Terms of Service
This is an Agreement between you, either individually or as a representative of your company or institution ("Customer"), and Web Hosting Pros, LLC ("WHP"). You must accept the terms of this Agreement prior to using any Services provided by WHP. This Agreement sets forth the general terms and conditions of your use of the products and services purchased or accessed through the WHP website (individually and collectively, the "Services"), and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services, including but not limited to the following:
NOTWITHSTANDING, BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL POLICIES AND AGREEMENTS INCORPORATED BY REFERENCE.
WHP may modify this Agreement, any Addendum, policy or guideline incorporated by reference from time to time, with or without notice, and to determine whether and when any such changes apply to both existing and/or future Customers, at its sole discretion. Any such modifications will be effective as of the date the revised Agreements, policies or guidelines are posted on the WHP website. Your continued use of Services after such modification shall be deemed to be your acceptance of any such modifications. Modifications to this Agreement shall not be construed as cause for early termination or non-payment. It is your responsibility to review the “Legal Agreements and Policies” page on the WHP website on a regular basis to determine whether this Agreement has been modified. If you do not agree to any modification of this Agreement, you must notify WHP immediately as stated herein and cease use of all Services within 24 hours of such notification.
1. Term and Payment for Services
- Term. This agreement becomes effective as of the date Service is ordered (the "Initial Term"), whether such order is placed via the WHP website, physical order form or telephone call, for the period indicated on such order. This Agreement will be renewed automatically for another period of same duration (the "Renewal Term"), unless Customer notifies WHP as stated herein prior to the end of Initial Term or Renewal Term (the "Service Period").
- Termination and Refund Policy. Customer may cancel Customer’s use of Service at any time before the end of the Service Period, but at no time will WHP be required to issue a refund if such cancellation occurs after the first 30 days of the Initial Term. If Customer cancels use of Service within the first 30 days of the Initial Term, Customer is entitled to a refund equal to any amount paid in advance for Service, less any applicable Setup Fees or Domain Registration Fees, even if such fees were initially waived. Notice of cancellation must be submitted via the WHP "My Account" area, by logging in at https://www.webhostingpros.net/myaccount and navigating to Services > Product/Service > Request Cancellation; for security reasons we do not accept cancellation by telephone or email. Even after cancellation of Service, this Agreement will remain in force until actual termination of service. WHP may terminate this Agreement at any time and for any reason by providing Customer written notice within 30 days prior to the date of termination. Notwithstanding the foregoing, WHP may terminate this Agreement immediately, in its sole judgment, due to Customer’s breach of any term of this Agreement, Addendums, policies or guidelines, including but not limited to refusal or failure to pay for Services, engaging in unlawful activities or activities harmful to any of WHP’s other customers, employees, vendors, business relationships or any other Internet user. Should termination occur for such reasons prior to the end of the current Service Period, Customer understands that no refund will be issued; it is difficult or impossible to ascertain damages caused by Customer's actions which caused such termination and therefore, Customer agrees to pay the balance for the remaining Service Period as liquidated damages. The payment of these damages by Customer in no way limits Customer's responsibility under this Agreement for Customer's action that triggered Customer's immediate termination.
- Charges and Payment. Customer agrees to pay for all Services ordered on a prepaid basis, including subsequent Renewal Terms, unless an authorized representative of WHP has made other specific arrangements in writing. If Customer provides credit or debit card information to WHP, you thereby authorize WHP to charge your credit or debit card(s) to pay for any charges that may apply to your account. You further agree to notify WHP should any changes be made to your credit or debit card provided, including but not limited to, account number, expiration date, billing address, or any other code or required to process a payment using the card. Regardless of Customer’s country of origin, Customer will be billed in U.S. Dollars and agrees to make payments in U.S. Dollars. Customer agrees to pay all invoices for Services by due date; if payment isn’t made within 5 days of due date, a late fee of 15% or $5.00 (whichever is greater) may be applied to balance and/or Services suspended at WHP’s sole discretion. If payment isn’t made within 10 days of due date, it will be considered a material breach of this Agreement and WHP may , in addition to any other remedy it may have, suspend its performance of the Services and/or terminate this agreement and delete any and all Customer data from its servers. Any such suspension or termination of the Services will not relieve Customer of obligation to pay past due fees and interest. Customer is responsible for any and all applicable taxes, including federal, state and local sales, use, value added, excise duty and any other taxes assessed with respect to Customer’s use of Services, other than taxes based on WHP’s net income.
- Chargebacks. Any billing disputes must be corrected by contacting WHP. If Customer contacts credit card issuer and initiates a chargeback then Customer will be responsible for a $50 Chargeback Fee per chargeback; failure to pay this fee will result in additional fees and termination of Customer’s account.
- Payment Processing Fees. WHP reserves the right to collect Payment Processing Fees (PPF) in certain conditions, to recover related costs. Payment transactions of $500 or more made via credit card or PayPal will be subject to a 3% PPF.
- Overpayments. Should Customer pay an amount in excess of the current amount due, the amount in excess will be credited to Customer’s account and used to offset future payments. Only at Company’s sole discretion will overpayments be returned to customer.
- Abandonment. WHP will make reasonable efforts to reach Customer to satisfy any unpaid balances. However, if Customer a) has an unpaid balance owing for 30 days or more, and b) WHP is unable reach Customer to satisfy payment; Customer irrevocable grants to WHP the right to satisfy Customer’s unpaid balance with the transfer of domain name registrations (“Registrant”) and/or website account data (not personal data) to itself or a 3rd party willing to settle said balances, at its sole discretion, in lieu of collection activity.
- Modifications of Services and Pricing. WHP reserves the right to modify, change, or discontinue any aspect of its website or Services, including without limitation, prices and fees, at any time.
2. Accounts and Transfer of Data Abroad
- Accounts. In order to access some of the features of the WHP website or use some of the Services, you will have to create an Account. You represent and warrant to WHP that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If WHP has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, WHP reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including without limitation your customer number/login, password, and payment information. For security purposes, WHP recommends that you change your password at least once every six (6) months for each Account. You must notify WHP immediately of any breach of security or unauthorized use of your Account. WHP will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss WHP or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
- Transfer of Data Abroad. If you are visiting the WHP website from a country other than the country in which our servers are located, your communications with us may result in the transfer of information (including your Account information) across international boundaries. By visiting the WHP website and communicating electronically with us, you consent to such transfers.
3. Use of Services
- Acceptable Use Policy. Customer agrees to limit access to account information to authorized individuals only, such as household members, employees or consultants, and is responsible for ensuring all such individuals comply with this Agreement and any Addendum, policy or guideline incorporated to this Agreement by reference. Customer is responsible for maintaining confidentiality of account passwords and any additional charges resulting from use of Customer’s account. Customer agrees to not use, or permit others to use, the Services in any way that violates any law or regulation, subjects WHP to liability, or is contrary to WHP’s Acceptable Use Policy. Furthermore, Customer agrees to abide by acceptable use policies of all Third Party Services.
- Misuse. In the event of inappropriate use of Services or of Third Party Services, WHP, at its sole discretion, may suspend Customer access to WHP’s servers. Misuse includes but is not limited to the following: (i) publish, post, distribute or disseminate defamatory, infringing, obscene or other unlawful material or information; (ii) use Services to threaten, harass, stalk, abuse, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (iii) intercept or attempt to intercept Email; (iv) upload files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights thereto or have received all necessary consents; (v) upload files that contain a virus or corrupted data; (vi) delete any author attributions, legal notices or proprietary designations or labels in a file that you upload to WHP’s servers; (vii) falsify the source or origin of software or other material contained in a file that you upload to WHP’s servers; (viii) use your account in a manner that adversely affects the availability of its resources to other Customer's; (ix) send Email to WHP’s other Customer's for any purpose other than personal communication, including to advertise or offer to sell goods or services to other Customer's (except as otherwise expressly permitted by WHP); (x) act, or fail to act in a manner that is contrary to applicable law or regulation; or (xi) send Spam as defined in Section 6 (a). In addition, each time you upload a file to WHP’s servers you represent and warrant that you own or otherwise control the rights or have the necessary consents to do so. Your failure to observe any of the foregoing limitations or obligations may result in civil or criminal liability, as well as termination of this Agreement. In the event of Misuse, in addition to the remedies outlined herein, WHP may disable any domain(s) to prevent further Misuse at its sole discretion.
- Removal Rights. WHP reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related Addendums, policies or guidelines, or is otherwise objectionable or potentially infringing on any Third Party’s rights or potentially violates any laws. WHP may take immediate corrective action, including, but not limited to, (i) issuing warnings, (ii) suspending or terminating the Service, (iii) restricting or prohibiting any and all uses of content hosted on WHP’s servers, and/or (iv) disabling or removing any hypertext links to Third Party websites, any of your content distributed or made available for distribution via the Services, or other content not supplied by WHP which, in WHP 's sole discretion, may violate or infringe any law or Third Party rights or which otherwise exposes or potentially exposes WHP to civil or criminal liability or public ridicule. WHP' right to take corrective action, however, does not obligate WHP to monitor or exert editorial control over the information made available for distribution via the Services. If WHP takes corrective action due to such possible violation, WHP shall not be obligated to refund to Customer any fees paid in advance of such corrective action.
- Disclosure Rights. In order to comply with applicable laws or governmental requests and subpoenas, to protect WHP’s business, servers and/or customers, WHP may disclose any information it deems necessary or appropriate, including but not limited to, Customer’s user information (ie. name, email address, etc.), IP addresses, usage history, and content residing on WHP’s servers. WHP also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate Third Parties.
- Customer Liability. Customer is liable for any damages that result from willful or negligent violation of this Agreement, the Acceptable Use Policy of WHP, or the acceptable use policy of any Third Party Services.
4. Intellectual Property Rights
- License Granted to WHP. Customer hereby grants to WHP a non-exclusive, worldwide, royalty-free license to use your content as necessary, including content submitted through Email or Customer’s Account, for the purposes of rendering and operating the Services covered by this Agreement, during the Service Period. Customer expressly (i) grants to WHP a license to cache such materials, including materials distributed or made available for distribution via the Services, content supplied by Third Parties, and (ii) agrees that such caching is not an infringement of any of your intellectual property rights or any Third Party's intellectual property rights. WHP shall own exclusive rights (including all intellectual property and other proprietary rights) to any Customer submissions posted to the WHP website, and shall be entitled to the unrestricted, royalty-free use and dissemination of any Customer submissions posted to WHP’s website, unless marked "private" or password protected, for any purpose, commercial or otherwise, without acknowledgement or compensation to Customer or anyone else.
- Trademarks. Customer grants to WHP a limited right to use its trademarks, if any, for the limited purpose of permitting WHP to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sub-license use of Customer’s trademarks or to use Customer’s trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.
- WHP’s Materials and Intellectual Property. All materials, including but not limited to any computer software (in object code and source code form), scripts, data or information developed or provided by WHP or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by WHP to provide the Services to Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of WHP or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by WHP during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. Customer may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
5. Warranties, Disclaimers and Limitations of Liability
- Customer and/or Third Party Acts. WHP is not responsible in any manner for any activity caused by Customer, its agents or customers. In addition, WHP is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond WHP' reasonable control.
- No Express or Implied Warranty. ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY WHP UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. CUSTOMER ACKNOWLEDGES AND AGREES THAT WHP EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH WHP' COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. WHP DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WHP DOES NOT MAKE AND HEREBY DISCLAIMS, AND CUSTOMER HEREBY ASSUMES FULL RESPONSIBILITY AND RISK FOR USE OF THE SERVICES, WAIVES ALL RELIANCE ON ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.
- Customer’s Warranties and Representations to WHP. You warrant, represent, and covenant to WHP that (i) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (ii) you possess the legal right and ability to enter into this Agreement; (iii) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (iv) you will be financially responsible for the use of your account; (v) you have acquired or will acquire all authorization(s) necessary for hypertext links to Third Party websites or other content; (vi) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (vii) your content and/or any software that you install or provide does not and will not infringe or violate any right of any Third Party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
- Limitations. IN NO EVENT SHALL WHP HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO WHP, DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. WHP SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF WHP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF WHP TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO A CREDIT APPLIED TO CUSTOMER’S ACCOUNT FOR THE AMOUNT ACTUALLY PAID TO WHP BY CUSTOMER UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED AS LIQUIDATED DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY WHP UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, CUSTOMER HEREBY RELEASES WHP FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION. BECAUSE SOME STATES, COUNTRIES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, COUNTRIES OR JURISDICTIONS, WHP’ LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
- Interruption of Service. Except as expressly provided in this Agreement, Customer hereby acknowledges and agrees that WHP will not be liable for any temporary delay, outages or interruptions of the Services, and cannot be held liable for system downtime, crashes, or data loss. WHP cannot be held liable for any predicted estimate of profits in which a Customer would have gained if their website was functioning. Certain services provided by WHP are resold; therefore, certain equipment, routing, software, and programming used by WHP are not directly owned or written by WHP and are outside of its direct control. Further, WHP shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or Third Party supplier failure).
- Maintenance. Customer hereby acknowledges and agrees that WHP reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. WHP will use best efforts to notify you of pending maintenance; however, at no time is WHP under any obligation to inform you of such maintenance.
- Service Level Agreement. Notwithstanding the foregoing, WHP provides a 99.9% Uptime Guarantee to all Web Hosting Customers. Should Customer’s website availability become unavailable for a cumulative period of 1 hour in any one calendar month due to a non-maintenance issue under the direct control of WHP, Customer will receive a credit equivalent to one day of Customer's Recurring Monthly Fees for that month. Customer will receive an additional credit of one day of the Recurring Monthly Fees for each additional hour of downtime or unavailability. All credit calculations will be based on unavailability in one-hour increments. This Service Level Agreement does not cover outages caused by equipment and/or events not under the direct control of our WHP, or outages due to scheduled or emergency network and/or server maintenance. Any and all credits to customer will not exceed 100% of Customer's Recurring Monthly Fees for the month in which the credit is applied. To receive the credit(s) as described above, Customer must notify WHP of any downtime in writing, and ask for verification of the downtime for consideration of credit.
Customer will defend, indemnify and hold harmless WHP and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnified Party") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys’ fees and court costs, sustained or incurred by or asserted against any Indemnified Party by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) Customer’s violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) Customer’s conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) Customer’s use of the Services, including any improper or illegal uses; (iv) any claim by a former employee of Customer whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by WHP ; or (v) any claim relating to Customer’s services or products, or Customer’s installation and/or use of any Third Party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or nonproprietary right of a Third Party (including, without limitation, defamation, libel, or violation of privacy or publicity). Customer agrees to reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys' fees incurred by such Indemnified Party in connection with investigating, defending or settling any loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party; at all times Indemnified Party may choose its own council.
7. Other Provisions
- Anti-Spam Policy. WHP is committed to a zero-tolerance, anti-Spamming policy. Under this policy, we prohibit Spam, defined as any Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax) from being sent either: (i) over the WHP network, by customers or any other users of the WHP network (including Customer's customers); and/or (ii) over ANY network if the message sent advertises or mentions a site hosted on our server. WHP also prohibits the selling products that can be used for spamming, such as mass-mailing software, and will react quickly and seriously to violations; WHP reserves the right to suspend or terminate the related Services without prior notice of any Customer disregarding this policy as outlined in Section 2 (b). If you have any complaints or comments regarding Spam on our network, please direct them to Customer Support.
- Support. WHP provides technical support to our Customers via control panel ticket system, email, telephone and live chat. WHP provides support related to Services provided or account physical functioning. WHP does not offer technical support for application specific issues such as ASP, ColdFusion, .NET, PHP, Perl (scripting errors), HTML or any other such issue. WHP does not provide any kind of technical support for Customer’s customers.
- Unlimited Hosting Policy. The term “unlimited hosting” account (“UHA”) is defined as a Hosting Account with enough quota to allow continual, normal use without concern for disk storage and network data transfer quota as the Customer’s website becomes popular. While a UHA may contain unlimited MySQL account creation, each MySQL database should be optimized to be no larger than 1 GB in size. A UHA may not include: (i) copyrighted content that you do not hold usage or distribution rights; (ii) file upload, sharing, archive, backup, mirroring or distribution site data; (iii) websites created primarily to drive traffic to other websites; and/or (iv) methods to make Customer resources available (whether for free or for payment) to the general public.
- Notices. All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered. WHP is not responsible for notice failures caused by an error in Customer’s email program, an inaccurate email address provided by Customer, Customer’s failure to check email or Customer’s failure to inform WHP of a change in email address.
- Captions. The captions used in this Agreement are for the convenience of the parties only and will not be interpreted to enlarge, contract, or alter this Agreement or any of its provisions.
- Singular and Plural. As used in this Agreement, the use of the singular or plural form of any noun, pronoun or verb will be deemed to include the other whenever the context so indicates or requires.
- Assignments. Customer may not transfer or assign any rights, duties, or obligations under this Agreement without WHP’s prior written consent. WHP may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.
- Non-Waiver. Non-enforcement of any section of this Agreement by WHP does not constitute consent or waiver of that term or section and WHP reserves the right to enforce this Agreement at its sole discretion.
- Disputes. Any disputes that arise between WHP and Customer with respect to the performance of this Agreement shall be submitted to binding arbitration to the presiding arbitration judge in Los Angeles County, Los Angeles, California, USA or through the Business Consumer Alliance arbitration program, at WHP’s sole discretion, and shall be determined and resolved under the rules and procedures in effect at the time of submission (binding) and the parties hereby agree to share equally all costs of said arbitration, excluding attorney's fees.
- No Fiduciary Relationship or Third-Party Beneficiaries. WHP is not the agent, fiduciary, trustee or other representative of Customer. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
- Governing Law and Forum. THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN CALIFORNIA, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
- Attorney Fees. In the event of any suit or action to enforce or interpret any provision of this Agreement, the prevailing party is entitled to recover, in addition to other costs, reasonable attorney fees in connection with the suit, action, or arbitration, and in any appeals. The determination of who is the prevailing party and the amount of reasonable attorney fees to be paid to the prevailing party will be decided by the court or courts, including any appellate courts, or the presiding arbitration judge in which the matter is tried, heard, or decided.
- Severability. If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
- Entire Agreement. This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only as stated herein.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE ENFORCED BY THE PARTIES.