TOS

Terms of Service (TOS)

This Terms of Service, or TOS, is a contract between you and Category 99, INC, d.b.a. FixYourWordPress. (FixYourWordPress, we, us, or our). All clients of FixYourWordPress agree to abide by these policies. All clients of FixYourWordPress also warrant that they are at least 18 years of age, and that they have the right and authority to bind themselves, or the company that they represent, to the terms of this TOS. This TOS, may be modified from time-to-time. All clients of FixYourWordPress agree to be bound by these modifications. The most recent version of this TOS can always be found here.

While we facilitate your business on the Internet, we are an independent contractor. We only have control of the products and services we provide directly, and are not liable for your actions, the actions of our third party service providers, or the actions of individuals who use your products and services (End Users).

1. Our Other Agreements Are Incorporated Into the TOS

This TOS incorporates our Acceptable Use Policy (AUP) and Privacy Policy by reference. To the extent that these agreements conflict, this TOS shall prevail, followed by the AUP and Privacy Policy. In certain cases, you may purchase services from us using another agreement which is also incorporated into this TOS. If that agreement conflicts with this TOS, the terms of that agreement will prevail over the TOS, but only to the extent that the agreements conflict. After that, the agreements will have the precedence set out above.

2. Services

FixYourWordPress provides a number of services to its customers. The services and products provided to you by FixYourWordPress, as set out on our website, are referred to as the Services. We provide the Services to you based on the description of them on our website as of the Effective Date. Should our website change subsequent to the Effective Date, we have no obligation to modify the Services to reflect such a change.

The Services may be provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. We will use commercially reasonable efforts to inform you of those changes. However, you may not terminate this TOS based on such a change by a third party.

Domain Name Services

We resell domain names. When you apply to register a domain name, your request is transmitted to eNom, OpenSRS, or Directi. You are bound by their domain name registration policies and procedures. These policies and procedures are available here. Because there is often a period of time between your registration request and the actual registration of the domain name, we do not guarantee that your registration domain name will be registered.

We will use commercially reasonable efforts to register or update domain names. However, circumstances beyond our control, such as billing issues, may result in your domain name failing to register, or to lapse. Our liability in such a case is limited by paragraph 12 below. For this reason, it is your obligation to ensure that your domain name does not lapse.

3. Contact Information

You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. On occasion, we may need to communicate with you by e-mail about the Service. You agree to maintain a working e-mail address that is monitored daily. We have no responsibility, or liability, for interruptions in the Service, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information.

The entity set out in our records is considered by us to be our customer. If you are reselling the Service, or are an End User of a reseller, it is your obligation to ensure that our records accurately reflect ownership and control of the Service.

4. Term

All prospective customers are subject to a credit check and screening for potential fraud. We are not bound by this TOS until these procedures are completed to our satisfaction.

The “Effective Date” of this TOS will be the day on which you register an account with us or we receive payment from you.

This TOS will begin on the Effective Date and continue for the term set out on the page describing the Services (Initial Term). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (Renewal Term). If the page describing the Services does not contain an Initial Term, the Initial Term shall be one month.

5. Payment

You are responsible for the fees and charges set out on the Product Description Page (Fees). You may be charged 7 days prior to the date set out on the Product Description Page (Due Date).

Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Should the Service be suspended, for any reason, Fees will continue to accrue. Set up and domain name registration charges are not refundable for any reason.

If the Fees are not paid by your financial institution on the Due Date, your account will be considered delinquent. To reinstate your account, you will be required to pay, depending on the reason for the delinquency: (i) a returned check fee in the amount of $50; (ii) interest in the amount of 2.0% per month, or the maximum amount allowed by law; (iii) collection charges; (iv) any fees levied on us by our financial institution; and/or (v) an investigation fee of $200.

You may choose to purchase products and services that are not included in the Service but which are offered for sale by other parties through FixYourWordPress (Third Party Services). Third Party Services may be billed separately from the Service. Fees for the Third Party Services may not be billed on the month on which they are delivered. You agree to pay for these Third Party Services regardless of the length of time elapsed between their delivery date and the date on which you are charged.

6. Termination

i. Money Back Guarantee

Hosting services carry an unconditional 30 day satisfaction guarantee. To cancel your hosting services and receive a refund, you must contact us within 30 days from the Effective Date of the particular Services you wish to cancel. Only fees for your hosting  are refundable. Set up, domain name registration, SSL Certificate, and other one-time fees are not refundable. If you paid us by credit card we will credit the card on file. Any custom orders or configuration setups are non-refundable.

ii. Termination for Convenience

Either party may terminate the Service by providing written notice to the other no later than 10 days before the expiration of the Initial Term or Renewal Term for that particular Service.

iii. Termination for Material Breach

One party may terminate this TOS upon the occurrence of a material breach, if this breach has not been cured by the other party within 30 days of their receipt of written notice of the breach. A material breach shall be determined from the perspective of a reasonable business person with significant experience conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action. Third Party Services may be part of the Service. A decision to cease offering Third Party Services will not be a material breach.

iv. Termination for Your Violation of Our Policies

We reserve the right to immediately suspend the Service and/or terminate this TOS: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights, nor will you receive a refund of any Fees.

7. Cancellation

Customers may cancel at any time by logging in to your client area and following the cancellation procedure listed in our support section here. FixYourWordPress gives you an unconditional 30 day money back guarantee on managed shared hosting, and reseller solutions for any customer who paid the first invoice with a credit card.

Cancellations requested after the initial 30 days for Shared and Reseller accounts will go into effect on the renewal date for that particular hosting package. Unless specifically requested, the account will remain active until the period expires. If the account is eligible, any request for a refund outside of the initial 30 day period will be given on a prorated basis with any previous extended term discount withheld. Refunds are to be determined once the account has been canceled. Payments older than 60 days may require a refund via mailed check due to our merchant account policies and procedures.

There are no refunds on administrative fees and install fees for custom software. Fees paid for domain registrations and SSL certificates are not refundable. Only first-time accounts are eligible for a refund. For example, if you’ve had an account with us before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with us.

It is important to note that if the Order Form contains a term commitment, you will be responsible for all termination charges based on your cancellation. The fact that you cancel this Agreement does not relieve you of responsibility for these charges. If you have a term agreement with us, we strongly suggest you contact us prior to canceling to determine what your cancellation obligations will be.

8. Use of the Services

Your use of the Services are governed by our Acceptable Use Policy (AUP) and Privacy Policy which are incorporated into this TOS by reference. In the event of inconsistencies between this TOS and the AUP, on the one hand, or the Privacy Policy, on the other, the AUP or Privacy Policy shall govern.

The terms “unlimited” and “unmetered” are defined by our experience with similarly situated customers. This means that your use of our resources may not exceed that of similarly situated customers. Examples of primary purposes for an account that are not allowed include, but are not limited to:

• Audio/Video streaming (other than that which is incidental to a site’s operation)
• Very large photo galleries
• Storage of a large amount of uncompressed or full-size digital images
• Online file (FTP) serving
• Distribution of large audio or video content such as MP3 files
• Online backups (i.e. backup of desktop/laptop computer, files, or anything not directly related to the website)

You may not place excessive burdens on our CPUs, servers or other resources, including our customer support services. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result our need to place restrictions on your use of the Services. You agree that we may place restrictions on your use of the Services or customer support services to the extent that they exceed the use of these resources by similarly situated customers.

Shared web hosting accounts are allowed to use a maximum of number inodes, concurrent HTTP connections, CPU, Memory, and Disk Input/Output on the server. Customer generated Backups, of any kind, may be removed from the server at our discretion. Please download any cPanel backups and store them locally.

You agree to cooperate with us to facilitate your use of the Services. This cooperation includes, but is not limited to, providing us with correct contact and billing information and ensuring that you, your employees, and/or agents have sufficient technical expertise to understand how to implement the Services.

You are responsible for all long distance and/or connection charges associated with the Services. You are responsible for the Fees once our Services are made available to you. It is your responsibility to ensure that you can connect with us to use the Services.

You have read and agree to the policies outlined in the FixYourWordPress Support Policy, which is incorporated into this TOS by reference.

9. Licenses and Intellectual Property

FixYourWordPress grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by FixYourWordPress solely to access and use the Services. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in FixYourWordPress’s technology shall remain with FixYourWordPress, or FixYourWordPress’s licensors. You are not permitted to circumvent any devices designed to protect FixYourWordPress, or its licensors’, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.

We may provide technical support, implementation, customer service or administrative information to you. This information is not confidential. We may use this information, as well as aggregate information gleaned from the operation of our business in general, to improve, or create new products and services. We shall be the exclusive owners of this intellectual property. You waive any rights you may in this intellectual property, and assign all right, title and interest in it to us.

You grant FixYourWordPress, and any third parties used by FixYourWordPress to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, End Users, in conjunction with the Services. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you, or your licensors.

10. FixYourWordPress’s Representations and Warranty

FixYourWordPress warrants that it will perform the Services in accordance with other similarly situated companies. To make a warranty claim, you must notify FixYourWordPress in writing within 30 days of the date FixYourWordPress’s alleged breach. Your exclusive remedy, and FixYourWordPress’s sole obligation, in the case of a breach of warranty is, at FixYourWordPress’s option, to (i) reperform the Services; or (ii) issue you a credit based on the amount of time the Services were not in conformity with this warranty, subtracted (“pro-rated”) by the amount of time they were in conformance. For the purposes of FixYourWordPress’s warranty, the following issues shall not constitute services within the definition of “similarly situated companies”: up-time, “up-time guarantees” or other items for which FixYourWordPress provides a service level agreement, regardless of whether a service level agreement is, or was, available for the Services.

Services provided by third parties are expressly excluded from this warranty.

11. Your Representations and Warranties

You represent and warrant to FixYourWordPress that: (i) you have the experience and knowledge necessary to use the Service; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from using the Services in particular, and accessing or doing business on the Internet in general;  (iii) you will provide us with material that may be implemented by us to provide the Service without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service; (v)  that in entering into this TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (vi) that you will make back up copies of your data, even if you purchase “back-up” services from FixYourWordPress, so that you can access and use it when needed. FixYourWordPress does not warrant that it backs-up any account, user content or other data, and you agree to accept as a risk the loss of any and all of your data.; and/or (vii) that you will pass through the terms of our Acceptable Use Policy to End Users.

You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to FixYourWordPress, or which may be accessed or transmitted using the Service. You also warrant that to the extent you do business with other parties using the Service, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.

12. Disclaimers

THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT HEREIN, FIXYOURWORDPRESS HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, AND TITLE. FixYourWordPress DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. FixYourWordPress IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY US. FixYourWordPress SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY US. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO FixYourWordPress SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.

THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM FIXYOURWORDPRESS, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.

SOME STATES DO NOT ALLOW FIXYOURWORDPRESS TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE.

13. Limitation of Liability

It is your obligation to ensure the accuracy, integrity, title or ownership, and security of anything you receive from the Internet. You agree that FixYourWordPress has no liability, of any sort, for content you or your customers access from the Internet.

FixYourWordPress provides no guarantee that the Services will be uninterrupted, or continuous, that you will be able to access FixYourWordPress’s network at a particular time, that any data transmitted by FixYourWordPress is accurate, error free, virus free, secure, or inoffensive. You acknowledge that it is your responsibility to keep back-up copies of your data. FixYourWordPress is not responsible for any loss of data, for any reason. FixYourWordPress is not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on its network.

IN NO EVENT WILL FIXYOURWORDPRESS’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY FIXYOURWORDPRESS FROM YOU FOR THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM FixYourWordPress SHALL BE INTERPRETED TO INCLUDE FixYourWordPress’S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO YOU THROUGH US.

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD FIXYOURWORDPRESS OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF FixYourWordPress HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

14. Indemnification

You agree to indemnify, defend and hold harmless FixYourWordPress and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services (ii) any violation by you of any of FixYourWordPress’s policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate “you” include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.

FixYourWordPress shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that a product or service provided by FixYourWordPress hereunder infringes any patent, copyright, or trademark. This indemnification provision is expressly limited to products or services which are fully owned by FixYourWordPress. It does not extend to products or services provided by third parties. If set out in its agreements with third-party suppliers, FixYourWordPress shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying FixYourWordPress promptly in writing of the claim and giving FixYourWordPress full authority, information, and assistance for the defense and settlement thereof. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in FixYourWordPress’s opinion is likely to occur, you agree to permit FixYourWordPress, at its option and expense, either to: (i) procure for you the right to continue using the product or service; (ii) replace with a product or service, regardless of manufacturer, performing the same or similar function as the infringing product or service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate FixYourWordPress’s obligations (and your rights) under this TOS with regard to such product or service, and, refund the Fee charged by us for the period in which the Services were unavailable.

15. Notices

Notices will be sent to you at the email address you provide to us. It is your obligation to ensure that we have the most current email address for you.

Please refer to our website, http://www.FixYourWordPress.com, for contact information for most issues, including technical support and billing. Notices regarding this TOS and other FixYourWordPress policies should be directed to:

FixYourWordPress
Address 1
Address 2
City, State, Postal Code

16. Maintenance Policy

FixYourWordPress offers a 99.9% uptime guarantee. This guarantee excludes scheduled maintenance periods as outlined in our Maintenance Policy. The FixYourWordPress Maintenance Policy is available here.

17. Force Majeure

Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, bandwidth interruptions, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.

18. Choice of Law, Jurisdiction and Venue

The validity, interpretation, and performance of this TOS, and of the agreements and policies that apply to the Services, shall be controlled by and construed under the laws of the State of Colorado, United States of America, as if performed wholly within the state and without giving effect to the principles of conflicts of law. You agree that jurisdiction and venue are proper in the state courts located in Denver, Colorado, or the U.S. District Court for the State of Colorado located in Denver, Colorado. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.

19. All Claims

All claims you bring against us must be resolved in accordance with this TOS. Without limiting the previous sentence, this includes claims based on service outages which are expressly covered by our SLA. All claims filed or brought contrary to this TOS will be considered to be improperly filed and a breach of this TOS. If you file a claim contrary to this TOS, we may recover attorneys fees and costs. Attorney’s fees include any fees charged by our in-house, or virtual in-house, attorneys.

20. No Waiver

No waiver of rights under this TOS, or any FixYourWordPress policy, or agreement between you and FixYourWordPress shall constitute a subsequent waiver of this or any other right under this TOS.

21. Assignment

This TOS may be assigned by FixYourWordPress. It may not be assigned by you. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.

22. Severability

In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this Agreement shall remain in full force and effect.

23. Survival

Sections 11, 12, 13, 14, 15, 18, 19, 22 and 23 shall survive the termination of this Agreement.