Subject to the terms of this Agreement, ServerBabe agrees to provide the services described during the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that the Provider delivers the server to ServerBabe and in return ServerBabe delivers the server to the customer (the “Service Commencement Date”). The term 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 the same length as the Initial Term (each a “Renewal Term”) unless ServerBabe or Customer provides the other with termination notice within 3 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.”
(a) Recurring Fees
Renewal notices are emailed seven days before the actual renew date in your account. You will need to manually pay your invoice every month. Service will be made inactive on accounts that are overdue at the discretion of the Provider. The term “Account” describes all services provided to a customer as defined by the primary ownership email and physical address. Late payments to accounts overdue may be subject to a $10.00 late payment fee.
At ServerBabe’s request Customer shall remit to ServerBabe all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on ServerBabe, regardless of whether ServerBabe fails to collect the tax at the time the related services are provided).
(d) Money Back Guarantee
Services provided by 3rd parties and ServerBabe partners are not applicable for refund (with the sole exception of services provided by Hetzner.de, wherein the customer may choose to cancel within the first 14 days) and no early ending credit applies. Billing will stop at end of term during which the service is canceled. Notice of cancellation must be given before the month in question begins. Setup fees are NON refundable.
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 ServerBabe 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 Section 10 (Termination), 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 agrees to use the service in compliance with applicable law and ServerBabe’s Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that ServerBabe 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 ServerBabe’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 ServerBabe reasonable investigation of any suspected violation of the AUP. In the event of a dispute between ServerBabe and Customer regarding the interpretation of the AUP, ServerBabe’s commercially reasonable interpretation of the AUP shall govern.
6. Customer Information
Customer represents and warrants to ServerBabe that the information he, she or it has provided and will provide to ServerBabe for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to ServerBabe that he or she is at least 18 years of age. ServerBabe 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.
Customer agrees to indemnify and hold harmless ServerBabe, 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
SERVERBABE DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW SERVERBABE 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 SERVERBABE 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.
(a) Suspension of Service.
Customer agrees that ServerBabe may suspend services to Customer with or without notice and without liability.
ServerBabe 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 ServerBabe 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.
Be advised that if a service disruption occurs on your server that is traced to your account(i.e; excessive outgoing bandwidth) we’ll suspend your server and investigate what’s causing the disruption to others. This will result in your server becoming non-accessbile until we resolve the issue. Restoration of service is under the sole discretion of ServerBabe, we reserve all rights to the denial of refund.
11. Requests for Customer Information
Customer agrees that ServerBabe 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 ServerBabe 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.
12. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by ServerBabe notwithstanding any agreement by ServerBabe to provide back up services.
13. Changes to ServerBabe’s Network
Upgrades and other changes in ServerBabe’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. ServerBabe reserves the right to change its network in its commercially reasonable discretion, and ServerBabe shall not be liable for any resulting harm to Customer.
Notices to ServerBabe under the Agreement shall be given via electronic mail to the e-mail address of liza at serverbabe.io. 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.
15. Force Majeure
ServerBabe shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond ServerBabe’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.
16. Binding Arbitration
As a Customer of ServerBabe 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 ServerBabe at the time of the dispute.
17. No Email Collection
The website from which you accessed this agreement (“the Website”) is provided to you subject to the following conditions. These terms are in addition to any other terms governing access to the Website. By visiting (in any manner) the Website you accept these terms and conditions (the “Terms of Service”). Please read them carefully. Any Non-Human Visitors to the Website shall be considered agents of the individual(s) who controls, authors or otherwise makes use of them. The access rights granted to you under the Terms of Service are non-transferable without the express written permission of the owner of the Website.
SPECIAL LICENSE RESTRICTIONS FOR NON-HUMAN VISITORS
Special restrictions on a visitor’s license to access the Website apply to Non-Human Visitors. Non-Human Visitors include, but are not limited to, web spiders, bots, indexers, robots, crawlers, harvesters, or any other computer programs designed to access, read, compile or gather content from the Website automatically.
Email addresses on this site are considered proprietary intellectual property. It is recognized that these email addresses are provided for human visitors alone. You acknowledge and agree that each email address the Website contains has a value not less than US $50. You further agree that the compilation, storage, and/or distribution of these addresses substantially diminishes the value of these addresses. Intentional collection, harvesting, gathering, and/or storing this Website’s email addresses is recognized as a violation of this agreement and expressly prohibited.
APPLICABLE LAW AND JURISDICTION
Each party agrees that any suit, action or proceeding brought by such party against the other in connection with or arising from the Terms of Service (“Judicial Action”) shall be governed by the law of the state of residence of the registered Administrative Contact (the “Admin State”) for the Website as such laws are applied to agreements between Admin State residents entered into and performed entirely within the Admin State. You consent to the jurisdiction of federal and state courts within the Admin State. You consent to the venue in any action brought against him in connection with breaches of these Terms of Service. You consent to electronic service of process regarding actions under the above agreement.
RECORDS OF VISITOR USE AND ABUSE
You consent to having your Internet Protocol address recorded. An email address may appear immediately below (the “Identifier”) if we suspect potential abuse. The Identifier is uniquely matched to your Internet Protocol address. Visitors agree not to use this address for any reason.
VISITORS AGREE THAT HARVESTING, GATHERING, STORING, TRANSFERRING TO A THIRD PARTY OR SENDING ANY MESSAGE(S) TO THE IDENTIFIER CONSTITUTES AN ACCEPTANCE AND SUBSEQUENT BREACH OF THESE TERMS OF SERVICE.
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 ServerBabe 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 ServerBabe’s prior written consent. ServerBabe’s approval for assignment is contingent on the assignee meeting ServerBabe’s credit approval criteria. ServerBabe 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.