Webzilla is the brand name under which various independent Webzilla companies operate.General Terms & Conditions
Each of those companies is a separate and distinct corporate entity that provides services in a particular geographic area. To do business with a Webzilla company, you must enter into a contract with the relevant Webzilla entity. Each Webzilla company has its own contract documentation for services and products. For all companies, the contract documentation generally consists of the Internet Services Masters Agreement, General Conditions, Policies, the Services Specification and the Support and Service Level Schedule. Please find below the latest version of our Legal agreements.
The General Terms & Conditions shall apply to all quotes and orders related to the provision of services and/or products by a Webzilla company, to the provision of services by Webzilla, to the provision of products by Webzilla, and to any agreements or other legal relationships between Webzilla and any customer resulting therefrom or in connection therewith. You can read the General Conditions here:Policies
Webzilla General Terms & Conditions
Webzilla aims to promote a high level of responsible behavior in connection with the use of its Services. For this purpose, Webzilla has created the Webzilla Policies. You can read the Webzilla Policies here:Services Specification
The Webzilla Service Specification Schedule sets out the specifications of services provided by Webzilla, and also details Webzilla's obligations in connection with such services. You can read the Services Specification here:Support and Service Level Schedule
Webzilla Services Specification
Webzilla Support & Service Level Agreement
Copyright claims pursuant to the Digital Millennium Copyright Act (DMCA). If you believe that your content has been used on websites hosted by Webzilla, in any manner that constitutes copyright infringement, please notify Webzilla in accordance with the following DMCA and/or Abuse policy:LEGAL NOTICE FOR WEBZILLA
2031 ES Haarlem
Information on the services provided by Webzilla can be found on our website at www.webzilla.com. Information on the costs incurred through the use of our services is provided on the relevant product pages in good time before conclusion of the contract and/or via our support team.
Contracts with Webzilla are on the basis of our General Terms & Conditions and subject to additional annexes and Order forms.
For information on the law applicable to contracts concluded with Webzilla depends on the Webzilla Company providing the services. If you signed an Internet Master Services Agreement with a Webzilla company then this Agreement will be construed and enforced in accordance with the laws as specified in clause 6.1 of the Internet Master Services Agreement. If you did not sign an Internet Master Services Agreement with a Webzilla Company then this Agreement and each Order Form shall be construed and enforced in accordance with the laws of The Netherlands and you hereby consent to the jurisdiction of the courts of Amsterdam, The Netherlands with respect to any dispute, controversy or other matter relating to or arising out of the Agreement.
ANY USE OF THE WEBZILLA SERVICES BY CUSTOMER CONSTITUTES ACCEPTANCE OF ALL AGREEMENTS REFERENCED HEREWITH.
Webzilla is the brand name under which various independent Webzilla companies operate. The Webzilla company (hereinafter referred to as "Webzilla") and the Customer may be referred to individually as a "Party" or collectively as the "Parties".
Whereas Customer desires to purchase and/or lease from Webzilla the following services: a) a connection to the Internet (IP Connectivity) and/or b) Content Delivery Network (CDN) and/or c) Cloud Servers and/or d) Cloud Storage and/or e) Colocations Services, and/or f) Managed Services and/or g) Software Licenses Rental services and/or h) DDoS Protection services (referred to as the "Services") as described in the Services Description uploaded at http://www.webzilla.com/legal.htmland
Whereas Webzilla and Custome desire to set forth in this Agreement (hereinafter the "Master Agreement") the terms and conditions pursuant to which Webzilla shall provide Services to Customer.
Now, therefore, in consideration of the mutual promises and agreements contained herein, the Parties hereby agree as follows:
1. Master Agreement; Services
3. Licenses; Use of Services
4. Payment for services
7. Disclaimer of Warranties
11. Intellectual Property; Restrictions on Advertising
12. Force Majeure
13. Default & Termination
15. Limitations of Liability
17. Governing law
19. Entire agreement
20. Relationship of the Parties
21. Restrictions on use
1. Master Agreement; Services
During the term of the Master Agreement, Customer may purchase and/or lease, as appropriate, the Services from Webzilla. Customer acknowledges that it is solely responsible for its decision to purchase and/or lease the Services from Webzilla. Customer shall order the Services pursuant to separate written agreements between Webzilla and Customer (hereinafter referred to as an "Order Form" as defined in section 22(b), each of which shall be deemed incorporated herein upon its full execution and delivery by Webzilla and Customer. Each Order Form may contain terms and conditions specifically governing Customer's use of the Services described therein; however, the terms and conditions of the Master Agreement shall apply to each Order Form. In the event of a conflict between the terms and conditions of the Master Agreement and the terms and conditions of the Order Form, the Order Form shall take priority BUT this conflict does NOT void any agreement and specifically Customer's obligation to pay for Webzilla Services as agreed in the Order form as this is also clearly stated in clause four (4) in the MSA. Webzilla, its affiliates and/or its subcontractors may perform the Services.
2.1 The term of the Master Agreement shall commence on the Effective Date (the date when the Customer ordered any services from Webzilla) and will expire as specifically stated in the Internet Services Master Agreement and/or Order Form signed between Customer and Webzilla. If the Customer did not sign an Internet Services Master Agreement and/or Order Form and has received services from Webzilla then this Master Agreement is valid indefinitely subject to termination, as per clause thirteen (13).
3. Licenses; Use of Services
3.1 Customer warrants and represents that it has obtained all of the necessary licenses, permits, and authorizations to use and/or resell the Services (the "Licenses"), and shall maintain the Licenses throughout the term of the related Order Form. In the event that Customer fails to maintain any of the Licenses, Webzilla may terminate the affected Order Form upon written notice to Customer.
3.2 Customer shall not use the Services for any improper or unlawful purpose, nor permit any third party to do so. Customer will cooperate in any investigation of Customer's alleged illegal use of Webzilla's facilities or other networks accessed through Webzilla, provided that Webzilla has reasonable cause to initiate such investigation. If Customer fails to cooperate with any such investigation, Webzilla may suspend Customer's Services. Additionally, Webzilla may modify or suspend Customer's Services in the event of illegal use of the Network or as necessary to comply with any law or regulation.
3.3 Customer will at all times comply with and conform its use of the Services to the Webzilla AUP and Webzilla Anti-SPAM Policy (http://www.webzilla.com/legal.html) as updated from time to time.
3.4 Webzilla may update the Webzilla AUP and/or Webzilla Anti-SPAM Policy from time to time by posting such updates on Webzilla's website. References herein to the Webzilla AUP and/or Webzilla Anti-SPAM Policy shall mean the most updated version of such policies or procedures posted on Webzilla's web site. Webzilla shall notify Customer in advance via Customer's registered email with Webzilla of any material changes to its policies and procedures.
3.5 Customer acknowledges that Webzilla exercises no control over and accepts no responsibility for the content of information and communications, in whatever form, transmitted by Customer over Webzilla's Network.
3.6 Customer's use of any information obtained via the Network is at Customer's own risk. Webzilla specifically denies any responsibility for the accuracy or quality of information obtained through its Services.
3.7 In the event of any breach of this Section 3 by Customer, in addition to any other remedies available to Webzilla, Webzilla shall have the right to suspend the applicable Services without prior notice to Customer; provided that Webzilla notifies Customer of the suspension and its justification therefore as soon as practicable after the commencement of the suspension. Such notice shall also serve as notice of breach of the Master Agreement, as set forth in Section 13.1 below, and Webzilla may continue the suspension until (a) Customer cures the breach, or (b) Webzilla terminates the Master Agreement as set forth in Section 13.3. Customer hereby indemnifies and holds Webzilla harmless against any actual loss, claim, fine, damage, reasonable costs or expenses caused by Customer's breach of this Section 3.
3.8 Customer's non-adherence to this Master Agreement and/or any Order Form and/or any Webzilla policy, might Webzilla to enforce its rights under this Agreement.
3.9 Services not covered by a specific guarantee, are covered by Webzilla's Best Effort Policy (the "Best Effort Policy"). Webzilla will do it's best to provide the specified Services, but cannot guarantee reaction, response and/or repair times. Any breach of this Master Agreement and/or Order Form by Customer makes this Best Effort Policy void.
3.10 Webzilla's obligations and Customer's exclusive remedies for failure of the Webzilla Services are stated in Webzilla's SLA signed by Customer and Webzilla.
4. Payment for Services
4.1 Webzilla shall invoice Customer for charges arising out of Customer's use of the Services (collectively, "Service Charges").The billing frequency of each order may be mentioned in an Order Form. Service Charges will, whenever possible, be billed in advance. Customer shall ensure that such Service Charges have been paid within fourteen (14) days after the date of the applicable Webzilla invoice, unless otherwise specified in an Order Form. Unless otherwise agreed in an Order Form, all charges and/ or fees are in Euro or US Dollars and shall be payable in Euro or US Dollars as stated in the invoice.
4.2 Initial Payment. Upon full execution of initial services preparation, Customer shall be invoiced for all Service Activation Charges. Webzilla may require an Initial Payment for the first and last month's Service Charges or Webzilla may request an Initial Payment as agreed and clearly stated in an Order Form. The Initial Payment shall be due upon connection of Customer's equipment to the Network, but in no event later than 14 days after the execution of this Agreement.
4.3 Recurring Charges. Webzilla will bill Customer monthly in advance for the Services, and monthly in arrears for any additional Bandwidth/Datatraffic for the Services used above the committed Bandwidth / Datatraffic billed in the prior month, and/or extra services. "Bandwidth / Datatraffic Fees" is defined as charges for usage of Bandwidth / Datatraffic provided under this Agreement as set forth in an Order Form. Billing for monthly Service Charges will begin on the Effective Date or date of connection of the Customer equipment to the Webzilla Network, whichever is earlier.
4.4 Customer reserves the right to dispute in good faith all or any portion of any invoice received from Webzilla and to withhold payment of such disputed amounts, provided that Customer provides written notice of the amount of and reasons for the dispute at the time payment is withheld. Webzilla must receive written notice of any dispute from Customer within fourteen (14) days after the date of the relevant invoice; otherwise, Customer shall be deemed to have waived its right to dispute such invoice. In the event of a dispute, Customer shall pay the undisputed portion of the invoiced charges pursuant to Section 4.1 above. After reviewing the disputed amount and a decision as to the disputed amount has been made in Webzilla's sole discretion, the final amount is then forwarded to the Customer and the Customer must process the payment within seven (7) business days.
4.5 Any amount not paid by Customer within fourteen (14) days after the date of the relevant invoice, absent any good faith dispute regarding the unpaid portion, will be subject to a late charge in the amount of two percent (2,0%) per month or the maximum amount allowable by law, whichever is less. Such interest shall accrue from the day after the date on which payment is due up to and including the date on which payment is received by Webzilla. This interest charge shall be payable not withstanding any and all damages which Webzilla may otherwise claim in respect of Customer's failure to make payment when due. Customer agrees to pay Webzilla's reasonable expenses, including attorney and collection agency fees, incurred by Webzilla in enforcing its rights for any non payment by Customer subject to any Order Form signed by Webzilla and Customer.
4.6 Unless otherwise agreed by Webzilla and Customer in an Order Form, Customer is solely responsible for the payment of any local access or other telecommunications charges related to or arising out of Customer's connection to and use of Webzilla's Network and Services. Customer is responsible for paying any fees, obtaining any required approvals and complying with any laws or usage policies applicable to transmitting data beyond the Network and/or through other public and private networks. Webzilla is not responsible or liable for performance or non-performance of such networks or their inter-connection points.
4.7 The method of payment for each order is mentioned in an Order Form.
Customer shall pay all sales, use, excise, or similar consumption taxes (including VAT, when applicable) arising out of its purchase or lease of Services from Webzilla; provided, however, that Webzilla shall be solely responsible for its own income, net worth, and property taxes. Notwithstanding the foregoing, Webzilla shall not invoice Customer for any taxes for which Customer has provided a valid exemption certificate issued by a taxation authority or a recognized controlling body/agent.
6.1 "Network" means the Webzilla-provided Autonomous telecommunications network, which is comprised of all data equipment owned or leased by Webzilla within each active Webzilla POP, all Webzilla wiring within each active Webzilla POP, power supplies owned or controlled by Webzilla in each POP, and all telecommunications circuits owned or leased by Webzilla between active Webzilla POPs. The Webzilla Network does not include equipment owned, leased, or controlled by Customer, telecommunications circuits or networks (including, without limitation, local access loops) between a Webzilla POP and a Customer location or between Customer locations, interconnections between Customer's network and the Webzilla Network, or any networks, network equipment, or telecommunications circuits not owned or controlled by Webzilla.
6.2 "Maintenance" means Webzilla's maintenance of the Webzilla Network. Customer will be notified of Maintenance as set forth in this Section 6 between Webzilla and Customer. Notification will take place by postings on it's website, phone, email, or any suitable form elected by Webzilla.
6.3 Webzilla shall be responsible for, and shall bear all costs of, the maintenance of Webzilla's Network. When circumstances permit, Webzilla agrees to provide prior notice to Customer of its Network maintenance when such maintenance is expected by Webzilla to cause an interruption or degradation of the Services. Webzilla reserves the right to suspend Services in order to perform maintenance, repairs, modifications or upgrades to its Network. Webzilla shall endeavor to (i) keep the duration of each suspension of Services as short as practicable, and (ii) schedule each suspension, to the extent practicable, so as to minimize interference with Customer's use of the Services. Customer agrees that the suspension, interruption, or degradation of Services pursuant to this Section 6 shall not be a breach of the Master Agreement or any Order Form.
6.4 "Network Status" means an actual status of the network, including any Network Faults and/or Maintenance.
7. Disclaimer of Warranties
7.1 THE WARRANTIES EXPRESSLY SET FORTH IN THE MASTER AGREEMENT AND IN EACH ORDER FORM CONSTITUTE THE ONLY WARRANTIES OF WEBZILLA REGARDING THE SERVICES DESCRIBED IN SUCH ORDER FORM, AND SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, WRITTEN, ORAL OR STATUTORY, BY OPERATION OF LAW OR IN FACT, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 IN NO EVENT SHALL EITHER WEBZILLA OR CUSTOMER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF THE PERFORMANCE OR BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER THE MASTER AGREEMENT OR ANY ORDER FORM, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, ECONOMIC LOSS, LOST PROFITS, LOSS OF DATA, AND LOSS OF CUSTOMERS, CLIENTS, BUSINESS OPPORTUNITIES OR GOODWILL.
7.3 EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND NEITHER WEBZILLA NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS AGREEMENT OR OTHERWISE. THE SERVICES ARE PURCHASED WITH KNOWLEDGE OF THIS WARRANTY LIMITATION. WEBZILLA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WEBZILLA DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES.
7.4 NO ACTION OR PROCEEDING AGAINST WEBZILLA MAY BE COMMENCED BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME FOR SUCH A CLAIM.
8.1 Each Party shall indemnify, defend and hold the other harmless against any and all claims, losses, demands, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of any demand, claim, suit or judgment for damages to any property or bodily injury to or death of any persons which may arise from (a) the negligence or willful misconduct of such Party, its employees, or agents, or (b) the breach of such Party's obligations under the Master Agreement or any Order Form.
8.2 Customer shall indemnify and hold Webzilla harmless from any and all claims arising out of the content of communications transmitted via the Services by Customer or by any party to whom Customer may resell the Services.
8.3 In the event that a Party becomes aware of a claim for which it may seek to be indemnified (the "Indemnified party"), the Indemnified party shall immediately notify the other party (the "Indemnifying party"). The Indemnifying party, at its option, may settle or compromise such claim or retain counsel and control and prosecute the defense. In no event shall the Indemnified party have the right to pay, settle, or otherwise compromise such claim without the prior written consent of the Indemnifying party, which shall not be unreasonably withheld. The Parties agree that they shall provide each other with reasonable aid and cooperation in the conduct of the defense and/or settlement of such claim as regards to any liability to a third party.
8.4 The Customer will indemnify, defend and hold harmless Webzilla and its directors, officers, employees, sales representatives, affiliates, agents and subcontractors from and against any claims, suits, actions, and proceedings from any and all third parties, and for payment of any Losses (as hereinafter defined), to the extent such Losses arise (a) as a result of non-compliance by the Customer with its obligations under this Agreement; (b) from any and all claims by any of the Customer's customers or other third party end users in connection with the Services (including, without limitation, any claims regarding content transmitted using the Services or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; "Losses" shall mean costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees.
Customer shall not assign the Master Agreement or any Order Form without the prior written consent of Webzilla, which may not be unreasonably withheld. Notwithstanding the foregoing, Customer shall not be relieved of its obligations under this Master Agreement or any Order Form by its assignment of the same. Webzilla may assign the Master Agreement or any Order Form to any third party or Webzilla affiliate upon written notice to Customer.
10.1 Customer and Webzilla hereby agree that if either Party provides confidential information to the other Party ("Confidential Information"), such Confidential Information shall be held in confidence by the receiving Party for no less than three (3) years after the date of its disclosure, and shall be afforded the same care and protection afforded to the receiving Party's own confidential information (which in any case shall be not less than reasonable care) to avoid disclosure to or unauthorized use by any third party. The terms and conditions of the Master Agreement and of each Order Form constitute Confidential Information, and all information, including, without limitation, technical, financial, business, marketing, sales, employee, rate, traffic routing, and traffic flow information disclosed by either Party to the other in connection with the Master Agreement or any Order Form shall be Confidential Information, whether or not such information is marked as confidential.
All data provided by Webzilla to Customer regarding the performance of Webzilla's Network shall also be Confidential Information. Confidential Information shall remain the property of the disclosing Party, shall be used by the receiving Party only for the intended purpose, and, if in writing, shall be returned to the disclosing Party or destroyed after the receiving Party's need for it has expired or upon the request of the disclosing Party. Confidential Information shall not be reproduced except to the extent necessary to accomplish the purpose for which it was disclosed.
10.2 Section 10.1 shall not apply to any Confidential Information which (a) becomes publicly available other than through the recipient, (b) is independently developed by the receiving Party; (c) becomes available to the receiving Party without restriction from a third party; (d) is disclosed with the prior written consent of the disclosing Party; or (e) is required to be disclosed by a governmental or judicial law, order, rule or regulation; provided, however, that the receiving Party required to make a disclosure pursuant to this subsection (e) shall promptly inform the other Party of the requirements of such disclosure, (f) is disclosed by Webzilla to a court of law during legal proceedings.
10.3 Notwithstanding Sections 10.1 and 10.2 above, either Party may disclose Confidential Information to its employees, agents, and legal, financial, and accounting advisers to the extent necessary or appropriate in connection with the negotiation and performance of the Master Agreement or an Order Form or its obtaining of financing, provided, however, that each such employee, agent or adviser is notified of the confidential nature of the Confidential Information and is subject to or agrees to be bound by similar restrictions on its use and disclosure.
11. Intellectual Property; Restrictions on Advertising
11.1 The Parties agree that all patents, trademarks, copyrights, trade secrets, registered designs, service marks, trade names, logos, inventions and all other intellectual property shall remain the property of the person or Party originating the same and that nothing in the Master Agreement or any Order Form grants either Party any ownership, license, or any other right, either express or implied, in the intellectual property of the other.
11.2 Neither Party shall use any advertising, sales, promotions, or other publicity materials (including, without limitation, publicity regarding the Master Agreement or any Order Form) that includes the other Party's name, logo, trademarks or service marks without the prior written approval of the other Party, which may be granted or withheld in that Party's sole discretion.
11.3 Webzilla reserves all rights, title and interest, including all related Intellectual Property Rights, the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services. Webzilla owns all proprietary rights (as defined in section 22(g), including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Services. Customer agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by Webzilla. Customer shall be entitled to only such rights with respect to the Services as are specifically granted herein.
12. Force Majeure
Neither Party shall be liable for any delay or failure in performance of one or more of its obligations due to an event of force majeure, and its performance of such obligation or obligations shall be excused and extended for the period of such delay. Force majeure shall include, without limitation, acts of God; fire; flood; earth quake; storm; lightning; epidemic; material shortages, unavailability, or delay in delivery not resulting from the responsible Party's failure to timely place orders therefore; equipment failures; lack of or delay in transportation; war; outbreak of hostilities (whether or not war is declared); civil disorder; riots; strikes, or other labor unrest; sabotage; failure of a third party to grant a required right-of-way permit, assessment or other required authorization; acts or omissions of vendors or suppliers; changes in law, regulation or government policy; or any other cause beyond the commercially reasonable control of such Party. The Party claiming relief under this Section 12 shall promptly notify the other in writing of any force majeure event expected to cause a delay or failure in performance and the cessation or termination of said event.
13. Default & Termination
13.1 Customer shall be in default under the Master Agreement, including any Order Form in the event of Customer's failure to pay any undisputed sum of money under an Order Form within seven (7) days after its receipt of notice of nonpayment from Webzilla. Either party shall be in default under the Master Agreement in the event that either Party fails to perform any of its obligations under the Order Form provided such failure is not remedied within fourteen (14) business days after receipt of notice from the non-defaulting Party;
13.2 Webzilla shall be in default under the Master Agreement, including any Order Form, in the event of Webzilla's failure to perform any of its obligations under the Master Agreement or any Order Form within sixty (60) days after receipt of written notice from Customer.
13.3 Webzilla may terminate the Master Agreement, including any Order Form by written notice to Customer upon Customer's failure to cure an event of default as required by this Section 13.
13.4 Customer may terminate the Master Agreement, including any Order Form by written notice to Webzilla upon Webzilla's failure to cure an event of default as required by this Section 13.
13.5 No termination or expiration of the Master Agreement or any Order Form shall affect either Party's rights or obligations with respect to any then existing defaults under the Master Agreement or such Order Form or the obligation to make any payment for the Services rendered prior to the date of termination or expiration. In addition to termination of the Master Agreement due to default, the non-defaulting Party may pursue any legal remedies it may have at law or in equity relating to such default, provided, however that appropriate notice and opportunity to cure has been given pursuant to this Section 13.
13.6 Effect of Termination. Upon expiration or termination of this Agreement: (a) Webzilla will cease providing the Services; (b) except in the case of termination by Customer pursuant to Section 13.4, all of Customer payment obligations under this Agreement, including but not limited to monthly Service Charges through the end of the Term indicated on an Order Form will become due in full immediately; and (c) within ten (10) days, Customer will remove all of Customer Equipment and any other property from Webzilla's premises and return the Colocation Space to Webzilla in the same condition as it was prior to Customer installation. If Customer does not remove such property within the ten (10) day period, Webzilla, at its option and at Customer expense, may remove and store any and all such property, return such Equipment to the Customer, or dispose of such Equipment without liability for any related damages. In addition, Webzilla reserves the right to hold any Customer Equipment until it has received payment in full. Webzilla reserves the right to sell any Customer Equipment in case Customer does not pay the invoice within four (4) months after the invoice date.
13.7 If Webzilla terminates the Master Agreement and/or any Order Form during the Initial or Renewed Term pursuant to Section 13.3 of this Master Agreement, Customer must pay any outstanding amount due within seven (7) days to Webzilla and this shall not prevent or limit Webzilla from pursuing any and all other available remedies against Customer.
13.8 This Master Agreement shall take it's effect from the Effective date and act till its termination or natural expiration.
13.9 All termination notices by Customer must be sent separately for each Service to Webzilla.
The Parties' respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability and Customer's obligation to pay any outstanding fees to Webzilla will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
15. Limitations of Liability
15.1 Personal Injury. Webzilla will not be liable for any harm or personal injury to Customer or Customer employees, representatives, Customers or agents resulting from any cause, other than Webzilla's negligence or willful misconduct.
15.2 Loss of Customer data (bases). Webzilla is not liable for damage to, or loss of any of Customer data (bases).
15.3 Damage to Customer Equipment, excluding data (bases). Webzilla is not liable for damage to, or loss of any of Customer Equipment resulting from any cause, other than Webzilla's negligence or willful misconduct and then only in an amount not to exceed the replacement value of the damaged Customer Equipment.
15.4 Damage to Customer Business. In no event will Webzilla be liable for any incidental, punitive, indirect or consequential damages (including without limitation any lost revenue or lost profits) or for any loss of technology, loss of data, or interruption or loss of use of Services (except as set forth in Section 4) or any other similar claims by Customer or related to Customer's business, even if Webzilla is advised of the possibility of such damages.
15.5 Maximum Liability. Notwithstanding anything to the contrary in this Agreement, either Party's maximum aggregate liability to Customer related to or in connection with this Agreement whether under theory of contract, tort (including negligence), strict liability or otherwise will be limited to the total amount paid by Customer to Webzilla hereunder for the twelve (12) month period prior to the event or events giving rise to such liability.
16.1 Unless otherwise provided herein all notices concerning the Master Agreement and each Order Form shall be addressed to the other Party as follows:
If to Customer:
Customer Account holder email.
If to Webzilla:
2031 ES Haarlem,
or at such other address as either Party may designate from time to time in writing to the other Party.
16.2 Unless otherwise provided herein, notices shall be sent by registered or certified mail, return receipt required, or by prepaid commercial overnight delivery service, or by facsimile transmission confirmed by the receiving Party and shall be deemed served or delivered to the address when received or refused at the address for notice specified above.
17. Governing Law
If the Customer signed an Internet Master Services Agreement with a Webzilla company then this Agreement will be construed and enforced in accordance with the laws as specified in clause 6.1 of the Internet Master Services Agreement. If the Customer did not sign an Internet Master Services Agreement with a Webzilla Company then this Agreement and each Order Form shall be construed and enforced in accordance with the laws of The Netherlands. Customer hereby consents to the jurisdiction of the courts of Amsterdam, The Netherlands with respect to any dispute, controversy or other matter relating to or arising out of the Agreement or any Order Form.
Waiver: No waiver of any of the terms of the Agreement or any Order Form or of any breach of those terms shall be effective unless such waiver is in writing and signed by the waiving Party. No waiver of any breach shall be deemed to be a waiver of any other or subsequent breach;
Severability: All provisions contained in this Master Agreement and any Order Form shall be applied to the extent permitted by applicable law, and if any term, covenant or condition contained in the Master Agreement or any Order Form shall, to any extent, be invalid or unenforceable in any respect under the laws governing the Master Agreement or such OrderForm, the remainder of the Master Agreement or the relevant Order Form shall not be affected thereby, and each term, covenant or condition thereof shall be valid and enforceable to the fullest extent permitted by law; No Personal Liability: Each action or claim against either Customer or Webzilla arising under or relating to the Master Agreement or any Order Form shall be made only against such Party as a corporation, and any liability relating thereto shall be enforceable only against the corporate assets of such Party; Counterparts: The Master Agreement and each Order Form may be executed in counterparts (which may be originals, photocopies, or copies sent by facsimile transmission), each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
19. Entire Agreement
This Master Agreement, together with the SLA, the AUP, any executed Internet Services Master Agreement, any executed Internet Order Form - No.1, and any subsequently executed Order Form, represent the entire understanding of the Parties with respect to the subject matter hereof .The Agreement cannot be modified except in writing and when signed by both Parties.
20. Relationship of the Parties
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties, or to authorize either Party to this Agreement to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power. Customer is an independent contractor engaged in purchasing and/or leasing the Services from Webzilla for resale and/or further use.
21. Restrictions on Use
Customer agrees that Webzilla Services may contain trade secrets and other valuable confidential and/or proprietary information belonging to Webzilla and/or its licensors. Customer shall not, except as expressly permitted in this Agreement, (i) rent, lease, encumber, pledge, lend, copy, make available or distribute the Services; (ii) disclose the Services to any third party, (iii) alter, or permit the alteration of any Services; (iv) copy, or permit the copying or distribution of the Services; (v) knowingly take any action that jeopardizes Customer's proprietary rights in any Webzilla Services; (vi) acquire or seek to acquire any ownership interest in or to any Webzilla Services; (vii) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from any Webzilla Services; or (viii) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on the Services or that appear during use of any Services.
Webzilla and Customer shall each exercise due diligence to maintain in confidence and not disclose to any third party any proprietary information furnished by the other to it on a confidential basis and identified as such when furnished. Except in accordance with this Agreement, neither Party shall use such information without permission of the Party that furnished it. As used in this paragraph, "due diligence" means the same precaution and standard of care, which that Party uses to safeguard its own proprietary data, but in no event less than reasonable care. The provisions of this Section shall survive beyond the expiration, non-renewal or termination of this Agreement.
As used herein:
- (a) "Agreement" means this General Terms & Conditions Agreement, and any Order Form (as hereinafter defined) as well as any subsequently executed Order Form), the Support and Service Level Agreement ("SLA"), any Webzilla's Acceptable Use Policy (the "AUP"), and any other documents that are expressly incorporated/referenced herein.
- (b) "Order Form" means any additional written agreement signed between Webzilla and Customer stating any services where Customer purchased and/or leased by Webzilla.
- (c) "SLA" means the Support and Service Level Agreement (SLA) uploaded to http://www.webzilla.com/legal.html or as specifically otherwise agreed between Customer and Webzilla in any Order Form.
- (d) "Services" means a connection to the Internet (IP Connectivity), and/or Content Delivery Network (CDN), and/or Cloud Servers, and/or Cloud Storage and/or Colocation services and/or DDoS protection services and/or Equipment Rental services and/or Managed services and/or Software Licenses Rental services.
- (e) Webzilla "Network" is defined in section 6.
1. Master Agreement
Webzilla and Customer may have executed an Internet Services Master Agreement (the "Master Agreement"). The Parties agree that the terms and conditions of the Master Agreement govern this Agreement. In the event of any conflict between the terms of this Agreement and the Master Agreement, the Master Agreement shall control. Any use of the Webzilla services by Customer constitutes acceptance of this Agreement.
2.1 Customer agrees to purchase or lease from Webzilla, and Webzilla agrees to lease or deliver to Customer the following services: a connection to the Internet (IP Connectivity) and/or Content Delivery Network (CDN) and/or Cloud Servers and/or Cloud Storage and/or Colocation services and/or Equipment Rental services and/or Managed services and/or DDoS protection services and/or Software Licenses Rental services (hereinafter referred to as the "Services"). The interconnection point between Customer's equipment and Webzilla's network shall be a port on Webzilla's switch and/or router located in the Datacenter as may be defined in an Order Form (the "Interconnect Point"). Customer shall be solely responsible for provisioning and maintaining all interconnections, including without limitation all local loops, between Customer's network and equipment and the Interconnect Point necessary for Customer to use the Services.
2.2 Customer is, whenever applicable for Customer, responsible for (i) providing the first point of contact for its end users' support inquiries; (ii) providing software fulfillment to its end users; (iii) running its own primary and secondary domain name service for its end users; (iv) registering its end users' domain names; (v) using BGP4 routing to the Network pursuant to Webzilla's BGP4 routing policy, if requested by Webzilla; (vi) collecting route additions and changes, and providing them to Webzilla; and (vii) registering with the appropriate agency all IP addresses provided by Webzilla to Customer that are allocated to end users.
2.3 Customer may resell the Services to its end users, but shall not resell the Services in their entirety without Webzilla's prior written approval, which may be granted or withheld in Webzilla's sole discretion.
2.4 Without the prior written approval of Webzilla, Customer is not allowed to use other connections to Customer's Equipment, other than the Services and other connections from Webzilla. This includes Internet, Intranet, wireless, DSL, ISDN, PTN, satellite, IX, LAN and WAN connections.
2.5 Services can only be used in the applicable month or months and cannot be transferred to other Equipment as defined in an Order Form.
3.1 A Specific Service where applicable can either be measured and/or calculated and/or charged on a Datatraffic (the "Datatraffic") or Bandwidth (the "Bandwidth") package. These packages are based on either a Flat rate (the "Flat Fee") or on continuous measurements that will be combined at the end of each month (the "Measured Fee").
3.2 Datatraffic is always based on a Measured Customer's Interconnect Point. The Fee is measured as the outbound traffic at applicable scales as MB (MegaByte), GB (GigaByte) and TB (TeraByte). If applicable for a Service, where there is no interconnect point due to absence of customer equipment at the datacenter, datatraffic should be measured at the point determined by the nature of such Service, including but not limited to, edge servers, net working servers. However Webzilla will not bill the Customer for datatraffic from: a) Cloud Storage to Dedicated Servers and/or Cloud Servers in the same datacenter; and b) Dedicated Servers to Cloud Storage in the same datacenter; and c) Cloud Servers to Dedicated Servers in the same datacenter; and d) Cloud Storage in the Dallas datacenter to Amsterdam datacenter or Cloud storage from Amsterdam datacenter to the Dallas datacenter.
3.3 Bandwidth can be based on a Flat Fee or Measured Fee. Based on a Flat Fee, Customer is given a bandwidth for disposal, with a maximum level they cannot exceed (port configuration). A Measured Fee is the higher of inbound and outbound traffic at Customer's Interconnect Point, subject to clause 3.2. The Measured Fee will be calculated and billed by default as a "95th percentile" or on request as an "Average". The applicable scales are Kbps (Kilobits per second), Mbps (Megabits per second) and Gbps (Gigabits per second). The following abbreviations shall have the same meaning: Kbit = Kbps, Mbit = Mbps and Gbit = Gbps.
3.4 Customer commits to a Datatraffic and/or Bandwidth package in an Order Form (the "Committed Datatraffic") or (the "Committed Bandwidth"). The actual Datatraffic or Bandwidth is measured at the end of each month (the "Actual Datatraffic") or (the"Actual Bandwidth").
3.5 Extra traffic is the situation when the Actual Datatraffic or Actual Bandwidth exceeds the Committed Datatraffic or Committed Bandwidth (the "Extra Datatraffic") or (the "Extra Bandwidth"). This will not be possible with Flat Fee packages.
3.6 If the Actual Datatraffic or Actual Bandwidth is lower than or equal to the Committed Datatraffic or Committed Bandwidth, there will be no extra cost. Customer is not entitled to receive restitution for the unused Datatraffic or Bandwidth.
3.7 If the Actual Datatraffic or Actual Bandwidth is higher than the Committed Datatraffic or Committed Bandwidth, there will be extra cost according the Committed Datatraffic or Committed Bandwidth fees in an Order Form. Extra Datatraffic will be charged with a MB granularity, at a standard MB pricing. Extra Bandwidth will be charged with a Kbps granularity, at the Committed Overusage Bandwidth pricing.
4. Upgrade / Downgrade / Switch
4.1 Customer is allowed to upgrade the Committed Data traffic or Committed Bandwidth at any time (the "Upgrade Datatraffic") or (the "Upgrade Bandwidth") if this upgrade has been done before the end of the month, it will be taken into account for that month already.
4.2 Customer is allowed to downgrade the Committed Datatraffic or Committed Bandwidth at the end of the Term of the applicable Order Form. The applicable Order Form shall be the latest Order Form regarding an order or change in the Committed Datatraffic or Committed Bandwidth.
4.3 Customer may not switch between Datatraffic and/or Bandwidth packages, unless authorized by Webzilla.
5.1 The interconnection point between Customer's equipment and Webzilla's network shall be a port on Webzilla's switch and/or router located in the Datacenter as may be defined in an Order Form (the "Interconnect Point"). Customer shall be solely responsible for provisioning and maintaining all interconnections, including without limitation all local loops, between Customer's network and equipment and the Interconnect Point necessary for Customer to use the Services.
5.2 The standard Interconnect Point will be a Gigabit Ethernet (GE) port on a Webzilla switch. Webzilla may decide to provide a different port, should circumstances require it (e.g. FE, 10GE).
5.3 Customer is allowed to burst to full port speed. Webzilla can take measures to regulate these bursts, if it the bursts exceed 5 times the Committed Bandwidth or Committed Datatraffic, with the guideline that in case of a Datatraffic 1Gb equals 3Kbps for this Section. Customer shall use the Datatraffic evenly during the month.
6. Monitoring and Billing
6.1 Webzilla's monitoring system measures Customer's IP Connectivity every 5 minutes at the Interconnection Point. The 5-minute average data is displayed on a daily graph. The monitoring system preserves the 5-minute average data for 1 month. Only Webzilla's measurements will be used.
6.2 Datatraffic: the monthly Datatraffic samples are added up as to make a sum of all inbound and outbound traffic at Customer's Interconnect Point in that month. Customer is billed on a volume basis; i.e. total GigaBytes delivered.
6.3 Bandwidth: the monthly bandwidth is used as the basis for the rate for that month. Customer is billed on a bandwidth basis. This is either a Flat fee or a measured fee.
6.4 Flat Fee: a maximum level that cannot be exceeded.
6.5 Measured Fee: this can be either:
- a) 95th percentile (default): the monthly samples are sorted, and the top 5% (approximately 450) samples are discarded. The highest remaining value is used as the basis for the rate for that month, and is referred to as 95th percentile speed. This effectively removes 36 hours of the highest bandwidth usage per month at Customer's Interconnect Point.
- b) Average: the average monthly bandwidth.
6.6 Customer will have a web-based account to view the daily, weekly, monthly and yearly graphs of Customer's IP Connectivity.
7. Use of IP's
7.1 IP Connectivity includes a number of IPv4 IP's (the "IP") as defined in this Agreement. Customer can request more IP's at an extra cost may be defined in an Order Form.
7.2 Customer is aware that a shortage of IP's exists. Customer shall therefore use IP's in a conservative manner as this is being propagated by the IANA (Internet Assigned Numbers Authority) and it's RIR's (Regional Internet Registries). A request by Customer for more than 16 IP's shall be accompanied by a written explanation describing the distribution of the IP's over Customer's Equipment.
7.3 Customer shall only use the IP's that have been assigned by Webzilla to Customer. In case Customer has more than one (1) piece of Equipment, Customer shall provide a list containing Customer's Equipment and the assigned IP's. Customer shall notify Webzilla of any change in the assignment of IP's to Customer's Equipment.
7.4 In the event of any breach of this Section 7 by Customer, in addition to any other remedies available to Webzilla, Webzilla shall have the right to suspend the applicable Services without prior notice to Customer; provided that Webzilla notifies Customer of the suspension and its justification therefore as soon as practicable after the commencement of the suspension. Customer shall pay all costs related to this breach.
7.5 Webzilla provides the IP's on a temporary basis. Customer will only have the temporary right of use and cannot transfer the IP's to another ISP. Upon a written notice of at least two (2) months, Webzilla may exchange the IP's that are being used by Customer for different IP's.
1. Master Agreement
Webzilla and Customer may have executed an Internet Services Master Agreement ("the Master Agreement"). The parties agree that the terms and conditions of the Master Agreement govern this Support and Service Agreement (the "SLA"). In the event of a conflict between the terms of this SLA and the Master Agreement, the Master Agreement shall control. Capitalized terms used in this SLA shall have the same meaning as in the Master agreement and vice versa unless otherwise defined herein. Any use of the Webzilla services by Customer constitutes acceptance of this Agreement.
2. Service Level Agreement
2.1 Customer is responsible for maintaining Customer's Equipment, whether legal property of Webzilla or Customer.
2.2 Subject to the chosen SLA level by Customer and the procedures defined in this SLA, Webzilla shall provide the support services described in this SLA to Customer's Equipment ("SLA Support").
2.3 Customer may also request Webzilla to perform support outside of the SLA or certain additional support services (the "Additional Support") described in this SLA at Webzilla's then current rates.
2.4 Webzilla shall not charge Customer for SLA Support and/or Additional Support utilized to remedy any event or condition caused by Webzilla's gross negligence or willful misconduct. Webzilla shall charge Customer for SLA Support and/or Additional Support utilized to remedy any event or condition not caused by Webzilla's gross negligence or willful misconduct.
2.5 Webzilla may decline a Customer request to perform Additional Support in Webzilla's sole discretion, in which case the performance of such services shall be Customer's sole responsibility. Notwithstanding the foregoing, Webzilla may withhold its approval of Customer's performance of certain services in Webzilla's sole discretion if such services are unavailable at the relevant Datacenter or if Webzilla and/or Customer are otherwise prohibited from performing such services at the Datacenter.
3. Service Availability
3.1 Webzilla shall use commercially best efforts to provide 99.99% Services availability. Services availability is calculated by the number of hours the service is available to customers plus the total number of hours, if any, the service is scheduled to be unavailable, divided by the total number of hours in that month.
In the event that there is no services availability, Webzilla will credit the following month's service fee as follows:
Customer Services Availability Credit
- 99.9% to 99.98%: 5% credit
- 95% to 99.8%: 25% credit
- 90% to 94.9%: 50% credit
- 89.9% or below: 100% credit
In order for the Customer to receive a credit on his account, Customer must request such credit within seven (7) business days after he experienced no Services availability. Customer must request credit by sending an electronic mail message to email@example.com.
For security, the body of this message must contain Customer's server ID, the dates and times of the unavailability of Customer's services, and such other customer identification requested by Webzilla. Credits will usually be applied within sixty (60) days of Customer's credit request. Credit to Customer's account will be Customer's sole and exclusive remedy in the event that there is no Services availability. Credits will not be provided to Customer in the event that Customer has no Services.
Availability resulting from:
- a) Scheduled maintenance: i) as posted from time to time at www.webzilla.com and/or ii) via direct contact from Webzilla to Customer;
- b) Customer's behavior or the performance or failure of Customer's equipment, facilities or applications, or circumstances beyond Webzilla's reasonable control, including, without limitation, acts of any governmental body; war; insurrection; sabotage; embargo; fire; flood; strike or other labor disturbance; interruption of or delay in transportation; unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation); failure of third-party software or hardware; or inability to obtain raw materials, supplies, or power used in, or equipment needed for, the provision of the services.
4. Service response time
4.1 Webzilla shall use commercially reasonable efforts to respond to Customer.
4.2 Response time is defined as the period of time in which the Webzilla engineer has to respond to a Customer's maintenance call.
4.3 Customer shall be reachable on Customer's Emergency numbers, specified in an Order Form.
5. Additional support
Customer may request Webzilla, to perform Additional support such as software loading, hardware upgrades, and otherwise upgrade Customer's equipment (the "Upgrading"). Webzilla may accept or decline Customer's request in its sole discretion. Customer must provide Webzilla with a full written description of the procedures to be performed and have on-line support available to Webzilla technicians performing Upgrading. Notwithstanding the foregoing, Webzilla does not represent or warrant that its employees have the technical expertise required to address any technical issues that may arise during any Upgrading activity. Webzilla shall charge Customer for Upgrading at its then current Support rates.
6.1 Customer shall not make structural alterations to the equipment covered by this SLA, without Webzilla's prior written consent.
6.2 Support not defined by this SLA is not covered by the SLA Support.
6.3 This SLA is based on a Best-Effort policy. Webzilla does not guarantee that Customer's equipment will be repaired and/or replaced.
6.4 In the event of any breach of the Master Agreement and/or an Order Form by Customer, in addition to any other remedies available to Webzilla, Webzilla shall have the right to suspend this SLA, including SLA Support. Webzilla shall notify Customer of the suspension and its justification therefore as soon as practicable after the commencement of the suspension.
This Web Hosting Agreement ("Agreement") sets forth the terms and conditions governing customer use of Webzilla ("Webzilla") for web hosting services. When you agree to these terms and conditions, you certify that you are at least 18 years of age.
PLEASE READ THIS AGREEMENT CAREFULLY.
WHEN YOU APPLY BY ANY LEGITIMATE WAY FOR THE SERVICES OF WEBZILLA, THIS CREATES A CONTRACT BETWEEN YOU (THE CUSTOMER) AND US (WEBZILLA), CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING ALL LEGAL AGREEMENTS UPLOADED AT HTTP://WWW.WEBZILLA.COM/LEGAL.HTML. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
When you order any service from Webzilla and you are a Webzilla Account Holder, this means that you have already read and agreed to be bound by all terms and conditions of this Agreement and any policies that have been published by Webzilla, in addition to policies published by Webzilla in the future.
Webzilla reserves the right to deny service to anyone. Webzilla may modify the terms and conditions of this Agreement or the prices of its services, as well as discontinue or change the services offered.
You will be bound by the modified Agreement, prices and/or policies of Webzilla if you continue to use the services of Webzilla. Customers who have paid in advance for services will not be affected by any price changes until their term is up.
1. Scope of Services and Customer Obligations
1.1. This Agreement defines the terms and conditions of Webzilla's services as offered by Webzilla and used by you, including but not limited to the provision of web hosting services on Webzilla's dedicated servers and connectivity to the Internet ("Services").
Webzilla will provide Services for the amount of server storage space selected, in exchange for payment of fees and full compliance with the terms and conditions of this Agreement. In performing Services, Webzilla maintains control and ownership of any and all Internet protocol ("IP") numbers and addresses that are assigned to you and reserves the right to change or remove any and all IP numbers and addresses at its sole discretion.
1.2. You are responsible for producing, electronically uploading and maintaining HTML files, execution scripts, applets, and applications ("Upload Materials") to your website, and you hereby warrant that all Upload Materials shall be owned or properly licensed by you and shall not adversely impact the Services or violate any rights of any third parties. You are responsible for ensuring that all Upload Materials function properly and as intended.
You are responsible for the results of all activity originating from your website, unless proven to be a victim of outside hacking or address forgery. You assume responsibility for all material on your website that a third party puts onto Webzilla servers (for example, material uploaded to facilitate the use of Free For All links pages). Use of Webzilla Services requires a specific level of knowledge of the use of Internet languages, protocols, and software. This Internet knowledge can vary depending on your anticipated use and the desired content of your website. Such knowledge includes, but is not limited to, the following:
- a) Web publishing requires knowledge of HTML, properly locating and linking documents, FTPing web contents, graphics, text, sound, image mapping, etc.;
- b) FrontPage web publishing requires knowledge of the FrontPage tools as well as Telnet and FTP understanding and capability;
- c) CGI-scripts require knowledge of the UNIX environment, tar & gunzip commands, Perl, CShell scripts, .htac- cess, .htpasswd, permissions, etc.;
- d) Mail requires knowledge of the use of mail clients to receive and send mail, etc.
By agreeing to this agreement you confirm that you have the necessary knowledge to create, modify and maintain your website. Webzilla assumes no responsibility for providing you with such knowledge. If you wish Webzilla to analyze any of your code/les/data, then Webzilla may charge you at the current development/consulting rate. Webzilla, as a courtesy, may review code/les/data at no charge to Webzilla Tier 1 customers.
1.3. In connection with the Services offered, Webzilla may provide certain tools and software for your use, including, but not limited to, specific specialty scripting software and/or specific programming language software for server management.
1.4. During the period Webzilla provides Services to you, you hereby grant to Webzilla a nonexclusive, royalty-free, worldwide right and license to digitally display and host your website and its content, and to use the website's trademarks, service marks, trade names, logos and other commercial or product/service designations in connection with the website and such Services.
1.5. For server restoration purposes only, Webzilla makes backups of websites nightly; however, Webzilla makes no guarantees of any kind, either expressed or implied, as to the integrity of these backups. You are responsible for maintaining local copies of your website and/or data. If loss of data occurs due to an error of Webzilla, Webzilla will attempt to recover the data for no charge and if this is not possible, Webzilla will attempt to recover the data from the most recent archive for a $50 fee. If Webzilla is unable to recover your website and/or data, then you must restore from your own local copy or backup.
1.6. Webzilla reserves the right to monitor its systems electronically and to access and disclose any information as permitted or required by any law, regulation or other governmental request to operate its systems properly, to protect itself or its account holders or for any other reason, in good faith, it deems necessary. Webzilla will fully cooperate with law enforcement authorities in investigating suspected lawbreakers, and reserves the right to report to law enforcement any suspected illegal activity it becomes aware of. It is not Webzilla's intention that its Services or facilities be used in contravention of the Communications Decency Act of 1996 (the "CDA") or any other applicable law. Webzilla is a service provider under the CDA and section 230 provides immunity for service providers as specified in the law.
1.7. You agree to comply with the requirements of the CDA and the Digital Millennium Copyright Act (the "DMCA"), and acknowledge that Webzilla is a "service provider" under the DMCA and is therefore immune from liability as specified under the DMCA, including 17 U.S.C. Art. 512. Consistent with the DMCA, Webzilla will accommodate standard technical measures used to identify and protect copyrighted works, and, as further described herein, Webzilla has a policy of terminating accountholders who are repeat copyright infringers.
1.8. Websites are unmodified forums containing the personal opinions and other expressions of the people who post entries on a wide range of topics. Neither the content of websites located on Webzilla's servers, nor the links to other websites, are screened, approved, reviewed or endorsed by Webzilla. Webzilla is not a publisher of any of the content of the websites residing on its servers, or of any content that might be available through the links to and from the websites on its servers, and is acting solely as an Internet web-hosting service provider. Any text or other material on such websites comprise the opinions of the specific authors of the material, and are not Webzilla's statements of advice, opinions or information.
1.9. Webzilla charges for extra bandwidth for accounts that go over their allocated package amount. Extra bandwidth charges are billed at the first of every month at the individual rates via 95% method.
2. Peace of Mind Backup Service
All Webzilla's managed clients, are given access to the automated backup cloud storage solution ("Peace of mind Backup service"). The Backup Services are provided on a mandatory basis. The first 30 days the service is provided free of charge for all managed clients. Clients are entitled to cancel this service during the first 60 days from the time the first backup is created ("Minimum Service Term"). In case the service is not cancelled during this period, the client is obligated to pay the full cost of the service for the period he remains a Webzilla managed client. If a customer cancels the Service before completion of the Minimum Service Term there is no Termination Fee. All managed clients have the ability to cancel the "Peace of mind Backup service" for free at any given time, as long as the provided service has been fully paid at the moment of the termination.
3. Limited Warranty; Limitation of Liability; Indemnification
3.1. Limited Warranty
You acknowledge that the Services are provided on an "as is" basis. Neither Webzilla, nor any of its employees or agents, warrants that the Services will be uninterrupted, error-free or free from viruses and/or other harmful components. Webzilla is not responsible for and hereby disclaims any warranties, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or completeness, non-infringement, merchantability or fitness for a particular purpose of information available on its servers or residing on or passing through its interconnecting networks. Use of information obtained from or through the Services is at your risk. Under no circumstances will Webzilla be liable to you or any other person for any loss or damage caused by your reliance on information available on its servers or obtained through the Services.
3.2. Limitation of Liability
You acknowledge that you are not in any way associated with Webzilla, and that the contents of your website or service provided to your customers are and will be exclusively supplied by, provided by, and edited by you, and that you are not associated with Webzilla, which is merely a hosting company that will not edit or inspect the material or data you place onto its servers.
IN NO EVENT SHALL WEBZILLA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS, EMAIL DATA AND/OR DATABASE CONTENTS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE WEBZILLA's SERVICES (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF WEBZILLA's SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WEBZILLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WEBZILLA's MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO WEBZILLA FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTHS. TO THE EXTENT APPLICABLE, LAW DOES NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, WEBZILLA's LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold Webzilla and its affiliates, directors, officers, employees, and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys' fees, resulting from any third-party claim, action, dispute, or demand related to your use of the Services, your violation of any of the provisions of this Agreement, or from your placement or transmission of any materials or content onto Webzilla's servers. Such liabilities may include, but are not limited to, those arising from the following:
- (a) with respect to your business,
- (i) infringement or misappropriation of any intellectual property rights;
- (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or pub licity; or
- (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the acceptable u ses described herein or anti-spam policy;
- any damage to or destruction of Webzilla's equipment or to any other accountholder, which damage is caused by or otherwise results from acts or omissions by you, your representative(s) or your designees;
- (c) any personal injury or property damage arising out of your activities related to the Services, unless such injury or property damage is caused solely by Webzilla's gross negligence or willful misconduct; and
- (d) any other damage arising from your equipment or your business.
4. Payment of Fees
Fees are due either monthly or annually in advance of service. You will receive an invoice by email each month on the first of the month during which your service originally commenced for the forthcoming month's service. This is your monthly billing date. Web hosting payments are not refundable and cannot be canceled after purchase, subject to a ten (10) day grace period upon commencement of any service provided by Webzilla where you can request for a cancellation and refund if you are not satisfied with the service.
4.1. Webzilla will send a notice of fee increases via email 30 days before such increases take effect.
4.2. You agree to provide Webzilla with accurate and complete billing information, including your legal name, address, telephone number, e-mail address, and applicable payment date, and you agree to update this information immediately if any change occurs. Payments must be submitted in advance of receiving the Services.
4.3. You acknowledge that Webzilla will bill your credit card prior to the Payment Interval you have chosen. Subject to the consent of customer granted during the registration process or execution of legal documents company shall authorize automatic billing on an ongoing basis.
4.4. Webzilla will charge a $15 service charge per credit card chargeback transaction and a $25 service charge per returned check.
4.5. Delinquent accounts are those that remain unpaid at the beginning of the next Payment Interval. The Services will be suspended if your account is delinquent. Notwithstanding any other rights Webzilla may have through this Agreement, all of your website contents will be destroyed if your account is delinquent for 60 days. Webzilla accounts continue to accrue charges while they are delinquent or if the Services are suspended.
4.6. You acknowledge responsibility for your account until payment in full is made.
4.7. You should cover all bank charges, including correspondent bank charges.
5. Acceptable Use Policy
5.1. Use and Misuse of the Services
All complaints of abuse, violation and misuse of the Services, whether described in this Section 5 or otherwise, shall be investigated promptly. If you are not sure whether your planned actions would constitute an abuse, violation or misuse, please ask first by contacting firstname.lastname@example.org
You are responsible for all uses of your website, with or without your knowledge or consent. You agree to use the Services only for lawful purposes, in compliance with all applicable laws. Illegality includes, but is not limited to:
- drug dealing;
- attempting, without authorization, to access a computer system;
- pirating (distributing copyrighted material in violation of copyright law, especially MP3s, MPEGs, ROMs, and ROM emulators);
- illegal gambling;
- schemes to defraud;
- trafficking in obscene material;
- sending a message or displaying content that is obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person;
- threatening bodily harm or damage to individuals or groups;
- violating any export restrictions;
- or violating other laws.
It is forbidden to use Webzilla network and services to engage in and/or promote illegal, abusive or irresponsible behavior.
A party who engage in this activity may be subject to account termination or restrictions placed upon their accounts.
Webzilla has the sole right to deny, restrict and/or suspend services to users with anonymizing service such as VPN, Proxy, TOR.
Linking to illegal material is also prohibited.
When Webzilla becomes aware of possible violations of this Agreement, Webzilla may initiate an investigation that may include gathering information from you and the complaining party, if any, and examination of material on Webzilla's servers.
Webzilla is willing to consider, of the company's own volition, complaints sent to a designated email address or sent in writing to the appropriate street address, that appear to be genuine and meritorious; but any such complaint may be considered to be prejudiced if it does not contain the name, address, telephone number, and an appropriate email address of the complainant.
The above private information of the complainant shall be considered confidential and shall not be disclosed to anyone, except the appropriate authorities conducting an investigation and the employees of Webzilla who might reasonably need access to this information.
Any person submitting a false complaint or complaints that fail to meet a reasonable standard of accuracy, or that contain misleading information, shall be liable for indemnifying Webzilla for any damages caused as a result of reliance on such complaint or information.
Webzilla, by its sole discretion, will determine what action shall be taken in response to a violation on a case-by-case basis.
Violations of this Agreement could subject you to criminal or civil liability.
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO WAIVE AND HOLD WEBZILLA HARMLESS FROM ANY CLAIMS RELATING TO ANY ACTION TAKEN BY WEBZILLA AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF THE INVESTIGATION'S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS YOU CANNOT SUE OR RECOVER ANY DAMAGES WHATSOEVER FROM WEBZILLA AS A RESULT OF
- WEBZILLA's DECISION TO REMOVE MATERIAL FROM ITS SERVERS;
- WARN YOU, SUSPEND OR TERMINATE YOUR ACCOUNT, OR TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION
- AS A RESULT OF WEBZILLA's CONCLUSION THAT A VIOLATION HAS OCCURRED.
THIS WAIVER APPLIES TO ALL VIOLATIONS DESCRIBED IN THIS AGREEMENT.
5.2. Use and Misuse of Materials
Materials in the public domain (e.g., images, text, and programs) may be downloaded or uploaded using the Services.
You may also redistribute materials in the public domain. You assume all risks regarding the determination of whether the material is in the public domain. You are prohibited from storing, distributing or transmitting any unlawful material through the Services.
Examples of prohibited material include, but are not limited to:
- Threats of physical harm, excessively violent material that incites violence, threatens violence, or contains harassing content or hate speech;
- Copyrighted, trademarked or other proprietary material, used without proper authorization or intended to assist others in defeating technical copyright protections, or material that clearly infringes on another persons' trademark or service mark, patent, or other property right;
- Material that is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
- Material that is defamatory or violates a person's privacy;
- Material that creates a risk to any person's safety or health, creates a risk to public safety or health, com- promises national security, or interferes with an investigation by law enforcement;
- Material that improperly exposes trade secrets or other confidential or proprietary information of another person or institution;
- Material that promotes illegal drugs, violates export control laws, or relates to illegal gambling or illegal arms trafficking;
- Material that promotes terrorism or any kind of ethnic, social or religious discord;
- Material that constitutes, fosters, or promotes child pornography. Marketing a site utilizing such content, and including words such as "Kids", "Lolita", "Pedo", "Peta", "Peto", "Pre-teen", "Pedophile", "Underage", "Child", or any other words, images, or descriptions that would lead someone to believe that the models are less than 18 years of age, is not permitted anywhere on any venue, including the URL and meta tags;
- The posting or display of any image or wording depicting or related to incest, snuff, scat or the elimination of any bodily waste on another person, mutilation or rape, anywhere on the site, including the URL and meta tags;
- The posting or display of any image or wording depicting or related to bestiality anywhere on the site, including the URL and meta tags;
- Material that is otherwise illegal or solicits or encourages conduct that is illegal under laws applicable to you or to Webzilla; or that is otherwise malicious, fraudulent, or could result in retaliation against Webzilla by offended viewers.
Unacceptable uses of website content also includes the presence of the following programs or activities associated with these programs or activities, regardless of whether or not any actual intrusion results in the corruption or loss of data:
- Server broadcast messages or any message sent on an intrusive basis to any directly or indirectly attached network;
- Attempts to circumvent any user authentication or security of host, network, or account;
- Accessing data not intended for user;
- Probing the security of any network;
- Spawning dozens of processes;
- Port scans, ping oods, packet spoofing, or forging router information; Denial of service attacks, sniffers, ooding, spoofing, ping bombing, smurfs, winnuke, land and teardrop;
- Promulgation of viruses; or IRC bots, such as eggdrop or BitchX.
Webzilla supports free speech on the Internet and will not suspend or cancel your account simply because it disagrees with your views expressed at your website. However, examples of unacceptable activities include cases such as, posting private information about a person with- out his or her consent, defaming a person or business, and knowingly making available code that will have a deleterious effect on third-party computers.
Where there are allegations that your online activity has violated the legal rights of a third party, Webzilla will not substitute itself for a court of law in deciding tort claims raised by the third party.
5.3. Email Use; Bulk or Commercial E-Mail
You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, you must obtain Webzilla's advance approval for any bulk email, which will not be given unless you are able to demonstrate all of the following to Webzilla's reasonable satisfaction:
- Your intended recipients have given their consent to receive email via some affirmative means, such as an opt-in procedure;
- Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the email address for which the consent is given;
- You retain evidence of the recipients' consent in a form that may be promptly produced upon request, and you honor recipients' and Webzilla's requests to produce consent evidence within 72 hours of receipt of the request;
- You have procedures in place that allow a recipient to easily revoke his or her consent, such as a link in the body of the e-mail, or instructions to reply with the word "Remove" in the subject line. Revocations of consent must be honored within 72 hours, and you must notify recipients that their revocation of their consent will be honored within 72 hours;
- You must post an e-mail address for complaints (such as email@example.com) in a conspicuous place on any Web site associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
- You have the means to track anonymous complaints;
- You may not obscure the source of your email in any manner. Your email must include the recipient's email address in the body of the message or in the "TO" line of the email.
These policies apply to messages sent using your Webzilla Services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site or an e-mail address hosted via your Webzilla service. In addition, you may not use a third-party e-mail service that does not practice similar procedures for all its customers. Webzilla may test and otherwise monitor your compliance with its requirements, and may block the transmission of e-mail that violates these provisions.
You may not use Webzilla mail services, servers or components to send out mail from other sites or services that are not hosted with Webzilla. You may not use Webzilla mail services, servers or components to send out mail advertisements for other sites not pertaining to the website you are hosting with Webzilla. Unacceptable uses of website content also include the presence of the following programs or the activities associated with them, regardless of whether or not any actual intrusion results in the corruption or loss of data.
5.4. System Security
You are prohibited from utilizing the Services to compromise the security of system resources or accounts on servers at Webzilla or at any other site. Use or distribution of tools designed for compromising security or containing viruses or trojans are prohibited. Examples of these tools include, but are not limited to, password guessing programs, cracking tools or network probing tools. If you are involved in violations of system security, Webzilla reserves the right to release all usernames of users involved in such violations to system administrators at other sites in order to assist them in resolving security incidents. Webzilla also will fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
5.5. System Resources
System abuse includes any use of Webzilla resources that disrupts the normal use of its servers or services for others. Examples of system abuse include running excessive numbers of processes or consuming excessive amounts of CPU time, memory or disk space.
5.6. 99.99% Uptime Guarantee
Webzilla shall use commercially best efforts to provide 99.99% Services availability. Services availability is calculated by the number of hours the service is available to customers plus the total number of hours, if any, the service is scheduled to be unavailable, divided by the total number of hours in that month.
In the event that there is no services availability, Webzilla will credit the following month's service fee as follows:
Customer Website Availability Credit:
- 99.9% to 99.98%: 5% credit
- 95% to 99.8%: 25% credit
- 90% to 94.9%: 50% credit
- 89.9% or below: 100% credit
In order for you to receive a credit on your account, you must request such credit within seven (7) business days after you experienced no Web Site Availability. You must request credit by sending an electronic mail message to firstname.lastname@example.org
For security, the body of this message must contain your server ID, the dates and times of the unavailability of your Web site, and such other customer identification requested by Webzilla. Credits will usually be applied within sixty (60) days of your credit request. Credit to your account will be your sole and exclusive remedy in the event that there is no Web Site Availability. Credits will not be provided to you in the event that you have no Web Site Availability resulting from:
- scheduled maintenance as posted from time to time at Webzilla;
- your behavior or the performance or failure of your equipment, facilities or applications, or circumstances beyond Webzilla's reasonable control, including, without limitation, acts of any governmental body; war; insurrection; sabotage; embargo; re; ood; strike or other labor disturbance; interruption of or delay in transportation; unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation); failure of third-party software or hardware; or inability to obtain raw materials, supplies, or power used in, or equipment needed for, provision of your Web site.
6. Webzilla's Right to Terminate Agreement
- (a) Webzilla reserves the right to suspend or terminate Services to you and remove or prevent access to any material from your website at any time, without prior notice or liability, for any conduct that Webzilla, in its sole discretion, believes violates this Agreement or is otherwise harmful to Webzilla's interests or the interests of other accountholders.
- (b) Webzilla also reserves the right to comply with the take-down provisions of the DMCA and to seek injunctive, declaratory, interpleader or other judicial or equitable relief (and, pending such action, to suspend all access to your website) if any third-party claim is made that your website content or use violates any of the acceptable uses or your obligations or representations described in this Agreement.
7. Limitation of Damages
Webzilla's obligations to you are defined by this Agreement. Webzilla is not liable to you for failing to provide the Services unless the failure results from a breach of an applicable Service Level Agreement, or results from gross negligence or willful misconduct. The credits stated in any applicable Service Level Agreement are your sole and exclusive remedy for failure to meet those guarantees for which credits are provided unless such failure is due to Webzilla's willful misconduct.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation or personal injury resulting from Webzilla's negligence, the maximum aggregate monetary liability of Webzilla and any of its agents, affiliates, suppliers or employees in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the two months prior to the occurrence of the event giving rise to the claim, or (ii) Three Hundred Dollars ($300.00).
8. Cancellation of Accounts
8.1. You may cancel your Webzilla account by visiting the Webzilla Website or by contacting email@example.com from your account email address. Charges for canceling accounts are not prorated on a monthly basis. No refunds are given on any accounts that are pre-paid (paid in advance), unless they are canceled within the first 30 days of the account being established. The 30-day guarantee does not apply to reseller accounts.
8.2. All Webzilla accounts must be paid in full before the cancellation will be considered complete.
8.3. When canceling an account, cancellations take effect immediately and do not continue for the amount of your term left on your account. Webzilla does not give refunds for the remaining term on any account that was canceled after the charges have been billed. Webzilla will send out an invoice via email five (5) days prior to billing. Customer must inform Webzilla of cancellation prior to the new billing date. Any charges incurred after the billing date and cancellation are non-refundable. It is the customer's responsibility to make sure Webzilla has accurate e-mail address and billing information on file, so the invoices can reach you.
8.4. If your account is suspended or terminated for any reason permitted by this Agreement, Webzilla may, at its sole discretion, permanently delete your website contents from Webzilla servers, and Webzilla will not be able to reopen or restore such content. If your account has been canceled or suspended due to a violation of our Terms and Conditions, and Acceptable Use policy, no refunds will be given on any pre-paid term.
9. Arbitration and Governing Law
Except for Webzilla's compliance with take-down provisions of the DMCA, or injunctive or other equitable actions initiated by Webzilla pursuant to Section 6(b), if any controversy or dispute arises in connection with this Agreement, the Services or your use of Webzilla's servers, such controversy or dispute shall first be presented for resolution by Webzilla to you. If the Customer signed an Internet Master Services Agreement with a Webzilla company then this Agreement will be construed and enforced in accordance with the laws as specified in clause 6.1 of the Internet Master Services Agreement. If the Customer did not sign an Internet Master Services Agreement with a Webzilla Company then this Agreement and each Order Form shall be construed and enforced in accordance with the laws of The Netherlands and Customer hereby consents to the jurisdiction of the courts of Amsterdam, The Netherlands with respect to any dispute, controversy or other matter relating to or arising out of the Agreement or any Order Form.
You may not assign your rights and obligations under this Agreement without the prior written consent of Webzilla, which may be withheld at Webzilla's discretion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The failure of Webzilla to require your performance of any provision hereof shall not affect the right to require such performance thereafter; nor shall the waiver by Webzilla of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any action for any claim arising under, or in connection with, this Agreement must be commenced by you within one year after the alleged cause of action has accrued or after the date of termination of this Agreement, whichever is earlier.
In the event that any provision of this Agreement is deemed unenforceable or invalid, such unenforceability or invalidity shall not affect the remainder of this Agreement. Such provision may be amended or replaced with a provision that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision. No provision of this Agreement may be amended or modified by you except by means of a written document signed or expressly assented to by Webzilla. All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive. This Agreement and any Order form, together with all amendments or modifications to any of them, constitute the complete and exclusive agreement between you and Webzilla.
2. Webzilla Products and Services
In no event shall Webzilla be liable to you for (i) any loss of profits, contracts or goodwill or any type of special, indirect, consequential or economic loss (including loss or damage suffered as a result of an action brought by a third party) caused by or resulting from any use of the Websites, (ii) any damages or losses caused by or resulting from any downloads obtained from the Websites or any use of any hyper-linked websites, (iii) any damages or losses caused by or resulting from the unavailability of the Websites from time to time or from your inability to use or access the Websites, (iv) any damages or losses caused by or resulting from any failure or omission of a Webzilla affiliate in connection with the provision of any of the Webzilla affiliate's service or products, (v) any damages or losses caused by or resulting from errors in or interruption of the Websites, and (vi) any damages or losses caused by or resulting from any inaccurate, incomplete or unsuitable information and materials found or offered on the Websites.
4. Exclusion of Warranty
Your use of the Websites shall be at your risk and responsibility. Webzilla provides each of the Websites "as is" and "as available" and without any warranty or condition. Without prejudice to the generality of the foregoing, Webzilla does not warrant that the Websites will operate without interruptions, be timely, secure or erro-free, or that the information and materials found or offered on the Websites are accurate, complete or suitable.
Access to and use of certain areas of the Websites are restricted to authorized users only. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Webzilla if your password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised.
7. Unauthorized Access
You agree (i) not to gain or attempt to gain unauthorized access to any password restricted areas of the Websites or to information contained in such areas of the Websites, (ii) not attempt to evade authentication or security procedures, (iii) not to access or use the Websites in any manner that could damage, disable, overburden, or impair Webzilla's computer systems or networks, (iv) not to use any robot, spider, scraper or other automated means to access the Websites, and (v) not to assist, encourage or permit any other person to do any of the above things.
If the Websites contain hyperlinks to other third party websites, these links are provided for your convenience only. These hyperlinks will let you leave the Websites. Webzilla has no control over the contents of said third party websites, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to the Websites, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
9. Copyrights and Database Rights
The information and materials contained on the Websites are protected by copyright and sui generis database rights. You must not use, copy, modify, transmit, store, publish or distribute the material on the Websites, or create any other material using materials on the Websites, without obtaining the prior written consent of Webzilla.
All trade names, logos, brand identities, slogans, service marks, and trademarks appearing in the Websites, are protected by national, EU and other international laws. You are not entitled to use such marks without the prior written permission of Webzilla.
The Websites, products, technology and processes contained in the Websites may be the subject to patents owned by Webzilla or by third parties. No license is granted in respect of those intellectual property rights other than as explicitly set out in these terms.
12. Applicable Law
If the Customer signed an Internet Master Services Agreement with a Webzilla company then this Agreement will be construed and enforced in accordance with the laws as specified in clause 6.1 of the Internet Master Services Agreement. If the Customer did not sign an Internet Master Services Agreement with a Webzilla Company then this Agreement and each Order Form shall be construed and enforced in accordance with the laws of The Netherlands and Customer hereby consents to the jurisdiction of the courts of Amsterdam, The Netherlands with respect to any dispute, controversy or other matter relating to or arising out of the Agreement or any Order Form.
This notice concerning the Digital Millennium Copyright Act only applies to a Webzilla company. Webzilla respects the intellectual property rights of others and requires those that visit our websites and use our services do the same. We may, in appropriate circumstances and at our discretion, remove or disable access to material on our websites or facilities that infringes upon the copyright rights of others. We also may, at our discretion, remove or disable links or references to an online location that contains infringing material or infringing activity. In most instances, Webzilla does not have access to particular content hosted by users of its services. In those instances, Webzilla will forward your notice to the appropriate user's abuse department or DMCA agent. Nonetheless, you may receive a quicker response by directly contacting the abuse department or DMCA agent of Webzilla's customer. In the event that any visitors to our websites or users of our services repeatedly infringe on others' copyrights, we may in our sole discretion terminate those individuals' rights to use our websites and/or services.
If you believe that your content has been used on our websites or facilities in any manner that constitutes copyright infringement, please notify Webzilla's copyright agent by written notice. The notice should include the following information:
- An electronic or physical signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed;
- A description of the copyrighted work you claim has been infringed, including a copy of the copyrighted work or the web page address where the copyrighted work may be found;
- Identification of the location of the material you claim has been infringed, or the link or reference to another website that contains the material you claim has been infringed;
- Your name, address, telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use of the material at issue is not authorized by the copyright owner, the agent of the copyright owner or the law;
- A statement by you that the information in this notification is accurate and a statement, under penalty of perjury, that you are the copyright owner of the material allegedly infringed or authorized to act on the copyright owner's behalf.
Webzilla's copyright agent for notice of claims of copyright infringement can be reached at the following address:
Address: 1007 N. Federal Hwy.,
Suite 240, Fort Lauderdale, FL 33304
If the material you believe is infringing is hosted by or on another Webzilla's entity's website, or by a use of another entity's services, you should contact that entity in accordance with the appropriate policy.
Webzilla maintains strict compliance with stringent laws and regulations governing the Internet. By doing so, we ensure that no illegal activity can undermine our operations as a hosting provider, and this has a profound effect for our customers. In addition to providing the highest level of safety and security for our customers' critical business data, Webzilla ensures that it is irreproachable in its operations by maintaining a high level of transparency.
The Webzilla support team supports the rest of the Webzilla departments and assists our customers with questions of a legal nature that pertain to Webzilla accounts, products and services.
- To report content on our network that you believe should be removed, first refer to our Policies and then report your concerns to our Abuse team.
- To view our General Terms and Conditions, Policies and other legal documents, refer to the Legal page via http://www.webzilla.com/legal.html
The Webzilla Abuse Department actively enforces Webzilla's Policies (including Acceptable Use Policy) by processing complaints received by Webzilla customers, non-customers and government agencies. Managing abuse ensures the best possible service and also keeps our network and bandwidth speeds running at peak performance.
Feel free to contact our Abuse Department if you have any further unanswered questions at firstname.lastname@example.orgContents
- How do I report abuse to Webzilla?
- What timeframe do I have to resolve an Abuse issue?
- What is the response time for Abuse tickets?
- May I host IRC services?
- May I host BitTorrent protocols?
- May I use Internet Peer-to-Peer software?
- What is your policy on Adult material?
How do I report abuse to Webzilla?
If you wish to report abuse, please mail our Abuse Department, with specific details regarding the abuse, including the IP address from which the abuse is suspected and the type of abuse you would like to report. You may either open a ticket in the Customer Web Portal or send your email to email@example.com
What timeframe do I have to resolve an Abuse case?
The timeframe to resolve an open abuse case depends on the severity and priority of its subject matter. Deadlines are provided by our Abuse Department. Please keep an open line of communication with our Abuse Department to ensure that you are in the process of resolving the open case.
What is the response time for Abuse tickets?
Webzilla's Abuse Department strives to ensure our customers receive timely updates. The abuse tickets are prioritized based on their severity. Our team receives high volumes of emails regarding suspected abuse and takes each report very seriously. Each email received is prioritized for severity, reviewed and handled according to our Policies as quickly as possible.
May I host IRC services?
Webzilla allows the use of private Internet relay chat servers for communication between private parties. Webzilla does not allow the use if IRC servers connected to public IRC networks and/or servers. Violation of the IRC policy will result in methods of resolution under the Webzilla Policies.
May I host BitTorrent protocols?
The use of BitTorrent protocols are allowed. Webzilla highly recommends strict oversight and management of BitTorrent environments due to the propensity to violate copyright law by sharing copyright protected material. The sharing of copyright protected material is not allowed. A possible violation of a copyright policy could result in methods of resolution under the Webzilla Policies.
May I use Internet Peer-to-Peer software?
Webzilla allows the use of Internet peer-to-peer software for file sharing purposes. Webzilla highly recommends strict oversight and management of Peer-to-Peer environments due to the propensity to violate copyright law by sharing copyright protected material. The sharing of copyright protected material is not allowed. A possible violation of a copyright policy could result in methods of resolution under the Webzilla Policies.
What is your policy on Adult material?
Adult legal content is permitted.
Webzilla (referred to as 'we','us','our', 'Webzilla or the 'Company') is committed to protecting your privacy and handling your data in an open and transparent manner. The personal data we collect and process depends on the product or service requested and agreed in each case.
In this privacy statement, your data is sometimes called "personal data" or "personal information". We may also sometimes collectively refer to handling, collecting, protecting and storing your personal data or any such action as "processing" such personal data.
For the purposes of this statement, personal data shall mean any information relating to you which identifies or may identify you and which includes, for example, your name, address, identification number.
Process, Processed, Processing shall mean any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means. Operations performed may include collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Consent shall mean any freely given, specific, informed and unambiguous indication of the Data Subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the Processing of Personal Data relating to him or her.
Data Controller - the entity that determines the purposes, conditions and means of the processing of personal data
Data Processor - the entity that processes data on behalf of the Data Controller
Data Subject - a natural person whose personal data is processed by a controller or processor
What information do we collect and how do we use it?
When you place an order through Webzilla you need to be registered and logged into your account. From your account, we will capture your name, email address, phone number address listed, identification data, birth date. You will be required to enter your credit card details. This information allows us to process and fulfil your order successfully. It also helps us in maintaining your account.
We understand the importance of protecting children's privacy. We may collect personal data in relation to children only provided that we have first obtained their parents' or legal guardian's consent or unless otherwise permitted under law. For the purposes of this privacy statement, "children" are individuals who are under the age of sixteen (16).
Whether you have an obligation to provide us with your personal data
During a client's registration and later on Webzilla's platform, you provide information such us name, company name, email address, telephone, credit-card number and other relevant data. This information is used by Webzilla to identify you and provide you with support services, mailings, sales and marketing actions, billing and to meet contractual obligations we have with you. Kindy note that if you do not provide us with the required data, then we will not be allowed to commence or continue our business relationship either to you as an individual or as the authorized representative/agent or beneficial owner of a legal entity.
Why we process your personal data and on what legal basis
A. For the performance of a contract
We process personal data in order to provide services based on contracts with our customer but also to be able to complete our acceptance procedure so as to enter into a contract with prospective customers.
B. For compliance with a legal obligation
There are various supervisory authorities whose laws and regulations we may be subject, such obligations and requirements impose on us necessary personal data processing activities for identity verification, compliance with court orders, or other reporting obligations and controls.
C. For the purposes of safeguarding legitimate interests
We process personal data so as to safeguard the legitimate interests pursued by us or by a third party. A legitimate interest is when we have a business or commercial reason to use your information. But even then, it must not unfairly go against what is right and best for you. Examples of such processing activities include:
- Initiating legal claims and preparing our defence in litigation procedures,
- Measures to manage business and for further developing products and services.
Provided that you have given us your specific consent for processing then the lawfulness of such processing is based on that consent. You have the right to revoke consent at any time. However, any processing of personal data prior to the receipt of your revocation will not be affected.
Who receives your personal data?
In the course of the performance of our contractual and statutory obligations your personal data may be provided to various departments within Webzilla. Various service providers and suppliers may also receive your personal data so that we may perform our obligations. Such service providers and suppliers enter into contractual agreements with Webzilla by which they observe confidentiality and data protection according to the data protection law and GDPR. Webzilla may disclose your information where required to do so by law, if subject to subpoena or other legal proceeding or if you have given your consent. All data processors appointed by us to process personal data on our behalf are bound by contract to comply with the GDPR provisions.
Under the circumstances referred to above, recipients of personal data may be, for example:
- External legal consultants
- Financial and business advisors
- Auditors and accountants
- Marketing companies and market research companies
- Card Payment processing companies
Transfer of your personal data to a third country or to an international organisation
Your personal data may be transferred to third countries [i.e. countries outside of the European Economic Area] in such cases as e.g. to execute your payment orders or you have given us your consent to do so. Processors in third countries are obligated to comply with the European data protection standards and to provide appropriate safeguards in relation to the transfer of your data in accordance with GDPR Article 46.
Webzilla will only engage in Profiling and automated decision-making where it is necessary to enter into, or to perform, a contract with the Data Subject or where it is authorised by law. Where Webzilla utilises Profiling and automated decision-making, this will be disclosed to the relevant Data Subjects. In such cases the Data Subject will be given the opportunity to:
- Express their point of view.
- Obtain an explanation for the automated decision.
- Review the logic used by the automated system.
- Supplement the automated system with additional data.
- Have a human carry out a review of the automated decision.
- Contest the automated decision.
- Object to the automated decision-making being carried out.
Each Webzilla Entity must also ensure that all Profiling and automated decision-making relating to a Data Subject is based on accurate data.
How we treat your personal information
Webzilla uses the information that is collects to operate and maintain its sites and send you marketing communications, respond to your questions and concerns and to help its partners improve their online offerings.
Webzilla uses the information it has to help verify accounts and activity, and to promote safety and security on and off of Webzilla's services, such as by investigating suspicious activity or violations of Webzilla's terms or policies. Webzilla works hard to protect customer's account using teams of engineers, automated systems, and advanced technology such as encryption.
Company can only use your personal data to promote our products and services to you if we have your explicit consent to do so or, in certain cases, if we consider that it is in our legitimate interest to do so.
You have the right to object at any time to the processing of your personal data for marketing purposes.
How long we keep your personal information for
Webzilla will retain personal data it processes on behalf of you for as long as needed to provide its services. Webzilla will retain this personal information as necessary to comply with its legal obligations, resolve disputes and enforce its agreements.
The provisions of our agreements shall be deemed severable and the invalidity or enforceability of any provisions shall not affect the validity and enforceability of the other provisions. If any provision of our agreements are unenforceable for any reason whatsoever, such provision shall be appropriately limited and given effect to the extent that it may be enforceable.
Your data protection rights
You have the following rights in terms of your personal data we hold about you.
- (a) The right to access
You have the right to confirmation as to whether or not Webzilla process your personal data and, where Webzilla does, access to the personal data, together with certain additional information. That additional information includes details of the purposes of the processing, the categories of personal data concerned and the recipients of the personal data. Providing the rights and freedoms of others are not affected, Webzilla will supply to you a copy of your personal data.
- (b) The right to rectification
You have the right to have any inaccurate personal data about you rectified and, taking into account the purposes of the processing, to have any incomplete personal data about you completed.
- (c) The right to erasure
In some circumstances you have the right to the erasure of your personal data without undue delay. Those circumstances include: the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; you withdraw consent to consent-based processing; you object to the processing under certain rules of applicable data protection law; the processing is for direct marketing purposes; and the personal data have been unlawfully processed. However, there are exclusions of the right to erasure. The general exclusions include where processing is necessary: for exercising the right of freedom of expression and information; for compliance with a legal obligation; or for the establishment, exercise or defence of legal claims.
- (d) The right to object to processing
Where we are relying on a legitimate interest and there is something about your particular situation which makes you want to object to processing on this ground. If you lodge an objection, we will no longer process your personal data unless we can demonstrate compelling legitimate grounds for the processing which override your interests, rights and freedoms. You also have the right to object where we are processing your personal data, for direct marketing purposes. This also includes profiling in as much is related to direct marketing.
If you object to processing for direct marketing purposes, then we shall stop the processing of your personal data for such purposes.
- (e) The right to restrict processing
In some circumstances you have the right to restrict the processing of your personal data. Those circumstances are: you contest the accuracy of the personal data; processing is unlawful but you oppose erasure; Webzilla no longer needs the personal data for the purposes of Webzilla processing, but you require personal data for the establishment, exercise or defence of legal claims; and you have objected to processing, pending the verification of that objection. Where processing has been restricted on this basis, Webzilla may continue to store your personal data. However, Webzilla will only otherwise process it: with your consent; for the establishment, exercise or defence of legal claims; for the protection of the rights of another natural or legal person; or for reasons of important public interest.
- (f) The right to data portability
You have the right to request to receive a copy of your personal data in a format that Is structured and commonly used and transmit such data to other organisations. You also have the right to have your personal data transmitted directly by Webzilla to other organisations you will name.
- (g) The right to complain to a supervisory authority
If you have exercised any or all of your data protection rights and still feel that its concerns about how the Company uses your personal data have not been adequately addressed by the Company, you have the right to complain.
- (h) The right to withdraw consent.
You have right to withdraw the consent that you have given to the Company with regard to the processing of your personal data at any time. Note that any withdrawal of consent shall not affect the lawfulness of processing based on consent before it was withdrawn or revoked by you.
You can also contact our Data Protection Officer at firstname.lastname@example.org.
We endeavour to address all of your requests promptly.
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