As used herein and throughout this document:
“Agreement” means the entire contents of this document, related document(s), schedules, supplements, exhibits, or ammendments as may be attached hereto and incorporated herein by reference.
“Services” means the ongoing set of online Services including website setup, configuration, updates, maintenance, and hosting as described on each specific product page of this website.
“Subscription” means the term and cost for Services specifically outlined for the product as described on the Subscription request form.
“Provider” means Hands-On Hosting, a branded product of Catch Light Productions, operating www.hands-on.hosting and all associated subdomains.
“Customer” means the person, company, or entity submitting the Subscription request form for Services as described herein.
“Website” means the website domain listed on the Subscription and hosted by the Provider on behalf of the Customer where all Services shall be provided.
“Server” means the host node where the Website is hosted as it refers to the entire server instance for Shared, VPS or Dedicated environments.
“Content” means all materials, information, photography, writings and other creative content used in the preparation of and/or incorporation in the Website.
Limitations Of Scope
Provider will not be responsible for work that is beyond the scope of Services set forth in the Subscription plan in effect at the time Customer initiates the Service request. Any changes to the scope of Services will not be effective unless approved by both parties.
Provider will provide certain tools, methods and resources to Customer that are intended to help Customer grow and build its Website. However, Customer is fully and exclusively responsible for its own business performance. In addition, Customer has full and exclusive responsibility for understanding and ensuring compliance with any regulatory, legal or contractual obligations related to Customer’s business, including without limitation, data held by Customer and its Website users, information provided by Customer to its Website users and/or other third parties and any safeguarding and security measures that may be required.
Provider may participate in implementing needed systems and functions, but Customer is solely responsible for the final outcomes, actions taken, and results produced. Provider will act as first point of support for any and all third-party software and services provided as part of Services subscribed to by Customer, but ultimate responsibilty of functionality and reliability of such third-party software and services shall lie with the original developer.
In the event any third-party software or services are found to be obsolete, defective, or otherwise unusable, Provider will make best effort to find and implement a comparable replacement product. Such replacement must be suitable for all customers currently utilizing Providers Services and not designated to meet the unique requirements of any specific customer.
Provider shall maintain and operate the infrastructure required to host Customer Website and use commercially reasonable efforts to maintain appropriate temperature and humidity levels, fire suppression controls, power conditioning equipment and uninterruptible power supplies for the proper ongoing operation of Customer’s hosting environment.
Provider shall provide data storage, a network connection linking the hosted Website to the Internet, routing for one domain name to the Customer’s Website, and backups as described under the specific product page.
When reasonably possible, any maintenance of the systems used to host the Website will be conducted between 12:00 a.m. and 3:00 a.m. Central Time, referred to as the “Maintenance Window”
Customer acknowledges that it is important to coordinate Content maintenance activities with systems maintenance activities of Provider, and will not conduct any Content maintenance activities during any Maintenance Window without first obtaining written confirmation that Provider will not be performing any maintenance activities during that Maintenance Window.
Each Customer will have access to a Customer account wherein Services can be managed. Each Customer user is solely responsible for the confidentiality, security, and management of their own user account and agrees to accept responsibility for all activities that occur under the account, including but not limited to, communications sent or received, Services subscribed to, or payments made. If any unauthorized personnel gains access to a Customer user account, the authorized user or a Customer representative will notify Provider as soon as practicably possible upon learning of said access. Each Customer user will take reasonable steps to ensure the security of their user account, including maintaining confidentiality of their user account password.
The “Billing Cycle Date” is the date on which Customer submits the Subscription request form. The first “Monthly Recurring Fee” will be charged on this date and again on the same date of each consecutive month thereafter until Subscription is cancelled. Each new Subscription shall be in effect for 1 (one) year from the Billing Cycle Date and then continue on a month-to-month basis indefinitely thereafter until cancelled.
Payment will be made by automatic credit card transactions each month. Invoices will include monthly Service fees and any additional fees for additional Services that have been purchased by the Customer. Invoices will be issued and automatic transactions processed as described above. Provider reserves the right to assess and collect late-payment charges of 1.5% per month on past due balances.
For all Services with one-time fees, Customer will be charged the full amount upon Service request.
Except for reasons of non-performance by either party, this Agreement shall remain in effect for a minimum of 1 (one) full year and then renew montly until formally cancelled in writing by either party. Provider will start Subscription billing to Customer beginning the Billing Cycle Date Customer agrees to these Terms of Service as described in the Payment section. A repeated failure to make payment by date due during any period gives Provider the option for immediate termination. Upon the expiration or termination of this Agreement for non-payment or non-performance by Customer, (i) all licenses granted by Provider to Customer hereunder shall automatically be cancelled and Customer shall immediately cease its use of the provided tools and resources, and (ii) Customer’s right to the Services afforded to Provider’s users shall automatically terminate.
Cancellation of any Subscription before the initial 1 (one) year term will be subject to an early termination fee equal the total monthly payments remaining for the first year term. Cancellation after the 1 (one) year will not incur any additional fees.
Once the Subscription has been cancelled, Provider shall maintain a copy of Customer Website on an archived server for one (1) year. All files associated with the cancelled Website will be permanently deleted after this archival period has ended.
Modifications To Services And Pricing
Provider reserves the right to modify or discontinue, either temporarily or permanently, any part of our Services at any time by posting updates to the website product page. Provider may reconfigure certain Services to improve offerings or stop accepting new Subscriptions for exisiting Services.
In the event Provider changes pricing of existing Services, the previous pricing will remain in effect for existing Customers until the term of their current Subscription expires.
Service Level Agreement (SLA)
Provider offers a 100% uptime guarantee exclusively to Customers with an active Enterprise Subscription plan. This SLA is based on internal network and host node availability.
This uptime guarantee is applicable on a per-service-item basis and is not applied to the entire Customer invoice. For example, if Customer has three (3) Servers, and one (1) of those Servers experiences downtime, any credit due under this uptime guarantee would be proportional to that one (1) Server’s downtime and not the entire account invoice. This uptime guarantee does not apply to the accessibility of Provider’s web property, DNS servers, API, or control panel.
Provider does not proactively monitor the packet loss or transmission latency of specific Customer Servers. Provider does, however, proactively monitor the aggregate packet loss and transmission latency within its LAN and WAN. In the event that Provider discovers (either from its own efforts or after being notified by Customer) that Customer Server is experiencing packet loss in excess of one percent (1%) (Excess Packet Loss) between Customer Server and one hop from Provider’s border router(s) (first hop of egress providers router) and Customer notifies Provider via a support ticket (or Provider has notified Customer of an event), Provider will take all actions necessary to determine the source of the Excess Packet Loss/Latency.
The uptime guarantee ONLY applies to network and Server availability during normal operation. The uptime guarantee does NOT apply to Website software such as CMS and plugins functionality. Any outage due to Website software, operating systems, denial of service attack, instance suspension, instance paused/halted for any reason, or any other non-network or non-host node outage, for any reason and whether or not such outage is caused by Provider due to upgrading, troubleshooting, or performing any other tasks, is not subject to this uptime guarantee. The guarantee does NOT apply when a scheduled maintenance occurs within a normal Maintenance Window or in the event a time critical patch/update must be applied as long as the outage/packetloss does not exceed fifteen (15) minutes.
Credits issued to Customer account will be equal to 1 (one) day of service for each 1 (one) hour (or fraction thereof) of service interruption.
In order to receive any credit offered under this SLA, Customer must initiate a support ticket related to the event AND expressly request that Provider issue a credit. Outage can often be wholly unrelated to Provider’s Services, so unless Customer contacts Provider via a support ticket, Provider may not be aware any problem exists. Outages related to networking, hardware, or other services or events not under Provider’s control are not eligible for any guarantee or credit offered under this SLA.
Provider shall provide its Services and meet its obligations under this Agreement in a timely and professional manner, using knowledge and skills consistent with generally acceptable standards in Provider’s industry, and will provide a standard of care based on commercially reasonable efforts. The Services and all products provided as part of the Services are provided “as is” and Provider disclaims, and Customer waives, any warranties, express or implied, as to the merchantability, fitness for a particular use or purpose, title, non-infringement or any other warranty, condition, guaranty or representation related to the Services. Provider does not warrant that any software, products or Services provided hereunder will be uninterrupted or error-free. Under no circumstances, including negligence, shall the Provider be liable for any direct, incidental, special or consequential damages or otherwise, including any damages that result from the use of or inability to use the Website. The Provider shall not be responsible for any damages whatsoever that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
Acceptable Use Policy (AUP)
Services provided by Provider may only be used for lawful purposes. Customer agrees to comply with all applicable laws, rules, and regulations in connection with use of the Services. Any material or conduct that in Providers judgment violates this policy in any manner may result in suspension or termination of the Services or removal of the Customer account with or without notice. Prohibited activities include but are not limited to:
- Activities that breaches any applicable local, national or international law or regulation.
- Promoting illegal activities or linking to other websites that promote illegal activities.
- Sending of any unsolicited or promotional material (SPAM) or unauthorized advertising.
- Defamation or harassment of any person.
- Deception, impersonation, or misrepresentation of Customer identity or affiliation with any person.
- Distribution of political misinformation.
- Activities deemed offensive, hateful inflammatory or promotes violence.
- Activities that promotes discrimination based on race, sex, religion, skin color, nationality, disability, sexual orientation, or age.
- Promoting sexually explicit material, selling, or disseminating pornography or other erotic material, regardless of its purpose.
- Promoting prostitution or escort services.
- Lottery/gambling, regardless of content, and regardless of Customer citizenship.
- To knowingly transmit any data, send or upload any material that contains viruses, worms, Trojan horses, time-bombs, keystroke spyware, adware loggers, or any other harmful programs or similar computer code designed to affect the operation of any computer software or hardware adversely.
- Infringment of any copyright, trademark, rights, or other intellectual property rights of any other person, entity, or intent to assist others in defeating technical copyright protections.
Customer hereby acknowledges and agrees that Provider shall have the right to use the name of Customer, including the Customer Website, for reference for referral and marketing purposes.
Limitations Of Liability
Except to the extent finally determined to have resulted from the gross negligence or intentional misconduct of Provider, Provider’s liability to pay damages for any losses incurred by Customer as a result of breach of contract, negligence or other tort committed by Provider, regardless of the theory of liability asserted, is limited to no more than the total amount of fees already paid by the Customer under this agreement for the current Subscription term.
Provider and its licensors will not be liable for lost profits or any consequential, indirect, punitive, exemplary or special damages. In addition, Provider shall have no liability to Customer arising from or relating to any third-party hardware, software, information or materials. Provider is not liable for direct or indirect damages created by viruses, hackers or other malicious or accidental destruction of systems or data, though Provider will attempt to prevent or minimize exposure to such risks.
Subject to the provisions hereof, Customer shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third-party claims brought against Provider and its licensors arising from products or Services related to this Agreement. Conversely, Provider shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third-party claims brought against Customer arising from the gross negligence or intentional misconduct of Provider.
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 AUSTIN, TEXAS, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.