This Web Hosting Agreement (this "Agreement") is between MakzHost.com, a Texas Corporation formed under the laws of the State of Texas with its principal office at PO Box 117 Spring, TX 77383 ("MakzHost") and the person (individual or legal person or legal entity) whose signs MakzHost's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of MakzHost's Web Hosting service.
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of MakzHost's credit approval requirements, MakzHost 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 MakzHost 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 unless MakzHost or Customer provides the other with written notice of non-renewal through the customer center which is located at http://MakzHost.com/brain. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly, quarter, semi-annually, annually, or bi-annually as indicated on the Order, beginning on the Service Commencement Date. MakzHost may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes MakzHost to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise MakzHost will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 7th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing MakzHost with changes to billing information (such as credit card expiration, change in billing address) at its option, MakzHost may accrue charges to be made to a credit/debit card until such charges exceed $10.00. MakzHost may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. MakzHost may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay MakzHost's reasonable reinstatement fee following a suspension of service for non-payment, and to pay MakzHost's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases.
MakzHost may increase its fees at any time and at its sole discretion for services even within a current contract if there is any material change with respect to any service provided to MakzHost by any local government, municipality, utility provider, bandwidth provider, or control panel operator.
(b1) Auto Upgrades.
MakzHost may upgrade a customer's hosting package to the next available package to maintain service if the customer exceeds their current package limits. MakzHost will bill the customer for the upgrade.
At MakzHost's request Customer shall remit to MakzHost all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on MakzHost); regardless of whether MakzHost fails to collect the tax at the time the related services are provided.
Refunds are only valid on the the initial term for Shared and Reseller web hosting packages. Refunds are not available on VPS Servers, Dedicated Servers, Cloud Servers, or Domain Registrations, or any other services not listed here. Refunds are not available on account renewals.
At times when a Credit is issued to an account for any reason, this credit is non-refundable. Furthermore any positive credit balance on an account at the time of account termination is immediately forfeited.
(f) 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 MakzHost 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 MakzHost'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.
All disputes and overcharges must be reported directly to the Company, in writing, within thirty (30) days. Any Customer that initiates a chargeback, reversal, retrieval request, or other dispute with their credit card issuing bank and/or PayPal ("Dispute") will be immediately suspended or terminated pending investigation. The Customer agrees to pay a "Research Fee" of $35.00 USD per Dispute regardless of the actual validity of the charge.
Customer agrees to use the service in compliance with applicable law and MakzHost's Acceptable Use Policy posted at http://www.MakzHost.com/legal/acceptableusepolicy/ (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that MakzHost 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 MakzHost'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 MakzHost's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between MakzHost and Customer regarding the interpretation of the AUP, MakzHost's commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to MakzHost that the information he, she or it has provided and will provide to MakzHost for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to MakzHost that he or she is at least 18 years of age. MakzHost 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 Contract.
Customer agrees to indemnify and hold harmless MakzHost, MakzHost'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.
7. Disclaimer of Warranties
MakzHost DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW MakzHost 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.
8. 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 POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF MakzHost 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.
(a) Suspension of Service.
Customer agrees that MakzHost may suspend services to Customer without notice and without liability if: (i) MakzHost 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) MakzHost 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 MakzHost's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
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 MakzHost 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 MakzHost 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 (3) days of a written notice from MakzHost 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 5 (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.
10. Requests for Customer Information
Customer agrees that MakzHost 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 MakzHost 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 Copy
Customer agrees to maintain a current copy of all content hosted by MakzHost notwithstanding any agreement by MakzHost to provide back up services.
12. Changes to MakzHost's Network
Upgrades and other changes in MakzHost'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. MakzHost reserves the right to change its network in its commercially reasonable discretion, and MakzHost shall not be liable for any resulting harm to Customer.
Notices to MakzHost under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.MakzHost.com/aboutus/contact/ 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.
14. Force Majeure
MakzHost shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond MakzHost'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.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of the State of Texas, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN HARRIS COUNTY, TEXAS, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
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 MakzHost 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 MakzHost's prior written consent. MakzHost's approval for assignment is contingent on the assignee meeting MakzHost's credit approval criteria. MakzHost may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
17. Refuse Service
MakzHost.com reserves the right to refuse service to any active or in-active customers for any reason it deems necessary.
This Acceptable Use Policy ("AUP") governs the use of MakzHost's web hosting service. Violation of this AUP may result in suspension or termination of your service. In the event of a dispute between you and MakzHost regarding the interpretation of this AUP, MakzHost's interpretation, in its reasonable commercial judgment, shall govern.
You may not publish or transmit via MakzHost's service any content that MakzHost reasonably believes:
- constitutes child pornography;
- constitutes pornography or adult related material;
- is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;
- is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- is defamatory or violates a person's privacy;
- creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;
- improperly exposes trade secrets or other confidential or proprietary information of another person;
- is intended to assist others in defeating technical copyright protections;
- clearly infringes on another person's trade or service mark, patent, or other property right;
- promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;
- is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to MakzHost; or
- is otherwise malicious, fraudulent, or may result in retaliation against MakzHost by offended viewers.
Content "published or transmitted" via MakzHost's service includes Web content, e-mail, bulletin board postings, chat, and any other type of posting or transmission that relies on any Internet service provided by MakzHost.
You must take reasonable security precautions. You may not provide free hosting services to your clients. You must protect the confidentiality of your password, and you should change your password periodically.
Obeying the Law
As MakzHost is registered and located within the United States of America, we are required to follow any and all US laws. This provision applies to all Services provided and maintained by MakzHost, whether located within the US or other countries.
Each customer is required to utilize as little server resources as possible, so as to allow for reasonable performance by all MakzHost customers. Because server CPU and memory are shared resources, excessive consumption of these resources can interfere with or completely prevent normal service performance for other users. The Company reserves the right to suspend or terminate Services on any account that, at our sole discretion, is abusing server resources. Such suspension or termination can occur at anytime without prior warning, and for any or no reason.
Any and all abusive actions directed towards our staff will not be tolerated. If you use foul language, threaten us, or do anything else that we may find offensive, you will be subject to, at the Company's sole discretion, suspension or termination of Services without refund, with or without notice. This includes, but is not limited to, threats to sue, slander, libel, publicly post, or chargeback.
Restriction on Storage Space Usage
All accounts are subject to the following restrictions on storage space usage:
- Accounts must have valid, working websites, and not violate any previously subscribed terms
- Accounts are not for use of mass storage of backups, files, audio, video, zip files or others at our discretion
- Accounts are not for us of mass distribution of files, such as torrents or mirrors
- Any account found violating these terms may be suspended or terminated without warning
You may not send any unsolicited e-mail, either in bulk or individually, to any person who has indicated that they do not wish to receive it.
You must comply with the rules of any other network you access or participate in using your MakzHost's services.
Material Protected by Copyright
You may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless:
- you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner;
- you are otherwise permitted by established United States copyright law to copy the work in that manner.
MakzHost will terminate the service of repeat copyright infringers.
Copyright Infringement Notice (Digital Millennium Copyright Act)
If you believe your copyright is being infringed by a person using the MakzHost network, please send your notice of copyright infringement to [email protected].
Your notice must include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted words at a single site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MakzHost to locate the material;
- Information reasonably sufficient to permit MakzHost to contact you, such as an address, telephone number, and, if available, an e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the copyright owner's agent, or the law;
- A statement that the information in the notification is accurate, and under penalty of perjury that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You must have valid and current information on file with your domain name registrar for any domain hosted on the MakzHost network.
MakzHost is under no duty, and does not by this AUP undertake a duty, to monitor or police our customers' activities and disclaims any responsibility for any misuse of the MakzHost network.
You may not engage in illegal, abusive, or irresponsible behavior, including:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures (including those belonging to MakzHost and its customers) without express authorization of the owner of the system or network;
- Monitoring data or traffic on any network or system without the authorization of the owner of the system or network;
- Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
- Use of an Internet account or computer without the owner's authorization, including, but not limited to Internet scanning (tricking other people into releasing their passwords), password robbery, security hole scanning, and port scanning;
- Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting; or
- Any conduct that is likely to result in retaliation against the MakzHost's network.
- Use of MakzHost's network in a way that unreasonably interferes with MakzHost's other customers use of the network
Shared & Reseller Hosting
MakzHost guarantees that your website and services that directly affect its display to the Internet (such as HTTP or MySQL) will be accessible 99.9% of the time in any given calendar month.
If we fail to meet our Uptime Guarantee, you will be issued a credit equivalent to one (1) day of service per sixty (60) minutes downtime. The first 60 minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of service.
VPS, & Dedicated Servers
MakzHost cannot guarantee 99.9% server uptime, but we can guarantee 99.9% network uptime in any given calendar month, for all VPS, Cloud Servers and Dedicated Servers.
If we fail to meet our Uptime Guarantee, you will be issued a credit equivalent to one (1) day of service per sixty (60) minutes downtime. The first 60 minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of service.
MakzHost guarantees that your website and services that directly affect its display to the Internet (such as HTTP or MySQL) will be accessible 100% of the time in any given calendar month.
If we fail to meet our Uptime Guarantee, you will be issued a credit equivalent to one (1) day of service per sixty (60) minutes downtime. The maximum credit available is one (1) month of service.
SLA Terms & Conditions
Credits are available only for future services/invoices and will not be issued as refunds.
All credit requests must be sent no later than the tenth (10th) day of the month following the SLA violation. Credits are issued based on the uptime for the previous calendar month only. For example, if you experienced less than 99.9% uptime in the month of November, you would need to submit your request for credit no later than December 10th. Requests not submitted within the required timeframe will not be accepted - no exceptions.
The following circumstances are not eligible for credit and are specifically excluded from our Uptime Guarantee: Scheduled Maintenance, DDoS or similar attack, hardware failure, third-party software failure, customer fault/error, issues with customer ISP, firewall blocks/bans, or any other circumstance beyond our reasonable control.
MakzHost's SLA policy does NOT apply to services such as: Static IP Addresses, SSL Certificates, Domain Registrations or Domain Transfers.
We reserve the right to deny any credit request for any or no reason.
When you sign up for our service, we will ask you to provide contact information such as your name, address, telephone numbers, e-mail addresses, and payment information such as credit card number and expiration date.
We may ask you to complete user surveys, and to provide certain demographic information, such as age, gender, special interests, etc. You do not have to provide this type of information to use our service if you do not want to.
If you contact us for customer support, we may also ask you for information about your operating system, software and other technical matters.
When you visit our Web site we will capture your IP Address, time of and duration of visit, and time and duration of the pages on our Web site that you view. We may tie this information to the personally identifiable information we have about you.
We will also place a cookie that will identify you to us as a repeat visitor or a customer when you visit our Web site. See "What is a Cookie" below. We may tie this cookie to the personally identifiable information we have about you.
If we send you an e-mail, we may include a marker that will allow identifying e-mail that is opened and viewed.
Use of Personally Identifiable Information
We will use your personally identifiable information only as follows:
- For payment purposes and to provide customer support;
- To announce special offers or provide other information from time to time via e-mail. We may also send e-mails announcing special offers by our third parties, but we will not provide the third parties with your e-mail address or other personally identifiable information. If you do not wish to receive these e-mails, you may opt out of future e-mails at any time by following the instructions included in the e-mail;
- To improve our service and the marketing of our service. For example, we may use the information we gather from user surveys, demographic data, and web site visits to help us improve or target our Web site and customise your visit.
We will not provide any personally identifiable information about you to any other person other than:
- a law enforcement or regulatory agency at their request;
- a person or company who acquires our business;
- third parties who perform services on our behalf (such as payment processing), subject to the third party agreeing with us that it will keep your personally identifiable information confidential;
- To our subsidiaries and affiliates, or
- As otherwise needed to protect or enforce or rights or the rights of others.
We absolutely do not transfer or sell your information for inclusion on third party e-mail or other marketing lists.
Use of Non-Personally Identifiable Information
We may share aggregate statistical data about our customers with third parties, such as advertisers or suppliers. This aggregate statistical data will not identify you personally.
What is a Cookie
A "cookie" is an alphanumeric identifier that is unique to your browser. The cookie will identify your browser to us when you visit our web site so that we may customise your visit.
Security of Your Information
We store your personally identifiable information and payment information in a database which has numerous protection policies in place to ensure its security. We encrypt some sensitive data such as passwords and/or but not limited to credit card numbers.
Our service is not available to children under the age of 18, and we will not intentionally maintain information about anyone under the age of 13.
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