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Terms of Use

Master Service Agreement

Terms and Conditions
These terms and conditions are entered into effect on the date the order is placed by and between 1-800-Hosting Inc, a company based in Dallas, USA (the "Company"), and you (the "Client").

1. PROVISION OF SERVICES

  1. The Company agrees to provide the Services to the Client and the Client agrees to purchase the Services, for the Service charges. The Client's signature on the Order Form and/or acceptance of the order form and/or use of the Service constitutes its acknowledgement and agreement to be bound by the terms of this Agreement.
  2. Each Service's Initial Term (i.e., the initial length of term for the Services) is indicated on the applicable Order Form. The Client will be deemed to have accepted the Service as of the Service Date (as hereinafter defined). At the end of the Initial Term, this Agreement will renew for successive Renewal Terms (i.e, the subsequent length of term for the Services after completion of the Initial Term) equal in length to the Initial Term or as specified in the order form and until terminated as provided herein.
  3. The Client may order additional Services through additional Order Forms, which will be governed by this Agreement. The Client's account must be current in order to make changes to Services or order additional Services.
  4. The Company may reject any Service Order and will not be bound by such Service Order until accepted by the Company in writing. Client's issued purchase orders will not modify the terms of this Agreement. Any requests for ancillary services not described in the applicable Order Form may be provided on an individual case basis as agreed to in writing by the parties.
  5. 1-800-HOSTING utilizes FraudRecord to screen new orders for previous fraudulent activity and report existing clients who violate our Terms of Service. In case of a violation, you may be reported to FraudRecord.

2. USE AND INTERRUPTION

  1. Client's use of the Services (as hereinafter defined) may only be for lawful purposes and must comply with this Agreement and the Company's Acceptable Use Policy ("AUP") as this is posted at www.800hosting.com. Transmission of any material in violation of any law, regulation or the AUP is strictly prohibited. Any such suspension or restriction will be on the most limited basis as the Company determines is reasonably practical under the circumstances in order to address the underlying violation. Client will indemnify, defend and hold the Company and its employees, officers, directors, agents and contractors harmless from any and all third party claims, losses, damages, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, or liabilities arising from or related to the use or resale of the Service, including, without limitation, any violation of this Section.
  2. The Company's obligations and the Client's exclusive remedies for failure of any Service are stated in the Company's SLA.
  3. Client represents and warrants to the Company that the information provided by the Client to the Company, including without limitation the information provided on any Order Form or Client questionnaire shall be true and correct.
  4. Client acknowledges that the Services may be subject to maintenance or repair and agrees to cooperate in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair.

3. CHARGES

  1. Please refer to the Company's Billing Policy as uploaded at www.800hosting.com.
  2. Service charges are on the Order Form and do not include applicable Taxes unless so indicated. New services or upgrades will result in additional fees/charges.
  3. Notwithstanding any other provision to the contrary, the Company may increase the charges applicable to any Service provided. Such increase shall be effective upon the date set forth in the Company' written notice thereof to the Client or as set forth in the Order Form or during any automatic renewal term.

4. TERMINATION, ETC

  1. Prior to the Service Date, the Company may terminate this Agreement if not approved by the Company corporate management (including credit check). The Company also may restrict, suspend or terminate this Agreement and/or the Client's use of or access to any Service, at any time if: (i) the Client is in material breach of this Agreement (including but not limited to the AUP and/or the Billing Policy) and, in the Company's sole judgment, an immediate restriction or suspension is necessary to protect the services or the Company's ability to provide services to other customers; or (ii) the Client's account is unpaid five (5) days after the date of invoice or the due date, whichever comes first; or (iii) the Company facilities at the Client's location are unavailable, (i.e., no connectivity); or (iv) as further specified in Company's Billing Policy.
  2. Either Party may terminate this Agreement: (i) at the end of an Initial Term or Renewal Term by providing the other Party with at least seven (7) days prior written notice, or (ii) except as otherwise stated herein, during an Initial Term or Renewal Term if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within ninety (90) days after receipt of written notice of the same, or (iii) as further specified in Company's Billing Policy.
  3. If a Service is terminated prior to the Service Date, the Client shall pay the Company for all Initial Costs (as hereinafter defined) for such Service and as further specified in the Company's Billing Policy. If the Service is terminated after the Service Date, the Client shall pay the Company (i) for the Service up through the date of termination; and (ii) except in the case of termination by the Client as provided in Section 4(b) above, or by the Company due to loss of connectivity, the Initial Costs (unless already paid) and the Termination Charge. The Client acknowledges that because actual damages to the Company caused by early termination of a Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconnections of the Service shall result in additional reconnection charges to the Client at the Company's then-prevailing rates. For the purposes of this Agreement, "Initial Costs" shall be defined as the greater of (x) installation fees (if not paid); or (y) all third-party costs and charges incurred by or charged to the Company on behalf of the Client for the Service, including but not limited to local loop fees, cross-connect charges, and wiring fees.
  4. If the Client defaults in any of its payment obligations under this Agreement, the Client agrees to pay the Company reasonable expenses, including but not limited to legal and collection agency fees, incurred by the Company in enforcing its rights. All termination notices by the Client must be sent separately for each service and must be sent to billing@800hosting.com .

5. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

  1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED "AS IS," AND NEITHER the Company NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS AGREEMENT OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. The Company EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. The Company DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CLIENT OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES.
  2. WITHOUT PREJUDICE TO OR LIMITING OF the Company'S RIGHT TO RECEIVE PAYMENT FOR SERVICES, the Company'S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CLIENT AND the Company, AND THE PROVISION BY the Company OF FACILITIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CLIENT FOR THE SERVICE AT ISSUE IN THE PRIOR SIX (6) MONTHS TO THE ACTION GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED THOUSAND DOLLARS ($100,000) IN TOTAL; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY FOR DEATH OR PERSONAL INJURY CAUSED BY the Company, OR FOR ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
  3. CLIENT RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO the Company'S CONTROL. CLIENT AGREES THAT the Company SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO the Company'S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CLIENT INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. The Company SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CLIENT OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND 'DENIAL OF SERVICE' ATTACKS). The Company IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CLIENT'S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. CLIENT AGREES THAT IT WILL NOT HOLD the Company RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM the Company MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, the Company IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, CLIENT AGREES THAT IT WILL NOT HOLD the Company RESPONSIBLE FOR (i) THIRD PARTY CLAIMS AGAINST CLIENT FOR DAMAGES, (II) LOSS OF OR DAMAGE TO CLIENT'S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (III) LOSS OR DAMAGE TO CLIENT ASSOCIATED WITH THE INOPERABILITY OF CLIENT'S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES. CLIENT AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST the Company, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.
  4. NEITHER the Company NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CLIENT, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE).
  5. NO ACTION OR PROCEEDING AGAINST the Company MAY BE COMMENCED BY THE CLIENT MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND CLIENT ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR SUCH A CLAIM.

6. INDEMNIFICATION

The Client will indemnify, defend and hold harmless the Company and its directors, officers, employees, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses (as hereinafter defined), to the extent such Losses arise (a) as a result of non-compliance by the Client with its obligations under this Agreement; (b) from any and all claims by any of the Client's customers or other third party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; provided, however, that the Client will have no obligation to indemnify and defend the Company against claims for damages for bodily injury or death caused by the Company's gross negligence or willful misconduct; or (c) from claims of copyright infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and claims of infringement of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by the Client or by any of the Client's customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by the Client or by any of the Client's customers or authorized end users, or (iii) the use of Service(s) by the Client in any manner inconsistent with the terms of this Agreement, including without limitation the AUP. For the purpose of this Agreement, "Losses" shall mean costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees.

7. MISCELLANEOUS

  1. Except as to payment obligations of the Client, neither Party shall have any claim or right against the other Party for any failure of performance due to Force Majeure. For the purposes of this Agreement, "Force Majeure" shall be defined as causes beyond a Party's control, including but not limited to: acts of God; fire; explosion; vandalism; cable cut; storm; flood or other similar occurrences; any law, order, regulation, direction, action or request of any government, including federal, state, provincial, municipal and local governments claiming jurisdiction over a Party or the Service, or of any department, agency, commission, bureau, corporation, or other instrumentality of any such government, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; riots, terrorist acts or wars (declared/undeclared); or strikes, lock-outs, work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays).
  2. Neither Party is the agent or legal representative of the other Party, and this Agreement does not create a partnership, joint venture or fiduciary relationship between the Company and the Client. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This Agreement confers no rights, remedies, or claims of any kind upon any third party, including, without limitation, the Client's subscribers or end-users.
  3. This Agreement for Service is made pursuant to and shall be construed and enforced in accordance with the laws of the state of Texas, USA without regard to its choice of law principles. Any action arising out of or related to this Agreement shall be brought in the State or Federal courts located at Dallas County, Texas, USA and the Client consents to the exclusive jurisdiction and venue of such courts.
  4. The client agrees to comply with the requirements of the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (the "DMCA") and acknowledge that the company is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. A&512. Consistent with the DMCA, the company will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, the company has a policy of terminating accountholders who are repeat copyright infringers. The company also reserves the right to comply with the take-down provisions of the DMCA and to seek injunctive, declaratory, interpleader or other judicial or equitable relief (and, pending such action, to suspend all access to client's website) if any third party claim is made that your website content or use violates any of the acceptable users or your obligations or representation described in this Agreement.
  5. Notices, if required, must be sent in writing by e-mail, courier or first class mail (postage prepaid) to the appropriate contact point listed on the Order Form, and are considered made when received at that address; provided, that termination notices to the Company must be sent in accordance with Section 4(d) above. In the event of an emergency, the Company may only be able to provide verbal notice first; such verbal notice will be followed by written notice. The Client is responsible for accuracy of its information on the Order Form, including points of contact.
  6. The Client may not assign this Agreement without the Company's prior written consent. Any such assignment without the Company's prior written consent shall be void.
  7. Without limiting any other obligation which expressly survives the expiration or prior termination of the term of this Agreement, the expiration or prior termination of the term of this Agreement shall relieve both Parties of any further obligations hereunder, except with respect to Sections 2, 3, 4(c), 4(d) and 5 through 8, which shall survive any expiration or termination of this Agreement.
  8. The Company's Network is owned by the Company, or its licensors or vendors, and is protected by copyright and other intellectual property laws. The Client agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by the Company. The Client shall be entitled to only such rights with respect to the Services as are specifically granted herein.
  9. This Agreement and such other written agreements, documents and instruments as may be executed in connection herewith are the final, entire and complete agreement between the Client and the Company and supersede all prior and contemporaneous negotiations and oral representations and agreements related to the subject matter herein, all of which are merged and integrated into this Agreement.
  10. This Agreement and any Addendum thereto may be executed in one or more counterparts all of which taken together shall constitute one and the same instrument.
  11. Except as otherwise expressly set forth in the Agreement, neither party's failure to insist upon strict performance of any provision of the Agreement shall be construed as a waiver of any of its rights hereunder. Neither the course of conduct between parties nor trade practice shall act to modify any provision of the Agreement.
  12. If any term of the Agreement is held unenforceable, the unenforceable term shall be construed as nearly as possible to reflect the original intent of the parties and the remaining terms shall remain in effect.
  13. In the event of conflict among terms, the order of priority shall be as follows: this Master Services Agreement, then the Order Form with the latest date, then the AUP.
  14. Except as otherwise set forth herein, all amendments to the Agreement shall be in writing and signed by the parties' authorized representatives. All handwritten or typed modifications to the Agreement which are not mutually agreed to in writing are null and hereby rejected. The Company may act in reliance upon any written notice, Order Form, or other instruction or signature reasonably believed by the Company to be genuine.

8. DEFINITIONS

As used herein

  1. "Agreement" means this Master Services Agreement, and all applicable Order Forms (identifying the specific Service(s) to be delivered as well as any subsequently executed Order Forms), Service Level Agreements ("SLAs") and the Company's Acceptable Use Policy (the "AUP") and Billing Policy as uploaded to www.800hosting.com, and any other documents that are expressly incorporated herein.

  2. "Order Form" means a service order request submitted on a form issued by the Company and signed by Client that includes the type and details of the specific Services ordered by Client.
  3. "Services" means any services provided by the Company; as indicated at www.800hosting.com and/or the service order form and/or as agreed in writing by both parties.
  4. "Service Date" is the earlier of date on which (a) the Company makes the Service available for the Client's use; or (b) the Client first uses the Services.
  5. "Force Majeure" is defined in Section 7(a) above.