The TOS will not be updated randomly. We do, however, reserve the right to modify it when necessary due to the ever-changing nature of the Internet. If changes to it are made, we will provide you with written notice sent to the primary email address listed in your Client Profile, as well as post an announcement to your Client Area. In most cases, we will provide thirty (30) days notice before the TOS takes effect. In the event of an emergency requiring a TOS update, we reserve the right to update it with a small notice period. If you believe that any modification alters the benefit of the usage of our services set in this TOS, you may terminate your account without penalty BEFORE the thirty day notice period. After the thirty day notice period, it is assumed that you have agreed to the TOS changes.
It is your obligation to ensure that the services used comply with these policies.
1. The Services
1.1. The following provisions apply to Shared Services:
The hosting plans we provide have their features, characteristics, and limitations listed on our website. We agree to provide these services to you as they are described on the website as of the effective date during the term of the agreement. Should the hosting plans change on the site, we are not obligated to update your respective packages to reflect such changes. If we do change them, and you agree to purchase them, the fee for the packages may change. Changes to the services may be made if a supplier makes a component unavailable, cost prohibitive, beta trials end, or at any time effective on the end of the term for a specific service.
You may order services via our website using the supplied order forms which list all available products. In special cases, a custom link may be provided for a specific product if one is required. This will be handled either through a support ticket or email. When an order is placed for services using either of these methods, you agree to purchase the services selected by you during the term.
If we determine that we require the facilities for other needs, we may decline your request for service. Should an operational need require us to restrict or reallocate services among customers due to shortages or other causes beyond our control, we may do so without breaching this TOS.
Unless explicitly stated during the Ordering Process, the services may be provided from any of our facilities. You will have no ownership rights in the facilities or for any components of the service. You will only have a right to use the services during your term.
The primary contact listed in our records may create sub contacts within the Client Portal to assign access to the service. It is your responsibility to ensure that the correct access level is provided. It is also your responsibility that you use secure passwords and that other access methods used to access the services are secure. If you administer an account on behalf of another party, you agree that you will administer the account in good faith and indemnify us against all losses and liabilities incurred by us should you administer the account in ways that are against your customers, which could result in a claim against us.
If you incorporate a service into your own platform, you are responsible for determining if the service will be appropriate for your End Users and for ensuring that they do not engage in activity that would breach this TOS. Your End Users are not a third party beneficiary to this TOS and you agree to indemnify us for any claims made against us by your End Users of any nature. Under no circumstances will we provide support to your End Users. You are solely responsible for finding replacement services for your End Users in the event that we cease providing services to you for any reason.
We agree to use reasonable efforts to provide you with services according and subject to the terms of this TOS and all agreements that are incorporated by reference to this document.
If required, you must provide ExiaHost with all information, access, and full good-faith cooperation reasonably necessary to enable us to deliver services to you. We will rely on this information that is provided to us. It is your obligation to ensure that this information stays up to date. If communications are delayed or not delivered because of your failure to keep this information up to date, we assume no liability. You agree that we may provide you with information that may negatively affect you by email. Please ensure that your email address provided to us is configured to not reject or mark any of our emails as SPAM.
All software, hardware, and other systems have a defined support lifetime. Once they surpass this point, they are in the End of Life stage. Clients may only use software, hardware, and other systems that are currently supported by their owners, including those that may have been originally provided by us for use with your services (an operating system included on your server is an example). When these items reach the End of Life phase, it is your responsibility to upgrade to a supported version. We have no responsibility to support End of Life applications or hardware.
We will provide with your services, at no cost to you, one primary IP address by default. This address is subject to change at any time. We shall maintain and control ownership of the IP addresses that may be assigned to you by us. We reserve the right to change or remove the IP addresses provided that we 1) supply at least 30 day written notice of any change or removal and 2) you agree to provide us with all reasonably requested assistance to effect any such change or removal. We are required by ARIN (American Registry for Internet Numbers) to document on a "whois" server which entity is using the IP space. If you are assigned a static IP, you give us permission to include your name, company name, mailing address, email address, IP address, and telephone number on the "whois" server.
You are responsible for your own backups. If the services include backup services, these are provided as a supplement to your own backup efforts. No backup method is failsafe, therefore, we make no warranties regarding the thoroughness of our own backup system. If your data is restored from a backup, it will be restored in the manner that it is stored by us. This may not include the particular formatting and other elements necessary to make the restored data readily available on the Internet, or in the form originally transmitted to us. We are not obligated to restore data in its original format.
You have a right to use the services covered by this paragraph 1.1 to connect to our network on a 24/7 basis, as limited by this TOS. You will have no physical access to the equipment that your services are contained on.
The services covered in paragraph 1.1 are provided on a regulated basis. They will not be customized for your particular use. In some cases, the manufacturer's default settings may be used. This means that portions of your website, or use of them, may not function without additional configuration on your part. You are ultimately responsible to ensure that the services are configured to meet your operational, security, or privacy needs. Your site - along with any items you deem necessary to use the services - must be compatible with your services. Unless outlined during the Ordering Process, we are not obligated to modify the services to accommodate your use.
You must ensure that neither you nor your End Users make excessive or wasteful use of our network. Therefore, you agree to the following:
A "Reasonable Use" policy will apply to maintain stable network traffic for all hosting plans. For shared hosting plans, this means that if your users regularly generate more traffic than is typical for customers with similar accounts, we may require you to modify your use of the shared hosting plan so that they no longer exceed this standard. If you do not modify your use, we reserve the right to terminate this TOS and assess an Early Termination Fee to your account. Shared hosting plans may not be used for instant messaging, chat rooms, or similar activities. They may also not be used for software distribution.
Unused bandwidth may not be carried over from month-to-month.
Upon termination or expiration of the service, we will immediately block your access to the service and remove all data located on our equipment. It is your responsibility to download or secure possession of your data prior to the date of termination or expiration. If we terminate your service without providing you prior notice, we agree to preserve the data for up to fourteen (14) days and allow you to download the data. If, after this period, you do not collect your data, it will be deleted by us.
1.2. The following provisions apply to Domain Name Registration Services.
We resell domain name registration Services through OpenSRS and eNom.
If your domain name is registered through eNom, the following agreement applies to you: http://www.enom.com/terms/agreement.aspx
If your domain name is registered through OpenSRS, the following agreement applies to you: https://opensrs.com/domain-policies/
You agree, and understand, that the agreements linked above may contain further linked documents. It is your obligation to read, understand and agree to be bound by those agreements which are incorporated into this TOS by reference.
In addition, the consensus policies of ICANN apply to you: http://www.icann.org/en/resources/registrars/consensus-policies
1.3. New cPanel Account Restores
We provide free cPanel account transfers for all new accounts (less than 15 days from sign-up date). Transfer requests submitted after this 15-day period are subject to transfer fees based on source account size. Please contact a member of our sales team for more information. All transfers from remote networks (servers hosted outside of our network) are not guaranteed. There are many factors that can affect remote transfers that may be out of our control (poor network connections, firewalls, missing/incorrect account credentials, corrupted source account data, etc.). We will use best efforts to transfer your data to our servers. If we are unable to complete the transfer, we will let you know so that you can handle the transfer yourself. We also cannot be held responsible for the integrity of your transferred data.
Source Server Requirements:
- Active cPanel license
- Recent stable version of cPanel
- Perl 5.8.8
- MySQL4 or later (Note: All servers/accounts come with MySQL5. Please ensure database compatibility before submitting request.)
This TOS will begin on the Effective Date and continue in effect as long as we are providing a Service to you (TOS Term).
The Effective Date of an individual Service, is the date we begin the Ordering Process (Service Term). We use fraud detection programs. If during the Ordering Process your order is flagged as potentially fraudulent, it may not be processed. Until we notify you that the Service is available, you should not assume that your order has been processed.
Upon the expiration of an initial Service Term, that Service shall renew for a period of equal length unless one party has provided the other with a notice of termination as set out in paragraph 4.
Fees for individual Services are set out on the page describing the Service (Fees). We will begin to charge you for those Fees on the Effective Date of that Service. Certain Fees are based on usage rate of the Services. These will be calculated as set out on the website describing the Fees, and added to the Fees. Other than usage based Fees, all Fees are billed in advance. Special promotions applied to Fees do not reoccur, nor will promotions offered to other customers necessarily be offered to you. Fees paid to third parties and set up fees are not refundable.
Fees do not include taxes. Any taxes imposed by a governmental entity on the Services will be added to the Fees unless you provide ExiaHost with a valid tax exemption certificate. ExiaHost will not add any taxes that are based on its corporate income.
The date Fees are due is set out on the webpage describing the particular Services (Due Date).
We use Stripe and PayPal as our primary payment processors. If you choose to use a credit card, this information will be sent to Stripe for payment processing. Your credit card details are not stored by us - instead, a secure hash of the payment details are provided via Stripe for recurring payments. If you do not wish to save a credit card for recurring payments, it is your responsilibity to manually pay invoices as they are generated before the due date. You may also choose to use a PayPal subscription instead for recurring payments. We have no responsibility to provide the Services, or preserve data, if your credit card is declined for any reason. Subscription payments may also be used with the PayPal and Stripe payment gateways.
Late fees will be assessed to all applicable services if the invoices are not paid by the date specified on the invoice (Due Date). For Shared Hosting plans 5 days past due, a late fee calculated at 15% of the balance or the maximum amount allowed by law will be due to reactivate service. Late fees will be compounded. If your overdue balance includes multiple services, each associated late fee will be added to the late fees and compounded.
If an account holder submits a PayPal dispute for services rendered, their hosting account will be de-activated within 48 hours if the payment issue has not been recovered. A $50.00 charge back fee will be added to the amount disputed by the customer.
Any debt not paid 90 days after the due date will be forwarded to an outside collections agency for proper collection. At that time, the account holder will incur a $50.00 USD collection fee added to the balance previously due or the maximum amount allowed by law. If it pursues collection efforts, you agree to pay all of our expenses, including, but not limited to, reasonable attorneys' fees.
If you dispute any Fees, you agree to provide ExiaHost with written notice and evidence supporting your arguments prior to the Due Date. ExiaHost will review your dispute in good faith, and respond within thirty days of receiving notice of the dispute. If you disagree with our response, we both agree to negotiate in good faith for an additional thirty days. If after this period of time the dispute is not resolved, then we both may pursue the matter pursuant to the terms of paragraph 7. As consideration for providing you with a Fee dispute resolution provision, you agree to pay all Fees not in dispute and only use this procedure for bona fide, good faith, bill disputes.
If you terminate a service in any manner that is not listed as a valid termination reason within this TOS, you agree to pay within five days of giving notice of termination all fees that would have been payable to us as an Early Termination Fee. You agree to the Early Termination Fee as consideration to ExiaHost for foregone business opportunities associated with limited network resources, and agree that this is a material inducement to ExiaHost entering into this TOS.
If the Service Order includes a third party service, ExiaHost cannot guarantee that the fee charged by this vendor will remain the same during the Term. If the vendor changes its fee, this increase will be passed on to you. We will provide 30 days written notice of any pricing changes as a result of third party service price updates.
4. Termination and Suspension
A service may be terminated by either party as long as a five day written notice is given prior to the expiration of the term. ** Your termination request must be received by us five days prior to your next billing cycle for your account. ** In order for you to effectively terminate this Agreement, you must complete the cancellation form located in your Client Area for the appropriate Service. Other forms of termination will not be accepted as termination of this Agreement. In addition, either party may terminate a particular Service if the other breaches a material term of the TOS and such a breach is not cured within thirty days of the non-breaching party's presentation of written notice to the breach party, or immediately if the breach is incapable of cure. In the case of our AUP, you will be provided a time period to cure any breach. Either party may also terminate this TOS, or an individual Service, if the other party becomes the subject of any type of bankruptcy or insolvency.
ExiaHost may suspend the Services if you fail to pay the Fees by the Due Date, if providing them is prohibited by law or regulation, if you use End of Life software, hardware or systems on or in conjunction with the Services, or if you fail to cure a violation of our AUP or RAP within the amount of time set out in the notice, which the parties agree to be a material breach for which ExiaHost's original notice was your opportunity to cure. In the latter case, Fees will continue to accrue until the violation is cured.
If you terminate a service as set out in paragraph 4.1, we will process your termination request within 72 hours. Once we process your request, you have 24 hours from the time of our notification to you to withdraw your request. If the request is not withdrawn, your account will not remain online.
5. Warranties, Limitation of Liability and Indemnification
You warrant and represent that you own, or have the right to use, any and all data, software and hardware the transmission or use of which is facilitated by the Services.
We warrant that we own, or have been given a license by a third party to provide, the Services. OTHER THAN THE WARRANTIES SET OUT IN THIS TOS, WE PROVIDE NO OTHER EXPRESS OR IMPLIED WARRANTIES. EXCEPT AS SET OUT IN THIS TOS, THE SERVICES ARE PROVIDED AS-IS AND AS AVAILABLE. IN ADDITION, WE DISCLAIM ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. EACH OF THESE DISCLAIMERS APPLIES UNLESS PROHIBITED BY LAW.
ExiaHost's liability, that of its contractors, and any third party vendors, to you arising out of this TOS is limited to direct damages up to the amount of Fees paid by you for the three months prior to the event giving rise to the liability, except as prohibited by law. This limitation of liability does not apply to ExiaHost's obligation to indemnify you set out in paragraph 5.5, or for a breach of its obligations of confidentiality set out in paragraph 6.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF THE BASIS FOR A CLAIM, NEITHER PARTY, ITS AFFILIATES, OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) WHICH ARISE IN CONNECTION WITH THIS TOS AND/OR ANY AGREEMENTS INCORPORATED BY REFERENCE. THIS PARAGRAPH APPLIES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR THAT SUCH DAMAGES WERE FORESEEABLE. THIS LIMITATION DOES NOT APPLY TO A VIOLATION OF THE AUP, RAP OR A PARTY'S INDEMNIFICATION OBLIGATION.
Each of us shall indemnify and hold the other harmless from, and at our own expense agree to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against the other so far as it is based on: (i) a material breach of this TOS including the AUP and RAP; (ii) personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of the other party; (iii) in the case of Client, a claim against ExiaHost in the U.S., Canada, or the European Union that the Services have been used, or such use facilitated, by, Client in a way that violates copyright, patent, trademark or trade secret law, or a violation of the ExiaHost Policies; or (iv) in the case of ExiaHost, a claim against Client in the U.S. that the Services owned by ExiaHost violate copyright, patent, trademark or trade secret law. This paragraph will be conditioned on the indemnitee's notifying the indemnitor promptly in writing of the claim and giving the indemnitor full authority, information, and assistance for the defense and settlement thereof; and that in the case of a claim for indemnification under this paragraph, the claim arises from an unauthorized modification of the Services by you, combination with other intellectual property not owned by you, or your failure to update software or hardware. The indemnitee shall have the right to participate in the defense of the claim at its own expense. The indemnitor shall not settle a claim without indemnitee's approval if such a settlement contains an admission of liability or fault that could reasonably be attributed to indemnitee.
The following items are outside the definition of Confidential Information: information that is, or is made, publicly available without a breach of this paragraph; was known by a party without a legal obligation to keep it confidential; is independently developed by a party without reference to the Confidential Information; is a comment or suggestion Client volunteers to improve ExiaHost's products or services.
Subject to this paragraph, the parties agree not to disclose the Confidential Information to third parties, other than as necessary to provide the Services, and then only for the purposes set out in this TOS. The parties agree to take reasonable steps to ensure the security and confidentiality of the Confidential Information, steps at least as protective as those used to protect their own Confidential Information. One party shall notify the other in writing within twenty four hours of its discovery of disclosure of the Confidential Information, and cooperate with the other to regain control and prevent further dissemination of the Confidential Information.
Either party may disclose the other's Confidential Information to affiliates, or if required to comply with a court order or other government demand that has the force of law. However, the party subject to the court order agrees to give the other party notice within a reasonable period of time to allow the owner of the Confidential Information to protest it, unless notice is prohibited.
The obligations of this Section shall remain in effect for three years after termination of this agreement.
7. General Provisions
If ExiaHost or you are unable to perform our respective obligations due to circumstances outside our reasonable control (Force Majeure Event), performance shall be excused for the period of time that these circumstances persist, contingent on our taking steps to remedy those circumstances. The following circumstances are outside the scope of a Force Majeure Event: lack or unavailability of funds. If ExiaHost is unable to provide the Services for a period of thirty days or more, notwithstanding attempts to remedy the Force Majeure Event, you may terminate the affected Services without application of the Early Termination Charge.
From time-to-time we may receive warrants and subpoenas from law enforcement entities for information you provide to us (Law Enforcement Request). Unless the Law Enforcement Request prohibits, or requests, that it not be disclosed, we will inform you of our intent to disclose your information.
If you are involved in civil litigation we have no obligation to provide assistance to you to comply with civil litigation demands such as subpoenas. Should we be compelled to comply with a subpoena for the Services we provide to you, we will charge you $300 per hour, plus reasonable expenses, to comply.
This TOS is the final, and full, expression of our agreement, and supersedes all prior oral and written communications between the parties about its subject matter.
This TOS and all agreements incorporated by reference shall be governed by the laws of the State of Florida without regard to its choice of laws or conflicts of laws principles. All disputes between you and ExiaHost of any nature shall be brought before, and venue shall be proper in, the federal and state courts located in Seminole County, Florida. Neither party shall contest notice from such a court. THE PARTIES EACH WAIVE TRIAL BY JURY IN ANY DISPUTE. The U.N. Convention on Contracts for the International Sale of Goods shall not apply. Client acknowledges and agrees that pricing is based in large measure on the parties' respective rights, obligations and limitations set out in this agreement.
This TOS and the Addenda may not be amended except upon the written consent of an authorized officer of ExiaHost and Client.
No failure to exercise, nor delay in exercising, any right, remedy or power shall be a waiver of it.
This TOS, and all contracts incorporated by reference, shall be binding on the parties and their successors and assigns. Either party may assign this TOS and all contracts incorporated by reference except in the following circumstances: to a competitor of the other; or to an entity having no assets and/or operations.
If any provision in this TOS, or a contract incorporated by reference, is found illegal or unenforceable, that provision shall be deemed restated in such a way as to be legal, enforceable and reflective of the parties intent and this TOS or other contract will remain in effect. Under no circumstances shall such a finding cause the contract to be void or unenforceable.
All notices shall be made in writing and effective upon the date of actual receipt. Notices to ExiaHost shall be sent to the address listed in the "about us" or similar page on the ExiaHost website to the attention of "General Counsel." Notices to you shall be sent to the address set out in ExiaHost's customer record to the attention of "Legal Notices."
No person or entity, other than you and us and our respective successors and assigns, shall be entitled to bring any action to enforce any provision of this TOS or contracts incorporated by reference, against either of us. For the purposes of this agreement, we shall both be considered independent contractors, and cannot make representations, claims or warranties on behalf of the other. Each party agrees to indemnify the other pursuant to paragraph 5.5 if a claim is brought that is within the scope of this paragraph.
You are advised that, as may be applicable to it under California Civil Code Section 1789.3, to initiate a complaint about the Service, you may contact ExiaHost using your ExiaHost portal, or as provided in the applicable Service Level Agreements. If you are dissatisfied with the manner in which ExiaHost responds to a complaint regarding the Services, you may contact ExiaHost at the address set out in Paragraph 7.10, and the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254. The charges for the Services are set out in the applicable Service Order.
We offer a 45 day guarantee (Guarantee). The Guarantee applies to new hosting services only. This means that if you have previously purchased services and add services, the Guarantee only applies to the new services for the 45 day period after their purchase.
To qualify for the Guarantee, you must follow the termination process set out in this TOS. In addition, your termination request must include a detailed statement discussing the reasons for your termination. If your termination request falls within the requirements set out in this paragraph, we will refund any payments made to the payment method used to purchase them. If you do not qualify for the Guarantee, we will reply by email. Domain registration, and third party vendor fees, do not qualify for the Guarantee and are not refundable.