Surpass Hosting

Terms of Service (Last Rev. 03/01/2013)

 

Thank you for making SurpassHosting.com, LLC (hereafter referred to SurpassHosting, we, us or our) your internet infrastructure partner! This Integrated Terms of Service (TOS) is the contract between SurpassHosting and the individual or entity to whom we have assigned a Client ID (Client, you or your), and governs the services as described on our website (Services). This TOS includes our Acceptable Use Policy (AUP), Privacy Policy, Service Level Agreement (SLA) and Resource Abuse Policy (RAP). It is very important that you read this TOS in its entirety; by requesting a Client ID, you consent to be bound by its terms. The effective date of this TOS is the date we assign you a Client ID (Effective Date).

We will not modify this TOS arbitrarily. However, because the ways in which the internet is used, and abused, evolve over time, we reserve the right to modify it. If we do, we will provide you with written notice sent to the email address you have provided us, and post the notification on our home page. Unless a modification is necessary to respond to an emergency, we will give you thirty days prior notice of any modification. If a reasonable business person would believe that our modification materially alters the benefit of the bargain set out in this TOS, you may terminate this TOS prior to the expiration of the thirty day notice period. After that time, you will have been deemed to have accepted the changes.

It is Client’s obligation to ensure that the Services are used in compliance with these policies. Client is encouraged to include policies no less restrictive than our AUP, Privacy Policy, and RAP in its contracts with its customers, or those who use the Services provided by us through you (collectively “End Users”).

 

1. The Services

1.1. The following provisions apply to all Services:

 

1.1.1. Descriptions of the features, characteristics and limitations of the products and services we offer are set out on our website. We agree to provide the Services to you, as they are described on our website, as of the Effective Date, during the Term. Should these characteristics change after the Effective Date, we are not obligated to modify your Services to reflect these changes. If we do so, and you agree to purchase them, the Fee may change. We may make changes to these Services if a supplier makes components unavailable, cost prohibitive, if a beta period ends, or at any time effective on the end of the term of a particular Service.

 

1.1.2. We provide two ways for you to purchase our Services: (i) through our website; or (ii) by opening a ticket to purchase additional Services (Ordering Process). When you place an order for the Services using either of these methods, you agree to purchase the Services selected by you during the Term.

 

1.1.3. We may decline to accept a request for Service if we determine that we require the facilities for other needs. Should operational needs require us to restrict or allocate Services among customers because of a shortage of facilities or causes beyond our control, we may do so without breaching this TOS.

 

1.1.4. Unless expressly set out during the Ordering Process, the Services may be provided from any of our facilities. You will have no ownership right in the facilities, or in components of the Services. You will only have the right to use the Services.

 

1.1.5. The individual or entity set out in our records is the only entity authorized to access the Services. It is your responsibility to secure passwords and other access methods used to access the Services. If you administer an account on behalf of another party, you warrant that you will administer that account in good faith, and indemnify us against all losses and liabilities incurred by us should you administer the account in ways that are adverse to your customer and which result in a claim against us.

 

1.1.6. If you resell the Service, or incorporate the Service into your own services, you are responsible for determining whether the Service will be appropriate for your customers (End Users) and for ensuring that they do not engage in any activity which would cause you to 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. Unless expressly set out during the Ordering Process, we have no obligation to provide support to End Users. If we cease providing the Service to you, for any reason, you are solely responsible for securing replacement services for your End Users.

 

1.1.7. We agree to use commercially reasonable efforts to provide Client with the Services according and subject to the terms of this TOS and all agreements incorporated by reference.

 

1.1.8. You must provide SurpassHosting with all information, access, and full good faith cooperation, including, if required, with your third party vendors, reasonably necessary to enable SurpassHosting to deliver the Services. We will rely on the information you provide to us. It is your obligation to keep this information up-to-date. We have no liability if communications are delayed, or not delivered, because of your failure to keep this information up-to-date. You agree that we may provide you with information that may negatively affect you by email. Please ensure that the email address you provide to us is configured in a way so that information from us is not rejected or marked as SPAM.

 

1.1.9. All software, hardware and some systems have a defined support lifetime (End of Life). Client may only use software, hardware and systems that are currently supported by their owners, including those that may have initially been provided by SurpassHosting in conjunction with the Services (for example, an operating system on a purchased server). When these items reach their End of Life, it is your responsibility to upgrade to a supported version. SurpassHosting has no responsibility to support End of Life items.

 

1.1.10. We will provide, at no cost to you, one primary IP address by default, which will be subject to change at any time. SurpassHosting shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by us and we reserve, in our sole discretion, the right to change or remove any and all such IP numbers and addresses; provided, however, that (i) we will provide you with at least thirty days prior written notice of any such change or removal; and (ii) you agree to provide SurpassHosting with all reasonably requested assistance to effect any such change or removal. SurpassHosting is 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 address, you consent to SurpassHosting’s inclusion of your name, company name if a business, postal address, e-mail address, IP address, and telephone number in such “whois” server.

 

1.1.11. It is your obligation to back up your data. If the Services include backup services, these are provided as a supplement to your own backup efforts. Because no backup method is failsafe, we make no warranties regarding the thoroughness of our backup solution. If your data is restored from backup, it will be restored in the manner it is stored by us. This may not include formatting and other elements necessary to make the restored data available on the internet, or in the form originally transmitted to us. We are not obligated to restore the data in that format.

 

1.2. The following provisions apply to shared, dedicated and VPS Services:

 

1.2.1. You have the right to use the Services covered by this paragraph 1.2 to connect to our network, on a 24 x 7 basis, limited by this TOS. You will have no physical access to the equipment used to provide the Services.

 

1.2.2. The Services covered by this paragraph 1.2 are provided to you on a standard basis. They are not customized for your use. In some cases, they may have the manufacturer’s default settings. This means that aspects of your website, or use of them, may not function without additional configuration by you. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your site, and any other items you deem necessary to use the Services, must be compatible with them. Unless set out during the Ordering Process, we are not obligated to modify the Services to accommodate your use.

 

1.2.3. You will ensure that neither you nor any of your End Users make excessive or wasteful use of our network by agreeing to the following:

 

1.2.3.1. A “Reasonable Use” policy will apply to maintain stable data traffic on shared hosting Services. For the shared hosting Services, this means that if your use of the shared hosting Services regularly generates more traffic than is customary for similarly situated customers, we may require you to modify your use of the shared hosting Services 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. Shared hosting Services may not be used for instant messaging, chat rooms, or similar activities, nor may they be used for software distribution.

 

1.2.3.2. Dedicated hosting Services and virtual private server Services (VPS Services) have a set bandwidth allocation applicable to each Service as set out during the Ordering Process. If in any calendar month you obtain any bandwidth or disk space usage over that basic allocation, then we will charge you its standard overage fee.

 

1.2.3.3. A “Reasonable Use” policy will also apply to data traffic on VPS Services. For VPS Services, this means that if your use of the Web Hosting Services regularly generates more traffic than is customary for similarly situated customers, we may require you to modify your use of the VPS Services so that they no longer exceed this standard. If you do not modify your use, we reserve the right to terminate your use of the VPS Services and assess an Early Termination Fee.

 

1.2.3.4. Our VPS Services allow you to connect with our network using a portion of a server partitioned in a manner that allows you to have virtual control over all features and aspects of that server, other than certain preset characteristics. While it will appear that you are the only entity using the server, some resources will be shared. You will take no actions to limit the use of the equipment by our other customers or other entities in general. You will not alter, or attempt to alter, mechanisms, including software, implemented by us to facilitate the sharing of a server. You understand that our implementation of certain aspects of the VPS Services designed to facilitate use by multiple parties may affect your use and administration of the equipment. You may not terminate this TOS based on our implementation of these features.

 

1.2.3.5. For dedicated Services your site will be the only site operating on our equipment. This equipment is leased, and not sold to you. You will have no ownership interest in this equipment.

 

1.2.3.6. Unused bandwidth may not be carried over from month-to-month.

 

1.2.3.7. On termination or expiration of the Services, we shall be entitled immediately to block your access to the Services and to remove all data located on our equipment. It is your responsibility to download, or otherwise secure possession of, the data prior to the date of termination. If we terminate the Services without providing you with prior notice, we agree to preserve the data for a period of fourteen days, and allow you to download, or otherwise secure possession of, the data. If, after this period, you do not collect it, it may be deleted by us.

1.3. The following provisions apply to colocation Services.

 

1.3.1. When you purchase colocation Services from us, you are given a license (but not any other property rights) to occupy or use certain space (Space) within a SurpassHosting data center (Facility), as more particularly described during the Ordering Process. You may use the Space to colocate hardware, software and other equipment owned, licensed or leased by you or your designees, and utilized by you to receive the Services (Client-Provided Equipment).

 

1.3.2. The Facility and the Space

 

1.3.3. SurpassHosting shall perform such environmental systems and power plant maintenance and janitorial and other services as are reasonably required to maintain the Facility and Space in good condition suitable for the placement of the Client-Provided Equipment. The Space shall be delivered and accepted “as is.” The Facility will be monitored twenty-four hours per day, seven days per week, with card key access, conditioned power using UPS systems with back-up power generator capability.

 

1.3.4. You may occupy the Space and place (at your own expense) Client-Provided Equipment in the Space. You may not sublicense, sublet, rent, sell, or otherwise assign or transfer any of your use, occupancy or other rights in the Space to any third party without our prior written consent, which consent may be withheld in our sole discretion.

 

1.3.5. Prior to accessing the Space for any purpose, you shall provide SurpassHosting (and shall keep up to date) a list of your employees, agents, and contractors who will be entering the Facility on your behalf (Invitees). Invitees may access the Space at any time upon reasonable advance notice to SurpassHosting, and according to its requirements for appropriate behavior. You are responsible for the acts of your Invitees.

 

1.3.6. Client-Provided Equipment shall be installed, operated, inspected, maintained, repaired, replaced and removed (i) only by qualified agents of Client who are properly insured and, if applicable pursuant to standard industry practices, licensed; and (ii) in a safe and workmanlike manner. Prior written notice to SurpassHosting is required to use any loading docks. You shall not permit any liens to be placed against all or any portion of the Facility or any equipment of SurpassHosting.

 

1.4. The following provisions apply to domain name registration Services.

 

1.4.1. We resell domain name registration Services through e.nom and TuCows.

 

1.4.2. If your domain name is registered through e.nom, the following agreement applies to you: http://www.enom.com/terms/agreement.aspx

 

1.4.3. If your domain name is registered through TuCows, the following agreements apply to you: http://www.opensrs.com/docs/contracts/exhibita.htm; and http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm

 

1.4.4. 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.

 

1.4.5. In addition, the consensus policies of ICANN apply to you: http://www.icann.org/en/resources/registrars/consensus-policies

 

1.4.6. Alterations. You shall not alter the Facility or Space, including cabling and power supplies, without SurpassHosting’s prior written consent, which consent may be conditioned on our receipt and approval of your plans and specifications for any such alterations. All fixtures, additions, repairs, build-outs and other alterations in or to the Space (Fixtures) shall be part of the Facility and you shall not remove such Fixtures unless required by SurpassHosting. Any other removal shall be at your expense. Within fifteen days following termination or expiration of the colocation Services, you shall remove all of your Client-Provided Equipment from the Facility and shall, at SurpassHosting’s request, restore (at your expense) the Space to its condition as of the Effective Date, reasonable wear and tear excepted. If you fail to effect such removal and/or restoration, SurpassHosting may do so at your expense. Any Client-Provided Equipment remaining in the Facility after such fifteen day period may, at SurpassHosting’s sole discretion, be removed, stored or disposed of at your expense in any manner SurpassHosting determines, with any proceeds applied to any unpaid amounts owed to SurpassHosting. Exercise of any of the foregoing rights by SurpassHosting shall not relieve Client of any of its payment obligations under the Agreement. SurpassHosting may terminate this Agreement if upon inspection we determine that your equipment is not installed or maintained in accordance with this Agreement, and if such a failure does not endanger our facilities, you have not corrected this deficiency within ten days of our notice to you.

 

1.4.7. Right to Disconnect and Remove. If you fail to pay any amounts due and such failure continues for more than ten days, included in our right to terminate your use of the Space is the right to disconnect and remove any or all of the Client-Provided Equipment from the Space (including any data and/or software thereon), store such Client-Provided Equipment for a period not to exceed three months, and assess reasonable charges for such storage. Upon conclusion of the applicable storage period, we may, at your expense, dispose of the stored Client-Provided Equipment in any manner we determine, with any proceeds applied to any unpaid amounts owed to us. Exercise of any of the foregoing rights by SurpassHosting shall not relieve you of any of your payment obligations under the agreement.

 

1.4.8. Security. Unless otherwise set forth in detail in the Service Order, the physical protection measures we provide shall consist solely of certain physical locks, security checks and monitoring at the Space. Client’s use of the Services shall constitute acknowledgment of the sufficiency of such protection measures. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SECURITY SOLUTIONS PROVIDED AS PART OF THE SERVICES DO NOT GUARANTEE NETWORK SECURITY OR PREVENT SECURITY INCIDENTS, ARE NOT INTENDED TO BE A COMPREHENSIVE SECURITY SOLUTION AND ARE CONSIDERED TO BE SERVICES FOR WHICH SURPASSHOSTING LIMITS ITS LIABLITY AND DISCLAIMS WARRANTY AS PROVIDED IN THIS TOS.

 

1.4.9. Compliance with Underlying Agreements. Upon receiving notice from us, you shall take all actions reasonably necessary to comply with requirements of any lease, mortgage or other similar underlying agreement or instrument related to or encumbering the Facility.

 

1.4.10. Insurance. During the Term, you shall maintain insurance coverage with reputable insurance companies, with a Best Rating of no less than “A,” which are licensed to do business in the state in which the Space is located as follows: (a) Commercial General Liability insurance of at least $1 million per occurrence for bodily injury and property damage or loss, covering your activities hereunder, naming SurpassHosting as an additional insured; (b) “all risk” Property insurance or adequate self-insurance covering all Client-Provided Equipment (SurpassHosting does not insure the Client-Provided Equipment); and (c) legally required worker’s compensation insurance and Employer’s Liability insurance in an amount not less than $500,000 each accident. Such insurance policies shall be primary and noncontributing with respect to any policies carried by, and shall deny the insurer/underwriter any rights of subrogation against, SurpassHosting. You waive any rights of subrogation or recovery against SurpassHosting for damage or loss to its property. Prior to placing any Client-Provided Equipment in the Space, Client shall furnish SurpassHosting with certificates of insurance that evidence the minimum coverages set forth above and state that the insurer shall notify SurpassHosting at least thirty days prior to termination or modification of the coverage provided. You shall provide to SurpassHosting certificates of renewal for each such insurance policy within thirty days of renewal. In the event of your breach of any of the insurance obligations, we may upon written notice immediately suspend your physical access to the Facility until such breach is cured. If you do not cure such breach within ten days of suspension, SurpassHosting may terminate this Colocation Addenda or the agreement as provided herein.

 

1.4.11. Cross Connect Services. You may use the Facility or Space to interconnect with telecommunications services provided by any third party in the following circumstances: (i) cross connects are only permitted for additional NICs; and (ii) the services must be within a reasonable physical proximity so that standard cabling may connect them. SurpassHosting may condition other types of cross connection on the payment of additional Fees.

 

1.4.12. Relocation. We reserve the right to require you to relocate your Equipment. While we will not do so arbitrarily, it may be necessary to accommodate our network and facilities planning. If we do so, we will give you no fewer than seven days’ notice.

 

1.5. CPanel Transfers

 

We provide free cPanel account transfers for all new accounts (less than 30 days from sign-up date). Transfer requests submitted after this 30-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 the DimeNOC data centers) 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.)

 

2. Term.

 

2.1. This TOS will begin on the Effective Date and continue in effect as long as we are providing a Service to you (TOS Term).

 

2.2. 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.

 

2.3. 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.

 

3. Payments.

 

3.1. 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.

 

3.2. Fees do not include taxes. Any taxes imposed by a governmental entity on the Services will be added to the Fees unless you provide SurpassHosting with a valid tax exemption certificate. SurpassHosting will not add any taxes that are based on its corporate income.

 

3.3. The date Fees are due is set out on the webpage describing the particular Services (Due Date).

 

3.4. If you provide us with a credit card to pay the Fees, we will attempt to charge your card no sooner than five days prior to the Due Date. It is your obligation to ensure that your credit card may be charged. We have no responsibility to provide the Services, or preserve data, if your credit card is declined for any reason.

 

3.5. If you fail to pay Fees by the Due Date, a late fee will be assessed to the invoice due. For Shared/Reseller Accounts 10 days past due, a late fee calculated at 30% of the balance or the maximum amount allowed by law will be due to re-activate service. For Dedicated Server Accounts 4 days past due, a $20.00 USD late fee or the maximum amount allowed by law will be due to re-activate service. For VPS Accounts 4 days past due, a $10.00 USD late fee or the maximum amount allowed by law will be due to re-activate service. Late fees will be compounded. If your overdue balance includes multiple services (for example shared/reseller, dedicated server, etc.), each associated late fee will be added to the late fees and compounded.

3.5.1. If an account holder submits a bank assisted 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.

 

3.5.2. 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, and if it pursues collection efforts, you agree to pay all of our expenses, including, but not limited to, reasonable attorneys’ fees.

 

3.6. If you dispute any Fees, you agree to provide SurpassHosting with written notice and evidence supporting your arguments prior to the Due Date. SurpassHosting 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.

 

3.7. If you terminate a Service in any manner other than as set out in this TOS, or fail to cure a material breach, then you agree to pay, within five days of giving notice of termination, all Fees that would have been payable to us had the early termination not occurred (Early Termination Fee). You agree to the Early Termination Fee as consideration to SurpassHosting for foregone business opportunities associated with limited network resources, and agree that this is a material inducement to SurpassHosting entering into this TOS .

 

3.8. If the Service Order includes a third party service, SurpassHosting 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.

 

4. Termination and Suspension.

 

4.1. Either party may terminate a particular Service by providing the other with five days written notice prior to the expiration of a Term. **Your termination request must be received by us five days prior to your next billing cycle. If you fail to do so, you will not receive a refund of any Fees paid to renew the service.** In order for you to effectively terminate this Agreement, you must complete the cancellation form located here: http://www.surpasshosting.com/form-cancel.php. 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.

 

4.2. SurpassHosting 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 SurpassHosting’s original notice was your opportunity to cure. In the latter case, Fees will continue to accrue until the violation is cured.

 

4.3. If you terminate a services 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 on line.

 

4.4. The following provisions survive the termination of this TOS: 1.4.2, 1.4.3, 1.4.5, 1.4.8, 4.3, 5, 6, 7.2 through 7.5, and 7.8 through 7.13.

 

5. Warranties, Limitation of Liability and Indemnification.

 

5.1. 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.

 

5.2. 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.

 

5.3. SurpassHosting’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 SurpassHosting’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.

 

5.4. 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.

 

5.5. 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 SurpassHosting 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 SurpassHosting Policies; or (iv) in the case of SurpassHosting, a claim against Client in the U.S. that the Services owned by SurpassHosting 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.

 

6. Confidentiality.

 

6.1. “Confidential Information” is non-public information, know-how and trade secrets in any form that are designated by the parties as confidential, or which a reasonable business person knows, or reasonably should understand, to be confidential. The following items are within the definition of Confidential Information without needing to be designated as such: this TOS; any information placed by Client on the Services, as limited by the Privacy Policy (Client Data); and SurpassHosting’s network configuration.

 

6.2. 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 SurpassHosting’s products or services.

 

6.3. 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.

 

6.4. 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.

 

6.5. The obligations of this Section shall remain in effect for three years after termination of this agreement.

 

7. General Provisions.

 

7.1. If SurpassHosting 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 SurpassHosting 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.

 

7.2. 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.

 

7.3. 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.

 

7.4. 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.

 

7.5. 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 principals. All disputes between you and SurpassHosting of any nature shall be brought before, and venue shall be proper in, the federal and state courts located in Orange County, Orlando, 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.

 

7.6. This TOS and the Addenda may not be amended except upon the written consent of an authorized officer of SurpassHosting and Client.

 

7.7. No failure to exercise, nor delay in exercising, any right, remedy or power shall be a waiver of it.

 

7.8. 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.

 

7.9. 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.

 

7.10. All notices shall be made in writing and effective upon: (i) the date of actual receipt; or (ii) five business days after recorded first class mailing. Notices to SurpassHosting shall be sent to the address listed in the “about us” or similar page on the SurpassHosting website to the attention of “General Counsel.” Notices to you shall be sent to the address set out in SurpassHosting’s customer record to the attention of “Legal Notices.”

 

7.11. If there is a conflict between the contracts between the parties, they shall have the following descending order of precedence: AUP, Privacy Policy, RAP, SLA then TOS.

 

7.12. 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.

 

7.13. You are is 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 SurpassHosting using your SurpassHosting portal, or as provided in the applicable Service Level Agreements. If you are dissatisfied with the manner in which SurpassHosting responds to a complaint regarding the Services, you may contact SurpassHosting 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.

 

7.14. We offer a 45 day guarantee (Guarantee).  The Guarantee applies to new shared, reseller, and VPS 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.

 

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