This Web Hosting Agreement (this "Agreement") is between MasonHosting.com formed under the laws of the Australian Capital Territory, Australia (MasonHosting) and the person (individual or legal person) whose signs MasonHosting's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of MasonHosting's Web hosting service.
1. Services
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of MasonHosting's credit approval requirements, MasonHosting agrees to provide the web hosting services described in the Order for the fees stated in the Order.
2. Term
The initial service term of the Agreement shall begin on the date that MasonHosting generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for the same length as the Initial Term (each a "Renewal Term") unless MasonHosting or Customer provides the other with termination notice within 7 days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
3. Payments
(a) Recurring Fees
Renewal notices are emailed fourteen (14) days before the actual renew date in your account. If your billing method is Paypal you will need to manually pay your invoice every month. Service will be made inactive on accounts that are not paid by 5 days after the due date.
The term "Account" describes all services provided to a customer as defined by the primary ownership email and physical address. MasonHosting reserves the right to revoke this grace period if a pattern of late payment is observed or if your payment method is listed as other. Any accounts suspended for non-payment are subject to a $5.00 late payment fee.
If fees are not paid by 30 days from the invoice due date, your account will be terminated.
(b) Non-Recurring Fees
All customers exceeding their bandwidth allowance will be sent invoices due upon receipt each month. All customers are responsible for monitoring transfer or bandwidth usage each month. Bandwidth overages are charged at $2.00 per each GB used over the allowed limit of the package.
(c) Taxes
At MasonHosting's request Customer shall remit to MasonHosting all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on MasonHosting, regardless of whether MasonHosting fails to collect the tax at the time the related services are provided.
(d) 30 Day Money Back Guarantee
All new MasonHosting Customers are eligible for a 30 day money back guarantee on all hosting packages upon written request. The definition of a new customer is one who has never purchased services from MasonHosting in the past. Also if a customer purchases a 2nd, 3rd, etc. hosting package and wishes to cancel this particular package they are not eligible for a refund. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee. If the TOS/AUP agreed upon when ordering is violated this voids your eligibility for the 30 day money back guarantee. MasonHosting reserves the right to deny the refund if we feel abuse of services has occurred.
4. Cancellation and 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 MasonHosting terminates the Agreement for Customer's breach of the Agreement in accordance with Section 10 (Termination), or Customer terminates the service other than in accordance with Section 10 (Termination) for MasonHosting breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. Customer also acknowledges that a minimum of 7 days cancellation notice or downgrade of current package prior to the following renewal term must be given in writing to MasonHosting or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
Cancellation request must be submitted to the billing department billing@masonhosting.com or via the cancellation request within the billing portal
Cancellation request must be submitted from the main email address on file with MasonHosting
Cancellation request must contain the main domain of the hosting plan you wish to cancel
5. Law/AUP
Customer agrees to use the service in compliance with applicable law and MasonHosting's Acceptable Use Policy posted at www.masonhosting.com/aup (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that MasonHosting 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 MasonHosting'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 MasonHosting's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between MasonHosting and Customer regarding the interpretation of the AUP, MasonHosting's commercially reasonable interpretation of the AUP shall govern.
6. Customer Information
Customer represents and warrants to MasonHosting that the information he, she or it has provided and will provide to MasonHosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to MasonHosting that he or she is at least 18 years of age. MasonHosting 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.
7. Indemnification
Customer agrees to indemnify and hold harmless MasonHosting, MasonHosting'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.
8. Disclaimer of Warranties
MASONHOSTING DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW MASONHOSTING 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.
9. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF MASONHOSTING 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 ONE MONTH OF SERVICE.
10. Suspension/Termination.
(a) Suspension of Service.
Customer agrees that MasonHosting may suspend services to Customer with or without notice and without liability.
(b) Termination.
MasonHosting reserves the right to terminate the Agreement or deny services at any time with or without notice and without liability. 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 MasonHosting 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 Customer may also terminate this agreement as per Section 4 respectively.
Either party may terminate this agreement upon five (5) 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.
11. Bandwidth Usage
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee and you are responsible to pay for any overage.
12. Domains
MasonHosting is not a domain registrar. We are a reseller for Netregistry and TPPWholesale so all MasonHosting customers who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by Netregistry/TPPWholesale. Domain purchases as well as domain transfers are billed at the rates listed on the order. You have the option to add privacy protection to some TLD domains. You will receive notice from MasonHosting once your domain is up for renewal. If you do not renew your domain by the expiration date you run the risk of loosing your domain and additional charges may apply. If you choose to cancel your hosting plan with MasonHosting or fail to pay your renewal we will not be renewing your domain past the cancellation date of your hosting plan without written agreement to do so otherwise. If you wish to transfer your domain elsewhere, there will be a domain transfer fee of up to $150.00 charged for this to occur.
13. Requests for Customer Information
Customer agrees that MasonHosting 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 MasonHosting 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.
14. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by MasonHosting notwithstanding any agreement by MasonHosting to provide back up services.
15. Request for Rebuild/Restore of Hosting Package
If a customer should need to request a rebuild/restore there is a $20.00 one time fee that will be enforced.
If a customer has cancelled services and within 60 days wish to restore their account to the day of termination, there will be a $150.00 one time fee enforced if we are able to restore to an archival copy.
16. Changes to MasonHosting's Network
Upgrades and other changes in MasonHosting'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. MasonHosting reserves the right to change its network in its commercially reasonable discretion, and MasonHosting shall not be liable for any resulting harm to Customer.
17. Notices
Notices to MasonHosting under the Agreement shall be given via electronic mail to the e-mail address of billing@masonhosting.com or via our online ticketing system at http://masonhosting.com/billing. All notices, including but not limited to support or billing requests, must be submitted from the registered primary or any sub-account e-mail address on file with the appropriate permissions granted for the customer account.
Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. It is the Customers responsibility to ensure valid and accurate contact information is supplied and updated as necessary. 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.
18. Force Majeure
MasonHosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond MasonHosting'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.
19. Binding Arbitration
Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Rules. The seat of arbitration shall be Canberra, Australia. The language of the arbitration shall be English.
20. Miscellaneous
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 MasonHosting 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 MasonHosting's prior written consent. MasonHosting's approval for assignment is contingent on the assignee meeting MasonHosting's credit approval criteria. MasonHosting 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 supersedes and replace any prior understanding or communication, written or oral.
Last updated on 30/03/2014
