The initial service term of the agreement shall begin on the date that x10Hosting generates an e-mail message announcing the activation of the account (the "Service Commencement Date") and shall continue either monthly or annually depending on the term picked by the customer. Upon expiration of the initial term, this agreement shall automatically renew for the same length as the initial term unless x10Hosting or the customer provides the other with written notice of non-renewal at least one (1) days prior to the expiration of the initial term or the then-current renewal term, as applicable. The initial term and any renewal term may be referred to collectively in this agreement as the "Term."
2. Cancellation & Refunds
x10Hosting reserves the right to cancel any service provided at any time. In this event customers will be entitled to a prorated refund based upon the remaining period of service. If a customer contravenes x10Hosting's terms of service, a refund will not be issued in the event of a cancellation by x10Hosting or the customer. Any incentives offered to customers when opening the account will also be cancelled. Customers may be given the option to purchase services which were offered as start-up incentives in the result of a cancellation. Fees charged on a prepay basis are non-refundable, this includes all monthly and yearly services. Under no circumstance will license fees such as cPanel be refunded. Customer agrees to submit all cancelations atleast 24 hours prior to the next billing date of the service. Failure to pay will result in suspension up to termination of services and the balance being turned over to an outside collection agency for recovery. Customer will assume responsibility for all collection and recovery fees including court costs. The only acceptable methods of cancellation are a ticket submitted via the billing system or cancellation submitted via the billing system.
3. Content Restrictions
x10Hosting does not allow the use of services for illegal activities. This includes hosting of copyrighted material, nulled scripts, or anything that is considered illegal under US law. A suspension leading up to termination will be imposed for a breach of these terms. While we strive to accommodate all types of customers your VPS may not be used for the following:
- Bittorrent Trackers
- Sending of unsolicited Email (SPAM)
- Anything related to a botnet
- Downloading Torrents
- Hosting of illegal or copyrighted files
- Free Hosting Companies
- IRC Services
Furthermore the end user is solely responsible for all files on their VPS whether the client had knowledge of the files or not. It is the responsibility of the client to ensure their system is secured and safe from compromise. If a system is found out to be compromised x10Hosting has the right to reload the VPS to a default OS after ample time has been given to make backups.
4. Resource Usage
Fair Share CPU - Our plans are based on the fair share CPU methodology. Because this resource is shared there is a limit to the amount of time you may monopolize the available CPU resources of your plan. If your VPS continually exceeds a load of 3 we may ask you to upgrade your VPS to the next plan. If your VPS exceeds a load of 5 for an extended period of time we reserve the right to suspend it without warning until the user agrees to resolve the matter or upgrade. In order to maintain a high level of service for our fair share customers we do not allow the use of game servers, bots, or anything that utilizes a high amount of CPU on a nonstop basis. Users that are found to be breaking these rules will be hard limited.
Burst Memory - Burst memory is not guaranteed memory and should not be relied upon for application use. Users found to be abusing burst memory will have it removed without warning. Abuse of burst memory is considered using more than your guaranteed allotment for extended periods of time. Users found to be in excess of their guaranteed memory for more then four hours in a twenty four hour period will be hard limited to their guaranteed amount.
5. Managed Services
Managed services are offered for a fee on cPanel VPS plans. An explanation of what is and is not covered under our management plans can be found here: management policy. Managed and unmanaged VPS plans are not interchangeable. A $75 fee will be assessed in order to downgrade from a managed service plan to an unmanaged service plan.
Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly or annually as indicated on their order, beginning on the service commencement date. x10Hosting may require payment for the first billing cycle before beginning service. If the order provides for credit/debit card billing, customer authorizes x10Hosting to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the term of this agreement; otherwise x10Hosting will invoice customer via electronic mail to the primary customer contact listed on the order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due no later than the due date, but in no event earlier than the first day of each billing cycle. Payments must be made in United States dollars. The customer is responsible for providing x10Hosting with changes to billing information (such as credit card expiration, change in billing address). At its option, x10Hosting may accrue charges to be made to a credit/debit card until such charges exceed $10.00. x10Hosting may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. x10Hosting may suspend the service without notice if payment for the service is overdue. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay x10Hosting's reasonable reinstatement fee following a suspension of service for non-payment, and to pay x10Hosting's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
Fee Increases: x10Hosting may increase its fees for services effective the first day of a renewal term by giving notice to the customer of the new fees at least forty five (45) days prior to the beginning of the renewal term, and if the customer does not give a notice of non-renewal as provided in Section 2 above, the customer shall be deemed to have accepted the new fee for that renewal term and any subsequent renewal terms (unless the fees are increased in the same manner for a subsequent renewal term).
Early Termination: Customer acknowledges that the amount of the fee for the service is based on customer's agreement to pay the fee for the entire initial term, or renewal term, as applicable. In the event x10Hosting terminates the agreement for customer's breach of the agreement in accordance with Section 11 (Termination), or customer terminates the service other than in accordance with Section 11 (Termination) for x10Hosting's breach, the unpaid fees for each billing cycle remaining in the initial term or then-current renewal term, as applicable, are due on the business day following termination of the Agreement.
7. Law & Acceptable Use Policy
Customer agrees to use the service in compliance with applicable law and x10Hosting's Acceptable Use Policy posted at http://x10vps.com/aup
(the "AUP"), which is hereby incorporated by reference in this agreement. Customer agrees that x10Hosting may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on customer's use of the services. Amendments to the AUP are effective on the earlier of x10Hosting's notice to the customer that an amendment has been made, or the first day of any renewal term that begins subsequent to the amendment. Customer agrees to cooperate with x10Hosting's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between x10Hosting and the customer regarding the interpretation of the AUP, x10Hosting's commercially reasonable interpretation of the AUP shall govern.
8. Customer Information
Customer represents and warrants to x10Hosting that the information he, she or it has provided and will provide to x10Hosting for purposes of establishing and maintaining the service is accurate. If the customer is an individual, the customer represents and warrants to x10Hosting that he or she is at least 18 years of age. x10Hosting may rely on the instructions of the person listed as the primary customer contact on the order with regard to customer's account until customer has provided a written notice changing the primary customer contact.
Customer agrees to indemnify and hold harmless x10Hosting, x10Hosting's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of customer's services in violation of applicable law or the AUP by customer or any person using customer's log on information, regardless of whether such person has been authorized to use the services by customer.
10. Disclaimer of Warranties
X10HOSTING DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW X10HOSTING DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
11. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF X10HOSTING AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
12. Suspension & Termination
Suspension of Service: Customer agrees that x10Hosting may suspend services to the customer without notice and without liability if: (i) x10Hosting reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) x10Hosting reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay x10Hosting's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
Termination: The Agreement may be terminated by Customer prior to the expiration of the initial term or any renewal term without further notice and without liability if x10Hosting fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The agreement may be terminated by x10Hosting prior to the expiration of the initial term or any renewal term without further notice and without liability as follows: (i) upon four (4) days notice if Customer is overdue on the payment of any amount due under the agreement; (ii) Customer materially violates any other provision of the agreement, including the AUP, and fails to cure the violation within three (3) days of a written notice from x10Hosting describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 7 (Customer Information) of this agreement. Either party may terminate this agreement upon three (3) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
13. Request for Customer Information
Customer agrees that x10Hosting may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that x10Hosting believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
14. Backup Policy
x10Hosting maintains daily backups for disaster recovery purposes. As a courtesy x10Hosting will allow restoration from these backups per the following policy:
Unmanaged Services: 1 courtesy restore per month, complex restores may require a fee to be determined at the time of request.
Managed Services: 3 courtesy restores per month, complex restores included.
Additional backup requests will be charged at $9.95 per request with complex restores quoted on a case by case basis.
x10Hosting will endeavor to maintain and keep accurate backups but in no way guarantees backups against failures, data corruption, negligence, or other unforeseen issues. Customers are always encouraged to maintain their own set of up to date backups regardless of the service used.
15. Abusive Behavior
At x10Hosting we do not tolerate abusive behavior toward our company or staff. If a customer continues to act in an abusive way toward our staff or company after a warning all active services will be suspended and communication with the customer terminated without refund.
16. Spam & Mass Email Policy
Under no circumstance may any x10Hosting services be used to send unsolicited Email. Mass Emailing is strictly forbidden for any purpose without prior approval by a senior administrator. Any user found to be in violation of this policy will have their service suspended or terminated without notice. If a blacklisting occurs while an IP address is under a user's control their service will be immediately and permanently suspended. An administrative fee for $85 will also be applied to the account on file to cover the costs for cleaning up the IP space and dealing with complaints. An additional $50 per hour charge will also be added to this fee for any time spent past the first hour.
17. Disputes & Chargebacks
By threatening to and\or opening a dispute for payments made to x10Hosting all communication from x10Hosting will cease and active services will be permanently suspended. Once a dispute is threatened or opened x10Hosting will only communicate with the customer via options provided by the payment provider or by certified postal mail. All services and payments will be forfeited regardless of the outcome of the dispute. All chargebacks will have a minimum administrative fee of $75 added to the account with a maximum amount not to exceed $250.
18. Changes to x10Hosting's Network
Upgrades and other changes in x10Hosting's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. x10Hosting reserves the right to change its network in its commercially reasonable discretion, and x10Hosting shall not be liable for any resulting harm to Customer.
19. Force Majeure
x10Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond x10Hosting's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
20. Governing Law & Disputes
The Agreement shall be governed by the laws of the State of New Hampshire, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN MERRIMACK COUNTY, NEW HAMPSHIRE, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on x10Hosting unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without x10Hosting's prior written consent. x10Hosting's approval for assignment is contingent on the assignee meeting x10Hosting's credit approval criteria. x10Hosting may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.