This
Web Hosting Agreement (this “Agreement”)
is between Yellow Dandelions,
formed under the laws of the
State of
California, Yellow Dandelions
and the person (individual or
legal person) whose signs Yellow
Dandelion’s service order and
set up form (the “Order”)
incorporating this Agreement by
reference (“Customer”).
This Agreement governs
Customer’s use of Yellow
Dandelion’s Web hosting service.
1.
Services.
Subject to the terms of this
Agreement, and contingent on
Customer’s satisfaction of
Yellow Dandelion’s credit
approval requirements, Yellow
Dandelions 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 Yellow Dandelions
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 up to
three successive renewal terms
of the same length as the
Initial Term (each a “Renewal
Term”) unless Yellow
Dandelions or Customer provides
the other with written notice of
non-renewal at least thirty (30)
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)
Fees. Fees are payable
in advance on the first day of
each billing cycle.
Customer’s billing cycle shall
be monthly or annually as
indicated on the Order,
beginning on the Service
Commencement Date. Yellow
Dandelions may require payment
for the first billing cycle
before beginning service.
If the Order provides for
credit/debit card billing,
Customer authorizes Yellow
Dandelions 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 Yellow Dandelions 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 14th
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 Yellow
Dandelions with changes to
billing information (such as
credit card expiration, change
in billing address)
At its option, Yellow Dandelions
may accrue charges to be made to
a credit/debit card until such
charges exceed $10.00.
Yellow Dandelions may charge
interest on overdue amounts of
10 days or more a flat $10.00
fee; Yellow Dandelions may
suspend the service without
notice if payment for the
service is overdue 10 days.
Fees not disputed within thirty
(30) days of due date are
conclusively deemed accurate.
Customer agrees to pay Yellow
Dandelion’s reasonable
reinstatement fee following a
suspension of service for
non-payment, and to pay Yellow
Dandelion’s reasonable costs of
collection of overdue amounts,
including collection agency
fees, attorney fees and court
costs.
(b) Fee Increases. Yellow Dandelions may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
(c) Taxes.
At Yellow Dandelion’s request
Customer shall remit to Yellow
Dandelions all sales, VAT or
similar tax imposed on the
provision of the services (but
not in the nature of an income
tax on Yellow Dandelions),
regardless of whether Yellow
Dandelions fails to collect the
tax at the time the related
services are provided.
(d)
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 Yellow Dandelions
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
Yellow Dandelion’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.
4.
Law/TOS.
Customer agrees to use the
service in compliance with
applicable law and Yellow
Dandelion’s Acceptable Use
Policy posted at
http://www.yellowdandelions.com
(the “TOS”), which is
hereby incorporated by reference
in this Agreement.
Customer agrees that Yellow
Dandelions may, in its
reasonable commercial judgment
consistent with industry
standards, amend the TOS from
time to time to further detail
or describe reasonable
restrictions and conditions on
Customer’s use of the Services.
Amendments to the TOS are
effective on the earlier of
Yellow Dandelion’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 Yellow Dandelion’s
reasonable investigation of any
suspected violation of the TOS.
In the event of a dispute
between Yellow Dandelions and
Customer regarding the
interpretation of the TOS,
Yellow Dandelion’s commercially
reasonable interpretation of the
TOS shall govern.
5.
Customer Information.
Customer represents and warrants
to Yellow Dandelions that the
information he, she or it has
provided and will provide to
Yellow Dandelions for purposes
of establishing and maintaining
the service is accurate.
If Customer is an individual,
Customer represents and warrants
to Yellow Dandelions that he or
she is at least 18 years of age.
Yellow Dandelions 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.
6
Indemnification.
Customer agrees to
indemnify and hold harmless
Yellow Dandelion’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 TOS
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.
Yellow
Dandelions DOES NOT WARRANT OR
REPRESENT THAT THE SERVICES WILL
BE UNINTERRUPTED, ERROR-FREE, OR
COMPLETELY SECURE.
TO THE EXTENT PERMITTED BY
APPLICABLE LAW Yellow Dandelions
DISCLAIMS ANY AND ALL WARRANTIES
INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, AND NO
INFRINGEMENT. TO THE
EXTENT PERMITTED BY APPLICABLE
LAW, ALL SERVICES ARE PROVIDED
ON AN “AS IS” BASIS.
8.
Limitation of Damages.
NOTWITHSTANDING ANYTHING ELSE IN
THE AGREEMENT TO THE CONTRARY,
THE MAXIMUM AGGREGATE LIABILITY
OF Yellow Dandelions 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.
9.
Suspension/Termination.
(a)
Suspension of Service.
Customer agrees that Yellow
Dandelions may suspend services
to Customer without notice and
without liability if: (i)
Yellow Dandelions reasonably
believes that the services are
being used in violation of the
TOS; (ii)
Customer fails to cooperate with
any reasonable investigation of
any suspected violation of the
TOS; (iii) Yellow
Dandelions 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
Yellow Dandelion’s reasonable
reinstatement fee if service is
reinstituted following a
suspension of service under this
subsection.
(b)
Termination.
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 Yellow Dandelions
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
Yellow Dandelions 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 TOS,
and fails to cure the violation
within thirty (30) days of a
written notice from Yellow
Dandelions 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 TOS 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 Yellow
Dandelions 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
Yellow Dandelions 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 Yellow Dandelions
notwithstanding any agreement by
Yellow Dandelions to provide
back up services.
12.
Changes to Yellow Dandelion’s
Network.
Upgrades and other changes in
Yellow Dandelion’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.
Yellow Dandelions reserves the
right to change its network in
its commercially reasonable
discretion, and Yellow
Dandelions shall not be liable
for any resulting harm to
Customer.
13.
Notices.
Notices to Yellow Dandelions
under the Agreement shall be
given via electronic mail to the
e-mail address posted for
customer support on
http://www.yellowdandelions.com
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.
Yellow Dandelions shall not be
in default of any obligation
under the Agreement if the
failure to perform the
obligation is due to any event
beyond Yellow Dandelion’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
California, 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 SOLANO
COUNTY, AND EACH PARTY AGREES
NOT TO DISPUTE SUCH PERSONAL
JURISDICTION AND WAIVES ALL
OBJECTIONS THERETO.
16.
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 Yellow
Dandelions 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 Yellow Dandelion’s prior
written consent. Yellow
Dandelion’s approval for
assignment is contingent on the
assignee meeting Yellow
Dandelion’s credit approval
criteria. Yellow
Dandelions may assign the
Agreement in whole or in part.
This Agreement together with the TOS 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.