Customer agrees to the following TOS:
- 1. Term and Termination: Unless requesting Hourly Services (as defined in paragraph 4 below) or otherwise agreed to by the parties in writing, Customer agrees to a month-to-month contract term for services. The month-to-month contract for services is automatically renewed each month in perpetuity subject to written cancellation by (a) Customer in accordance with this MSA and (b) Zebrahost upon providing Customer with notice of non-renewal at least ten (10) days prior to the expiration of any renewal term. Please carefully review Zebrahost’s cancellation policy set forth in Paragraph 9 below. Zebrahost may terminate this MSA and any related services (1) immediately (a) upon non-payment as set forth in paragraph 11 below, (b) if Customer violates paragraph 15 (Permitted Use) of the TOS, or (c) if Customer violates any terms and conditions of the AUP or (2) upon any other breach of this MSA that is not cured upon receiving
- 2. Monthly Service Fees: Fees for service(s) ordered by the Customer shall begin on the date of the initial order and that date shall serve as the monthly anniversary date (“Anniversary Billing Date”) for all future billings including one time fees, upgrades, additional services, cancellations and service credits. Fees are due in advance of the monthly service cycle and will be billed on the anniversary date of each
- 3. Upgrade Fees: Upgrades ordered on the Anniversary Billing Date will be billed for a full month service and will continue each month on the Anniversary Billing Date. Upgrades ordered after the normal Anniversary Billing Date will be pro-rated to the next anniversary date and billed as a one-time pro-rata charge. Future charges will appear as full monthly fees added to your existing Anniversary Billing
- 4. Hourly Service Fees: For any services offered by Zebrahost on an hourly basis (“Hourly Services”), Customer shall specify the period of time for which the Hourly Services are requested, or cancel at any time. The minimum period of time for which Hourly Services may be requested is one (“1”) hour and Customer will be billed in full hourly increments, and no breakdown by minutes shall be Unless otherwise specifically stated in the MSA, Customers who request Hourly Services agree to all terms and conditions in Zebrahost’s MSA, including but not limited to these TOS and the AUP. Customers will be billed for Hourly Services and receive any SLA credits, if applicable, on the Anniversary Billing Date (as set forth and defined in paragraph 2 above).
- 5. Additional Service Fees: Additional services, not including Hourly Services, ordered on the Anniversary Billing Date will be billed for the full month service and will continue each month on the Anniversary Billing Date. Additional services ordered after the normal Anniversary Billing Date will be pro-rated to the next anniversary date and billed as a one-time pro-rata charge. Future charges will appear as full monthly fees added to your existing Anniversary Billing
- 6. One Time Fees: One time fees, such as setup fees, administrative fees and late fees are due and payable at the time they are incurred, and/or agreed upon in writing or via ticket with Zebrahost’s approval. One time fees, such as bandwidth overages and Storage overages are due and payable upon an invoice following the billing cycle in which they are incurred, and are based on standard rates, or as otherwise agreed upon in writing or via ticket with Zebrahost’s
- 7. Taxes: All prices and fees specified in or referred to in this MSA are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of services. Any taxes, sales, use, levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the services shall be borne by the Neither party shall be liable for the other party’s taxes based on income. If withholding tax applies to any payments for services made under this MSA, the Customer may withhold that element that is required under the applicable legislation but must pay an additional amount to ensure that the full value of the invoice is remitted and must notify Zebrahost prior to payment that withholding tax is required to be paid. The parties undertake to co-operate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
- 8. Service Credits: SLA credits will be issued to your Customer account and shall be used to offset future billable services. SLA credits shall not be issued as cash back to the Customer nor shall the service credits be transferable to other account holders. SLA credits shall expire if Customer’s account is fully
- 9. Cancellation: Because cancellation is automated, Zebrahost requires a written cancellation notice via the customer portal, a minimum of twenty-four (“24”) hours prior to 00:00:01 CST (GMT-6) on the Anniversary Billing Date for discontinuance or downgrades of month-to-month services. Failure to supply the requisite twenty-four (“24”) hours written notice of cancellation will result in a full billable monthly cycle prior to cancellation. Any server cancellation prior to the minimum deadline will remain online until the automated process reclaims your server on the Anniversary Billing Date. Notice of written cancellation is required through the online customer portal located at https://my.zhsupport.net. All Customer data remaining after the cancellation date will be destroyed for security and privacy reasons, unless otherwise required by
- 10. Refunds & Disputes: All products or services rendered by Zebrahost are non-refundable. This includes, but is not limited to: setup fees, one time fees, monthly service fees, upgrade fees, additional service fees, administrative fees, and late fees. Customers seeking to resolve billing errors are instructed to open an accounting ticket inside the Customer portal located at https://my.zhsupport.net. Customer agrees not to chargeback any credit card payments for services rendered. A chargeback of payment for services rendered will result in an additional charge of one hundred fifty dollars (“$150”) and will be subject to collection by an authorized collection agency. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by Zebrahost in enforcing
- 11. Non-Payment: All payments are due in full on the Anniversary Billing Date. Failure to remit payment for services on the Anniversary Billing Date is a violation of the TOS. Failure to remit payment for five (“5”) consecutive days, including the Anniversary Billing Date, shall result in a termination of public access to Customer services. Customer acknowledges and agrees that Zebrahost may invoice for products and services in accordance with Zebrahost’s business policies or procedures. Customer will, however, be permitted access to data and services through the service network. Failure to remit payment for services within seven (“7”) consecutive days, including the Anniversary Billing Date, shall result in termination of access to the service network and all services shall be reclaimed. A late fee of twenty dollars (“$20”) will be incurred for failure to remit payment for services on or before the monthly Anniversary Billing Date. A fifty dollar (“$50”) reconnect fee will be incurred for failure to remit payment for services after public access has been disconnected. All Customer data remaining after seven (“7”) days of non- payment will be destroyed for security and privacy reasons, unless otherwise required by
- 12. Data: Zebrahost agrees to use best efforts and commercially reasonable best practices when deploying services related to data integrity, backup, security, and retention. These services include, but are not limited to: hard drive storage, raid hard drive arrays, network attached storage, storage area networks, operating system installs, operating system reloads, customer portal information, and other situations involving customer data. Customer assumes ultimate responsibility for data integrity, retention, security, backup, and ownership. In the event that Zebrahost handles Customer data, e., when replacing hard drives, Zebrahost will act in accordance with PCI guidelines to ensure data is securely handled. If Customer is involved in any data transfer(s) (whether in connection with its business or otherwise), then Customer must ensure that it complies with any applicable rules, laws, regulations, or the like in any and all applicable regions or countries.
- 13. International Data Privacy: Customer is responsible for any processing or international transfer of personal information included in the Customer data and agrees to comply with any rules, laws, regulations or the like in any and all applicable regions or countries in this To the extent personal information is subject to rules, laws, regulations or the like implementing the EU Data Protection Directive 95/46/EC, Zebrahost will be considered a “data processor” and will as such act on Customer’s instructions and implement security measures in accordance to the TOS and other applicable contracts between parties.
- 14. Identity Use: Customer agrees to use the Zebrahost logo, Zebrahost information, and/or related services in accordance with Zebrahost’s approved marketing guidelines. Zebrahost agrees not to use Customer logos without prior written consent of
- 15. Permitted Use: By accepting the MSA, Customer agrees to use Zebrahost’s services solely for their intended purposes. CUSTOMER SPECIFICALLY AGREES NOT TO TAMPER WITH, MAKE DERIVATIVE WORKS OF, REVERSE COMPILE, REVERSE ENGINEER AND/OR DISASSEMBLE ANY OF ZEBRAHOST’S SOFTWARE OR FILES. If Customer violates or exceeds the Permitted Use, Zebrahost reserves the right to immediately terminate Customer’s account and will pursue any and all legal remedies
- 16. LAWS: CUSTOMER AGREES TO ABIDE BY ALL LOCAL, STATE, AND FEDERAL LAWS PURSUANT TO SERVICES DELIVERED IN WEST DES MOINES, IOWA, UNITED STATES OF AMERICA. THIS AGREEMENT IS MADE UNDER AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF IOWA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. EXCLUSIVE VENUE AND JURISDICTION FOR ANY AND ALL LEGAL REMEDIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE POLK COUNTY, WEST DES MOINES, IOWA. EACH PARTY IRREVOCABLY CONSENTS TO THE FOREGOING JURISDICTION AND VENUE REQUIREMENTS AND WAIVES ANY AND ALL OBJECTIONS TO SUCH
- 17. INDEMNIFICATION: CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS ZEBRAHOST, ZEBRAHOST’S AFFILIATES, AND ITS RESPECTIVE OFFICERS, DIRECTORS, ATTORNEYS, 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 CUSTOMER’S CONTENT, ILLEGAL ACTIVITY AND/OR ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF A THIRD PARTY’S COPYRIGHT, TRADE SECRET, PATENT, TRADEMARK, OR OTHER PROPRIETARY
- 18. LIMITATION OF LIABILITY: EXCEPT AS DESCRIBED IN THE SLA, ZEBRAHOST SHALL NOT BE LIABLE TO CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER’S SERVICES OR INABILITY TO UTILIZE THE SERVICES UNLESS CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ZEBRAHOST SHALL NOT BE LIABLE TO CUSTOMER FOR LOST PROFITS, INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS MSA, THE MAXIMUM AGGREGATE LIABILITY OF ZEBRAHOST AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER FOR HOSTING SERVICES FOR THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM. EXCEPT AS OTHERWISE PROVIDED IN THIS MSA, ZEBRAHOST PROVIDES ALL PRODUCTS AND SERVICES “AS IS”, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABIILTY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, AND SUITABILITY OF THE PRODUCT AND SERVICES, AND ZEBRAHOST SHALL HAVE NO LIABILITY ASSOCIATED WITH THE
- 19. Arbitration: Any controversy or claim arising from service or related to this MSA or breach therein in excess of five hundred dollars (“$500”) shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The venue and jurisdiction requirements set forth above apply to any arbitration proceedings. The resulting judgment rendered by a licensed arbitrator may be entered in any court having valid
- 20. Waiver: Except as otherwise provided in this MSA, no failure or delay by either party to enforce any right or remedy available under this MSA shall constitute a waiver of such right or remedy or a waiver of any other right or
- 21. Language: The official language of this MSA shall be the English language and no translation into any other language may be used in its All services, support, notices, designations, specifications, and communications will be provided in the English language.
- 22. Third Party Beneficiary: Except for Customer, Zebrahost or an affiliated entity of Zebrahost, or Apple and Apple’s subsidiaries as provided in paragraph 8 of the
“Note” section in the TOS, a person who or which is not a party to this MSA shall have no right to enforce any term of this MSA.
- 23. Force Majeure: A party is not liable for non-performance or delay in performance of this MSA, other than payment obligations, if the non-performance or delay is due to any occurrence or contingency beyond its reasonable control including but not limited to acts of God, insurrection or civil disorder, war or military operations, national or local emergency, acts of government having general affect, changes of the regulatory environment, industrial disputes of any kind, tsunami, flood, landslide, earthquake, fire, explosion, civil commotion, blockade, terrorism, revolution, sabotage, piracy, epidemic, quarantine restrictions, import or export delays beyond that which is considered reasonable, or defaults of Zebrahost’s suppliers or subcontractors due to any of the above causes.
- 24. Severability: If any provision of this MSA shall be held to be illegal, void, invalid, or unenforceable under the laws of any jurisdiction, the legality, validity, and enforceability of the remainder of this MSA in that jurisdiction shall not be affected, and the legality, validity, and enforceability of the whole of this MSA in any other jurisdiction shall not be
- 25. Assignment: Zebrahost shall have the full right to assign, transfer, and/or subcontract any of its rights and obligations under the
- 26. Legal Compliance: By accepting this MSA, Customer represents and warrants that (i) he/she is not located in a country that is subject to a S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. Customer further represents and warrants that he/she has full authority and power to execute this Agreement on behalf of the Company he/she represents, if any. Additionally, Customer warrants that he/she is at least eighteen (“18”) years of age or older and are not otherwise legally incapacitated to execute this Agreement.
- 27. Electronic Signature: Acceptance by Customer of the MSA incorporating the TOS, AUP, SLA, PA, and any applicable addendum hereby initiates billable services and is deemed complete by agreement to the terms as described on the online signup form(s) and completion of the ordering
NOTE: If Customer downloads or uses any Zebrahost applications (“Licensed Application”) that run on the Apple Inc. (“Apple”) operating system (“iOS”), such as with the iPhone, iPod touch, iPad or other related device using such iOS, the following terms apply and Customer must agree to and acknowledge these terms in addition to those contained in Zebrahost’s Master Service Agreement:
- 1. Acknowledgement: Zebrahost and Customer acknowledge that the Master Service Agreement (“MSA”), also commonly referred to as the End User License Agreement (“EULA”), is concluded between Zebrahost and Customer only, and not with Apple Inc. (“Apple”), and Zebrahost, not Apple, is solely responsible for the Licensed Application and the content thereof. Zebrahost’s MSA requirements and usage rules for Licensed Applications are not less restrictive than the Usage
- Rules set forth for Licensed Applications in, and are not otherwise in conflict with, the App Store terms of service as of the Effective Date, which Zebrahost andCustomer acknowledge having had the opportunity to review.
- 2. Scope of License: The license granted to Customer for the Licensed Application is limited to a non-transferable license to use the Licensed Application on any iOS that Customer owns or controls and as permitted by the Usage Rules set forth in the App Store terms of service (http://www.apple.com/legal/itunes/appstore/dev/stdeula/).
- 3. Maintenance and Support: Zebrahost is solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified in the EULA, or as required under applicable law. Zebrahost and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
- 4. Warranty: Zebrahost is solely responsible for any product warranties, whether express or implied by law, to the extent not otherwise disclaimed. In the event of any failure of the Licensed Application to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Licensed Application to Customer; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Zebrahost’s sole responsibility.
- 5. Product Claims: Zebrahost and Customer acknowledge that Zebrahost, not Apple, is responsible for addressing any claims of Customer or any third party relating to the Licensed Application or Customer’s possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Zebrahost’s MSA does not limit its liability to Customer beyond what is permitted by applicable law.
- 6. Intellectual Property Rights: Zebrahost and Customer acknowledge that, in the event of any third party claim that the Licensed Application or Customer’s possession and use of that Licensed Application infringes that third party’s intellectual property rights, Zebrahost and/or Customer, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- 7. Contact Information: Any Customer questions, complaints or claims with respect to the Licensed Application should be directed to:
3716 Ingersoll Ave, Suite C
Des Moines, IA 50312 United States
- 8. Third Party Beneficiary: Zebrahost and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and that, upon Customer’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against Customer as a third party beneficiary