Terms of Service
This Web Hosting Agreement (this “Agreement”) also referenced as the Terms of Service (the “TOS”), is between First Response Consulting, Hosting, and Development, formed under the laws of the State of Texas (FRC) and the person (individual or legal entity) whom purchases FRC’s service and agrees to the Terms of Service during the set up process (the “Order”) incorporating this Agreement by reference (“Client”). This Agreement governs Client’s use of FRC’s Web hosting service.
- Services
- Term
- Payments
- Cancellation and Early Termination
- Cancellation and Early Termination (Dedicated Servers)
- Law/AUP
- Client Information
- Indemnification
- Disclaimer of Warranties
- Limitation of Damages
- Suspension of Services/Termination
- Bandwidth Usage
- Domains
- Request for Client Information
- Backup Copy
- Request for Rebuild/Restore of Hosting Package
- Changes to FRC’s Network
- Notices
- Force Majeure
- Binding Arbitration
- Miscellaneous
Subject to the terms of this Agreement, and contingent on the Client’s satisfaction of FRC’s credit approval requirements, FRC 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 FRC generates an e-mail message to Client announcing the activation of the Client’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 the same length as the Initial Term (each a “Renewal Term”) unless FRC or Client provides the other with termination notice within 7 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.”
- (a) Recurring Fees
Renewal notices are emailed seven days before the actual renew date in your account. If you have a credit card on file your card will automatically be charged two days before your renewal notice is due. If your billing method is Paypal you will need to manually pay your invoice every month. All payments submitted for services are non-refundable outside of our 30 day refund policy. Service will be made inactive on accounts that are not paid by the 7th day past due. The term “Account” describes all services provided to a client as defined by the primary ownership email and physical address. FRC reserves the right to revoke this grace period if a pattern of late payment is observed or if your payment method is listed as other. All orders made with a credit card are expected to work on the monthly renewal date each month. Any accounts made inactive for non-payment are subject to a $10.00 late payment fee. Any accounts terminated due to non payment are subject to a $10.00 restoration fee once all past due invoices have been paid.
- (b) Payment Terms
For your convenience FRC offers multiple payment terms with increasing discounts for it’s product lines. All payments to FRC are non refundable after the first 30 days of service. Within the first 30 days of a Quarterly, Semi-Annual or Yearly paid service you may request that it be converted to a Monthly subscription and the remaining balance will be refunded to your original payment method. If after the first 30 days of service you request the package to be converted to a different billing cycle any additional monies will be applied to your account in the form of credits and will not be refunded. Prior to paying a renewal invoice and before your renewal date you may have your payment terms changed at no additional charge. If you wish to cancel a Quarterly, Semi-Annual or Yearly package prior to its renewal date, your package will be pro-rated to the nearest Monthly billing cycle and any remaining funds will be credited to your account. Any cancellation as the result of a violation of our TOS or AUP will be non refundable.
- (c) Credit/Debit card and your Address on File
When an order is placed with a credit/debit card, your card is stored on file and will automatically be charged every month two days before your due date. For security purposes your address on file with us must match the address of your credit/debit card. If this address does not match, our payment gateway will not accept the transaction. If you have a credit card on file and the transaction is declined due to the address this transaction might show up as a pending charge but will not be processed through. If you have a debit card on file and the transaction is declined due to the address your bank will pull the money out of your account but this money will be refunded back to your account by your bank. It is recommended to always store a credit card on file instead of a debit card.
- (d) Payments by Electronic Check (eCheck or ACH)
FRC accepts electronic check, commonly known as eCheck or ACH payments from banks or financial institutions located in the United States payable in U.S. dollars only. When you enter your echeck or ACH information, it is stored on file and will automatically be charged every month two days before your due date. You agree and confirm that FRC may debit the full invoiced amount from your checking account as a non-refundable payment and may use this account for recurring payments. If you do not wish to enable recurring payments on your ACH account please disable them by following the directions here: Enable Auto Debit. It is your responsibility to ensure that adequate funds are in your account to cover any and all invoices submitted against it. FRC is not liable nor responsible for any fees, overdraft charges or any other penalties that may result in a lack of funds when invoices are processed.
- (e) Fees and Penalties for Electronic Check (eCheck or ACH)
The client (you) acknowledges that it is your responsibility to ensure that adequate funds are in your account to cover any and all invoices submitted against it. FRC is not liable nor responsible for any fees, overdraft charges or any other penalties that may result in a lack of funds when invoices are processed. FRC will attempt to process an automatic debit against your ACH account no more than two (2) times in a calendar month before disabling the auto-debit feature of your account. Client acknowledges FRC will charge $5 for each failed attempt to process a payment and $35 for any chargeback associated with an ACH payment. FRC is not liable nor responsible for any fees, overdraft charges or any other penalties that may result in a lack of funds when invoices are processed.
- (f) Taxes
At FRC’s request Client shall remit to FRC all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on FRC, regardless of whether FRC fails to collect the tax at the time the related services are provided.
- (g) 30 Day Money Back Guarantee
All new FRC Clients are eligible for a 30 day money back guarantee on all hosting packages upon written request, excluding Dedicated Servers and Domain Name Registrations. The definition of a new client is one who has never purchased services from FRC in the past. Also if a client purchases a 2nd, 3rd, etc. hosting package and wishes to cancel this particular package they are not eligible for a refund. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee. If the TOS/AUP agreed upon when ordering is violated this voids your eligibility for the 30 day money back guarantee. FRC reserves the right to deny the refund if we feel abuse of services has occurred.
- (h) Payments (Dedicated Servers)
- FRC does not offer a 30 day money back guarantee on Dedicated Servers. Renewal notices are emailed seven days before the service due date. If you have a credit card or ACH account on file your it will automatically be charged two days before your renewal date. If your billing method is Paypal you will need to manually pay your invoice every month by the due date at 12 PM EST. All renewals made with a credit card are expected to work on the day your card is charged. In the event you fail to pay your invoice by the due date, we reserve the right to suspend your entire account and a late fee of $25 applies. The term “Account” describes all services provided to a client as defined by the primary ownership email and physical address. If your invoice is still not paid by the 7th day past the due date on the invoice, we reserve the right to terminate your service entirely and reformat your serve
Client acknowledges that the amount of the fee for the service is based on Client’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event FRC terminates the Agreement for Client’s breach of the Agreement in accordance with Section 12 (Termination), or Client terminates the service other than in accordance with Section 12 (Termination) for FRC 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. Client acknowledges that the cancellation notice or downgrade of current package is to be submitted to FRC prior to the following renewal date or the Client will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
- Cancellation request must be submitted to the billing department
- Cancellation request must be submitted from the main email address on file with FRC
- Cancellation request must contain the main IP address and host name of the hosting plan you wish to cancel
5. Cancellation and Early Termination (Dedicated Servers)
Client acknowledges that the cancellation notice is provided prior to the following renewal date in writing to FRC or the Client will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
- Cancellation request must be submitted to the billing department
- Cancellation request must be submitted from the main email address on file with FRC
- Cancellation request must contain the main IP address of the server you wish to cancel
Client agrees to use the service in compliance with applicable law and FRC’s Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement. Client agrees that FRC may, in its reasonable commercial judgment consistent with industry standards, amend the AUP and TOS from time to time to further detail or describe reasonable restrictions and conditions on Client’s use of the Services. Amendments to the AUP and TOS are effective on the earlier of FRC’s notice to Client that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Client agrees to cooperate with FRC’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between FRC and Client regarding the interpretation of the AUP, FRC’s commercially reasonable interpretation of the AUP shall govern.
Client represents and warrants to FRC that the information he, she or it has provided and will provide to FRC for purposes of establishing and maintaining the service is accurate. If the Client is an individual, the Client represents and warrants to FRC that he or she is at least 18 years of age. FRC may rely on the instructions of the person listed as the Primary Client Contact on the Order with regard to the Client’s account until the Client has provided a written notice changing the Primary Client Contact.
8. Indemnification
Client agrees to indemnify and hold harmless FRC, FRC’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 the Client’s services in violation of applicable law or the AUP by the Client or any person using the Client’s log on information, regardless of whether such person has been authorized to use the services by the Client.
FRC DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW FRC 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 POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF FRC 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 CLIENT FOR ONE MONTH OF SERVICE.
- (a) Suspension of Service.
- Client agrees that FRC may suspend services to the Client with or without notice and without liability.
- (b) Termination.
- FRC reserves the right to terminate the Agreement or deny services at any time with or without notice and without liability. The Agreement may be terminated by the Client prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if FRC 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 the Client’s written notice describing the failure in reasonable detail. Termination in this manner does not absolve the client of any required payments remaining on their initial or renewal term. The Client may also terminate this agreement as per Section 4 and Section 6 respectively.
- Either party may terminate this agreement upon five (5) 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.
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Bandwidth overages are billed at the rate of $20 per TB used. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee and you are responsible to pay for any overage.
FRC is not a domain registrar. We are a reseller for NameCheap so all FRC clients who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by NameCheap. You will receive notice from FRC once your domain is up for renewal. If you do not renew your domain by the expiration date you run the risk of loosing your domain. Domain names are billed as separate services and must be kept current to ensure they do not expire. If your domain name has expired, you may renew it at the regular price no more than 25 days after the expiration date. If the domain has been expired for 31 days or more it may have been auctioned off, if so your domain is gone. If your domain was not auctioned you may redeem the domain for a $125 fee no later than 60 days past the expiration date. Domains are not guaranteed to be renewable past 25 days of their expiration. All domains will cease to function past their expiration date until renewed. There is no grace period on domain name registrations. Should any payment dispute or chargeback arise regarding your domain name services, access and rights to your domain name will be immediately forfeited. To recover your domain name from forfeiture a reinstatement fee of $75 plus your remaining balance will be required if processed within the original expiration time.
14. Requests for Client Information
Client agrees that FRC may, without notice to the Client, (i) report to the appropriate authorities any conduct by the Client or any of the Client’s users or end users that FRC believes violates applicable law, and (ii) provide any information that it has about the Client or any of its users or end users in response to a formal request from a law enforcement, or regulatory agency (i.e. a warrant or subpoena).
15. Backup Copy
FRC highly recommends that all clients retain up to date backup copies of their data off site for disaster recovery purposes.
VPS Clients:
FRC provides complementary backup services for our VPS clients. These snap shots are taken every other day and stored for approximately 7-14 days. The Client agrees to maintain a current copy of all content hosted by FRC notwithstanding any agreement by FRC to provide back up services. The Client acknowledges that any backups provided by or for FRC services are a courtesy service intended for disaster recovery only and that FRC does not warrant or guarantee the availability, integrity, content or operability of these backups.
Cloud Clients:
FRC provides complementary backup services for our Cloud clients. These snap shots are taken every other day and stored for approximately 7 days. The Client agrees to maintain a current copy of all content hosted by FRC notwithstanding any agreement by FRC to provide back up services. The Client acknowledges that any backups provided by or for FRC services are a courtesy service intended for disaster recovery only and that FRC does not warrant or guarantee the availability, integrity, content or operability of these backups.
Shared Cloud Clients:
FRC provides complementary backup services for our Managed Shared Cloud clients. We create and store one weekly and two of the most recent daily backups. The Client agrees to maintain a current copy of all content hosted by FRC notwithstanding any agreement by FRC to provide back up services. The Client acknowledges that any backups provided by or for FRC services are a courtesy service intended for disaster recovery only and that FRC does not warrant or guarantee the availability, integrity, content or operability of these backups.
Managed WordPress Clients:
FRC provides complementary backup services for our Managed WordPress clients. We create and store one weekly and two of the most recent daily backups. The Client agrees to maintain a current copy of all content hosted by FRC notwithstanding any agreement by FRC to provide back up services. The Client acknowledges that any backups provided by or for FRC services are a courtesy service intended for disaster recovery only and that FRC does not warrant or guarantee the availability, integrity, content or operability of these backups.
Dedicated Server Clients:
Dedicated server clients are encouraged to purchase and maintain a secondary drive on which to create and store backups. FRC also offers external storage packages for our clients to create and maintain their own backups stored external of their dedicated server. FRC does not warrant or guarantee any backups on Dedicated Servers.
During any service term, the Client may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a Client should need to request a rebuild/restore after this a $10.00 one time fee will be enforced. If a Client requests a partial restoration of data a nominal fee of $10.00 will be charged for each request.
17. Changes to FRC’s Network
Upgrades and other changes in FRC’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of the Client’s hosted content and/or applications. FRC reserves the right to change its network in its commercially reasonable discretion, and FRC shall not be liable for any resulting harm to the Client.
Notices to FRC under the Agreement shall be given via electronic mail to the FRC billing department or via our online ticketing system. All notices, including but not limited to support or billing requests, must be submitted from a registered e-mail address on file for the client account.
Notices to Client shall be given via electronic mail to the individual listed as the Primary Client Contact on the Order. It is the Client’s responsibility to ensure valid and accurate contact information is supplied and updated as necessary. 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. The Client may change his, her or its notice address by a notice given in accordance with this Section.
FRC shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond FRC’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.
As a Client of FRC, you agree to submit to binding arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The location of Arbitration shall be selected by FRC at the time of the dispute.
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 the Client’s purchase order or other business forms are not binding on FRC 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 clients of resellers are third party beneficiaries to the Agreement. The Client may not transfer the Agreement without FRC’s prior written consent. FRC’s approval for assignment is contingent on the assignee meeting FRC’s credit approval criteria. FRC 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 supersedes and replace any prior understanding or communication, written or oral.