Website Hosting Agreement
The following terms and conditions apply to all website hosting plans.
Last Updated: 10-21-2019
Subject to the terms and conditions of this Agreement, Company will provide Web Hosting services for Client subject to the following terms:
1.1 Length of Service. Client agrees to an initial twelve (12) month contractual term of service (“Term”).
1.2 Service Start Date. The first payment plus setup charges, if any, shall be due in advance of any service provided. Service shall begin upon Company receipt of payment for such first Term of service or upon a mutually agreed-upon alternate date.
1.3 Renewal by Client. This Agreement will automatically renew for successive twelve (12) month Terms unless canceled by Client at least 15 days prior to the end of the original Term. Cancellation requests must be sent in via our support ticket system by emailing your request to [email protected]. Renewal prices are subject to change. Renewal of services by Client indicates agreement to any Contract revisions and price changes. Renewal fees for the new term will be automatically invoiced to the Client’s account and payment method on file.
1.4 Only a single WordPress installation or website is allowed per hosting account.
2 TERMS OF PAYMENT
2.1 You will be billed monthly, auto-charged to a credit card or automated ACH withdrawal. You acknowledge and agree that your payment details shall be stored by our payment providers to process payment for any Market3 Service(s) you purchase or renew.
2.2 Our obligation to provide the Service(s) depends on your payment of the Fees. It is your responsibility to ensure that we receive timely payment of the Fees. Timely payments is of the essence. Customer’s account(s) will not be activated or renewed until all outstanding fees are paid.
2.3 You are responsible for keeping at least one active payment method on file. We reserve the right to make an alternative payment method primary if we determine that the current one is not active for any reason. You can change your payment method(s) by notifying our team at: [email protected]
2.4 You confirm that any payment method you use and/or add on file is yours or that you have been specifically authorized by the owner of the card to use it for the purchase.
2.5 In case of delay in payment of any fees(s) due, for whatever reason, we may continue to attempt to collect payment from the payment method on file, suspend, and/or terminate your Services and pursue the collection costs incurred by Market3, including without limitation, any court and legal fees and Market3’s reasonable attorneys’ fees. We are not responsible for any deleted or lost Customer Content that results from any suspension or termination of the Service(s).
2.6 You acknowledge and agree that if your card issuer supports Recurring Billing Programs or Account Updater Services, we may participate in such programs or services. As part of these programs, your card issuer will send our payment processors updated information for your payment method(s) on file and we may automatically charge your new card without prior notification. Participation in such programs does not guarantee that we will receive payment of the fees. It is your responsibility to pay all fees due.
2.7 Certain Service(s) may be available to you for free. Such Service(s) may only be used by you during your current Term and may not be transferred to other Hosting Accounts or to third-parties. Upon Termination of your Agreement such Service(s) will also be terminated.
2.8 Invoices are due immediately upon receipt. Market3 reserves the right to suspend and/ or terminate the Services until payment is made.
2.9 By accepting these TOS, you hereby authorize Market3 to send you invoices electronically at the email address specified in your account.
2.10 Should the Services be suspended due to your fault for any reason, Fees will continue to accrue until the termination or expiry of the term of this Agreement.
2.11 Hosting accounts that are unpaid past the renewal due date will be disabled, blocking access to all services, including, but not limited to: website, email and ecommerce. A reconnection fee of $60 will be charged to bring the account back online.
2.12 If you believe there is an error on your invoice, please contact us immediately in writing. We each agree to work together in good faith to resolve any billing disputes. If you contact your credit card company and initiate a “chargeback” based on this dispute, we may suspend the Service(s) until the dispute is resolved. To reactivate your Service(s), you must first pay all outstanding Fees.
2.13 Refunds on Annual Web Hosting Services. Once purchased and the website migrated to our servers, all hosting services are non-refundable.
3 RENEWAL POLICY
3.1 All our Services are by default set to renew automatically. You can change your renewal options at least 15 days prior to renewal by submitting request via our support system by emailing: [email protected] .
3.2 We will attempt to renew Services for which automatic renewal is enabled and charge the payment method on file 10 days prior to the expiration of the current Term for all Services.
3.3 If we cannot process a renewal at the scheduled date, we may make additional attempts to charge your payment method(s) until you renew the Service(s) or terminate the Agreement. We will always charge for renewal the primary payment method on file first. Should the primary payment method fail, we will retry billing any other payment methods on file. We are not responsible for the operation of the Service(s), if Services are suspended/terminated because your payment methods have expired or are no longer valid for any reason.
3.4 You acknowledge and agree that even if a Service is set to renew automatically and/or you have an active payment method on file, we might not be able to renew the Services. It is your responsibility to ensure that you have paid the fees and a renewal has been processed.
3.5 You agree that Market3 shall not bear any responsibility and liability for any damages whatsoever including, but not limited to, damages for lost profits, cost savings, revenue, business, data or use, or any other pecuniary loss by you or any other third party, if we are unable to charge your payment method on file or you fail to renew the Services manually.
4 SECURITY & HACKING
4.1 We are not responsible for the actions of any hacker attacks, public attacks, lost or stolen information; it can happen no matter what server you’re on or how good the server security is.
4.2 Unless we are specifically contracted in an agreement separate to your website hosting, You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
4.3 Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content.
5 USE, CONTENT & ENVIRONMENT
5.1 INTENDED USE You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically, by way of example and not as a limitation, you shall not use the Hosting Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
5.2 Web Hosting plans place your site within one or more servers. Resources may be shared between many customers on the same servers unless your hosting plan specifically states you are on a VPS or Dedicated plan.
5.3 All uses and content of the hosted website and files must abide by our Acceptable Use Policy located here: https://mach4design.com/legal/acceptable-use/
5.4 Bandwidth and Storage is set by the hosting plan selected. Exceeding your bandwidth during three consecutive weeks, you will be notified and have the option to be upgraded to the next hosting plan. If you wish to op-out of the upgrade, you will have the option to cancel your hosting plan per our refund policy.
5.5 We will install a plugin on your hosted WordPress site for the purpose of facilitating support and maintenance services. The plugin allows us to access, automate updates to core files, other plugins, themes, and other files related to the maintenance of your site. Currently, the plugin we use for this is ManageWP. You acknowledge and agree that your use of ManageWP is subject to the terms of service located here, which are hereby incorporated by reference.
5.6 If you hire Market3 to perform Support Services, Software Updates or Managed Backups, you hereby authorize us to log into your server for purposes of providing those services.
5.7 You are responsible for ensuring that any product posted for sale on your website is in compliance with all applicable laws and regulations where your items can be purchased. We reserve the right and sole discretion to determine whether the sale of any particular item is illegal or otherwise prohibited and cancel your Services.
5.8 Website Migrations. We will not perform website backups or archives of the old website in connection with a Hosting Migration, and we recommend that you back up your website before migration to ensure that no data is lost. You agree not to make any changes or revisions to your website during the migration process.
5.9 You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers. We reserve the right to change or remove any and all such IP addresses in our sole discretion. You acknowledge and agree that shared IP addresses assigned to you by Market3 shall be used by other customers as well.
5.10 PCI COMPLIANCE. Unless Specified in the hosting proposal, the Hosting Services are not PCI (Payment Card Industry) compliant environment and therefore should not be used or considered as one.
5.11 HIPAA COMPLIANCE. The Services provided by Market3 will not comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”), hence Market3 is not HIPAA compliant. Customers requiring secure storage of “protected health information” as defined under HIPAA are expressly prohibited from using the Services for such purposes. Storing and permitting access to “protected health information” is a material breach of these TOS, and grounds for immediate termination of the Agreement.
6 DELETION OF ACCOUNT DATA & CONTENT
Upon cancellation of your account, whether at your request or due to non-payment of services, Market3 will maintain a copy of your account files for upto 7 days. After that time, those files will be permanently deleted.
MARKET3 MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED FOR THE SERVICE IT IS PROVIDING. COMPANY ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY CLIENT, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES OR SERVICE INTERRUPTIONS BY ANY CAUSE OR ERRORS OR OMISSIONS OF CLIENT. USE OF ANY INFORMATION OBTAINED BY WAY OF COMPANY IS AT CLIENT’S OWN RISK, AND COMPANY SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES. CONNECTION SPEED REPRESENTS THE SPEED OF AN END-TO-END CONNECTION. COMPANY DOES NOT REPRESENT GUARANTEES OF SPEED OR AVAILABILITY OF END-TO-END CONNECTIONS. COMPANY EXPRESSLY LIMITS ITS DAMAGES TO CLIENT FOR ANY NON-ACCESSIBILITY TIME OR OTHER DOWN TIME TO THE PRO-RATA MONTHLY CHARGE DURING THE SYSTEM UNAVAILABILITY. COMPANY SPECIFICALLY DENIES ANY RESPONSIBILITIES FOR ANY DAMAGES ARISING AS A CONSEQUENCE OF SUCH UNAVAILABILITY.
8 WEB SITE BACKUPS
While we do keep some copies of your site, these are incidental backups and they are not kept for any set period of time. We cannot guarantee the availability or integrity of any backup for a particular time frame. If a restoration is needed and we have a backup available to use, we’ll use it, but no guarantees can be given. Our dedicated back-up programs offer guaranteed backups, kept on a secure, off-site server, for a set period of time.
Market3 never stops our clients from maintaining their own sites. You are always welcome to fully maintain your own site, including performing backups. It is solely your responsibility to ensure the quality and viability of any backup system you select to use.
9 SUPPORT & MAINTENANCE
9.1 Web hosting plans include server support and monitoring only. We handle core server patching, security and server monitoring.
9.2 Website hosting prices do not include the following services, (though they may be offered as part of a separate service, covered by a separate agreement):
a. website content maintenance (updates or changes to the content of the site);
b. updates to the core WordPress software, theme software, plugins or any other third party software;
c. ongoing website viewing availability, function (such as the functioning of forms, ecommerce, or other interactive elements) or load speed monitoring;
9.3 No portion of our website hosting services guarantees any impact, positive or negative with search engine ranking or review.
10 SERVICE LEVEL AGREEMENT (SLA)
10.1 Market3’s Service Level Agreement sets out the performance you can expect from us. To the maximum extent applicable under national law and without affecting your rights as a Consumer, this SLA is your sole and exclusive remedy for downtime, or any network, software, hardware or Equipment failure.
10.2 We guarantee network uptime of 99.9% (as solely determined by us), on an annual basis. If we fall below the guaranteed network uptime, we will compensate you as follows:
99.9% – 99.00% uptime: 1 month free hosting
An additional month of free hosting for every 1% of uptime lost below 99.00%.
You may contact our support team if you believe an SLA event has occurred. Compensation is limited to the length of your current term, up to twelve months.
10.3 The following events do not count towards our calculation of uptime:
a. Periodic scheduled maintenance or repairs we may undertake from time to time;
b. Emergency maintenance, hardware and software failure remedied under 1 hour;
c. Downtime caused by DNS and/or IP address changes for which you have been notified, but you failed to set your configuration;
d. Distributed denial of service (DDOS) attacks, hacker attacks, and other similar events;
e. Downtime caused by you, your own configuration, custom scripting, coding or third-party applications you use;
f. Downtime caused when you reach the maximum resources allocation for your plan;
g. Downtime caused by your violation of these TOS or any other policy announced on our website;
h. Outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email;
i. Downtime during upgrade/downgrade of your web hosting services;
j. Downtime during processing of your technical support request(s); or
k. Force majeure or any event beyond our control.
10.4 Our calculation of network availability is based on our internal records. We will not accept third-party reports as evidence that you are entitled to a compensation under this SLA.
11 YOUR OBLIGATIONS; REPRESENTATIONS AND WARRANTIES
11.1 TRADEMARKS AND COPYRIGHTED MATERIAL Client warrants that it has the right to use any applicable trademarks or copyrighted material used in connection with this service.
11.2 Abusive Activities and Other Threats. You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities that threaten the stability of our network or will damage the systems of, or cause a disruption of internet services to, Market3, our customers, or third-parties. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Service Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Service Agreement. You further acknowledge and agree that Market3 reserves the right to scan your hosted account for malicious content (e.g., malware), and that, in the event any such content is discovered, it may be removed in Market3’s discretion for security purposes.
In addition to the General Rules of Conduct listed in our Universal Terms of Service, you agree not to engage in unacceptable use of the Hosting Services, which includes, without limitation, use of the Hosting Services to: (1) attempt to mislead any person as to the identity, source or origin of any communication; (2) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; or (3) use your server as an “open relay” or for any of the above purposes.
Market3 may terminate this Agreement at its sole discretion upon the occurrence of one or more of the following events: 1) failure to comply with any provisions of the Agreement upon receipt of written notice from Market3 of said failure, 2) appointment of Receiver or upon the filing of any application by Client seeking relief from creditors, 3) upon mutual agreement in writing of Market3 and Client.
Client shall indemnify and hold Market3 harmless from and against any and all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against Market3 directly or indirectly arising from or in connection with Client’s website hosting services as provided by Market3.
If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, County of Burlington. A failure by any party to exercise or delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power. If legal proceedings are commenced to resolve a dispute arising out of, or relating to, this Agreement, the prevailing party shall be entitled to recover all costs, legal fees, and expert witness fees as well as any costs or legal fees in connection with any appeals.