This Web Hosting Agreement (this “Agreement”) is between JOM Diversified, Inc. dba “Nerdy Bird Hosting”, a web hosting company formed under the laws of the United States of America with its principal office at 159 Crocker Park Blvd. Suite 400 Westlake, OHIO 44145, (“Nerdy Bird Hosting”) and the person (individual or legal person) whose signs Nerdy Bird Hosting’s service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of Nerdy Bird Hosting’s Web hosting service.
Table of Contents
Disclaimer of Warranties
Limitation of Damages
Suspension of Services/Termination
Request for Customer Information
Back Up Copy
Changes To The Nerdy Bird Hosting Network
IP Address Ownership
System And Network Security
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Nerdy Bird Hosting’s credit approval requirements, Nerdy Bird Hosting agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that Nerdy Bird Hosting 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 as many successive renewal terms of the same length as the Initial Term (each a “Renewal Term”) unless Nerdy Bird Hosting or Customer provides the other with written notice of non-renewal. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly, annually bi-annually as indicated on the Order, beginning on the Service Commencement Date. Nerdy Bird Hosting may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes JOM Diversified, Inc. dba “Nerdy Bird Hosting” 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 Nerdy Bird Hosting will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 7th day before each billing cycle, and the fees shall be due on the 7th day following invoice date. Payments must be made in United States dollars. Customer is responsible for providing Nerdy Bird Hosting with changes to billing information (such as credit card expiration, change in billing address). Nerdy Bird Hosting may suspend the service without notice if payment for the service is overdue. Fees not disputed within thirty (30) days of due date are conclusively deemed accurate. Customer agrees to pay Nerdy Bird Hosting’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Nerdy Bird Hosting’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
Nerdy Bird Hosting 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).
At Nerdy Bird Hosting’s request Customer shall remit to Nerdy Bird Hosting all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Nerdy Bird Hosting), regardless of whether Nerdy Bird Hosting fails to collect the tax at the time the related services are provided.
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 Nerdy Bird Hosting 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 Nerdy Bird Hosting’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.
Payments to Nerdy Bird Hosting are non-refundable except for the first payment which falls under the thirty (30) day money back guarantee. Only shared hosting services are eligible for the thirty (30) day money back guarantee. No other services provided by Nerdy Bird Hosting are covered by this guarantee. The thirty (30) day money back guarantee is not valid upon any terms of service or acceptable use policy violations. All overcharges or billing disputes must be reported within thirty (30) days of the time the dispute occurred.
Customer agrees to use the service in compliance with applicable law and Nerdy Bird Hosting’s Acceptable Use Policy posted at http://nerdybirdhosting.com/aup.html (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that Nerdy Bird Hosting 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 Nerdy Bird Hosting’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 Nerdy Bird Hosting’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Nerdy Bird Hosting and Customer regarding the interpretation of the AUP, Nerdy Bird Hosting’s commercially reasonable interpretation of the AUP shall govern.
Customer represents and warrants to Nerdy Bird Hosting that the information he, she or it has provided and will provide to Nerdy Bird Hosting for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Nerdy Bird Hosting that he or she is at least 18 years of age. Nerdy Bird Hosting 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.
Customer agrees to indemnify and hold harmless Nerdy Bird Hosting, Nerdy Bird Hosting’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.
Disclaimer of Warranties.
Nerdy Bird Hosting does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. To the extent permitted by applicable law Nerdy Bird Hosting 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.
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 Nerdy Bird Hosting 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.
Suspension of Service. Customer agrees that Nerdy Bird Hosting may suspend services to Customer without notice and without liability if: (i)Nerdy Bird Hosting reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii)Nerdy Bird Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv)as requested by a law enforcement or regulatory agency. Customer shall pay Nerdy Bird Hosting’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
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 Nerdy Bird Hosting 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 Nerdy Bird Hosting prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Nerdy Bird Hosting describing the violation in reasonable detail; (iii)upon one (1) days notice if Customer’s Service is used in violation of a material term of the AUP more than once, or (iv)upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
Requests for Customer Information.
Customer agrees that Nerdy Bird Hosting 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 Nerdy Bird Hosting 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.
Back Up Copy.
Customer agrees to maintain a current copy of all content hosted by Nerdy Bird Hosting nothwithstanding any agreement by Nerdy Bird Hosting to provide back up services. Nerdy Bird Hosting agrees to keep seven (7) days worth of backups through software accessible by client.
Changes to Nerdy Bird Hosting’s Network.
Upgrades and other changes in Nerdy Bird Hosting’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. Nerdy Bird Hosting reserves the right to change its network in its commercially reasonable discretion, and Nerdy Bird Hosting shall not be liable for any resulting harm to Customer.
IP Address Ownership:
If Nerdy Bird Hosting assigns Subscriber an Internet Protocol address for Subscribers’s use, the right to use that Internet Protocol address shall belong only to Nerdy Bird Hosting, and Customer shall have no right to use that Internet Protocol address except as permitted by in its sole discretion in connection with the Services, during the term of this Agreement Nerdy Bird Hosting shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Nerdy Bird Hosting, and reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Nerdy Bird Hosting’s allocation of IP addresses is limited by ARIN’s new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to the Customer is that you MUST use name-based hosting where possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.
System and Network Security:
Users are prohibited from violating or attempting to violate the security of the Network. Violations of system or network security may result in civil or criminal liability. Nerdy Bird Hosting will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:
Accessing data not intended for such User or logging into a server or account, which such User is not authorized to access.
Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”.
Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
Taking any action in order to obtain services to which such User is not entitled.
Under no circumstances are you allowed to run any daemons, servers or compile anything under your account without direct permission from Nerdy Bird Hosting management. Shell access is meant to be used solely with basic file system usage.
You’re not allowed to use an excessive amount of system resources for an extended period of time. If your account is found to be utilizing a large amount of resources we will contact you and give you further information. Under extreme cases suspension may be necessary until the issue can be resolved.
You may not have cron jobs in intervals lower than 1 minute apart.
You may use your account for personal use but not as a backup facility for automated backups or things of that nature. If you’re unsure if your intended use violates this TOS please contact us so we can clarify it for you.
Notices to Nerdy Bird Hosting under the Agreement shall be given via electronic mail to the e-mail address posted for customer support ([email protected]). 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.
Nerdy Bird Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Nerdy Bird Hosting’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.
Governing Law/Disputes. The Agreement shall be governed by the laws of, 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 WITHIN THE UNITED STATES OF AMERICA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Nerdy Bird Hosting provides support to it’s subscribers. Nerdy Bird Hosting only ensures that the service is online and is remotely accessible. Nerdy Bird Hosting does not offer technical support for application specific issues. We encourage you to use our Ticket System on our web site.
SPAM and Unsolicited Commercial Email (UCE).
Nerdy Bird Hosting takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Under no circumstances are you to solicit the sending of UCE or SPAM over our network or you will be subject to penalties and service termination.
(a) Violation of Nerdy Bird Hosting’s SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Nerdy Bird Hosting will initiate an immediate investigation (within 48 hours of notification). During the investigation, Nerdy Bird Hosting may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Nerdy Bird Hosting may, at its sole discretion, restrict, suspend or terminate customer’s account. Further, Nerdy Bird Hosting reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Nerdy Bird Hosting will notify law enforcement officials if the violation is believed to be a criminal offense.
(b). As our Customers are ultimately responsible for the actions of their clients over the network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
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. The terms on Subscriber’s purchase order or other business forms are not binding on Nerdy Bird Hosting 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
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 Subcriber’s of resellers are third party beneficiaries to the Agreement. Subscriber may not transfer the Agreement without Nerdy Bird Hosting’s prior written consent. Nerdy Bird Hosting’s approval for assignment is contingent on the assignee meeting Nerdy Bird Hosting’s credit approval criteria. Nerdy Bird Hosting 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.