Subject to the terms of this Agreement, and contingent on Customer's satisfaction of SolaDrive's credit approval requirements, SolaDrive agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that SolaDrive 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 month(s) stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless SolaDrive or Customer provides the other with written notice of non-renewal at least five (5) 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."
Fees are payable in advance from five (5) days prior to the beginning of, to the first day of a new billing cycle. Customer's billing cycle shall be monthly, quarterly, semi-annually or annually as indicated on the Order, beginning on the Service Commencement Date. SolaDrive may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes SolaDrive to bill subsequent fees to the credit/debit card up to 5 days prior to, on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise SolaDrive will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees will be issued five (5) days prior to the 1st day of each billing cycle, and the fees shall be due on the first day of the new billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing SolaDrive with changes to billing information (such as credit card expiration, change in billing address) At its option, SolaDrive may accrue charges to be made to a credit/debit card until such charges exceed $10.00. SolaDrive may charge interest on overdue amounts at the lesser of 10% per month or the maximum non-usurious rate under applicable law. SolaDrive may suspend the service without notice if payment for the service is overdue. Fees not disputed within fifteen (15) days of due date are conclusively deemed accurate. Customer agrees to pay SolaDrive's reasonable reinstatement fee following a suspension of service for non-payment, and to pay SolaDrive's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
2Checkout.com, Inc. is an authorized retailer of SolaDrive.com
a. Fee Increases
SolaDrive may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least thirty (30) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
At SolaDrive's request Customer shall remit to SolaDrive all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on SolaDrive), regardless of whether SolaDrive fails to collect the tax at the time the related services are provided.
c. 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 SolaDrive terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for SolaDrive's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement.
Customer agrees to use the service in compliance with applicable law and SolaDrive's Acceptable Usage Policy posted at http://www.SolaDrive.com /terms.html (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that SolaDrive 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 SolaDrive'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 SolaDrive's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between SolaDrive and Customer regarding the interpretation of the AUP, SolaDrive's commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to SolaDrive that the information he, she or it has provided and will provide to SolaDrive for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to SolaDrive that he or she is at least 18 years of age. SolaDrive 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 Contact.
Customer agrees to indemnify and hold harmless SolaDrive, SolaDrive'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.
7. Disclaimer of Warranties
SolaDrive DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW SolaDrive 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.
8. 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 POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF SolaDrive 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.
a. Suspension of Service
Customer agrees that SolaDrive may suspend services to Customer without notice and without liability if: (i) SolaDrive reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) SolaDrive reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay SolaDrive's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection. It remains the sole discretion of SolaDrive if an account is eligible for reinstatement.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if SolaDrive fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by SolaDrive prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within ten (10) days of a written notice from SolaDrive describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
10. Cancellations and Money Back Guarantee.
Customer is free to cancel their account at any time by logging into their control panel and canceling under their service page. Similarly, SolaDrive reserves the right to cancel any account at any time, for any reason, including, but not limited to, a breach of this Agreement as defined in the above section "Suspension/Termination".
Dedicated server customers are required to submit service cancellations requests at least 30 days prior to its next monthly billing cycle.
b. Money Back Guarantee
If an account with a thirty (30) day money-back guarantee is purchased and canceled within thirty (30) days of sign up, the Customer will, upon request, receive a full refund of all hosting fees. Requests for these refunds should be made through our Billing Team. Refunds made for a thirty (30) day money-back guarantee will not include domain registration fees, setup fees, licenses, or any fees for additional services that are purchased in the first thirty (30) days.
The money back guarantee is only applicable to those products and services that are specified with this offer. Any other products or services with no specification in money back guarantee are not entitling to any money back or refund. Under the money back guarantee, only first-time accounts are eligible for a refund. For example, if you've had an account with us before, canceled and signed up again, you will not be eligible for a refund. This is to protect our refund guarantee from being abused. SolaDrive reserves the right to determine the definition of first-time accounts. If you cancel your account after the first thirty days have passed, or after your account is renewed then we will not be able to issue any refunds. Please note: upgrades to hosting service, domain registration, transfer and SSL certificates, or any additional licenses are non-refundable.
No refund will be honored on Dedicated servers, the 30 day money back guarantee does not apply unless we are unable to provide the dedicated server due to it not being in stock.
11. Requests for Customer Information
Customer agrees that SolaDrive 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 SolaDrive 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.
12. Back Up and Data Loss
Customer agrees to maintain a current copy of all content hosted by SolaDrive notwithstanding any agreement by SolaDrive to provide back up services unless a backup service is purchases with us. We are not held responsible for any data loss or financial loss as outlined in section "Limitation of Damages".
13. Changes to the SolaDrive Network
Upgrades and other changes in SolaDrive'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. SolaDrive reserves the right to change its network in its commercially reasonable discretion, and SolaDrive shall not be liable for any resulting harm to Customer.
Notices to SolaDrive under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.SolaDrive.com. 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.
15. Force Majeure
SolaDrive shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond SolaDrive'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.
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 SolaDrive 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 SolaDrive's prior written consent. SolaDrive's approval for assignment is contingent on the assignee meeting SolaDrive's credit approval criteria. SolaDrive may assign the Agreement in whole or in part.
17. Right to Refusal With Out Cause
SolaDrive may refuse to accept any customer or any website for participation in the SolaDrive hosting network as determined by SolaDrive at its sole discretion.
18. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF TRIAL BY JURY
19. Late Fees
a. LATE FEES: HOSTING & SERVERS
Any invoice that is marked as late will be charged with a 10% late fee 3 days after a payment is due. If payment is still not received after 15 days of invoice due date we remove the service from our servers and network.
b. OTHER FEES
Charge Back Fee: $50.00
Customer and SolaDrive.com agree that the actual damages to SolaDrive.com resulting from late payment by Customer would be impractical and difficult to determine, and that the above described late fees and charges represent a reasonable and bargained for estimate of those damages at the time this contract is signed.
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.