This Web Hosting Agreement is between Design! by Kiltz LLC, formed under the laws of the State of Oregon and you (“the Customer”). This Agreement governs your use of Design! by Kiltz LLC’s Web hosting service.
- Cancellation and Early Termination
- Customer Information
- Disclaimer of Warranties
- Limitation of Damages
- Suspension of Services/Termination
- Bandwidth Usage
- Request for Customer Information
- Back Up Copy
- Request for Rebuild/Restore of Hosting Package
- Changes to Design! by Kiltz LLC’s Network
- Force Majeure
- Binding Arbitration
We promise to provide you with the level of hosting services outlined in the package you sign up with or change to in the future.
Your hosting will start when your account is activated (within 1 business day of signing up for the account), and it will continue until you or we cancel it. The agreement may refer back to this as the “Term.”
All hosting invoices are sent via email and are available through a Client Portal.
It is the responsibility of the Customer to whitelist our email address to ensure delivery. Email getting caught in spam filters does not negate the Customer responsibility of payment.
- Recurring FeesYour payment will automatically be made through Paypal or by credit card on the date that you signed up for our services. If your payment fails, you have 5 days grace period to make your payment before your account is suspended. We reserve the right to revoke this grace period and cancel your hosting service if a pattern of late payments develops. All orders made with a credit card are expected to work on the monthly renewal date each month. If the card declines then the customer is subject to a $5 one time fee on top of the monthly renewal price. Any accounts made inactive for non-payment are subject to a $10.00 late payment fee & $10 reactivation fee.
- Payment by CheckIf hosting payment is made by check, payment is expected by the due date.
- Credit/Debit card and your Address on FileIf you choose to save your credit card, it is fully encrypted with no way for us to unencrypted or view it. You may also pay via a Paypal subscription, where your card details are kept completely private.
- Non-Recurring FeesThere really aren’t any non-recurring fees unless your payments fail. But, these will be billed out separate from your hosting service & due within 7 days.
- Upgrades / DowngradesOnce your plan is upgraded you can not request a downgrade of the same plan for at least one month.
- TaxesCurrently Oregon does not have sales tax
- 30 Day Money Back GuaranteeAll new Design! by Kiltz LLC Customers are eligible for a 30 day money back guarantee on all hosting packages upon written request. The definition of a new customer is one who has never purchased services from Design! by Kiltz LLC in the past. Also if a customer purchases a 2nd, 3rd, etc. hosting package and wishes to cancel this particular package they are not eligible for a refund. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee. If the TOS/AUP agreed upon when ordering is violated this voids your eligibility for the 30 day money back guarantee. Design! by Kiltz LLC, reserves the right to deny the refund if we feel abuse of services has occurred.
- Ongoing Late PaymentsIf the Customer develops a history of late payments, Design! by Kiltz LLC reserves the right to terminate service with a 14 day notice.
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 that Design! by Kiltz LLC terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 10 (Termination), or Customer terminates the service other than in accordance with the TOS, 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 Design! by Kiltz LLC or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
- Cancellation request must be submitted in writing through our Contact form.
- Cancellation request must be submitted from the main email address on file with Design! by Kiltz LLC
- Cancellation request must contain the main domain (shared/reseller account) of the hosting plan you wish to cancel
Customer agrees to use the service in compliance with applicable law and Design! by Kiltz LLC’s Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that Design! by Kiltz LLC may, in its reasonable commercial judgment consistent with industry standards, change the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services.
Changes to the AUP are effective when we send a notice to you 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 Design! by Kiltz LLC’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Design! by Kiltz LLC and Customer regarding the interpretation of the AUP, Design! by Kiltz LLC’s commercially reasonable interpretation of the AUP shall govern.
6. Customer Information
You guarantee that you’re providing us with valid information. You need to be at least 18 years of age. We rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to your account until you has provided a written notice changing the Primary Customer Contract.
Customer agrees to indemnify and hold harmless Design! by Kiltz LLC, Design! by Kiltz LLC’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
Design! by Kiltz LLC DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW Design! by Kiltz LLC 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 POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Design! by Kiltz LLC 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 ONE MONTH OF SERVICE.
- Suspension of Service. Customer agrees that Design! by Kiltz LLC may suspend services to Customer with or without notice and without liability.
- Termination. Design! by Kiltz LLC reserves the right to terminate the Agreement or deny services at any time with or without notice and without liability. The Agreement may be terminated by the Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Design! by Kiltz LLC 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 Customer may also terminate this agreement as per Section 4 and Section 6 respectively.
- Either party may terminate this agreement upon five (5) 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.
11. 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.
Design! by Kiltz LLC is not a domain registrar. We are not responsible for domains that expire. All hosting fees remain applicable if your domain is expired.
13. Requests for Customer Information
Customer agrees that Design! by Kiltz LLC 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 Design! by Kiltz LLC 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.
14. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by Design! by Kiltz LLC notwithstanding any agreement by Design! by Kiltz LLC to provide back up services.
15. Request for Rebuild/Restore of Hosting Package
During any service term, you may request a rebuild 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 $50.00 one time fee will be enforced.
16. Changes to Design! by Kiltz LLC’s Network
Upgrades and other changes in Design! by Kiltz LLC’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. Design! by Kiltz LLC reserves the right to change its network in its commercially reasonable discretion, and Design! by Kiltz LLC shall not be liable for any resulting harm to Customer.
Notices to Design! by Kiltz LLC under the Agreement shall be given via email. All notices, including but not limited to support or billing requests, must be submitted from the registered primary or secondary e-mail address on file for the customer account.
Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. It is the Customers responsibility to ensure valid and accurate contact information is supplied and updated as necessary. 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.
18. Force Majeure
Design! by Kiltz LLC shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Design! by Kiltz LLC’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.
19. Binding Arbitration
As a Customer of Design! by Kiltz LLC you agree to submit to binding arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The location of Arbitration shall be selected by Design! by Kiltz LLC at the time of the dispute.
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 Design! by Kiltz LLC 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 Design! by Kiltz LLC’s prior written consent. Design! by Kiltz LLC’s approval for assignment is contingent on the assignee meeting Design! by Kiltz LLC’s credit approval criteria. Design! by Kiltz LLC 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 replace any prior understanding or communication, written or oral.
Last updated on 06/18/2020