General Terms of Service
These Terms of Service (the “Agreement”) are an agreement between BigBirdWeb.com, LLC (“BigBirdWeb” or “us” or “our”) and you (“User” or “you” or “your”). This Agreement sets forth the general terms and conditions of your use of the products and services made available by BigBirdWeband of the BigBirdWeb.com website (collectively, the “Services”). By using the Services, you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to use or access the Services.
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of BigBirdWeb’s credit approval requirements, BigBirdWeb agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that BigBirdWeb 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 the same length as the Initial Term (each a “Renewal Term”) unless BigBirdWeb or Customer provides the other with termination notice within 7 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.”
3. Payments Shared, WordPress, VPS & Cloud
- (a) Recurring Fees
- Renewal notices are emailed seven days before the actual renew date in your account. If you have a credit card on file your card will automatically be charged two days before your renewal notice is due. If your billing method is Paypal you will need to manually pay your invoice every month. All payments submitted for services are non-refundable outside of our 30 day refund policy. Service will be made inactive on accounts that are not paid by the 7th day past due. The term “Account” describes all services provided to a customer as defined by the primary ownership email and physical address. BigBirdWeb reserves the right to revoke this grace period if a pattern of late payment is observed or if your payment method is listed as other. All orders made with a credit card are expected to work on the monthly renewal date each month. Any accounts made inactive for non-payment are subject to a $10.00 late payment fee. Any accounts terminated due to non payment are subject to a $10.00 restoration fee once all past due invoices have been paid.
- (b) Payment Terms
- For your convenience BigBirdWeb offers multiple payment terms with increasing discounts for it’s product lines. All payments to BigBirdWeb, LLC are non refundable after the first 30 days of service. Within the first 30 days of a Quarterly, Semi-Annual or Yearly paid service you may request that it be converted to a Monthly subscription and the remaining balance will be refunded to your original payment method. If after the first 30 days of service you request the package to be converted to a different billing cycle any additional monies will be applied to your account in the form of credits and will not be refunded. Prior to paying a renewal invoice and before your renewal date you may have your payment terms changed at no additional charge. If you wish to cancel a Quarterly, Semi-Annual or Yearly package prior to its renewal date, your package will be pro-rated to the nearest Monthly billing cycle and any remaining funds will be credited to your account. Any cancellation as the result of a violation of our TOS or AUP will be non refundable.
- (c) Credit/Debit card and your Address on File
- When an order is placed with a credit/debit card, your card is stored on file and will automatically be charged every month two days before your due date. For security purposes your address on file with us must match the address of your credit/debit card. If this address does not match, our payment gateway will not accept the transaction. If you have a credit card on file and the transaction is declined due to the address this transaction might show up as a pending charge but will not be processed through. If you have a debit card on file and the transaction is declined due to the address your bank will pull the money out of your account but this money will be refunded back to your account by your bank. It is recommended to always store a credit card on file instead of a debit card.
- (d) Payments by Electronic Check (eCheck or ACH)
- BigBirdWeb accepts electronic check, commonly known as eCheck or ACH payments from banks or financial institutions located in the United States payable in U.S. dollars only. When you enter your echeck or ACH information, it is stored on file and will automatically be charged every month two days before your due date. You agree and confirm that BigBirdWeb may debit the full invoiced amount from your checking account as a non-refundable payment and may use this account for recurring payments. It is your responsibility to ensure that adequate funds are in your account to cover any and all invoices submitted against it. BigBirdWeb, LLC is not liable nor responsible for any fees, overdraft charges or any other penalties that may result in a lack of funds when invoices are processed.
- (e) Fees and Penalties for Electronic Check (eCheck or ACH)
- The customer (you) acknowledges that it is your responsibility to ensure that adequate funds are in your account to cover any and all invoices submitted against it. BigBirdWeb, LLC is not liable nor responsible for any fees, overdraft charges or any other penalties that may result in a lack of funds when invoices are processed. BigBirdWeb will attempt to process an automatic debit against your ACH account no more than two (2) times in a calendar month before disabling the auto-debit feature of your account. Customer acknowledges BigBirdWeb will charge $5 for each failed attempt to process a payment and $35 for any chargeback associated with an ACH payment. BigBirdWeb, LLC is not liable nor responsible for any fees, overdraft charges or any other penalties that may result in a lack of funds when invoices are processed.
- (f) Taxes
- At BigBirdWeb’s request Customer shall remit to BigBirdWeb all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on BigBirdWeb, regardless of whether BigBirdWeb fails to collect the tax at the time the related services are provided.
- (g) 30 Day Money Back Guarantee
- All new BigBirdWeb Customers are eligible for a 30 day money back guarantee on all hosting packages upon written request, excluding Dedicated Servers and Domain Name Registrations. The definition of a new customer is one who has never purchased services from BigBirdWeb 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. BigBirdWeb, LLC reserves the right to deny the refund if we feel abuse of services has occurred.
- (h) Payments (Dedicated Servers)
- We do not offer a 30 day money back guarantee on Dedicated Servers. Renewal notices are emailed seven days before the service due date. If you have a credit card or ACH account on file your it will automatically be charged two days before your renewal date. If your billing method is Paypal you will need to manually pay your invoice every month by the due date at 12 PM EST. All renewals made with a credit card are expected to work on the day your card is charged. In the event you fail to pay your invoice by the due date, we reserve the right to suspend your entire account and a late fee of $25 applies. The term “Account” describes all services provided to a customer as defined by the primary ownership email and physical address. If your invoice is still not paid by the 7th day past the due date on the invoice, we reserve the right to terminate your service entirely and reformat your server.
4. Cancellation and Early Termination Shared, WordPress, VPS & Cloud
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 BigBirdWeb terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 12 (Termination), or Customer terminates the service other than in accordance with Section 12 (Termination) for BigBirdWeb 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. Customer acknowledges that the cancellation notice or downgrade of current package is to be submitted to BigBirdWeb prior to the following renewal date 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 to the billing department
- Cancellation request must be submitted from the main email address on file with BigBirdWeb
- Cancellation request must contain the main IP address and hostname of the hosting plan you wish to cancel
5. Cancellation and Early Termination (Dedicated Servers)
Customer acknowledges that the cancellation notice is provided prior to the following renewal date in writing to BigBirdWeb 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 to the billing department
- Cancellation request must be submitted from the main email address on file with BigBirdWeb
- Cancellation request must contain the main IP address of the server you wish to cancel
Customer agrees to use the service in compliance with applicable law and BigBirdWeb’s Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that BigBirdWeb may, in its reasonable commercial judgment consistent with industry standards, amend the AUP and TOS from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services. Amendments to the AUP and TOS are effective on the earlier of BigBirdWeb’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 BigBirdWeb’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between BigBirdWeb and Customer regarding the interpretation of the AUP, BigBirdWeb’s commercially reasonable interpretation of the AUP shall govern.
7. Customer Information
Customer represents and warrants to BigBirdWeb that the information he, she or it has provided and will provide to BigBirdWeb for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to BigBirdWeb that he or she is at least 18 years of age. BigBirdWeb 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 BigBirdWeb, BigBirdWeb’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.
9. Disclaimer of Warranties
BigBirdWeb DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW BigBirdWeb 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.
10. 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 POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF BigBirdWeb 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 BigBirdWeb may suspend services to Customer with or without notice and without liability.
- (b) Termination.
- BigBirdWeb 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 BigBirdWeb 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. Termination in this manner does not absolve the customer of any required payments remaining on their initial or renewal term. 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.
12. 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. Bandwidth overages are billed at the rate of $20 per TB used. 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.
BigBirdWeb is not a domain registrar. We are a reseller for NameSilo so all BigBirdWeb customers who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by NameSilo. You will receive notice from BigBirdWeb once your domain is up for renewal. If you do not renew your domain by the expiration date you run the risk of loosing your domain. Domain names are billed as separate services and must be kept current to ensure they do not expire. If your domain name has expired, you may renew it at the regular price no more than 25 days after the expiration date. If the domain has been expired for 31 days or more it may have been auctioned off, if so your domain is gone. If your domain was not auctioned you may redeem the domain for a $125 fee no later than 60 days past the expiration date. Domains are not guaranteed to be renewable past 25 days of their expiration. All domains will cease to function past their expiration date until renewed. There is no grace period on domain name registrations. Should any payment dispute or chargeback arise regarding your domain name services, access and rights to your domain name will be immediately forfeited. To recover your domain name from forfeiture a reinstatement fee of $75 plus your remaining balance will be required if processed within the original expiration time.
14. Requests for Customer Information
Customer agrees that BigBirdWeb 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 BigBirdWeb 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.
15. Back Up Copy
BigBirdWeb highly recommends that all customers retain up to date backup copies of their data off site for disaster recovery purposes.
BigBirdWeb provides complementary backup services for our VPS customers. These snap shots are taken every other day and stored for approximately 7-14 days. Customer agrees to maintain a current copy of all content hosted by BigBirdWeb notwithstanding any agreement by BigBirdWeb to provide back up services. Customer acknowledges that any backups provided by or for BigBirdWeb services are a courtesy service intended for disaster recovery only and that BigBirdWeb does not warrant or guarantee the availability, integrity, content or operability of these backups.
BigBirdWeb provides complementary backup services for our Cloud customers. These snap shots are taken every other day and stored for approximately 7 days. Customer agrees to maintain a current copy of all content hosted by BigBirdWeb notwithstanding any agreement by BigBirdWeb to provide back up services. Customer acknowledges that any backups provided by or for BigBirdWeb services are a courtesy service intended for disaster recovery only and that BigBirdWeb does not warrant or guarantee the availability, integrity, content or operability of these backups.
Shared Cloud Customers:
BigBirdWeb provides complementary backup services for our Managed Shared Cloud customers. We create and store one weekly and two of the most recent daily backups. Customer agrees to maintain a current copy of all content hosted by BigBirdWeb notwithstanding any agreement by BigBirdWeb to provide back up services. Customer acknowledges that any backups provided by or for BigBirdWeb services are a courtesy service intended for disaster recovery only and that BigBirdWeb does not warrant or guarantee the availability, integrity, content or operability of these backups.
Managed WordPress Customers:
BigBirdWeb provides complementary backup services for our Managed WordPress customers. We create and store one weekly and two of the most recent daily backups. Customer agrees to maintain a current copy of all content hosted by BigBirdWeb notwithstanding any agreement by BigBirdWeb to provide back up services. Customer acknowledges that any backups provided by or for BigBirdWeb services are a courtesy service intended for disaster recovery only and that BigBirdWeb does not warrant or guarantee the availability, integrity, content or operability of these backups.
Dedicated Server Customers:
Dedicated server customers are encouraged to purchase and maintain a secondary drive to create and store backups on. BigBirdWeb also offers external storage packages for our customers to create and maintain their own backups stored external of their dedicated server. BigBirdWeb does not warrant or guarantee any backups on Dedicated Servers.
16. Request for Rebuild/Restore of Hosting Package
During any service term, customer may request up to two free rebuilds 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 $10.00 one time fee will be enforced. If a customer requests a partial restoration of data a nominal fee of $10.00 will be charged for each request.
17. Changes to BigBirdWeb’s Network
Upgrades and other changes in BigBirdWeb’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. BigBirdWeb reserves the right to change its network in its commercially reasonable discretion, and BigBirdWeb shall not be liable for any resulting harm to Customer.
Notices to BigBirdWeb under the Agreement shall be given via electronic mail to the e-mail address of billing@BigBirdWeb.com or via our online ticketing system at https://support.BigBirdWeb.com/. All notices, including but not limited to support or billing requests, must be submitted from a registered 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.
19. Force Majeure
BigBirdWeb shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond BigBirdWeb’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.
20. Binding Arbitration
As a Customer of BigBirdWeb 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 BigBirdWeb 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 BigBirdWeb 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 BigBirdWeb’s prior written consent. BigBirdWeb’s approval for assignment is contingent on the assignee meeting BigBirdWeb’s credit approval criteria. BigBirdWeb 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 21/07/2018