Service Agreement
This is a legal document. All Hostwek customers are bound by it! (Please read it!) You must read and agree to all terms in this document before using our services. By using or continuing to use Hostwek services, you are automatically agreeing to the terms of this document!
What is this?
The agreement below is a legal agreement between Hostwek and all of our customers. If you use any service provided by or affiliated with Hostwek, you are legally bound by this agreement. Read it carefully before signing up and ensure that you understand and agree to all parts. Use of our services implies agreement with this contract!
This agreement is between you (hereinafter “you”, “your” or “beneficiary”) as beneficiary and Hostwek, Inc. (hereinafter referred to as “us”, “our”, “Hostwek” or “provider”) as a provider of hosting services (shared hosting, virtual servers or dedicated servers). Using our services is the subject of this contract.
This Agreement, whose provisions and clauses agreed in the contractual freedom under the law has been established by our mutual agreement and in compliance with the law.
This contract serves as the legal basis for all services provided by Hostwek.
Questions?
Any questions regarding this agreement should be sent to Hostwek’s sales department prior to signing up for service.
SERVICE AGREEMENT
THIS AGREEMENT (“Agreement”) is made and effective as of the date of acceptance, by and between you (“Client”) and Hostwek.
WHEREAS, Hostwek owns, distributes, and provides various products and services for conducting business on the Internet, including shared, reseller, and dedicated web hosting, cPanel licensing, and the Hostwek family of services (hereinafter collectively referred to as the “Services”).
WHEREAS, Client desires to utilize some or all of the Services to develop, enhance, or maintain Client’s business and/or presence on the Internet.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. Hostwek SERVICES
Hostwek agrees to provide to Client the Services agreed upon between Hostwek and Client as selected by Client in Hostwek’s customer database that is specified at www.hostwek.com.
2. PAYMENT AND INVOICING
2.1 In consideration of the performance of the Services, Client shall pay Hostwek in advance the amount set forth in Hostwek’s customer database as such records are amended from time to time for the Services during the term of this Agreement.
2.2 Client is responsible for all activities and charges resulting from Client’s use of the Services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. In the event of a breach of security, Client will remain liable for any unauthorized use of the Services until Client notifies Hostwek by sending an e-mail with account information to sales@hostwek.com.
2.3 Current rates for using the Services may be obtained on our website at www.hostwek.com. Hostwek reserves the right to change fees, surcharges, or to institute new fees at any time. In addition, Hostwek may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Client upon sign up. If Hostwek does not receive the full amount of Client’s Service account balance, Hostwek may suspend and/or terminate Client’s account immediately without further notice to Client.
2.4 All hosting services renew automatically. The client may opt out of automatic renewals by contacting our Billing department at billing@hostwek.com.
This Agreement, whose provisions and clauses agreed in the contractual freedom under the law has been established by our mutual agreement and in compliance with the law.
This contract serves as the legal basis for all services provided by Hostwek.
3. RESPONSIBILITIES AND RIGHTS OF HOSTWEK
3.1 Means of Performance. Hostwek shall provide Client with the Hostwek hosting services, as described at www.hostwek.com hereto. Hostwek has the right to control and direct the means, manner, and method by which the host services are performed. Currently, the default server locations for Web Hosting and WordPress Hosting are in Spain for shared hosting and WordPress hosting, respectively. For VPS Hosting, the default server location is France, which has been determined to offer the best ping so far. Additionally, Hostwek offers other server locations for High Compute VPS hosting.
3.2 Support. Hostwek shall provide a reasonable level of technical support to Client via email or LiveChat for the term of this Agreement.
3.3 Uptime Guarantee. “Uptime” refers to the amount of time the Services are available, as measured solely and only by Hostwek’s internal monitoring systems. We will not accept third-party uptime monitoring systems as evidence that you are entitled to compensation. “Downtime” refers to the amount of time the Services are unavailable, as measured solely and only by Hostwek’s internal monitoring systems. Hostwek guarantees networking and services connectivity uptime of 99.99% on an annual base. If we fall below the guaranteed uptime, we will compensate you as follows:
- 99.99% – 99.00% uptime: 1 month free hosting
- An additional month of free hosting for every 1% of uptime lost below 99.00%
In the event such level of service is not provided, Hostwek will offer compensation as determined in the chart above, and only for your Hostwek hosting Services, but not for any of the following products and additional services: domain name registration, software licenses (WHMCS, LiteSpeed, cPanel, CloudLinux, Imunify36), set up fees, Automated remote backups, SSL Certificates, labor charges, and other services unrelated to hosting service Uptime.
Compensation is limited to the length of your current billing cycle but cannot exceed twelve months for the affected hosting services.
To receive compensation, you must make a request by creating a ticket with our Billing department, within your lab. Each request in connection with this Agreement must include the dates and times of the Downtime, the name and IP address of the server or servers which experienced the Downtime. The request must be received by Hostwek within ten (10) business days after the incident of Downtime. If the unavailability is confirmed by Hostwek, compensation will be applied to your Hostwek account within thirty (30) days of receipt of the request.
The provisions of the Agreement pertaining to Force Majeure are unaffected by these terms referring to Uptime Guarantee. Moreover, downtime caused by any of the following shall not result in any obligation by Hostwek to provide credit to you:
- emergency maintenance
- scheduled maintenance
- system or hardware upgrades
- domain name system (DNS) problems outside of Hostwek’s control
- issues with FTP, POP, IMAP, or SMTP customer access
- Acts or omissions by you or any of your employees or agents, resulting in downtime
- Any negligence, willful misconduct, or use of the services in breach of Hostwek’s Acceptable Use Policy
- Problems with users’ web browsers, DNS, or other caching that might make it appear the Services are unavailable even though others can still access the Hostwek servers
- Distributed denial of service (DDOS) attacks, hacker attacks, and other similar events
- Downtime caused when you reach out the maximum resources allocation for your plan.
3.4 Other Work. Hostwek has the right to perform and license products to others during the term of this Agreement. Hostwek may elect to electronically monitor the host services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host services and protect its Clients. Hostwek reserves the right to block any site hosted by Hostwek that contains any content that Hostwek deems in its sole discretion to be unacceptable or undesirable.
4. RESPONSIBILITIES AND RIGHTS OF CLIENT
4.1 Client. Client represents and warrants that (i) Client is at least eighteen (18) years of age, (ii) Client possesses the legal right and ability to enter into this Agreement, and (iii) the performance of Client’s obligations and use of the Services by Client, its customers, and users, will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other Hostwek Clients’ use of Services. The client assumes all risks related to the processing of transactions related to electronic commerce. Client agrees to provide Hostwek with accurate, complete, and updated information required by the registration of the Hostwek host service (Client Registration Data), including Client’s legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Client agrees to notify Hostwek within thirty (30) days of any changes in Client’s Registration Data.
4.2 Breach of Warranties. In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Hostwek will have the right, in its sole discretion, to suspend or terminate immediately any Services.
4.3 Fees and Expenses. Client shall be responsible for the payment of all costs, fees, and expenses assessed by third parties in the course of being provided Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and a third-party domain name registrar.
4.4 Third-Party Software. Third-party software available through the Services may be governed by separate end-user licenses. By using the Services and the third-party software, the Client agrees to be bound by the terms of such end-user licenses regarding the applicable third-party software. Client consents and authorizes Hostwek to delegate the authorizations Client provides to Hostwek to its third-party service provider(s) as Hostwek deems necessary or desirable to provide the applicable Services. Client agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers, and liability disclaimers incorporated into this Agreement, inure to the benefit of such third-party service providers and such third-party service providers are deemed to be third-party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers, and liability disclaimers incorporated into this Agreement. The client also agrees that all references to “Hostwek” within this Agreement and any incorporated terms are also deemed to include, where applicable, Hostwek’s agents, such as the third-party service providers.
4.5 Advertising, Solicitation, and Client Name Harvesting. The client may not use the Services to send unsolicited advertising, promotional materials, or other forms of solicitation to the Hostwek clients or other Internet users unless the Client receives the express permission of such individuals. The client may not use the means of unsolicited advertising to advertise a site hosted on the Hostwek network. The client may not use the Services to collect or “harvest” usernames of Hostwek clients or other Internet users without the expressed prior permission of the member. Hostwek reserves the right to block or filter mass email solicitations sent from sites hosted on the Hostwek network.
4.6 Management of Site. Client shall be solely responsible for all content available on or through its site and shall at all times be subject to the terms of this Agreement, Hostwek’s then-standard Terms of Service (“TOS”), and any generally applicable guidelines and service standards published by Hostwek. Client warrants that its site hosted on the Hostwek network (i) will conform to the Hostwek TOS attached hereto as Exhibit A; (ii) will not infringe and will not contain any content that infringes on or violates any copyright, U.S. patent or any other third-party right; and (iii) will not contain any content which violates any applicable law, rule or regulation. Hostwek shall have no obligations with respect to the content available on or through any site hosted on the Hostwek network, including, but not limited to, any duty to review or monitor any such content. Hostwek reserves the right to block any site that violates any of the above-stated terms, or which in Hostwek’s sole discretion, Hostwek deems objectionable or offensive, or otherwise violates a law or Hostwek policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.
4.7 Compliance Laws. Client agrees that it will use the Services only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the TOS, as updated by Hostwek from time to time. The TOS are incorporated herein and made a part hereof by this reference. Hostwek may change the TOS, with notice, which notice may be provided by posting such new TOS at the Hostwek Site. Client may request a current copy of the TOS by sending or faxing a request to Hostwek. Client agrees that it has received, read and understands the current version of the TOS.
4.8 Proprietary Rights. Unless otherwise specified, all work performed hereunder by Hostwek, is the property of Hostwek, and all title and interest therein shall vest in Hostwek. To the extent that title to any such works may not, by operation of law, vest in Hostwek, all rights, title, and interest therein are hereby irrevocably assigned to Hostwek. All such materials shall belong exclusively to Hostwek, and Hostwek shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give Hostwek and any person designated by Hostwek such reasonable assistance, at Hostwek’s expense, as is required to perfect the rights defined in this paragraph.
5. LIMITATION OF LIABILITY, NO OTHER WARRANTY, AND DISCLAIMER
5.1 Limitation. In the event that any limited guarantees are provided by Hostwek, such limited guarantees are null and void if Client fails to follow Hostwek’s TOS and other policies or otherwise breaches this Agreement in any respect.
5.2 Backups. Hostwek performs nightly backups of Web Hosting, Reseller Hosting, and WordPress Hosting servers; however, these backups are for Hostwek’s administrative purposes only and are in NO WAY GUARANTEED! Customers are responsible for maintaining their backups on their personal computers. Hostwek does not provide any compensation for lost or incomplete data in the event that backups do not function properly (even if the malfunction was due to negligence on Hostwek’s part). Hostwek will do its best to ensure complete and accurate backups but assumes no responsibility for this duty. Always back up your site to your personal computer! Hostwek makes no guarantees about the availability of backups.
5.3 No Other Warranty. Hostwek does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Services or any information that may be obtained therefrom is at Client’s own risk. The Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. Except as provided in the order form(s), Hostwek does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement, and title, and any warranties arising from a course of dealing, usage, or trade practice. Hostwek does not represent or warrant that the Services will be uninterrupted, error-free, or completely secure.
5.4 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Hostwek does not and cannot control the flow of information to or from Hostwek’s network and other portions of the Internet. Such flow depends in large part on the performance of the Internet services provided or controlled by third parties. At times, actions or inactions of such third parties may impair or disrupt Client’s connections to the Internet (or portions thereof). Hostwek cannot guarantee that such events will not occur. Accordingly, Hostwek disclaims any and all liability resulting from or related to such events.
6. INDEMNIFICATION
Client agrees to indemnify, defend and hold Hostwek and its affiliates, agents, employees, and licensors (including the third party service providers) harmless from any and all claim, demand, loss, costs or expense, including attorneys’ fees, made by any person arising out of Client’s violation of this Agreement, State or Federal Securities laws or regulations, or any other person’s rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.
Under no circumstances, including but not limited to a negligent act, will Hostwek or its affiliates, agents, employees, or licensors (including third party service providers) be liable for any damages of any kind that result from the use of, or the inability to use, Services, even if any such party has been advised of the possibility of such damages.
In no event will Hostwek or its third party service providers be liable to Client or any third party for any tort, contract or any other liability arising in connection with the use of the Services, or reliance on any information or services provided by Hostwek. Hostwek and its third party service providers will under no circumstances be liable to Client and/or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if Hostwek or its third party service providers has been advised of the possibility of such damages, resulting from (i) the use of the inability to use the Services; (ii) the timeliness, deletion, misdelivery, or failure to store any user data, communications or personalization settings; (iii) the cost of getting substitute goods and services resulting from any products, data, information or services purchased or obtained or messages received or transactions entered into, through or from the Services; (iv) statements or conduct of anyone on the Services; (vi) the use, inability to use, unauthorized use, performance or non-performance of any third party, even if the third party has been advised previously of the possibility of such damages; or (vii) any other matter relating to the Services. Client agrees that Client will not in any way hold Hostwek responsible for any selection or retention of, or the acts or omissions of, third parties (including third party service providers) in connection with the Client Services.
Because some states prohibit the limitation of liability for consequential or incidental damages, in such states the limitation of liability only with respect to consequential or incidental damages may not apply to Client, and the respective liability of Hostwek and its third party service providers, employees, distributors, and agents is limited to the greatest extent allowable under applicable law in those states.
In the event that a court or arbitration panel, as the case may be, should hold that the limitations of liability or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of Client’s remedies under this Agreement fail, then Client expressly agrees that under no circumstances will the total, aggregate liability of Hostwek and its third party service providers, employees, distributors, agents or affiliates, to Client or any party claiming by or through Client for any cause whatsoever exceed $100 (U.S.), regardless of the form of action and whether in contract, statute, tort or otherwise.
7. TERMINATION
7.1 Without Cause. Either party may terminate this Agreement at any time during any Renewal Term without needing a specific reason, provided they give the other party at least five (5) days’ prior email notice of termination. Regardless of who initiates the termination under this Section 7.1, all payment obligations of the Client for Services provided up to the date of termination will become immediately due. The Client must also prepay for any Services not yet paid for that are to be provided during the notice period.
7.2 For Cause. Hostwek reserves the right to terminate this Agreement or suspend services immediately and without notice if the Client (i) fails to make payments when due, or (ii) breaches or fails to comply with Hostwek’s TOS or other policies. The Client may terminate this Agreement if Hostwek breaches any significant term, with written notice of the breach. If Hostwek terminates the Agreement under this Section 7.2, all remaining balances for the current term become immediately due and payable. Additionally, Hostwek has the authority to prohibit any conduct or remove any content that violates the TOS, is illegal, could harm others, or might expose Hostwek to harm or liability.
7.3 No Liability for Termination. Neither party will be held liable to the other for any termination or expiration of Services under this Agreement in accordance with its terms.
7.4 Survival. The following sections will remain in effect even after the expiration or termination of the Agreement: Sections 4, 5, 6, 7, and 8.
7.5 IP Address. Upon the expiration, cancellation, or termination of this Agreement, the Client must relinquish any Internet protocol (“IP”) numbers, addresses, or address blocks assigned by Hostwek or its network services supplier. Hostwek reserves the right to change or remove any such IP numbers, addresses, or address blocks at its sole discretion.
8. GENERAL
At Hostwek, we value respectful interactions with our customers. We expect our customers to treat our staff with respect. If a customer consistently behaves in a demeaning or rude manner, their account may be suspended, and they may be asked to find a new host. In cases of termination due to support abuse, customers will receive ten (10) days’ notice to transition to a new host.
Support Abuse
8.1 Assignment. The Client may not assign this Agreement or any rights or obligations under it without Hostwek's prior written consent. Any attempt to do so without consent will be void. This Agreement is binding on the parties’ respective successors and permitted assigns.
8.2 Notices. Any notices or communications under this Agreement must be in writing and will be considered delivered to the receiving party at the specified address (1) on the delivery date if delivered personally, (2) one business day after being sent with a commercial overnight carrier with receipt verification, (3) five business days after being sent by US mail with return receipt requested, or (4) on the delivery date if transmitted by confirmed email.
If to Hostwek:
billing@hostwek.com
If to Client:
To the Client address provided at account set-up.
8.3 Governing Law.
This Agreement and all future agreements the Client may enter into with Hostwek, unless otherwise indicated, will be governed by the laws of the State of Delaware, without regard to conflicts of law principles. This applies regardless of whether the Client resides or conducts business with Hostwek in the United States or elsewhere. Unless a dispute is governed by an applicable arbitration clause, the Client agrees to submit to the personal and exclusive jurisdiction of the courts located within Delaware County, United States. If any part of this Agreement is found to be unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
8.4 Modifications.
No modifications, amendments, supplements to, or waivers of this Agreement or any of its provisions shall be binding upon the parties unless made in writing and duly signed by both parties.
8.5 Waiver.
A failure of either party to exercise any right provided for in this Agreement shall not be deemed to be a waiver of any right hereunder.
8.6 Severability.
In the event any one or more of the provisions of this Agreement is found to be invalid or unenforceable, the enforceability of the remaining provisions shall remain unaffected.
8.7 Force Majeure.
Hostwek and its affiliates, agents, employees, or licensors shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by events beyond their reasonable control, including but not limited to fire, flood, strike, and other industrial disturbances, failure to transport, accident, war, riot, insurrection, act of God, or governmental order. Performance shall resume as soon as possible after the cessation of the cause. However, if the inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty.
8.8 Independent Contractors.
The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other. Neither party shall have any right, power, or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the parties.
8.9 Terms of Service.
The Client agrees to be bound by Hostwek’s Terms of Service (TOS) for all Services and products used. The current TOS can be found on Hostwek’s website. Should the Client disagree with any updates to Hostwek’s TOS, it is the Client’s responsibility to notify Hostwek of their desire to terminate their Services immediately.
8.10 Implied Agreement.
CONTINUED USE OF THE SERVICES AND/OR PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND HOSTWEK’S TOS IN THEIR ENTIRETY. BY USING THE SERVICES, THE CLIENT AGREES TO BE BOUND BY ALL TERMS ASSOCIATED WITH SAID SERVICES, INCLUDING THIS AGREEMENT AND THE TOS. THE CLIENT’S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7 HEREIN.
8.11 Entire Agreement.
This Agreement and the exhibits referenced herein set forth the entire agreement and supersede any and all prior agreements between the parties concerning the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to those contained in this Agreement or any exhibit hereunder, unless expressly agreed to in writing by the party to be bound.
8.12 No Party Deemed Drafter.
In the event that any provision of this Agreement is construed by a court of law or equity or an arbitrator, no provision herein shall be construed more harshly against either party as the drafter.
Exhibit A: Hostwek Terms of Service (TOS)
Hostwek’s current Terms of Service are available at the following link:
Terms of Service
Exhibit B: Hostwek Resource Usage Policy (RUP)
Hostwek’s current Resource Usage Policy is available at the following link:
Resource Usage Policy
Questions?
Any questions regarding this agreement should be sent to Hostwek’s sales department before signing up for service.
