not affect the validity or enforceability of any other provision.
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.
10.6 Assignment and Subcontracting. This Agreement and Host’s rights, duties, and obligations are personal to Host, and Host may not assign its rights without Customer’s prior written consent in Customer’s sole discretion. Host may subcontract its duties, provided that Host remains liable for any breach of its obligations by Host or any subcontractor. The parties’ rights and obligations bind and inure to the benefit of their respective successors and permitted assigns.
10.7 Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture, or employer-employee relationship is intended or created by this Agreement. Neither party has the power to obligate or bind the other.
10.8 Notice. All notices required or permitted under this Agreement must be in writing and are deemed given upon personal delivery; upon electronic delivery (email); if sent by certified or registered mail, postage prepaid, 5 days after mailing; or one working day after delivery to a commercial overnight carrier with written verification of receipt. Notices to Customer are sent to the contact information in the account. Notices to Host are sent to:
Ally Drez, L.L.C.
1-321-209-2004
support@allydrez.com
10.9 Counterparts. This Agreement may be accepted electronically and in counterparts, each of which is deemed an original and all of which together are deemed one instrument.
10.10 Entire Agreement. This Agreement, together with Exhibit A (incorporated by reference), represents the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous oral or written statements, agreements, correspondence, quotations, and negotiations.
By purchasing hosting services from Host, Customer accepts and agrees to this Agreement as of the Effective Date.
Exhibit A: Hosting Services and Fees
Uptime Guarantee. We offer a service uptime guarantee of 99% of available time per month. The uptime guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs; (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, and in no event shall we be liable for any loss of content. It is your sole responsibility to maintain appropriate backups of your content. On some occasions, with no obligation, we may be able to restore some or all data that was deleted as of a certain date and time when we happened to back 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 and performed daily to an offsite AWS S3 bucket with a 30-day retention period.
Site Downloads. There are three types of hosting. On a shared hosting plan, each user has access to their cPanel account and can download their website whenever they wish. On a managed hosting package (a client-requested Nginx plan), the client does not have direct access to download their website from the server; a request must be sent to support@allydrez.com, with a 24-hour turnaround within business hours. On a dedicated VPS or server package, the client is given SFTP access to their own server to download their website.
Bulk Emailing. Shared hosting accounts may not be used as a mail server or for mass mailing. Customers may sign up for email services with their domains, for example Mailchimp, and may point their MX records to an off-server mail handler such as Gmail, in order to send bulk mail.
Server Logs. If the customer does not know how to access their own logs through cPanel or a dedicated VPS or server, a request can be sent to support@allydrez.com, with a 24-hour turnaround.
Response Time. Ally Drez monitors for tickets Monday through Sunday between 5 am and 8 pm Eastern Time. All tickets are responded to within a 24-hour turnaround, given the severity level. Basic Tier 1 technical support and troubleshooting of servers beyond hardware-related problems are provided at the sole discretion of Ally Drez and are not 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 and bandwidth limits are the responsibility of the customer to adhere to. If usage exceeds the package purchased, Ally Drez will contact the customer with an over-usage warning and an offer to upgrade. If the customer does not respond, Ally Drez reserves the right to take corrective action for exceeding resources, including an upgrade in service, temporarily discontinuing service, additional charges, or terminating service. To increase resources, the customer can contact Ally Drez through the ticket system in their Client Portal, call 1-321-209-2004, or email sales@allydrez.com.
Server Specs. Server specs are up to the client to choose.
Security and Database. All servers are updated regularly and monitored daily. When a major update is available for the operating system, SQL databases, software, or tools, a notification is sent to customers by email regarding the upgrade, including the day and time 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 set forth in the Agreement, you are prohibited from using any services provided by Ally Drez: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial, state, or local regulations, rules, laws, or ordinances; (d) to infringe upon or violate our intellectual property rights or those 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 affect the functionality or operation of the service, 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, 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 any scripts or software on any shared or VPS hosting server that causes high server loads or otherwise negatively impacts the server performance of other users.
Notice (Cancellation and Refunds). All cancellations must be made by the subscriber by canceling the subscription with their payment processor and in the Client Area of the Ally Drez Client Portal. Hosting fees are non-refundable, with one exception. Monthly hosting plans are not refundable. If the customer prepaid for a full year of hosting, the customer may request a prorated refund of the unused portion, but only if the customer provides at least 30 days written notice before the next billing cycle. The 30-day notice period is not refundable, so the prorated amount is calculated from the end of that 30-day period. A refund request that does not include the required 30 days of advance notice will not be honored for the current period. For website solutions where the cost of development is broken into monthly payments rather than paid up front, a one-year minimum hosting contract is required. If the customer cancels before the end of that year, the remaining balance of the year’s hosting is due.
Late Payment. All customers are responsible for paying on time. Services are billed according to the dates they were initially activated. If an invoice remains unpaid past its due date, a 5-day grace period applies. If payment is not made within the grace period, services may be suspended or terminated, unless a prior written agreement is in place between Ally Drez and the customer.
Server Set-up Fee. There is only a setup fee for custom builds, for example a customer who wants a dedicated VPS or server with a specific operating system, applications, and tools. These fees start at $500.