Terms of Service

Services

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

Term

The initial service term of the Agreement shall begin on the date that KAHUNA HOST generates an e-mail message to Customer announcing the activation of the Customer’s account (the ‘Service Commencement Date’) and shall continue for the first partial month of service plus the number of full calendar months 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 having the same number of full calendar months as the Initial Term (each a ‘Renewal Term’) unless KAHUNA HOST or Customer provides the other with written notice of non-renewal at least thirty (30) 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.’

Payments

Fees Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be monthly, beginning on the Service Commencement Date. KAHUNA HOST may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes KAHUNA HOST to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise KAHUNA HOST will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle.

Customer is responsible for providing KAHUNA HOST with changes to billing information (such as credit card expiration, change in billing address) At its option, KAHUNA HOST may accrue charges to be made to a credit/debit card until such charges exceed $10.00. KAHUNA HOST may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. KAHUNA HOST may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay KAHUNA HOST’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay KAHUNA HOST’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs. All credit card and billing information is transmitted using SSL encryption to secure backend servers. Full credit card details are not retained by KAHUNA HOST.

Fee Increases KAHUNA HOST 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 forty five (45) 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).

Taxes At KAHUNA HOST’s request Customer shall remit to KAHUNA HOST all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on KAHUNA HOST), regardless of whether KAHUNA HOST fails to collect the tax at the time the related services are provided.
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 KAHUNA HOST 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 KAHUNA HOST’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.

Refunds

All charges are non-refundable unless expressly stated otherwise, or otherwise provided by applicable law.

Law/AUP

Customer agrees to use the service in compliance with applicable law and KAHUNA HOST’s Acceptable Use Policy posted at http://kahunahost.com/acceptable-use-policy/ (the ‘AUP’), which is hereby incorporated by reference in this Agreement. Customer agrees that KAHUNA HOST 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 KAHUNA HOST’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 KAHUNA HOST’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between KAHUNA HOST and Customer regarding the interpretation of the AUP, KAHUNA HOST’s commercially reasonable interpretation of the AUP shall govern.

Customer Information

Customer represents and warrants to KAHUNA HOST that the information he, she or it has provided and will provide to KAHUNA HOST for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to KAHUNA HOST that he or she is at least 18 years of age. KAHUNA HOST 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.

Indemnification

Customer agrees to indemnify and hold harmless KAHUNA HOST, KAHUNA HOST’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.

Disclaimer of Warranties

KAHUNA HOST DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW KAHUNA HOST 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.

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 KAHUNA HOST 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.

Suspension/Termination

Suspension of Service Customer agrees that KAHUNA HOST may suspend services to Customer without notice and without liability if: (i) KAHUNA HOST 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) KAHUNA HOST 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 KAHUNA HOST’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

Termination 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 KAHUNA HOST 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 KAHUNA HOST 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 thirty (30) days of a written notice from KAHUNA HOST 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.

Requests for Customer Information

Customer agrees that KAHUNA HOST 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 KAHUNA HOST 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.

Back Up Copy

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

Force Majeure

KAHUNA HOST shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond KAHUNA HOST’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.

Governing Law and Choice of Form – The laws of United States, the State of Hawaii and the County of Cache will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Maui County, Providence, Hawaii. When These Terms Take Effect.

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 KAHUNA HOST 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 KAHUNA HOST’s prior written consent. KAHUNA HOST’s approval for assignment is contingent on the assignee meeting KAHUNA HOST’s credit approval criteria. KAHUNA HOST may assign the Agreement in whole or in part. KAHUNA HOST reserves the right to revise its policies at any time without notice.

Customer Testimonials

We love you guys at Kahuna and Organic – thanks for all the attention…our site traffic’s been through the roof since we switched to your themes, and your hosting has been way more reliable than anything else we’ve experienced.

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