BAYANHOSTING CORPORATION
("BAYANHOSTING.COM")

Terms of Service
("TOS")

This Web Hosting Agreement (this “ Agreement ”) is between BAYANHOSTING CORPORATION, a duly-registered company formed under the laws of the Republic of the Philippines with its principal office at Unit 3F, Double E Brothers Bldg., Aguirre Ave. cor. P. Banzon St., BF Phase I, Paranaque City, Metro Manila 1720  (“ BAYANHOSTING.COM ”) and the person (individual or legal person) who signs BAYANHOSTING.COM's service order and set up form (the “ Order ”) incorporating this Agreement by reference (“ Customer ”). This Agreement governs Customer's use of BAYANHOSTING.COM's Web hosting service.


Table of Contents


Services
Term
Payments
Law/AUP
Customer Information
Indemnification
Disclaimer of Warranties
Limitation of Damages
Suspension of Services/Termination
Request for Customer Information
Back Up Copy
Changes to BAYANHOSTING.COM's Network
Notices
Force Majeure
Governing Law / Disputes
Miscellaneous

 

 

1) Services

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

Bayanhosting.com - Acceptable Use Policy

 

2) Term

The initial service term of the Agreement shall begin on the date that BAYANHOSTING.COM 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 months stated in the Order (the “ Initial Term ”). Upon expiration of the Initial Term, this Agreement shall automatically renew for an unlimited successive renewal terms of the same length as the Initial Term (each a “ Renewal Term ”) unless BAYANHOSTING.COM 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 .”

Bayanhosting.com - Acceptable Use Policy

 

3) Payments

(a) Fees

Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly or annually as indicated on the Order, beginning on the Service Commencement Date. BAYANHOSTING.COM may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes BAYANHOSTING.COM 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 BAYANHOSTING.COM will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1 st day of each billing cycle, and the fees shall be due on the 14 th day following invoice date, but in no event earlier than the first day of each billing cycle.

Payments must be made in United States dollars. Customer is responsible for providing BAYANHOSTING.COM with changes to billing information (such as credit card expiration, change in billing address.) At its option, BAYANHOSTING.COM may accrue charges to be made to a credit/debit card until such charges exceed $10.00. BAYANHOSTING.COM may charge interest on overdue amounts at the lesser of 3.5% per month or the maximum non-usurious rate under applicable law. BAYANHOSTING.COM 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 BAYANHOSTING.COM's reasonable reinstatement fee of $10.00 following a suspension of service for non-payment, and to pay BAYANHOSTING.COM's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.

(b) Fee Increases

BAYANHOSTING.COM 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).

(c) Taxes

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

(d) 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 BAYANHOSTING.COM 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 BAYANHOSTING.COM'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.

(e) 30 Day Money Back Guarantee

All shared and reseller hosting plans carries a 30-day unconditional money back guarantee. If you are not completely satisfied with our services or support within the first 30 days, you will be given a full refund of the fees paid in advance (excluding setup fees) upon plan cancellation. The following services do not qualify for the 30 Day Money Back Guarantee: additional items and services; domain name registration/transfers; items and services ordered such as, but not limited to, SSL Certificate, SSL Certificate Installation, Dedicated Servers, Cloud Servers and overage fees.

(f) Performance and Uptime Guarantee

All shared and reseller hosting plans are guaranteed that the network will be available 99.6% of the time in a given calendar month, excluding scheduled maintenance and circumstances beyond our control (i.e. down routers, faulty hardware, DoS attacks, web site configuration issues, mis-configured customer scripts and applications, etc.) or a downtime of 175.10 minutes calculated as follows:

365 days per year divided by 12 months in a year = 30.4 days per month

60 minutes in an hour, 24 hours in a day or 1440 minutes in one day

30.4 days per month times 1440 minutes is 43776 minutes

0.4% of 43776 minutes is 175.10 minutes or 2.92 hours a month

This guarantee applies to the network connectivity and server uptime, but does not apply to Section 14 below. Both shared and reseller hosting customers' SLA does not cover any load issues caused by illegal or mis-configured customer software running on the server. Connectivity is measured as the ability of the server to transmit and receive data, that means if MySQL is down but your website is still working and/or your email is working there is no downtime. Downtime is complete website inaccessibility.

To be eligible for this SLA, your account must be in good standing. To have your account credited under the SLA a trouble ticket must be submitted and verified, you must provide third party documentation verifying the downtime. All requests for credit should be made to the billing department with a trouble ticket number referenced by the 3rd of the following month. All shared and reseller hosting customers of BAYANHOSTING.COM automatically qualifies to participate in this SLA.

(g) Refund Policy

Refunds may be availed of only in accordance with the 30 Day Money Back Guarantee. Refunds will be provided in the same payment method of the original payment. There are no refunds offered or promised after 30 days.

Bayanhosting.com - Acceptable Use Policy

 

4) Law/AUP

Customer agrees to use the service in compliance with applicable law and BAYANHOSTING.COM's Acceptable Use Policy posted here (the “ AUP ”), which is hereby incorporated by reference in this Agreement. Customer agrees that BAYANHOSTING.COM 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 BAYANHOSTING.COM'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 BAYANHOSTING.COM's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between BAYANHOSTING.COM and Customer regarding the interpretation of the AUP, BAYANHOSTING.COM's commercially reasonable interpretation of the AUP shall govern.

Bayanhosting.com - Acceptable Use Policy

 

5) Customer Information

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

Bayanhosting.com - Acceptable Use Policy

 

6) Indemnification

Customer agrees to indemnify and hold harmless BAYANHOSTING.COM, BAYANHOSTING.COM'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.

Bayanhosting.com - Acceptable Use Policy

 

7) Disclaimer of Warranties

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

Bayanhosting.com - Acceptable Use Policy

 

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 BAYANHOSTING.COM 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.

Bayanhosting.com - Acceptable Use Policy

 

9) Suspension/Termination

(a) Suspension of Service

Customer agrees that BAYANHOSTING.COM may suspend services to Customer without notice and without liability if: (i) BAYANHOSTING.COM 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) BAYANHOSTING.COM 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 BAYANHOSTING.COM's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

(b) 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 BAYANHOSTING.COM 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 BAYANHOSTING.COM 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 BAYANHOSTING.COM 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.

Bayanhosting.com - Acceptable Use Policy

 

10) Requests for Customer Information

Customer agrees that BAYANHOSTING.COM 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 BAYANHOSTING.COM 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.

Bayanhosting.com - Acceptable Use Policy

 

11) Back Up Copy

Customer agrees to maintain a current copy of all content hosted by BAYANHOSTING.COM nothwithstanding any agreement by BAYANHOSTING.COM to provide back up services. BAYANHOSTING.COM does not maintain backup copies of User Web sites or e-mail. BAYANHOSTING.COM cannot guarantee that the contents of a Web site will never be deleted or corrupted, or that a backup of a Web site will always be available. Users should always copy all content of a Web site to a local computer and BAYANHOSTING.COM strongly suggest that Users make an additional offline copy to ensure the availability of the files. IT IS THE USER'S SOLE RESPONSIBILITY TO MAKE OFFLINE, BACK-UP COPIES OF THE USER'S WEB SITE AND USER CONTENT AND DATA. NOTE: IT IS ESSENTIAL THAT USERS BACKUP FILES OFFLINE, EVEN IF USER PURCHASES OR HAS PRODUCTS, SUCH AS SITE BACKUP AND RESTORE.

Bayanhosting.com - Acceptable Use Policy

 

12) Changes to BAYANHOSTING.COM's Network

Upgrades and other changes in BAYANHOSTING.COM'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. BAYANHOSTING.COM reserves the right to change its network in its commercially reasonable discretion, and BAYANHOSTING.COM shall not be liable for any resulting harm to Customer.

Bayanhosting.com - Acceptable Use Policy

 

13) Notices

Notices to BAYANHOSTING.COM under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.bayanhosting.com/contactus.php. 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.

Bayanhosting.com - Acceptable Use Policy

 

14)Force Majeure

BAYANHOSTING.COM shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond BAYANHOSTING.COM'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.

Bayanhosting.com - Acceptable Use Policy

 

15) Governing Law/Disputes

The Agreement shall be governed by the laws of the Republic of the Philippines, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE TRIAL COURTS IN PARANAQUE CITY, METRO MANILA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.

Bayanhosting.com - Acceptable Use Policy

 

16) 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 BAYANHOSTING.COM 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 BAYANHOSTING.COM's prior written consent. BAYANHOSTING.COM's approval for assignment is contingent on the assignee meeting BAYANHOSTING.COM's credit approval criteria. BAYANHOSTING.COM 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 supercedes and replace any prior understanding or communication, written or oral.

Bayanhosting.com - Acceptable Use Policy