Terms Of Service

This Web Hosting Agreement (this "Agreement") is between Visiba and the person (individual or legal person) whose signs Visiba's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of Visiba's Web hosting service.

Table Of Contents

  1. Services
  2. Term
  3. Payments
  4. Cancellation and Early Termination
  5. Law/AUP
  6. Customer Information
  7. Indemnification
  8. Disclaimer of Warranties
  9. Limitation of Damages
  10. Suspension of Services/Termination
  11. Resource Usage
  12. Bandwidth Usage
  13. Domains
  14. Request for Customer Information
  15. Back Up Copy
  16. Request for Rebuild/Restore of Hosting Package
  17. Changes to Visiba's Network
  18. Notices
  19. Force Majeure
  20. Governing Law/Disputes
  21. Miscellaneous

1. Services

Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Visiba's credit approval requirements, Visiba agrees to provide the web hosting services described in the Order for the fees stated in the Order.

2. Term

The initial service term of the Agreement shall begin on the date that Visiba generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for the same length as the Initial Term (each a "Renewal Term") unless Visiba or Customer provides the other with termination notice within 7 days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."

3. Payments

4. Cancellation and Early Termination

Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Visiba terminates the Agreement for Customer's breach of the Agreement in accordance with Section 10 (Suspension of Services/Termination), or Customer terminates the service other than in accordance with Section 10 (Suspension of Services/Termination) for Visiba breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. Customer also acknowledges that a minimum of 7 days cancellation notice or downgrade of current package prior to the following renewal term must be given in writing to Visiba or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:

5. Law/AUP

Customer agrees to use the service in compliance with applicable law and Visiba's Acceptable Use Policy posted at http://www.visiba.com/acceptable-use-policy (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that Visiba may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Visiba's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Visiba's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Visiba and Customer regarding the interpretation of the AUP, Visiba's commercially reasonable interpretation of the AUP shall govern.

6. Customer Information

Customer represents and warrants to Visiba that the information he, she or it has provided and will provide to Visiba for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Visiba that he or she is at least 14 years of age. Visiba may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.

7. Indemnification

Customer agrees to indemnify and hold harmless Visiba, Visiba's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.

8. Disclaimer of Warranties

VISIBA DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW VISIBA DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.

9. Limitation of Damages

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF VISIBA AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

10. Suspension/Termination

11. Resource Usage

Visiba Customers may not initiate the following (below), if any customer does Visiba may terminate the account with no refund. Depending on the situation there will/won't be warnings sent.

12. Bandwidth Usage

You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee and you are responsible to pay for any overage.

13. Domains

Visiba is not a domain registrar. We are a reseller for UK2 so all Visiba customers who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by UK2. Domain purchases as well as domain transfers are billed at different prices depending on the domain extension. You have the option to add privacy protection to selected domains at $3.99/year. You will receive notice from Visiba once your domain is up for renewal. If you do not renew your domain by the expiration date you run the risk of losing your domain.

14. Requests for Customer Information

Customer agrees that Visiba may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that Visiba believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

15. Back Up Copy

Customer agrees to maintain a current copy of all content hosted by Visiba notwithstanding any agreement by Visiba to provide back up services.

16. Request for Rebuild/Restore of Hosting Package

During any service term, customer may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a $5 one time fee will be enforced.

17. Changes to Visiba's Network

Upgrades and other changes in Visiba's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Visiba reserves the right to change its network in its commercially reasonable discretion, and Visiba shall not be liable for any resulting harm to Customer.

18. Notices

Notices to Visiba under the Agreement shall be given via electronic mail to the e-mail address posted for customer support. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

19. Force Majeure

Visiba shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Visiba's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

20. Governing Law/Disputes

The Agreement shall be governed by the laws of the State of Virginia, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN FAIRFAX COUNTY, VISIBA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

21. Miscellaneous

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Visiba unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Visiba's prior written consent. Visiba's approval for assignment is contingent on the assignee meeting Visiba's credit approval criteria. Visiba may assign the Agreement in whole or in part.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, written or oral.

Last updated on Monday October 22, 2012

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