Hosting Agreement

Last updated: October 24, 2024

This Hosting Terms of Service Agreement is between Poppy Inc DBA HostPoppy, (the "Host", “Us”, “We”, “HostPoppy”) and you, (the "User", “Client”, “You”).  Services covered by these Terms include Website Hosting, Cloud Servers, and Email Hosting.

The Host is engaged in the business of providing hosting and related services.

The User wants to retain the Host to perform the services provided for in this agreement.

The parties therefore agree as follows:

1. ENGAGEMENT; SERVICES.

The Host shall provide the services set forth in the registration form presented to you at time of your order or as agreed verbally (the "Services"), as described in Exhibit A ("Service Level Agreement").

2. PRICE; PAYMENT.

• (a) Price. You will pay to the Host all fees for the Services set forth in the registration form presented to you at the time you order the Services or as agreed verbally if ordered over the phone. All fees are non-refundable when paid except as otherwise provided herein. 
  
  
• (b) Invoices. Unless you cancel the Services or provide notice of intent to cancel as set forth in section 3 below, following the expiration of the Initial Term the Services will automatically renew for successive periods of equal length as the Initial Term (each a “Renewal Term”).  For services with a Term of twelve (12) months, the Host shall provide notice of the upcoming charge for each renewal to User no later than thirty (30) days prior to the payment date for each renewal term.  For accounts with a Term of one (1) month, the Host shall provide notice of the upcoming charge for each renewal no later than five (5) days prior to the payment date.  
  
  
• (c) Disputes. If the User disputes a particular invoice, the User shall pay the Host for the parts of the invoice that are accurate and not in dispute.
  
  
• (d) Price Changes. The Host may change prices from time to time. The Host may increase the fees for the Services as permitted in the applicable Service description published on the Host’s website or in a promotional offer The Host shall provide the User with at least  thirty (30) days notice prior to a price change taking effect (the "Price Change Notice Period").   Written notice may be in the form of (i) notices and updates provided through the Client Portal tool provided as part of the Services, (ii) notices and updates otherwise provided through the Services, or (iii) invoices for renewal terms sent via email. It is your sole responsibility to periodically review all billing-related information provided by the Host through the Client Portal or other methods of communications and notices sent or posted by the Host.  If the Host cannot provide the availability level indicated in the Service Level Agreement, and the User complies with its credit request procedures, the User shall receive a credit based upon the credit percentages in Exhibit A. The Host shall include any credit due under that agreement on the next invoice.

3. TERM; TERMINATION.

• (a) Term. The initial term of the Services purchased by you will be for the time period set forth in the registration form presented to you or agreed verbally when you order the Services (the "Initial Term"). Unless Client gives notice to the Host before the end of the Term, this agreement will renew automatically for a period of equal length to the Initial Term and at a rate equal to the prevailing price as advertised by the Host on its website for that Service at the time of renewal (each a "Renewal Term"). This automatic extension will continue to apply at the end of each Renewal Term until the agreement is terminated.
  
  
• (b) Termination Procedures. This agreement may be terminated:
  • (i) by the User, through online cancellation, support ticket submission, or phone call,  before the end of a Term;
    • (ii)  by the Host in whole or in part, including deletion or confiscation of all files, content, and/or domain name registrations, without notice in the event that: (i) you fail to pay any fees due hereunder to the Host; (ii) you violate the terms and conditions of this Agreement; (iii) your conduct may harm the Host or others, cause the Host or others to incur liability, or disrupt the Host’s business operations (as determined by the Host in its sole discretion); (iv) you are abusive toward the Host’s staff in any manner; or (v) for any other lawful reason, including to comply with applicable law, or as otherwise specified in this Agreement. In such event, the Host will not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination.
      
      
  • (c) Effects of Termination. After the termination of this agreement for any reason:
    • (i) the Host shall make available any content then in its possession to the User, until the expiration of the Term. The Host shall delete that content from the Host's servers and data storage devices at the expiration of the Term.  It is the User’s sole responsibility to extract wanted content from the Host’s servers before said content is deleted.
    • (ii) the User shall promptly pay the Host according to the Renewal Terms of Services rendered before the effective date of the termination.

4. REFUND POLICY.

• (a) 30 Day Money Back Guarantee. If you purchase an account with a thirty (30) day money-back guarantee, you may receive a full refund of shared, cloud and email hosting fees paid (the "Money-back Guarantee Refund") if you cancel within the first thirty (30) days of the Initial Term (the "Money-back Guarantee Period"). To request a Money-back Guarantee Refund, please contact our client support team at 415-520-4678 or by opening a support ticket through the Client Portal. The Money-back Guarantee Refund shall only accrue and be due to you upon your compliance with, and subject in all respects to, the terms and conditions of this Section 3. Money-back Guarantee Refunds only apply to hosting plans and certain add-on products or services.
  
  
• (b) Nonrefundable Fees.  Fees paid by User in connection with the purchase of product or add-on services, including without limitation, shared hosting, cloud hosting, email hosting, DNS services, domain names, and website services are non-refundable,
  
  
• (c) Hosting Plans for Sites Built by HostPoppy.  Sites built by the Host’s Website Services require a HostPoppy hosting plan.  Hosting plans for websites built by HostPoppy are not eligible for a 30 Day Money-back Guarantee.  

5. USER RESPONSIBILITIES.

• (a) You will be solely responsible for all activities conducted on or through a Client Portal, including any transactions or interactions with end users of a Subscriber Website.
  
  
• (b) You will cooperate fully with the Host in connection with the Host’s provision of the Services. It is solely your responsibility to provide any equipment or software that may be necessary for you to use the Services. Delays in your performance of your obligations under this Agreement will extend the time for the Host’s performance of its obligations that depend on your performance.
  
  
• (c) You will be solely responsible for ensuring that all User Content and User Websites are compatible with the hardware and software used by the Host to provide the Services, which hardware and software may be changed by the Host from time to time in its sole discretion.
  
  
• (d) You will be solely responsible for backing-up all User Content, including any User Websites off of the Host’s servers. This is an affirmative duty. The Host is not responsible for the loss of any User Content. Note: It is essential that Users backup files offline.
  
  
• (e) You will use your best efforts to ensure that the User Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
  
  
• (f) You are responsible for maintaining the confidentiality and security of your account credentials and access, including usernames and passwords. To ensure the security of their account, the Client agrees to:
  • Create and use a sufficiently complex and unique password.
  • Keep username and password secure and not share account credentials with any third parties.
  • Keep the device used to access the Services free from malicious software, including viruses, keyloggers, and trojan horses.
  • Ensure the email account associated with your Services is secure and protected,
  • Enable the Host’s Two Factor Authentication (2FA) service.
    
    
• (g) The Host shall not be liable for any losses or damages incurred as a result of the Client’s failure to maintain account security or comply with the Host’s security requirements.  It is the Client’s responsibility to take necessary precautions to safeguard their account and prevent unauthorized access.
  
  
• (h) You will not use the Services in any manner, as determined by the Host in its sole discretion as defined in section 11 (e) of the Agreement.

6. CUSTOMER SERVICE.
The Host shall consult with the User via telephone or electronic mail about how to use of the system on the terms set forth in the Service Level Agreement, but will not assist with any services not maintained or controlled by the Host as part of this Agreement. Third-party applications, mail-enabled printers/scanners, web services, and custom transport rules may be supported but will be scoped and billed separately.

7. SECURITY; BACK-UP.

• (a) Security. The Host shall locate all content on secure servers with limited access and required access authentication. The Host shall handle all content in accordance with industry best practices and the terms of this agreement.
  
  
• (b) Back-Up. If the User requests, the Host shall restore content to the User using the Host's data back-ups. The Host shall maintain a copy of the past 30 days of all content. The Host shall provide the User with the ability to self-restore any deleted mail item within the past 30 days. The Host may provide backup support and data restoration beyond the above referenced period for a data recovery fee as outlined in Exhibit A.

8. WEBSITE MIGRATIONS.

• (a) HostPoppy offers complimentary website migrations for hosting customers. Our transfer service is offered as a courtesy, and no guarantees are made as to the availability, possibility, or time required to migrate your website. Every hosting company and website are different, and not all websites can be transferred. Some hosting platforms store data in an incompatible or proprietary format, which may make it impossible for us to migrate data from your old host.
• (b) Each HostPoppy hosting account may take advantage of one free site migration. For clients with more than one site in their current hosting account, they may select one site to move for free and all additional sites will be charged HostPoppy's Hourly Web Development Rate. See the Website Services Agreement for more information.
• (c) Some websites and web applications, such as out of date or no longer supported content management systems or frameworks, may require modification or updates to work on our modern hosting platform. While we strive to achieve backwards compatibility, if modification or updates to your codebase are required, we will not proceed with your migration. In some cases, we may offer paid web development services to update your site to make it compatible with our servers. If such paid services are required and available, you will receive a quote prior to any work being done.
• (d) The free transfer service is available for thirty (30) days from your sign up date. Transfer requests outside of the thirty (30) day period may incur a charge. Please reach out to our support department any time to request a migration, and if any fees apply, we will let you know prior to doing the transfer.
• (e) In no event shall HostPoppy be held liable for any lost, missing, or corrupt data or files, or loss of any website functionality, resulting from a migration to or from HostPoppy. You are solely liable for maintaining backups of your data and ensuring your website is fully functional before and/or after any transfer services.

9. CONTENT.

• (a) Content. The User represents that it is the owner or valid licensee of all data or content it will upload in connection with the Services (collectively, the "Content") and that it has secured all necessary licenses, consents, permissions, waivers, and releases for the use of the Content.
• (b) The Host may use the intellectual property of the User to do the following, to the extent necessary to perform the Services:
  • (i) digitize, convert, install, upload, select, order, arrange, compile and synchronize, use, reproduce, store, process, retrieve, transmit, and hyperlink the Content; and
  • (ii) make archival or back-up copies of the Content.

10. CONFIDENTIAL INFORMATION.

• (a) Definition. "Confidential Information" means this agreement and all nonpublic information of the User, in whatever form, pertaining to the business of the User, including information relating to the User's finances, customer records, and information, and all associated documentation and materials that the User designates as being confidential when disclosing it to the Host or that, under the circumstances of disclosure, ought to be treated as confidential by the Host. Confidential Information also includes any information relating to the User's parent, subsidiaries, and affiliates. Confidential Information does not include information or data that is:
  • (i) known to the Host before its disclosure by the User without an obligation of confidentiality under another agreement;
  • (ii) independently developed by the Host without use of any Confidential Information;
  • (iii) in the public domain when the Host seeks to disclose or make use of it, other than as a result of disclosure by the Host; or
  • (iv) received by the Host from a third party with a legal or contractual right to disclose that information or data.
    
    
• (b) Disclosure. The Host shall not use or disclose the Confidential Information of the User except in connection with the exercise of its rights or the performance of its obligations under this agreement. The Host shall not disclose Confidential Information of the User to any person other than its employees, agents, or independent contractors who have a need to know it in connection with this agreement, and who are under obligations of confidentiality substantially similar to this section. The Host shall protect the confidentiality of the Confidential Information of the User in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in any case with reasonable care. All Confidential Information made available under this agreement, including copies, shall be returned or destroyed by the Host, and certified as having been returned or destroyed, promptly after the termination of this agreement.
• (c) Exceptions. The Host will not be in violation of this section if it discloses Confidential Information that is required to be disclosed because of a valid order by a court or other governmental body or by applicable law or by the rules of any nationally recognized stock exchange. However, under these circumstances, the Host shall notify the User in writing of that disclosure to permit the User to seek confidential treatment of that information.

11. NATURE OF RELATIONSHIP.
The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party's behalf, and neither party may take any action that creates the appearance of such authority.

12. NO CONFLICT OF INTEREST; OTHER ACTIVITIES.
During the Term, the Host may engage in other website hosting activities, except that the Host may not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Host's obligations or the scope of Services to be rendered for the User under this agreement.

13. INDEMNIFICATION.

• (a) Of User by Host. At all times after the effective date of this agreement, the Host shall indemnify the User against any award, charge, claim, compensatory damages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty, or other loss (a "Loss") or any attorney's or other professional's fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of:
  • (i) the Host's gross negligence or willful misconduct arising from the Host's carrying out of its obligations under this agreement; or
  • (ii) the Host's breach of any of its obligations or representations under this agreement.
    
    
• (b) Of Host by User. The User shall at all times indemnify the Host against a Loss or Litigation Expense caused by any breach of any of the representations or agreements made by the User under this agreement.

14. INTELLECTUAL PROPERTY.

• (a) No Intellectual Property Infringement by Host. The Host warrants that the use and proposed use of any software, programs, or applications by the User or any third party to access the Website does not and shall not infringe, and the Host has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party. To the extent the software, programs, or applications used to access the Website infringe on the rights of any such third party, the Host shall obtain a license or consent from such third party permitting the use of such items.
  
  
• (b) No Intellectual Property Infringement by User. The User represents to the Host and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are owned by the User, or that the User has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Host and its subcontractors from any liability (including attorneys' fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the User. The User further represents to the Host that its domain names or URL listings do not infringe, dilute, or otherwise violate third-party rights or trademarks.
  
  
• (c) Host Property Rights. All tools, know-how, and technology leased or licensed to the Host with respect to the hosting of the Website are the sole property of the Host, and the User has no ownership or other intellectual property rights in or to such items.
  
  
• (d) User Property Rights. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are the property of the User, and the Host has no ownership or other intellectual property rights in or to such items.
  
  
• (e) Nature of Website Content. The User shall not do any of the following:
  • (i) use the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex or extreme violence;
  • (ii) use the Services to transmit or post any material that violates any applicable local, state, national, or international law, or any rules or regulations promulgated under those;
  • (iii) use the Services to harm or attempt to harm minors in any way;
  • (iv) use the Services to transmit or post any material that harasses, threatens, or encourages bodily harm or destruction of property;
  • (v) use the Services to make fraudulent misrepresentations or offers, including offers relating to "pyramid schemes" and "Ponzi schemes";
  • (vi) use the Services to access, or attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of the Host or another entity's computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data;
  • (vii) use the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including the unauthorized copying or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
  • (viii) use the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent;
  • (ix) resell the Services without the Host's prior written authorization; or
  • (x)  use the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes "denial of service" attacks against another network host or individual user. Interference with or disruption of other network users, network services, or network equipment is prohibited.

15. GOVERNING LAW.

• (a) Choice of Law. The laws of the state of California govern this agreement (without giving effect to its conflicts of law principles).
• (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in Contra Costa County, California.

16. AMENDMENTS.

We may in our sole discretion change or modify this Agreement at any time. We will post a notice of any significant changes to this Agreement on the Host’s website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date these terms were last revised. Any changes or modifications to this Agreement shall be effective and binding on you as of the date indicated in a notice posted on this page. If no date is specified, your use of the Services after such changes or modifications shall constitute your acceptance of the Agreement as modified. If you do not agree to abide by this Agreement, you are not authorized to use or access the Services and your sole remedy is to cancel your account.

17. ASSIGNMENT AND DELEGATION.

• (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
• (b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
• (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.

18. SEVERABILITY.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.

19. NOTICES.

• (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
• (b) Addresses. A party shall address notices under this section to a party at the following address:  1945 Contra Costa Blvd #2358, Pleasant Hill, CA 94523

20. WAIVER.

No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.

21. ENTIRE AGREEMENT.

This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.

22. HEADINGS.

The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.

23. EFFECTIVENESS.

This agreement will become effective when the User registers and pays for services with the Host.  Your acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement.

24. NECESSARY ACTS; FURTHER ASSURANCES.

Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.

EXHIBIT A
SERVICE LEVEL AGREEMENT

The Services are provided subject to the following terms, referred to as a "Service Level Agreement."

1. HOST SERVICES AVAILABILITY.
The Host shall use reasonable efforts to provide the Services at all times during the Term. However, from time to time Host services may be inaccessible or inoperable for any reason, including: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that the Host may undertake; or (c) causes beyond the Host's control or that are not reasonably foreseeable by the Host. The Host shall provide as much advance notice as customary and reasonable for any unscheduled or emergency maintenance.

99.99% NETWORK UPTIME.

• (a) Uptime Guarantee.
  • (i) The Host guarantees 99.99% availability of its network, excluding Excusable Downtime (as defined below).
  • (ii) Network uptime includes functioning of all Host network infrastructure including VPN, routers, switches, and cabling.
  • (iii) Network uptime does not apply to services or software running on a Host server or other Host hardware components.
    
    
• (b) Downtime. Network downtime exists when the Host cannot forward packets on the User's behalf and is measured solely on our monitoring.
  
  
• (c) Credits. The Client will be entitled to a statement credit of 5% of the applicable monthly fees for each full hour of downtime in excess of our Service Level Agreement.  For example, you will receive a 5% statement credit for between 1 and 60 minutes in excess of the Service Level targets, a 10% credit for between 61 and 120 minutes, etc.

3. 24-HOUR REPLACEMENT GUARANTEE FOR HARDWARE FAILURE.

• (a) 24-Hour Replacement Guarantee.
  • (i) The Host guarantees the functioning of all Managed Hosting hardware components and will replace any failed component at no cost to the User.
  • (ii) Managed Hosting hardware is defined as the server and server components, SAN storage, load balancer, firewall, and other related hardware included with the Managed Hosting server.
  • (iii) This guarantee excludes the time required to rebuild a RAID array and to reload operating systems and applications.
    
    
• (b) Downtime.
  • (i) Hardware failure downtime exists when a Hosting hardware component fails or stops working, and downtime is measured from the time User opens a trouble ticket with the Host and the Host identifies the cause of the hardware failure until the server hardware is powered on and on-line.
  • (ii) Hardware replacement is guaranteed to be complete within 24 hours of the Host's problem cause identification.
    
    
• (c) Credits. The Client will be entitled to a statement credit of 5% of the applicable monthly fees for each full hour of downtime in excess of our Service Level Agreement.  For example, you will receive a 5% statement credit for between 1 and 60 minutes in excess of the Service Level targets, a 10% credit for between 61 and 120 minutes, etc.

4. PUBLIC CLOUD HOSTING AND PRIVATE CLOUD HOSTING.

• (a) Restoration or Repair Guarantee for Public and Private Cloud Hosts
  • (i) The Host guarantees the functioning of all Public and Private Cloud hosts including compute, storage, and hypervisor.
  • (ii) Public and Private Cloud Server Host downtime exists when a Host hardware component fails or stops working, and downtime is measured from the time User opens a trouble ticket with Host and Host identifies the cause of the hardware failure until the server hardware is powered on and on-line.
  • (iii) The Host guarantees that restoration or repair will be complete within 24 hours of problem identification.
  • (iv) The Host guarantees the functioning of all Host hardware components and will replace any failed component at no cost to User.
    
    
• (b) Public and Private Cloud Migration.
  • (i) If a Public or Private Cloud migration is required, the Host will notify the User at least 72 hours in advance of beginning the migration, unless the Host determines in its reasonable judgment, that the migration must happen sooner to protect Public or Private Cloud data.
  • (ii) The Host guarantees that the migration will be complete within 24 hours of the time that Host begins the migration.
    
    
• (c) Credits. The Client will be entitled to a statement credit of 5% of the applicable monthly fees for each full hour of downtime in excess of our Service Level Agreement.  For example, you will receive a 5% statement credit for between 1 and 60 minutes in excess of the Service Level targets, a 10% credit for between 61 and 120 minutes, etc.

5. DEDICATED HOSTING.

• (a) 24-Hour Replacement Guarantee.
  • (i) Host guarantees the functioning of all Host hardware components and will replace any failed component at no cost to User.
  • (ii) Host hardware is defined as the server and server components, load balancer, firewall, and other related hardware included with or paid for with the Host server.
    
    
• (b) Downtime.
  • (i) Hardware failure downtime exists when Host hardware component fails or stops working, and downtime is measured from the time the User opens a trouble ticket with Host, and the Host identifies the cause of the hardware failure until the server hardware is powered on and on-line.
  • (ii) Hardware replacement is guaranteed to be complete within 24 hours of Host problem cause identification.
    
    
• (c) Credits. The Client will be entitled to a statement credit of 5% of the applicable monthly fees for each full hour of downtime in excess of our Service Level Agreement.  For example, you will receive a 5% statement credit for between 1 and 60 minutes in excess of the Service Level targets, a 10% credit for between 61 and 120 minutes, etc.

6. SCHEDULED MAINTENANCE.

• (a) Accessibility of the Host web interface. During Scheduled Maintenance, the Host server might be available, but the User might not be able to access it.
  • (i) Normal scheduled maintenance ("Normal Maintenance Window") occurs at least once a month. Scheduled maintenance may not always include downtime and the Host will use best efforts to communicate and minimize any downtime associated with any maintenance window to four hours or less.  Any maintenance requiring downtime will be communicated in advance.
  • (ii) The Normal Maintenance Window is subject to change at Host's reasonable discretion, and the new Normal Maintenance Window will become effective upon posting to Host's web interface(s) or email notification. The Host will limit any maintenance occurring during the time periods between the hours of 10PM PST and 4AM PST
    
    
• (b) Infrastructure Maintenance. Includes all Host components, including the server(s). During Infrastructure Maintenance, the Host server and other Services may not be available.
  
  
• (c) Scheduled maintenance does not count as downtime and is not included in the calculation of the uptime guarantees.
  
  
• (d) If the Host intends to perform scheduled maintenance outside of the Normal Maintenance Window, the Host shall post a notice to the Host's web interface(s) or email notification to the User with at least 48 hours' notice.

7. EMERGENCY MAINTENANCE.

• (a) The Host may perform emergency maintenance if there is an immediate, material threat to Host servers or the Host services.
  
  
• (b) The Host will attempt to notify the User by email before emergency maintenance, but notice depends upon the severity and critical nature of the emergency maintenance.
  
  
• (c) Emergency maintenance does not count as downtime and is not included in the uptime guarantee calculations.

8. HARDWARE REPLACEMENT.
The Host may replace hardware for any reason, at any time.

9. DOWNTIME EXCLUSIONS.
The unavailability of Host services due to the following will not be considered to be downtime (and credits will not be issued) ("Excusable Downtime"):

• (a) The User's applications and content, and errors from the User's own custom scripting or coding;
  
  
• (b) The User's configuration(s) outside of the Host infrastructure that affects Host services;
  
  
• (c) The User's acts or omissions;
  
  
• (d) Force majeure;
  
  
• (e) Services provided by a third party outside of the Host's control;
  
  
• (f) Maintenance during the Normal Maintenance Window or emergency maintenance (as described in section 7);
  
  
• (g) Downtime to install services User requests;
  
  
• (h) Internet traffic exchange points external to Host, including without limitation Network Access Points ("NAPs") and Metropolitan Area Exchanges ("MAEs"), and Internet networks controlled by others; or
  
  
• (i) Suspension of services (for example, if the User doesn't pay the Host).

10. CREDIT REQUEST AND LIMITATIONS.

• (a) To receive a credit, the User must open a trouble ticket or call 415-520-4678 the report the problem, within 7 days of the outage or failure and request a credit.
  
  
• (b) Multiple credits will not be paid for different types of outages occurring at the same time (no overlapping credits). There are no duplicate credits for the same outage, and the greater of the applicable credits will apply.
  
  
• (c) Credits are based on our monitoring and shall not exceed 100% of the applicable monthly fees.  
  
  
• (d) Credits cannot be transferred, rolled over, or applied to other accounts.  All credits are forfeited at the expiration or termination of the Agreement and will not be paid or provided as a refund.

11. TROUBLE TICKETS.
A member of the Host's Network Operations Center Service Desk staff will be available to assist you with problems and questions regarding the hosting services.

• (a) User may open a trouble ticket using one of the following methods:
  • (i) Submitting a ticket through the Client Port found at https://hostpoppy.com
  • (ii) Calling 415-520-4678 during business hours
  • (iii) Sending an email to support@hostpoppy.com

12. HOST WILL ONLY PAY CREDITS FOR DOWNTIME OR OUTAGES.
The Host is not liable for any damages the User claims to have suffered because of Host downtime or outages, including the unavailability of software, operating systems, applications, and data.

13. INTERNET BANDWIDTH.

• (a) Metered Bandwidth.
  • (i) The User is charged based on the cumulative bandwidth usage each month.
  • (ii) If bandwidth consumption is greater than the purchased amount, an overage charge is billed to the User.
    
    
• (b) Internet Bandwidth Measurement
  • (i) Internet bandwidth is measured by taking samples of usage periodically minutes during a calendar month and collecting a fixed number of readings (cumulative of inbound feeds and cumulative of outbound feeds at the same measured point in time). The timing and number of readings will be set forth on an attached exhibit to this agreement.
  • (ii) The measurements are stored and become data points.  At the end of the month, all data points taken during the month are ranked in ascending order.
  • (iii) The Host will discard a fixed percentage for each set (inbound and outbound) of data points.  The percentage will be set forth on an attached exhibit to this agreement
  • (iv) The highest remaining sample of t sets becomes the User's sustained (base) or burstable usage number for that billing cycle.
  • (v) The User will be invoiced at the end of each month for burstable internet bandwidth usage, if any.