Thank you for joining DQuinn.net’s Insider Hosting. You’ll soon be enjoying a high availability server at a fraction of the cost!
Below is your terms of service agreement that outlines our relationship and my relationship with WP Engine. By fulfilling the order that brought you to this page, you accept these terms of service as outlined below.
You can call WP Engine at the below phone numbers 24/7 for technical support:
US: +1 (512) 729-5943
UK: +44 808 501 5895
AU: +61 1800 531 769
Keep in mind that if you are not on Managed Hosting plan with me, I do not provide technical support for your website outside of a yearly retainer. If you’d like account to your hosting portal, please get in touch so I can make you an authorized user account.
If you need to close your hosting, get in touch and I can take care of that for you. When you close your account, you have two options:
If I close your hosting without migrating you back to your own account at WP Engine, your website and all it backups will be deleted by the end of the last paid subscription month. Make sure to back up your website before you go! I can help you with this but I will have to charge an hour at my full rate to prepare the download.
If you’d like to return to regular WP Engine hosting, you will need to open a new account at WP Engine. I will then coordinate with WP Engine to have your account transferred over.
In both cases, you won’t receive a refund for the remainder of the month in which you cancel, so make sure you do so before the start of a new month.
A. Execution of Terms. By clicking through these terms, or signing the Order to which they are attached, you are entering into an Agreement with the Host to provide Services to you. That Agreement between us is comprised of the Order to which they are attached or by which they are referenced and the TOS, AUP, and SLA which are referenced herein, and any other terms, exhibits, schedules, or addenda which are referenced by any of the preceding (collectively the “Agreement”). The Agreement sets forth the exclusive terms and conditions between the Parties and supersedes all previous proposals, agreements, negotiations, and other written or oral communications between the Parties with respect to the Services provided hereunder.
B. Host Relationship to Services Provider. The Client acknowledges that the Host is acting as an intermediary between the Client and the Services Provider. The Client acknowledges that the relationship between the Services Provider and the Host is governed by the TOS, AUP, and SLA.
A. SLA Compliance. We will provide the Services in accordance with the terms of the Agreement and the SLA. You acknowledge that we may engage third parties to provide or enable elements of the Services, provided that we are responsible to you for the performance of such third parties as if we performed the Services ourselves. You shall use the Services solely for the intended purpose in accordance with the Agreement and provide us with all information, assistance, and materials reasonably required for our ongoing provision of the Services.
B. Support. We will provide support to you through any standard means we make available to our customers.
C. Amendment of Services. The scope of Services provided under the Agreement may be amended by any reasonable means showing mutual agreement between the Parties including click-through terms, email, support ticket, or other written communications. Any associated fees will be clearly and conspicuously provided to you before you agree to any such change.
D. End of Life. From time to time, the Services Provider or the Host may provide replacements for certain components of the Services or cease supporting them altogether. No such replacement or end of life shall constitute a breach of the Agreement.
A. Fees. You agree to pay the Fees beginning on the Effective Date and according to the payment terms set out in the Order. If no payment terms are specified, Fees shall be due in full in advance, except for usage or overage fees which are invoiced monthly in arrears. If the Order sets any limit on your use of Services (such as number of visitors) and that limit is exceeded, you will be responsible for the applicable overages. You agree to pay any applicable taxes (excluding taxes on our income) which we are required to collect unless you provide us with a valid tax exemption certificate. If you elect to make any payment via wire or credit transfer, then you are responsible for any applicable transfer fees. Any applicable overages, taxes, or transfer fees will be added to the Fees. Fees applicable to any Renewal Term will be at our then-current rates, provided that we have notified you of any applicable increase prior to the date by which you may opt out of the renewal. Fees are payable in the currency specified in the Order and are not refundable except as expressly stated herein.
B. Billing. It is your responsibility to maintain accurate and up-to-date billing details and ensure the Fees are paid by the due date. If you fail to maintain accurate and up-to-date billing details, your account may be suspended until such details are provided. If you are overdue on any Fees, we may: (i) charge a late fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate permitted by applicable law, (ii) suspend provision of the Services, and (iii) terminate the Agreement in accordance with Section 4(ii) below. You will be responsible for any charges associated with our collection efforts related to unpaid Fees.
C. Price Changes. We may change prices whenever the Services Provider changes the price of its underlying web hosting offerings. We shall provide you with at least 30 days notice (the “Price Change Notice Period”) before the price change will take effect. If you reject the price change in writing during the Price Change Notice Period, this Agreement will automatically terminate at the end of the term in which the Price Change Notice Period expires.
D. SLA Agreement. To the extent that we have a separate agreement with the Services Provider through the SLA, the remedies contained in the SLA are your sole and exclusive remedies for any issues addressed therein.
i. Your Services are subject to Section 4 as described in the SLA.
ii. In order to receive a credit as described by the SLA, you must contact us within 30 days of the event giving rise to the credit. Credits are based on the Services Provider’s monitoring, shall not exceed 100% of your applicable monthly Fee, may not be carried over or aggregated, are forfeited at the expiration or termination of the Agreement, and will not be paid or provided as a refund.
A. Termination Procedures. This agreement may be terminated:
i. by either party for convenience, on provision of 30 days written notice before the end of a Term. If we terminate for convenience, we will provide you with a prorated refund of any unused Fees beyond the date of termination and adjusted for any amounts which you may owe;
ii. by either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within 30 days of receipt of written notice;
iii. by us, (1) if we reasonably believe that your use of the Services endangers or negatively affects the Services Provider’s network or systems, violates the law, or interferes with our ability to provide services to our other customers; (2) if you abuse, harass, or threaten any of our employees; or (3) for any other cause stated herein.
B. Effects of Termination. After the termination of this Agreement for any reason:
i. We shall revert the Website then in our possession to the possession of the Services Provider at your expense and with your written approval within 30 days of the termination of the Agreement. In the absence of your approval, we shall delete the Website from our Services after 30 days of the termination of the Agreement.
In the absence of a separate retainer agreement with us to provide support unrelated to the Services, you shall consult with the Services Provider via the customer support channels outlined by the TOS and we will provide no support.
You acknowledge and agree that we facilitate security, data backup, and data privacy for the Website via Services Provider’s systems, in accordance with the stipulations outlined in Section 8 of the TOS. You further acknowledge the Limitations in Section 11 of the TOS regarding backups. To that end, you acknowledge that:
i. we are not responsible for any loss or harm suffered by you resulting from a security incident;
ii. should we be informed by the Services Provider that the underlying network has been accessed in an unauthorized manner, and that unauthorized access impacts your Services, we agree to notify you as soon as reasonably practicable after we have been informed by the Services Provider. Likewise, you agree to notify us should you identify unauthorized access to the Services, and;
iii. we will adhere to any Privacy Policy set forth by the Services Provider and with its terms and obligations.
You represent that you are the owner or valid licensee of the Website and that you have secured all necessary licenses, consents, permissions, waivers, and releases for the use of the Website.
A. Host’s Use of the Website. We may use your intellectual property to do the following, to the extent necessary to perform the Services:
i. digitize, convert, install, upload, select, order, arrange, compile and synchronize, use, reproduce, store, process, retrieve, transmit, and hyperlink the Website; and
ii. make archival or back-up copies of the Website.
B. Nature of the Website. You agree not to do anything that Services Provider prohibits us from doing in the AUP, and you agree in addition to those terms not to do any of the following in connection with the Services:
i. use the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex or extreme violence;
ii. use the Services to transmit or post any material that violates any applicable local, state, national, or international law, or any rules or regulations promulgated under those;
iii. use the Services to harm or attempt to harm minors in any way;
iv. use the Services to transmit or post any material that harasses, threatens, or encourages bodily harm or destruction of property;
v. use the Services to make fraudulent misrepresentations or offers, including offers relating to “pyramid schemes” and “Ponzi schemes”;
vi. use the Services to access, or attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of the Services Provider or another entity’s computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data;
vii. use the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including the unauthorized copying or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
viii. use the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent;
ix. resell the Services, or;
x. use the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes “denial of service” attacks against another network host or individual client. Interference with or disruption of other network clients, network services, or network equipment is prohibited;
xi. use the Services in any other way prohibited by the TOS.
Each Party agrees to preserve the confidential nature of the other Party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with the Agreement, and by using the same degree of protection that it uses to protect its own similar confidential information, which in no event shall be less than reasonable care. Notwithstanding the foregoing, either Party may disclose the other Party’s Confidential Information to the limited extent such disclosure is required by law, legal process, or court order, including any requirement under applicable data privacy regulations that a notice of data breach be given to a supervisory authority or regulatory agency. Information disclosed for these reasons will not cease to be Confidential Information. To the extent practicable, a Party will provide prompt notice of any such required disclosure and shall cooperate with all reasonable efforts by the disclosing Party to minimize or exclude the Confidential Information from such disclosure. Upon termination or expiration of the Agreement for any reason, any license granted herein to use the Confidential Information shall terminate immediately, and each Party will either return or destroy any Confidential Information in its possession which belongs to the other Party, or it shall continue to protect the Confidential Information in accordance with the Agreement for as long as it is retained as part of that Party’s customary business practices. Notwithstanding any other terms to the contrary herein, each Party will have the right to seek an injunction in any court of competent jurisdiction to prevent a breach or threatened breach of this Section.
You agree to indemnify, defend, and hold us harmless from and against any and all liabilities, obligations, losses, damages, penalties, fines, amounts in interest, and other expenses (including reasonable attorney fees) in connection with a claim or demand brought by a third party related to your violation of this Agreement. We reserve the right to control the defense of any indemnified matter under this Section and approve any proposed settlement. You will pay us the amounts due under this Section as they are incurred.
A. Backups. You acknowledge that although the Services Provider may perform regular backups of the Website, we do not guarantee there will be no loss or corruption of data. Corrupt or invalid backup points may be caused by, among other things, content that is corrupted prior to being backed up or that changes during the time a backup is performed. We will provide support to you and attempt to troubleshoot any known or discovered issues that may affect your backups, but you acknowledge that we have no liability related to the integrity of your backups or the failure to successfully restore your content to a usable state. You agree to maintain a complete and accurate copy of the Website in a location independent of the Services.
B. Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE HOST SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, AVAILABILITY, ACCURACY, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. OTHER THAN AS EXPRESSLY SET OUT IN THE AGREEMENT, THE SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS.
C. Liability. IN NO EVENT SHALL OUR LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY REASON (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY) EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID OR OWED BY YOU TO US IN THE 3 MONTHS PRECEDING THE CLAIM.
D. Other Liability. IN NO EVENT SHALL WE OR OUR LICENSORS HAVE ANY LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, NOR ANY COVER OR LOST PROFITS, HOWEVER CAUSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
E. Remedies. THE SLA SETS OUT YOUR SOLE REMEDIES FOR DOWNTIME, UNAVAILABILITY, OR OTHER SLA FAILURES.
The limitations in this Section do not apply to the extent prohibited by applicable law or to your payment obligations for Services provided.
The Website is and remains your exclusive property, and we claim no rights whatsoever in the Website except to the extent explicitly granted herein. For the Term of the Agreement, you hereby grant to us, our affiliates, providers of Third-Party Services, and subcontractors a non-exclusive, fully-paid, royalty-free, fully sub-licensable, transferable, worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute the Website (in whole or in part) solely and strictly to the extent required to provide the Services to you under the terms of the Agreement.
A. Assignment. Neither Party may assign the Agreement, in whole or in part, without the other Party’s prior written consent except in connection with a merger, reorganization, sale of assets or similar transaction. In case of the latter, the assigning Party will provide notice as soon as reasonably practicable and without undue delay. Any purported assignment in violation of this Section shall be null and void. The Agreement shall be binding on all permitted successors and assigns.
B. Force Majeure. We shall not be deemed to be in default of the Agreement, or to have breached any of its provisions, as a result of a delay, failure in performance, or interruption in the Services which result, either directly or indirectly, from any circumstances beyond our reasonable control including acts of god, acts of civil or military authority, civil disturbance, war, strikes, fire, laws, regulations, governmental acts, third-party network unavailability, and/or failure of telecommunication facilities.
C. Governing Law and Venue. The Agreement is governed by the laws of the State of Massachusetts, without regard to its choice of law statutes. Any disputes must be brought in the state or federal courts located in Middlesex County, Massachusetts. No claim may be brought as a class or collective action and you may not actively assert a claim arising out of the Agreement as a member of a class or collective action. The United Nations Convention on the International Sale of Goods shall not govern the Agreement.
D. Notices. Except as otherwise required herein, notices shall be effective when delivered, as indicated by a delivery receipt, or, in the case of notices delivered by post, 5 business days after being mailed to the designated address by first class mail. Notices shall be made by email or written communication to either Party.
E. Severability. Any provision in the Agreement that is held to be illegal or unenforceable in any jurisdiction shall be effective only up to the extent of such illegality or unenforceability, if possible, and shall not invalidate the remaining provisions of the paragraph or the Agreement. To the largest extent possible, the illegal or unenforceable provision shall be restated to reflect the Parties’ intent.
F. Survival. Any provision of the Agreement that contemplates performance or observance subsequent to termination or expiration of the Agreement (including, without limitation, confidentiality, limitation of liability, and indemnification) survives termination or expiration and continues in full force and effect.
G. Third-Party Beneficiaries; Relationships. There are no third-party beneficiaries to the Agreement. Nothing contained in the Agreement shall be deemed or construed as creating a joint venture or partnership between the Parties hereto. No Party is by virtue of the Agreement authorized as an agent, employee, or legal representative of any other Party. Neither Party has the authority to make any representations, claims, or warranties of any kind on behalf of the other Party, nor on behalf of that Party’s affiliates, agents, subcontractors, licensors, or third-party suppliers.
H. Waiver. If one Party fails to exercise, or delays exercising, any right, remedy or power set out in the Agreement, this shall not operate as a waiver of that right, remedy or power, whether under the Agreement or at law or equity.
A. “Agreement” has the meaning provided in Section 1(i).
B. “Services Provider” means WP Engine, Inc., a Delaware corporation located at 504 Lavaca St., Ste. 1000, Austin, Texas 78701.
C. “AUP” means the Acceptable Use Policy located at https://wpengine.com/legal/aup/ as it may be updated by the Services Provider from time to time.
D. “Confidential Information” means information disclosed by one Party to the other, directly or indirectly, in writing, orally, or by inspection of tangible objects, that should be reasonably understood to be confidential by its particular identification or designation, the circumstances of its disclosure, or the nature of the information itself. Confidential Information does not include information which, at such time: (i) is generally known or available to the public without breach of the Agreement by the receiving Party; (ii) is rightfully disclosed to the receiving Party without restriction as to further use or disclosure; or (iii) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession. Confidential Information is and shall remain the property of the disclosing Party (or its licensors, as applicable), and no rights are granted to the Confidential Information other than those rights expressly granted in the Agreement.
E. “Client,” “you,” or “your” means the entity entering into this Agreement with the Host upon the actions taken by its authorized representative.
F. “The Website” means the entirety of the website hosted on the Service and any text files, images, photos, videos, sounds, or other materials or works of authorship belonging to you or your end users that you cause to be stored within the Services, excluding Account Information.
G. “Account Information” means the information about your account which is required by us in order to provide the Services to you including account settings and billing data.
H. “Effective Date” means the date your account is activated.
I. “Initial Term” means the term stated in the Order.
J. “Order” means the order form or online transaction which describes the Services and incorporates these Terms of Service.
K. “Party” means either Client or the Host; “Parties” means both Client and the Host.
L. “Privacy Policy” means the policy located at https://wpengine.com/legal/privacy/ as it may be updated by the Services Provider from time to time.
M. “Renewal Term” means any successive term after the Initial Term.
N. “Services” means the hosting, support, and other related services we provide to you as described in the Order.
O. “SLA” means the Service Level Agreement located at https://wpengine.com/legal/sla/ as it may be updated by the Services Provider from time to time.
P. “Term” means the entirety of the Initial Term and all Renewal Terms.
Q. “Third-Party Services” means certain third-party products or services which are not sold or licensed by us but which are made available for you, in your sole discretion, to enable or integrate with the Services (e.g. third-party themes and plugins available through the WordPress administrative portal). We maintain no control over and disclaim any and all liability for Third Party Services, even where we may have provided limited support or advice to you in relation to such services. Such support and advice are provided in good faith, AS-IS and AS-AVAILABLE, and solely for your convenience.
R. The “Host,” “we,” or “our” means DQuinn.net, LLC located at 273 Washington Street in Arlington MA, 02474.
