This Website Hosting Agreement (“Agreement”), by and between Robot Creative Management LLC (“Robot”), a Texas limited liability company (“Robot”), and [Client Information] (“Client”). By utilizing Robot’s hosting services, Client accepts and agrees to the terms of this Agreement, as well as Robot’s Hosting Proposal or Estimate, which are hereby included by reference as part of this Agreement. To the extent any conflict exist between this Agreement and the Hosting Proposal or Estimate, this Agreement Controls.
Website Hosting Services.
Robot agrees to provide Client with the services for hosting a website (the “Website”) on the Internet (the “Hosting Services”). Robot shall provide the hosting services so that the website is accessible to third parties via the Internet as specified herein. Robot is responsible only for providing the Hosting Services, and not for providing any services or performing any tasks not specifically described in this Agreement.
Client Responsibilities.
Hardware Compatibility. The Client is responsible for ensuring that Client website is compatible with the hardware and software used by Robot Creative. The hardware and software may be changed by Robot Creative from time to time in its sole discretion.
Client Content. Client is responsible for providing files and content (“Client Content”) in a format that is required for the server, as specified by Robot. Robot will provide assistance with modification required to meet specifications, as requested by Client and mutually agreed to by the parties in a separate statement of work.
Inappropriate Content. Client shall ensure that the Client Content does not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights or privacy rights) Client acknowledges that Robot has no control over any content placed on the Website by Client and does not purport to monitor the content of the Website. Robot reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Content.
Reference Link Approval. Robot may include the statement "Website powered by Robot Creative" on the home page of the Website in a form to be agreed upon.
Offsite Backups. The Client is responsible for backing-up all Client Content, including any Client Websites off of Robot’s servers. Robot is not responsible for the loss of any Client content or data. Even with daily backups as part of a hosting contract, the Client should backup files offline.
Robot Responsibilities.
3.1. Availability. Robot will use commercially reasonable efforts, pursuant to the terms and conditions set forth in this Agreement, to make the website accessible twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and will use its best efforts to ensure reasonable response times for users accessing the website. Notwithstanding the foregoing, Robot makes no guarantees or warranties relating to up-time of the website.
Backups. Robot shall backup the website daily and save backups for up to 30 days.
Security. Robot shall endeavor to keep the site files and data as secure as possible, but makes no warranties about the security of any site code or data. Should the website files or content, whether provided by Robot or the Client, become compromised through any manner of security breach or exploit, Robot shall, at its sole discretion, take down the site, repair the files and data, and bill the Client for the work at prevailing hourly rates. Robot will communicate with the Client regarding the nature of the breach or exploit and the nature of the resolution.
Website Plugin and Theme Updates. If the Client hosting agreement includes website plugin and theme updates (see hosting agreement for details), Robot will make every attempt to install the updates provided by WordPress, the theme developers and plugin developers. Robot will attempt to troubleshoot technical issues related to the theme updates, plugin updates and WordPress. Robot is not responsible for third-party plugins that may become unusable. If plugins become out of date or are no longer functional or supported, Robot will provide alternative suggestions and estimates to replace them with similar solutions. An estimate for plugin replacements will be provided and Client approval will be required for any additional charges to maintain the site.
Existing Infrastructure. Client understands that Robot will not be held responsible for corrections or repairs required to existing website files, website infrastructure, prior work by other parties, or other services or products not provided by Robot. Robot will provide estimates to help correct or revise any existing work or infrastructure.
Transfer of Files Upon Termination. Upon the termination of this Agreement, after the payment of all fees called for herein, Robot shall use commercially reasonable effort to assist in the transfer of the website to the Client and/or its designated third party contractor at Client’s cost.
Ownership of Intellectual Property and Equipment; Licenses
Client Content. Client shall retain all right, title, and interest, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights, in the Client Content. Client assumes sole responsibility for the accuracy of any Client Content or other materials provided to Robot for either authoring or hosting. Client hereby grants Robot a non-exclusive, royalty-free license for the term of this Agreement to use, copy, modify, adapt, perform and display the Client Content solely as necessary to fulfill its obligations pursuant to this Agreement. Upon termination or expiration of this Agreement for any reason whatsoever, all rights granted to Robot pursuant to this section immediately revert to Client.
Robot Equipment. Robot retains all rights to the hosting services and any computer hardware, software, telecommunications or other equipment, including the host server, used to provide the hosting services (collectively, the “Robot Equipment”). At no time shall Client have any ownership, property, or any other rights in, nor file any lien on, any of the hosting services or the Robot equipment.
Confidentiality.
Each Party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other Party. Each Party, its agents and employees shall hold and maintain in strictest confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations pursuant to this Agreement, except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
Hosting Billing and Payment
Recurring Payment Terms. Client authorizes Robot Creative to charge the Client’s payment method on file as indicated on the Hosting Proposal or Estimate. The Client will fill out such authorization paperwork as necessary, and may be required to update billing information.
Additional Services. Any additional services requested will be billed at the end of each month, and invoices are due upon receipt.
Taxes. Client shall be responsible for any applicable sales tax.
Late Payment. Hosting payments not made within 30 days of invoice due dates are subject to suspension. Robot shall not be liable for any damages, losses of liabilities that may arise out of the suspension of services or withholding of materials due to Client’s non-payment. Late payments accrue interest at the rate of 1.5% per month. Robot shall be entitled to all of its costs of collection of amounts outstanding, including, without limitation, attorney’s fees.
Terminations. Robot Creative reserves the right to terminate service in the event that payments are not received in a timely manner.
Cancellations. Hosting services can be canceled at any time. Cancellations may take up to 5 days to process. Please contact us for cancellations. Contact information is available at www.robotcreative.com/contact
Refunds. We do not offer refunds for any product or service. Any fees paid are non-refundable. You may cancel a service prior to the end of the service period, but no pro-rated refund will be offered. If we have incorrectly charged you for a product or service you did not request, and we are notified prior to providing those products or services, we will promptly refund your money in full.
8.Warranties.
8.1. Client. Client represents and warrants that: (a) Client has the power and authority to enter into and fully perform its obligations under this Agreement and to grant the rights granted in this Agreement; (b) The content, material, messages and data transmitted or made available through the services (including Client Content) do not and shall not contain any material that is inaccurate or that violates any applicable law, rule or regulation (including, without limitation, export laws) or that infringes upon any common law or statutory right of any person or entity, including, without limitation, any proprietary, contract, moral, privacy or publicity right, copyright, patent, trademark, trade secret, or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the website; (c) The content, material, messages and data transmitted or made available through the services (including Client Content) do not and shall not contain any material that, in Robot’s good faith judgment, is obscene, threatening, malicious, defamatory, libelous, slanderous, pornographic or which otherwise could expose Robot to civil or criminal liability; (d) Client has obtained any authorization(s) necessary for hypertext links from the website to other third party Web sites; and (e) Client will not use the services to send unsolicited commercial e-mail, or engage in any other offensive or harassing conduct, or conduct that unreasonably interferes with Robot’s ability to manage its network facilities or provide similar services to other customers.
8.2. Robot Warranties.
Robot is not able to guarantee the functions contained in any of Robot’s products and services to always be completely error-free, and therefore Client agrees Robot will not be held liable to Client, or any third party, for damages, including lost profits, lost savings or other incidental, consequential, or special damages arising out of the operation of or inability to use or operate Robot’s products or services, even if Client has advised Robot of the possibilities of such damages. The equipment provided and all services performed are on an “as is” basis. Robot does not make and hereby disclaims all warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose.
Limitation of Liability; Damages.
Robot’s sole liability to Client or any third party for any loss, liability or damage, including attorney’s fees, for any claim arising out of or related to this Agreement (including use of equipment or any services), regardless of the form of action, shall be limited to Client’s actual direct out-of-pocket expenses, which are reasonably incurred by client, and shall not exceed the amount of the fees actually paid to Robot by Client under this Agreement during the two (2) months immediately preceding the date on which such claims accrued. In no event shall Robot be liable to client or any third party for lost profits, lost savings, lost data, consequential, special, incidental or punitive damages, howsoever arising out of or related to this Agreement, without regard to the basis of the claim or whether Client has advised Robot of the possibilities of such damages.
Indemnification.
Client agrees to indemnify, defend and forever hold harmless Robot, and any of its parent and affiliated companies, and the present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents of any of these, and their successors, heirs and assigns from and against any and all losses liabilities, claims, costs, damages and expenses (including reasonable attorneys’ fees, disbursements and administrative or court costs) that (i) arise directly or indirectly out of any breach or alleged breach of its representations and warranties under this Agreement, (ii) arise directly or indirectly as a result of any action or claim that the materials or any other material posted to, or linked to, the site constitutes Inappropriate Content; (iii) are a violation of applicable law; or (iv) which are the result of its willful misconduct. Robot shall promptly provide Client with written notice of any claim which it believes falls within the scope of this paragraph and shall cooperate with Client in the investigation and defense of the same. Robot may, at its own expense, assist in the defense if it so chooses, provided that the Client shall control such defense and all negotiations relative to the settlement of any such claim and that any settlement intended to bind Robot shall not be final without Robot’s written consent, which shall not be unreasonably withheld.
Force Majeure.
Neither party shall be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any fire, earthquake, flood, snowstorm, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause beyond that party’s reasonable control.
Term.
This agreement will become effective on the date agreed to by the parties and will continue in force from that date until terminated upon thirty (30) days written notice by either party to the other. The obligations of the parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement shall survive any such expiration, termination or cancellation.
Automatic Renewal. To ensure uninterrupted service, hosting services will automatically renew on your renewal date. Unless you cancel the Services, following the expiration of the initial term the hosting services will automatically renew for successive periods of equal length as the Initial term.
Governing Law.
This Agreement will be governed in accordance with the substantive laws of Texas without giving effect to its conflict of laws provisions.
Arbitration.
If there is any dispute or controversy between the parties arising out of or relating to this Agreement, the parties agree that such dispute or controversy will be arbitrated in accordance with proceedings under American Arbitration Association rules, and such arbitration will be the exclusive dispute resolution method under this Agreement. The decision and award determined by such arbitration will be final and binding upon both parties. All costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute which is determined and/or settled by arbitration pursuant to this Agreement will be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties will share the total costs in proportion to their respective amounts of liability so determined. EACH PARTY AGREES IT IS EXPRESSLY AND IRREVOCABLY WAIVING ITS RIGHT TO A JURY TRIAL.
Amendment.
Robot reserves the right, at its sole discretion, to modify, discontinue or terminate this Agreement at any time. This Agreement can be viewed at any time at [website]. If Robot modifies this Agreement, it will provide Client with notice of the modified terms by posting it on [website]. It is Client’s responsibility to review the website for updated terms of this Agreement. By continuing to access or use Robot’s services after the modified Agreement has been presented, Client agrees to be bound by the modified Agreement. If the modified Agreement is not acceptable to Client, Client may terminate this Agreement pursuant to its terms.
Notice.
Any notice that either party may give or is required to give under this Agreement shall be in writing and delivered in person, mailed via registered or certified mail, return receipt requested, or via email with confirmation of receipt to the appropriate address listed herein or as may be amended from time to time by either party. Any such notice will be deemed received upon personal delivery, or, if sent by mail, within three (3) days after mailing, or upon transmission if sent by email with confirmation of receipt. Notices shall be sent to the parties at the addresses and/or contact information provided at the beginning of this Agreement.
Severability.
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then such provision shall be deemed severed herefrom, and such invalidity shall not affect any other provision of this Agreement, the balance of which shall remain in and have its intended full force and effect; provided, however, if any such provision may be modified so as to be valid as a matter of law, then such provision shall be deemed to have been modified so as to be enforceable to the maximum extent permitted by law.
Entire Understanding.
This Agreement constitutes the entire understanding and agreement of the parties with respect to Hosting Services, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect. There are no agreements, restrictions, promises, warranties, covenants, or other undertakings other than those expressly set forth in this Agreement, and no previous negotiations, drafts or versions of this Agreement shall be used by either party to construe or affect the validity of this Agreement.
Acceptance.
The above referenced parties have accepted the terms of this Agreement as of the first date of Client’s usage of Robot’s hosting services.
