This Web Hosting Agreement (this “Agreement”) is between Shoppe Pro Web Hosting, LLC, formed under the laws of the State of Arizona with its principal office at 410 W. Corte Calza, Sahuarita, Arizona, 85629, and the person (individual or legal person) whose signs Shoppe Pro’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of Shoppe Pro’s Web hosting service.
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Shoppe Pro’s credit approval requirements, Shoppe Pro agrees to provide the web hosting services described in the Order for the fees stated in the Order.
(a) Hosting and E-Commerce Services
We will host your website and provide support for your shopping cart software. We are not responsible for your template or maintenance related to design, other web design companies, third party payment processors or other third party services. We are not responsible for any issues related to advertising, sales, your customers, copyrights, Mal’s accounts, or other software issues.
(b) Domain Names
Domain Names purchased through Shoppe Pro may be transferred to you or another owner upon request. Domains may not be transferred within the first 60 days after they are registered. Shoppe Pro holds no liability for the domain name. Domain names will be renewed annually and you will be responsible for the annual renewal costs. Domain names are not refundable under any circumstances. (This includes “FREE” domain names — if you sign up under a promotion for a free domain name, and then cancel your hosting plan within the first 30 days, the cost of your domain name $13.95 will be deducted from your refund). DOMAIN NAMES ARE NOT REFUNDABLE UNDER ANY CIRCUMSTANCES. If you do not wish to have your domain name renew automatically, you must disable the Auto-Renew feature through your client area. No refunds will be given for domain renewals or registrations as these can not be “un-registered” or “un-renewed” by our registrar. All domain registrations and renewals are final. This includes mistakes or spelling errors made by you.
The initial service term of the Agreement shall begin on the date that Shoppe Pro 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 Shoppe Pro or Customer provides a formal Cancellation Request through the Client Area at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. Cancellation requests must be requested through the Client Area using the “Request Cancellation” button. (Client Area > My Products and Services > View Details [icon] > Request Cancellation). Any requests for cancellations via email, support tickets, or phone calls will not be honored. No exceptions. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.” We are not responsible if you “forget” to submit your cancellation request before your renewal date. In such cases, you are not eligible for a refund.
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. Shoppe Pro may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Shoppe Pro 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 Shoppe Pro 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 5th day following invoice date, but in no event earlier than the first day of each billing cycle.
(b) Fee Increases. Shoppe Pro 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 Shoppe Pro’s request Customer shall remit to Shoppe Pro all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Shoppe Pro), regardless of whether Shoppe Pro 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 Shoppe Pro 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 Shoppe Pro’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. Cancellation requests must be requested through the Client Area using the “Request Cancellation” button.. (Client Area > My Products and Services > View Details [icon] > Request Cancellation). Any requests for cancellations via email, support tickets, or phone calls will not be honored as we will not be able to verify your identity. No exceptions. We are not responsible if you “forget” to submit your cancellation request before your renewal date. In such cases, you are not eligible for a refund.
(e) Refunds. There will be no refunds given for any reason after the first 30 days of service for unused hosting fees. Shoppe Pro offers convenient monthly, quarterly, semi-annually, and annual billing terms. The Customer is responsible for payment of hosting service for the term selected at sign-up. This means that if you sign up for 1 year of service and cancel on day 31, you will not be eligible for a refund. The 30 day satisfaction guarantee gives you the option to cancel within the first 30 days for a full refund of your hosting fees. Any setup, license, or domain fees you may have paid are not eligible for refunds. This includes mistakes you made when ordering a domain through our company. Domains are not eligible for a refund under any circumstances. . (This includes “FREE” domain name registration — if you sign up under a promotion for a free domain name, and then cancel your hosting plan within the first 30 days, the cost of your domain name $12.95 will be deducted from your refund). DOMAIN NAMES ARE NOT REFUNDABLE UNDER ANY CIRCUMSTANCES. In order to receive a refund of hosting fees within 30 days, you must submit a formal cancellation request through your client area, and we must be able to delete all files from your website. The Customer is responsible for cancelling any Paypal Subscriptions that may have been created as payment methods. Shoppe Pro is not responsible for Paypal Subscrption cancellations. Proceeding with the registration process and/or continuing service past 31 days, indicates that the Customer is agreeing to these terms. Requests for Hosting account cancellations must be requested through the Client Area using the “Request Cancellation” button.. (Client Area > My Products and Services > View Details [icon] > Request Cancellation). Any requests for cancellations via email, support tickets, or phone calls will not be honored as we will not be able to verify your identity. No exceptions. We are not responsible if you “forget” to submit your cancellation request before your renewal date. In such cases, you are not eligible for a refund.
(f) Paypal Subscriptions. Shoppe Pro offers the option to use Paypal Subscriptions as a convenience to the Customer to set up convenient automatic payments. Paypal Subscriptions are an agreement ONLY between the Customer and Paypal and do not involve any agreements with Shoppe Pro. Paypal Subscriptions are 100% managed by the Customer and not by Shoppe Pro. Shoppe Pro cannot cancel any Paypal Subscriptions. Therefore, should the Customer cancel their service or switch payment methods to a different payment method such as direct credit card billing, the Customer is responsible for the cancellation of their own Paypal Subscription through their Paypal account. Shoppe Pro is not responsible for canceling ANY Paypal Subscriptions. In addition, the Customer agrees that Shoppe Pro will not be held liable for any fees incurred by any Paypal Subscription payments, erroneous or otherwise, such as Bank NSF fees, Over Limit fees, or other fees associated with payment methods linked with the Customer’s Paypal account, and or any Paypal Subscription agreements between Paypal and the Customer.
5. ShoppePro Copyright and Link. ShoppePro issues a non-transferable software license in order to use the ShoppePro catalog/cart software on ShoppePro servers only. This software is the property of ShoppePro and subject to all copyright laws. You may not use this software on any other server. You may not alter/edit or otherwise add to the code without prior written permission from ShoppePro.
Your site must display the “Powered by ShoppePro.” link on your site at all times. You may use the %COPYRIGHT% include code in your website template or hand-code this link in. ShoppePro reserves the right to add this small link on your website should we find your site not in compliance. This link on your website should not be removed. Failure to comply will be considered a violation of our Terms of Service (TOS) and therefore your account could be subject to termination voiding any refunds for unused time. Please respect this copyright.
6. Law/AUP. Customer agrees to use the service in compliance with applicable law and Shoppe Pro’s Acceptable Use Policy posted at Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that Shoppe Pro may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP are effective on the earlier of Shoppe Pro’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 Shoppe Pro’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Shoppe Pro and Customer regarding the interpretation of the AUP, Shoppe Pro’s commercially reasonable interpretation of the AUP shall govern.
7. Customer Information. Customer represents and warrants to Shoppe Pro that the information he, she or it has provided and will provide to Shoppe Pro for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Shoppe Pro that he or she is at least 18 years of age. Shoppe Pro 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.
8. Indemnification. Customer agrees to indemnify and hold harmless Shoppe Pro, Shoppe Pro’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 AUP 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.
9. Disclaimer of Warranties.
SHOPPE PRO DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW SHOPPE PRO DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
10. Limitation of Damages.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Shoppe Pro 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.
(a) Suspension of Service. Customer agrees that Shoppe Pro may suspend services to Customer without notice and without liability if: (i) Payment due to Shoppe Pro exceeds 7 days past due; (ii) Shoppe Pro reasonably believes that the services are being used in violation of the AUP; (iii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iv) Shoppe Pro reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (v) as requested by a law enforcement or regulatory agency. Customer shall pay Shoppe Pro’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
(b) Termination. Accounts are terminated when Payment due to Shoppe Pro exceeds 21 past due. There is a $25 reinstatement fee due for all terminated accounts who wish to reinstate their account. 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 Shoppe Pro 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 Shoppe Pro prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) 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 Acceptable Use Policy, and fails to cure the violation, (iii) if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) 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.
12. Requests for Customer Information. Customer agrees that Shoppe Pro 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 Shoppe Pro 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.
13. Back Up Copy. Customer agrees to maintain a current copy of all content hosted by Shoppe Pro nothwithstanding any agreement by Shoppe Pro to provide back up services.
14. Changes to Shoppe Pro’s Network. Upgrades and other changes in Shoppe Pro’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. Shoppe Pro reserves the right to change its network in its commercially reasonable discretion, and Shoppe Pro shall not be liable for any resulting harm to Customer.
15. Notices. Notices to Shoppe Pro under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.shoppepro.com/support/. 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.
16. Force Majeure. Shoppe Pro shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Shoppe Pro’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.
17. Governing Law/Disputes. The Agreement shall be governed by the laws of the State of Arizona, 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 PIMA COUNTY, ARIZONA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
18. 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 Shoppe Pro 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 Shoppe Pro’s prior written consent. Shoppe Pro’s approval for assignment is contingent on the assignee meeting Shoppe Pro’s credit approval criteria. Shoppe Pro may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.