These Terms and Conditions, together with any terms which were clicked-through in the process of purchasing services (an “Order”) set forth the terms and conditions pursuant to which Sunny HQ, LLC (“Host”) will provide the Services (“Agreement”) to the account owner (“Client”). The Agreement is effective on the Order date.
By accepting this Agreement and using Host’s Website Hosting Services (“Services”), Client agrees to be bound by all the terms and conditions of this Agreement.
2. Provision of Services
Host agrees to provide Client with website hosting services, which may also include domain name management, e-mail capability, regular theme and plugin updates, automated backup and snapshot recovery, daily security scanning, and such additional services as may be provided by Host from time to time. Host reserves the right to change or modify the features of Client’s service plan from time to time on 15 days written or e-mailed notice to Client. Client’s continued use of Host’s services after receipt of such a notice of modification shall constitute Client’s acceptance of and agreement to be bound by the Host’s modification of the terms and conditions of this Agreement.
3. Agreement Term
The initial term of this Agreement shall commence on the Order date and shall continue through either: one (1) month or twelve (12) months, depending on the payment option selected by Client during the Order process. After the initial term, this Agreement shall be automatically renewed for successive monthly (if the monthly payment option is selected) or annual (if the annual payment option is selected) periods until terminated by one of the parties as provided in this agreement.
4. Termination without Cause
(a) Client may terminate this Agreement at any time, for any reason, by contacting Host, either by phone or e-mail, and requesting that Client’s account be canceled. In the event of a cancellation by Client within sixty (60) days of commencement of the initial term (the “Grace Period”), Host will refund all amounts paid for hosting services with the exception of one-time charges. No Services rendered by Host are eligible for a refund after the sixty (60) day grace period. If Client elects the annual payment option and later decides to terminate the Agreement, the Host will refund payment for hosting services during the unused term less any prepayment discounts. Any and all charge disputes must be reported directly to Host within sixty (60) days of the date which the charge originally occurred. If a charge which is deemed valid by Host under the terms of this Agreement is disputed to a financial institution by performing a charge-back, then all of the services related to the account will be suspended and the client agrees to pay an ‘Administrative Fee’ of $50 in addition to the original amount of funds which were reclaimed.
(b) Host may terminate this Agreement at any time, for any reason, by providing written or e-mail notice of termination to Client’s contact address no less than 15 days prior to the service termination.
(c) If either Party terminates this Agreement, Host will back up all Client’s current Website content, databases, and e-mail messages as an archive file, and send them to Client either as an attachment to an e-mail or via other file transfer processes.
5. Termination for Cause
Client agrees to abide by the terms of this Agreement and by Host’s general use policies as set forth in this Agreement, as those policies may exist from time to time. Host may change its use policies on 15 day written notice to Client by e-mail message, mail, or facsimile transmission. Any violation by Client of the terms of this Agreement or of Host’s general use policies shall be grounds for immediate termination of Client’s account for cause. If Host terminates Client’s account for a violation of this Agreement, Host shall not be required to refund any amounts billed for the billing period in which Host terminates Client’s services.
6. Payment Terms
(a) The charges for the Services are set out on the Order (“Fees”). Fees applicable to any renewal Term will be at our then-current rates. Host reserves the right to change or modify its charges for Client’s plan from time to time on 30 days notice written or e-mailed to Client. Client’s continued use of Host’s services after receipt of such a notice shall constitute Client’s acceptance of and Agreement to be bound by the Host’s modified charges for its services. Additional charges for add-on services not included in Client’s plan will be made as mutually agreed upon.
(b) Fees are payable in advance on a monthly basis. Client will be charged the Fees beginning on the Effective Date. The schedule of payments is set out on the Order; if no schedule is stated, Fees are due in full in advance. All Fees are payable in U.S. dollars and are not refundable except as provide for in the Grace Period. Fees will be collected by debiting the electronic payment method provided by Client. Credit, debit, or other similar sources of payment may be debited up to one week prior to the due date. Client must keep the method of payment current and able to be debited. If payment is not made by or on the due date, Host may charge a late fee on the unpaid balance at the lesser of two percent (2%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly. If Client does not pay on time, Host may also suspend or terminate the Services and terminate this Agreement. In addition, Third Party Services may be forfeited. We may also send the account to collections, and add to the Fees any charges associated with collecting unpaid Fees.
(c) Any charges for upgrading Client’s current hosting package, or performing add-on requests, will not be billed until the next invoice.
Host shall not be liable for any taxes and other governmental fees related to purchases made by Client or from Host’ server. Client agrees that s/he will be fully responsible for all taxes and fees of any nature associated with products or services sold through the use of or with the aid of services provided to Client by Host.
8. Materials and Products
Any material and data Client provides to Host in connection with Services shall be in a form requiring no additional manipulation on the part of Host. Host shall make no effort to validate this material or data for content, correctness, or usability. Material or data that is not in this condition shall be a breach of this Agreement. Host, in its sole discretion, may reject material or data that Client has placed on Host’s servers or that Client has requested that Host put on Host’ servers. Host agrees to notify Client immediately of its refusal of any material or data and provide Client with an opportunity to amend or modify the material or data to meet the Host’s requirements. Client’s failure to amend or modify the data or material as directed by Host within a reasonable time shall be a breach of this Agreement.
9. Electronic Mail Abuse
Harassment by e-mail, whether through language, frequency, or size of messages, is prohibited. Client may not send e-mail to any person who does not wish to receive it. If a recipient asks to stop receiving e-mail, Client must not send that person any further e-mail. Clients are explicitly prohibited from sending unsolicited bulk e-mail messages (“junk mail” or “spam”). This includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, and political tracts. Such material may only be sent to those who have explicitly requested it. Clients may not forward or otherwise propagate chain letters, whether or not the recipient wishes to receive such mailings. Malicious e-mail, including but not limited to “mail bombing” (flooding a user or site with very large or numerous pieces of e-mail) and “trolling” (posting outrageous messages to generate numerous responses) is prohibited. Forging of header or any other information is not permitted. Subscribing someone else to an e-mail list or removing someone else from a mail list without that person’s permission is prohibited. Host’s accounts or services may not be used to collect replies to messages sent from another Internet Service Provider if those messages violate this Agreement or any usage policy of that other provider. Violations of this Agreement may result in immediate account termination.
10. Violations of Network Security
Client is 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 in addition to immediate termination of Client’s agreement. Host will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Clients who are involved in such violations. These violations include, without limitation:
(a) Accessing data not intended for the Client or logging into a server or account that the Client is not authorized to access.
(b) Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.
(c) Attempting to interfere with service to any Client, host or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.
(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
(e) Taking any action in order to obtain services to which the Client is not entitled.
11. Warranty against Unlawful Use
Client warrants and represents that Client shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client’s account for cause.
12. Liability; No Warranty; Limitation of Damages
(a) Client expressly agrees that use of Services provided by Host is at Client’s sole risk.
(b) Host will provide 99.95 percent uptime for its hosting servers. If uptime for Client’s hosting server falls below 99.95 percent during any given month, Host will credit Client as follows: credits will be calculated as a percentage of the bill for the month that the unavailability occurred. The percentage for the credit will be calculated by dividing the number of minutes of unavailability less Excused Downtime by the total number of minutes in that billing cycle. Any such credits shall be applied to future invoices. This credit shall be Client’s sole and exclusive compensation for any downtime or other unavailability of Host’s services under this Agreement. Host shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability. In order to receive credits, Client must make a request in writing to Host via Support or to Client’s account manager (if applicable) within 30 days of the event giving rise to such credits.
(c) Excused Downtime includes: scheduled outages or Force Majeure events;
downtime caused by a non-standard environment, Client machine access, Client’s violation of the Agreement including the Acceptable Use Policy, Client authored code or changes to the Site or Services by parties other than Host, or use that exceeds Client’s plan capacity;
emergency maintenance (e.g. in order to apply a patch to address a security vulnerability); and maintenance that is performed from 11:00 pm to 5:00 am Eastern Standard Time.
(d) Host, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.
(e) Host, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction, or unauthorized access to Host’s records, programs, or services.
(f) Host will exercise no control over the content of the information passing through Host’s network except those controls expressly provided herein.
(g) Host makes no warranties or representations of any kind, express or implied, for the services it is providing. Host also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays or non-deliveries.
13. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights
(a) Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all right, title, and interest in any product or service provided to Client belongs to Host. These products and services are only for Client’s use in connection with Services provided to Client as outlined in this Agreement.
(b) Client expressly warrants to the Host that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Host servers.
14. Hardware, Equipment, and Software
Client is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Host servers. Host makes no representations, warranties, or assurances that Client’s equipment will be compatible with Host Services.
Client expressly represents and warrants that if it is a natural person, that Client and any person to whom Client grants access to Client’s Host account are at least 18 years of age.
Client agrees to defend, indemnify, and hold Host harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against Host, its agents, servants, officers, and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Client, Client’s agents, employees, or assigns. Client further agrees to defend, indemnify, and hold harmless Host against liabilities arising out of:
(a) Any liability to Host arising by virtue of any use of Host’s services by Client for any unlawful purpose, or in violation of any valid federal, state, or local law or regulation governing use of e-mail or the Internet;
(b) Any injury to person or property caused by any products sold or otherwise distributed in connection with Services provided to Client;
(c) Any material supplied by Client infringing or allegedly infringing on the property or proprietary rights of a third party;
(d) Copyright or trademark infringement by Client, or violation by Client of intellectual property rights of any other party; and
(e) Any defective product which Client sold or distributed by means of Services.
Client agrees that the liability limit of Host shall in no event be greater than the aggregate dollar amount which Client paid during the terms of this Agreement, including any reasonable attorneys’ fees and court costs.
17. Attorneys’ Fees
If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
Client agrees to keep Host informed of all current contact information for Client’s account. Changes in Client’s account information may be reported to Host by e-mail at [email protected] or on Host’s website located at www.sunnyhq.co. Failure to maintain or keep current all contact information shall be a ground for Host to terminate Client’s account for cause.
19. Governing Law
This Agreement has been entered into in the State of North Carolina, and its validity, construction, interpretation and legal effect shall be governed by the laws of that state applicable to contracts entered into and performed entirely within that state.
In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
No waiver by Host of any breach by Client of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No waiver shall be effective unless it is in writing, and then only to the extent expressly set forth in such writing.
22. Entire Agreement
This Agreement shall constitute the entire agreement between Client and Host, and no other agreement, statement, or promise relating to the subject matter of this Agreement which is not contained herein shall be valid or binding.