Hosting Services Agreement
1 TERMS AND CONDITIONS
- "micfo's" terms and condition are there to protect its Clients. By completing the Checkout Form and ordering any of "micfo's" Services, the Client agrees to have reviewed the following terms and conditions and agrees to be bound by the following terms.
- To the extent that there is any conflict between these terms and conditions and either the terms of any ancillary documents produced by "micfo" in accordance with them, or the Checkout Form, then these terms and conditions shall prevail. To the extent that here is any conflict between the terms of the Checkout Form and the terms of any such ancillary documents, then the terms of the Checkout Form shall prevail.
- No variation to the Agreement shall be binding unless agreed to in writing by "micfo".
3 CHARGES AND INITIAL FEES
- "micfo" reserves the right to alter the "micfo" Charges or the Costs at any time to cover any additional services and/or any increase in the Costs incurred in providing the Services. "micfo" shall not be obliged to provide such additional services unless they are specifically identified and agreed by "micfo" in writing.
- "micfo" reserves the right to charge an Initial Fee in the amount specified in the Checkout Form and set out in the Initial Invoice. The Initial Fees shall unless otherwise specified in the Checkout Form, be an amount equal to one hundred percent (100%) of the Initial Fees and shall be paid immediately upon of the receipt by "micfo" of the completed Checkout Form.
- "micfo" reserves the right to render an Additional Invoice to cover any Additional Charges (to include without limitation 3% Credit Card and/or PayPal transaction fee for payments exceeding $500.00 and any "micfo" Charges or Costs referred to in clause 4.2) and the Client shall pay the Additional Charges upon the receipt of Additional Invoice.
- "micfo" reserves the right to require payment in advance at any time for any exceptional "micfo" Charges or Costs resulting from services requested at any stage by the Client and agreed to by "micfo" under these terms and conditions.
- In accordance to the Services provided by "micfo", the Client acknowledges that Additional Invoices shall be raised by "micfo" for any and/or all Additional Services.
Upon receiving Additional Invoices as set out in clause 4.5, the Client shall make the payment as follow:
- For Additional Services requested by the Client, "micfo" shall raise an Additional Invoice fifteen (15) days prior to its due date. The Client agrees to make the payment towards the Additional Invoice by no later than its due date.
- In the event the payment is not made by the Client on the due date, "micfo" shall send the Client a payment reminder in writing one (1) day past the due date; the second payment reminder is submitted three (3) days past the due date; "micfo" shall make the final effort to contact the Client on its defaulted payment by sending the third and final notice five (5) days past the due date; in the event that the payment is not submitted by the Client seven (7) days past the due date, "micfo" shall immediately suspend any/or all Services rendered to the Client, Hosting Service including without limitation Dedicated Server, Reseller Hosting, Shared Hosting and/or VPS Hosting.
- As set out in clause 3.6.2, in the event that the Client defaults its payment by five (5) days past the due date, "micfo" shall apply a non-negotiable late payment fee of $10 to the Additional Invoice.
- "micfo" reserves the right, and shall be under no obligation to restore the Services and/or access to the Client's Web Content, unless the Client has made necessary arrangements to bring its account in to good-standing by making payment towards its Additional Invoices and/or all outstanding Costs and "micfo" Charges.
- For the purposes of these terms and conditions, time shall be of the essence, and any reference to "payment" or "paid" or "pay" shall mean the receipt by "micfo" of cleared funds. All payment shall be made by Credit Card, PayPal, Wire Transfer or Check.
- All payments made pursuant to this clause 4 shall be made in the relevant currency which shall be US Dollars unless otherwise agreed, and all such payments are to be made by Credit Card, PayPal, Wire Transfer or Check.
- For the purposes of payments, in the event the Client specifies in the Checkout Form to pay for "micfo's" Service by credit card, the Client grants "micfo" the right to charge the Initial Fee, "micfo" Charges, Costs and/or any Additional Charges to the Client's credit card in accordance to the Initial Invoice and/or Additional Invoices. The Client further acknowledges that under no circumstances shall they challenge or otherwise dispute the charges made to their credit card.
- "micfo" shall be under no obligation to issue any Documents until it receives full payment of all outstanding Costs and "micfo" Charges.
- In the event that the Client does not collect Documents relating to the Hosting Services from "micfo" via e-mail, and requires "micfo" to post or otherwise dispatch the Documents, all risk in the Documents shall pass to the Client immediately upon the Documents being posted or otherwise dispatched to the address provided by the Client.
- Any Documents provided pursuant to the Services are for the use of the Client and Client's Webmaster only. The Client shall assure that the Client's Webmaster shall abide by the terms and conditions of issue of any such Documents, and shall indemnify and keep "micfo" indemnified from and against any and all liability, actions, claims, costs, charges, expenses and proceedings arising from any failure to do so. The Client shall not, and shall assure that the Client's Webmaster shall not, resell or transfer any Documents or any other benefit provided under the Services without the prior written consent of "micfo".
- The Client shall not use any Document or any other benefits provided under the Services in any other manner than for lawful purposes. Any actions by the Client at "micfo" that violates state, federal, local or international laws are strictly prohibited and will result in immediate removal and termination of the Client's Services and Hosting Services including without limitation Dedicated Server, Reseller Hosting, Shared Hosting and/or VPS Hosting.
5 HOSTING SERVICE RESTRICTIONS
- "micfo's" Hosting Services are restricted by Bandwidth, Disk Space and Web Content.
The Client shall not use "micfo's" Shared Hosting and/or Reseller Hosting resources including without limitation Bandwidth, Disk Space and Web Content as:
- An alternative solution to file and/or data storage.
- An audio and/or video streaming Website.
- Overselling is expressly prohibited on any/or all "micfo" Reseller Hosting Services. "micfo's" Services are designed so that a specific number of Clients can be hosted per Server. Overselling damages the quality of Services for some and/or all the Clients.
- The Client agrees to not use any and/or all "micfo's" Services other than for lawful purposes. Further the Client agrees that "micfo's" Services shall be only utilized in accordance with state, federal, local and international laws. Any unlawful actions and/or Web Content including without limitation materials that are abusive, obscene, offensive, threatening, unlawful; materials which "micfo" finds inappropriate; hosting unlicensed software, also known as warez; software and/or Web Content which contains virus(es); any activity which commits fraudulent act(s); hacking attempts and/or phishing activity; are strictly prohibited and will result in immediate removal and termination of the Client's Services and Hosting Services including Dedicated Server, Reseller Hosting, Shared Hosting and/or VPS Hosting.
6 SERVER RESOURCE USAGE
- "micfo's" Hosting Services are restricted by Server Resources.
The Client agrees to utilize "micfo's" Server Resources as set out in clause 6.2.1, 6.2,2:
- Shared Hosting; 7% of the CPU in any given twenty two (22) Business Days.
- Reseller Hosting; 10% of the CPU in any given twenty two (22) Business Days.
- Given the situation is not critical, "micfo" will use reasonable endeavors to inform the Client in writing, and work with the Client to rectify the situation by means of: upgrade, Web Content revision, and/or offering an alternative Hosting Service.
- Micfo takes a zero tolerance approach to the sending of Unsolicited Commercial Email or SPAM over its network. The Client agrees to not utilize "micfo's" Services in any manner to Spam and/or send unsolicited bulk e-mails. In the event that any Client breaches or fails to comply with any/or part of provisions set out in clause 7.1, "micfo" retains the right to suspend and/or terminate the Client's Hosting Services.
- Micfo will block SMTP traffic on port 25 for all GRE tunnel traffic for Client provided IP addresses.
- Micfo uses industry standard data feeds from Spamcop and Spamhaus to proactively monitor for UCE violations or other abusive activity. We will take action to disable any Services and/or IP address listed in the data feeds until the suspect activity is reviewed and we confirm the problem has been resolved. Further, Clients found to be intentionally using IP addresses for UCE or other abusive practices will be subject to immediate termination of Services.
8 LIABILITY AND INSURANCE
The Client hereby agrees that without limiting any other provision of these terms and conditions:
- Nothing in these terms and conditions shall exclude or limit the liability of "micfo" for damages or loses caused by "micfo's" negligence or "micfo's" fraudulent misrepresentation.
- "micfo" shall not be liable for any indirect, economic or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise,) costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Agreement.
- To the maximum extent permitted by law "micfo's" entire liability in the Agreement, tort (including negligence or breach of statutory duty,) misrepresentation, restitution or otherwise arising in connection with the Agreement is excluded; and
- "micfo's" entire liability for any loss suffered by the Client, as a result of "micfo's" breach of the Agreement and for which "micfo" shall, notwithstanding any other provision of the Agreement be liable, shall be limited to the Initial Invoice actually paid by the Client under the Agreement.
- For the avoidance of doubt in providing the Services "micfo" shall have no responsibility for the property and personal effects of the Client, or Webmaster of the Client.
- "micfo" does not offer the Client or any third party the benefit of any insurance cover against the loss of, theft or damage to the business, or to personal property of the Client or Webmaster of the Client. Further, "micfo" does not offer the Client or any third party the benefit of any insurance cover against indirect, economic or consequential loss. The provision of any such insurance cover shall be the entire responsibility of the Client and not "micfo".
- The Client shall be solely responsible for any and all loss or damage caused to any third party as a result of access to "micfo's" Services and Hosting Services by any third party, in any form and/or manner including without limitation Dedicated Server, Domain Name, Shared Hosting, Reseller Hosting, VPS Hosting, Web Content and/or Website, and the Client shall indemnify "micfo" and keep "micfo" indemnified from and against any liability, actions, claims, costs, charges, expenses and proceedings arising from the same.
- It shall be Client's responsibility fully to identify and inform "micfo" of all the Hosting Service requirements of the Client, and "micfo" shall not be responsible for any liability howsoever arising from the failure of the Client to so identify and inform "micfo".
- The Client is invited to try "micfo's" Services to ascertain the Client's satisfaction and suitability of the Services for the Client's requirements. "micfo" makes no warranty or representation whatsoever.
- "micfo" neither warrants nor represents that the Services shall get activated on the time stipulated or at all. Further, "micfo" makes neither any warranty nor any representation as to the quality, suitability or otherwise of the Services.
9 CLIENT CANCELLATION
- The Client shall notify "micfo" in writing in the event that they wish to cancel the Services. Client agrees to send the cancellation notice in writing to "micfo's" billing department.
- The Client must inform "micfo" as to when they wish for their Services to be cancelled. The Client has the option to cancel their Service immediately or cancel their Service at the end of their Billing Cycle.
Upon receiving notice as set out in clause 9.1, "micfo" shall process the request as follow:
- For Services cancelled by the Client no later than thirty (30) days from the Signup Date, "micfo" shall issue a full refund of Initial Invoice, minus any and all Costs, Additional Charges and/or Additional Services.
- For Services cancelled by the Client (30) days past the Signup Date, the Client shall not receive any refund whatsoever.
10 AGREEMENT TERMINATION
- "micfo" shall be entitled to terminate the Agreement with immediate effect in the event that the Client:
- Makes any voluntary arrangement with its creditors.
- (Being an individual or firm) becomes bankrupt; or
- (Being a company) becomes subject to an administration order; or
- 10.1.4 Goes into liquidation (other than for the purpose of the Client's amalgamation or reconstruction where the Client is a company,) and in all of the above circumstances the cancellation charges set out in clause 5.2 shall apply.
- In order to protect "micfo's" Clients, in the event that any Client breaches or fails to comply with any provisions set out in these terms and conditions, in addition to any other remedy available, "micfo" retains the right to terminate the Client's Services and Hosting Services including without limitation Dedicated Server, Reseller Hosting, Shared Hosting and/or VPS Hosting with or without any prior notice.
11 SERVICE SUSPENSION
- A violation of clause 5.2 will result in immediate suspension of Client's Service, including without limitation Shared Hosting and/or Reseller Hosting with or without prior notice to the Client.
- In extreme circumstances, and in an effort to prevent the misuse of Server Resources, "micfo" will immediately suspend Client's Services including without limitation Shared Hosting and/or Reseller Hosting which is in violation of clause 6.2. "micfo" will remain the sole arbiter as to what constitutes a violation of this policy.
- "micfo" shall immediately suspend the Clients Services in the event that the Client is found to have defaulted its payment obligations towards "micfo" as set out in Clause 3.6.2.
- "micfo" reserves the right to immediately suspend and/or terminate the Client's Services in the event that the Client is in violation of Clause 3.11.
- As set out in Clause 21.7, "micfo" reserves the right to suspend any/or all the Client's Services with immediate effect. "micfo" shall be under no obligation to send any prior notice to the Client.
12 SERVICE TERMINATION
"micfo" shall be entitled to terminate, without any refund, its Services and Hosting Services including without limitation Dedicated Server, Shared Hosting, Reseller Hosting, and/or VPS Hosting in the event that the Client:
- Is in violation of clause 5.3 by Overselling "micfo's" Reseller Hosting Services.
- Is found to be Spamming and is in violation of clause 7.1. Violation of this policy will result in an Administrative Fee of $250 per incident.
- Is found to be manipulating our affiliate program by engaging in domain speculation and/or self-signup.
- Is utilizing "micfo's" Services for any other than for lawful purposes as set out in clause 5.4.
13 ALTERATION TO SERVICES REQUESTED BY CLIENT
- "micfo" will use reasonable endeavors to accommodate any changes or alterations to the Services requested by the Client, but shall not be obliged and cannot guarantee that it will be able to do so.
14 MATTERS BEYOND REASONABLE CONTROL OF "micfo"
- "micfo" shall not be liable for any matter beyond its reasonable control which results in the Services being altered, postponed or cancelled or in "micfo" being unable to provide the Services including without limitation weather conditions, acts of God, governmental actions, fire, earthquake, national emergency, acts of terrorism, protests, strikes, riot or civil commotion (each a "Force Majeure Event").
- Upon the occurrence of a Force Majeure Event, "micfo" will use reasonable endeavors to provide the Services, but reserves the right in its absolute discretion to alter, amend, change, postpone or cancel the Services (including without limitation, alterations or amendments,) should it be found necessary to do so, and shall have no liability to the Client for any such alteration, amendment, change, postponement or cancellation.
15 DATA PROTECTION
- The Client acknowledges that in the course of the Client's dealings with "micfo", "micfo" may acquire personal data which relates to the Client and/or any of the Client's officers, employees or contractors, and the Client hereby consents to "micfo", in accordance with its authorization and the Act, collecting, storing, processing and transferring such personal data. Unless expressly set out otherwise in writing in the Checkout Form, the Client hereby consents for the purpose of the provision of the Services to the use by "micfo" of such personal data and its disclosure to others in compliance with any rule of law or order of competent authority.
16 THIRD PARTY SUPPLIERS
- "micfo" in providing the Services shall be entitled to appoint one or more third party suppliers to carry out part or any of its obligations under these terms and conditions.
17 THIRD PARTY RIGHTS
- The parties to this Agreement do not intend that the Agreement will be enforceable by any person that is not a party to it, whether by virtue of the Agreement or otherwise.
18 DOMAIN REGISTRATION
- The Client acknowledges that all Domain Names are registered through a third party registrar, eNom. "micfo" shall utilize the registration system platform provided by eNom for any and all the related Domain Name Services. In an event that the Client fails to renew the Domain Name, "micfo" shall use reasonable endeavors to renew the Domain Name; further in an event that the expired Domain Name is pushed within the redemption period, the Client shall be fully responsible for any and all charges including without limitation one-time redemption fee of $300 as defined and set out by eNom. All Domain Names and their usage shall be governed by the terms and conditions set forth by eNom.
19 BACKUP POLICY
- "micfo" performs an off-site backup of the Clients Web Content on a regular basis. The Client acknowledges that the backup of Web Content is a value added service performed by "micfo", and is limited to the Clients with Shared Hosting and Reseller Hosting Services. Furthermore, "micfo" does not guarantee this feature to any of the Clients, and therefore strongly advises the Client to regularly perform a backup of their Web Content. In the unfortunate event that the Client has lost his Web Content, "micfo" will use reasonable endeavors to restore the Client's Web Content, subject to a one-time administration fee of $50.00.
20 APPLICABLE LAW
- The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by the State of Nevada Law, and both parties will submit to the personal jurisdiction in the State of Nevada.
21 GENERAL CONDITIONS
- "micfo" reserves the right to vary these terms and conditions at any time without any prior notice. The Client shall be notified in writing of any variations.
- Any provision of these terms which are or may be void, or are unenforceable shall, to the extent of such invalidity or unenforceability, be deemed to be severed and shall not affect any other provision of these terms.
- No waiver or forbearance by any party (whether express or implied) in enforcing any of its rights against the other party shall prejudice the right of that party to enforce any of its rights in the future.
- This Agreement constitutes the entire Agreement between "micfo" and the Client relating to its subject matter and supersedes and extinguishes any prior drafts, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing relating thereto.
The Client acknowledges that:
- In entering into this Agreement, it does not rely on, has not relied on, and shall have no remedy in respect to, any statement, representation, warranty or other provision (in any case whether oral or written, express or implied and whether negligently or innocently made) of any person (whether a party to this Agreement or not) except those expressly set out in this Agreement.
- The only remedy available in respect to any misrepresentation or untrue statement made to such party shall be a claim for breach of contract under this Agreement; and
- Nothing in this clause 21.5 shall operate to limit or exclude any liability for fraud.
- "micfo" reserves the right to vary and alter "micfo" Charges, Services and Hosting Services including without limitation Dedicated Server, Sales Promotions, Shared Hosting, Reseller Hosting and/or VPS Hosting at any time without any prior notice.
- Any Services purchased during a promotional offer are automatically disqualified from any complimentary upgrades, prorated credits and refunds by "micfo". "micfo" shall be under no obligations whatsoever to provide complimentary upgrades to any/or all clients.
- In the event that the Client is found to be utilizing "micfo's" Services without paying "micfo" Charges, Costs, Additional Services and/or Additional Invoices, as a result of "micfo's" error, system error or "micfo" employee's error whether negligently or innocently "micfo" reserves the right to suspend its Services with immediate effect, with or without any notice.
- As between the Client and "micfo", the Client shall be solely responsible to inform "micfo" in the event that the Client has not received Additional Invoices towards the Services provided by "micfo".
- "micfo" may at its sole discretion, refuse to accept any Client for participation of "micfo's" Services.
- "micfo" reserves the right to terminate any and/or all the Client's Services, in the event that the Client's account is found to be inactive for two (2) months or more.
- The Client shall not be entitled to assign, novate, sub-license or otherwise dispose of the whole or any part of these terms and conditions or its rights hereunder without "micfo's" prior written consent. "micfo" shall have the right to assign all its rights and obligations pursuant to these terms and conditions in whole or in part.
- The Client hereby warrants and represents that the Services to be provided by "micfo" hereunder shall be for the benefit only of the Client and/or the parties identified in the Checkout Form.