1. Effective Date
This Terms of Service was last updated on June 10th, 2016. 10 Gigs Hosting reserves the right to change this TOS at any time. Such changes, modifications, additions or deletions shall be effective immediately upon posting on-line at this location. You acknowledge and agree that it is your responsibility to review this site and this TOS periodically and to be aware of any modifications. You may identify whether 10 Gigs Hosting has revised this TOS by noting the "Effective Date" above. Your continued use of the services after such modifications will constitute your: (a) acknowledgment of the modified TOS; and (b) agreement to abide and be bound by the modified TOS. If you do not agree to these terms, please contact us to cancel your services.
2. Contact Information
You agree to provide 10 Gigs Hosting with accurate and complete contact information. Contact information means any data relating to your identity, electronic mail, and street address, or telephone and fax number, or any other information that you provide to 10 Gigs Hosting in order to receive or to continue receiving services. Further, you agree to provide 10 Gigs Hosting with updated contact information within a reasonable period of time following the change in circumstance that creates the need for updated information.
The initial service term of the Agreement shall begin on the date that 10 Gigs Hosting generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for the same length as the Initial Term (each a "Renewal Term") unless 10 Gigs Hosting or Customer provides the other with termination notice within 7 days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
4. Payments & Fees
A. Recurring Fees
Renewal notices are emailed three days before the actual renew date in your account. If you have a credit card on file your card will automatically be charged on the day your renewal notice is sent. (ie. Your renew date is May 22nd, your invoice will be sent on May 20th and your card on file will be charged May 20th) If your billing method is Paypal you will need to manually pay your invoice every month, unless you have set up an automatic subscription. Service will be made inactive on accounts that are not paid by the due date at 12 PM EST. The term "Account" describes all services provided to a customer as defined by the primary ownership email and physical address. 10 Gigs Hosting reserves the right to revoke this grace period if a pattern of late payment is observed or if your payment method is listed as other. All orders made with a credit card are expected to work on the monthly renewal date each month. If the card declines then the customer is subject to a $5 one time fee on top of the monthly renewal price. Any accounts made inactive for non-payment are subject to a $10.00 late payment fee.
B. Credit/Debit card and your Address on File
When an order is placed with a credit/debit card, your card is stored on file and will automatically be charged every month on the date your renewal notice is sent (two days before your actual renewal date). For security purposes your address on file with us must match the address of your credit/debit card. If this address does not match, our payment gateway will not accept the transaction. If you have a credit card on file and the transaction is declined due to the address this transaction might show up as a pending charge but will not be processed through. If you have a debit card on file and the transaction is declined due to the address your bank will pull the money out of your account but this money will be refunded back to your account by your bank. It is recommended to always store a credit card on file instead of a debit card.
C. Non-Recurring Fees
All customers exceeding their bandwidth allowance will be sent invoices due upon receipt each month. All customers are responsible for monitoring transfer or bandwidth usage each month. Bandwidth overages are charged at $1.00 per each GB used over the allowed limit of the package. Customers have the option before their bandwidth billing cycle ends to upgrade per our a la carte upgrade option. Once your plan is upgraded you can not request a downgrade of the same plan for at least one month.
D. Service Interruption
Service will be interrupted on accounts that reach 3 days past due. Service interrupted for nonpayment is subject to a $50 reconnect charge. Accounts not paid by due date are subject to a $10 late fee. Accounts that are not collectible by 10 Gigs Hosting may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay The Company a Processing and Collection Fee of not less than $75 nor more than $200. If you desire to cancel your account, please follow the proper procedure as outlined in this TOS. If a service is deactivated due to non-payment the service in question will only be reactivated once payment for the outstanding balance has been received in full. If all services on an active account are deactivated all outstanding invoices must be paid in full before any one service will be reactivated. The Company reserves the right to keep a service deactivated until funds paid have cleared.
5. Cancellation & 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 10 Gigs Hosting terminates the Agreement for Customer's breach of the Agreement in accordance with Section 12 (Termination), or Customer terminates the service other than in accordance with Section 12 (Termination) for 10 Gigs Hosting 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. Customer also acknowledges that a minimum of 7 days cancellation notice or downgrade of current package prior to the following renewal term must be given in writing to 10 Gigs Hosting or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
- Cancellation request must be submitted to the billing department (link)
- Cancellation request must be submitted from the main email address on file with 10 Gigs Hosting
- Cancellation request must contain main domain (shared/reseller account) of the hosting plan you wish to cancel
Customer agrees to use the service in compliance with applicable law and 10 Gigs Hosting's Acceptable Use Policy posted at aup.html (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that 10 Gigs Hosting 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 10 Gigs Hosting's notice to 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 10 Gigs Hosting's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between 10 Gigs Hosting and Customer regarding the interpretation of the AUP, 10 Gigs Hosting's commercially reasonable interpretation of the AUP shall govern.
Customer agrees to indemnify and hold harmless 10 Gigs Hosting, 10 Gigs Hosting'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.
8. Disclaimer of Warranties
10 Gigs Hosting DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW 10 Gigs Hosting 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.
9. 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 POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF 10 Gigs Hosting 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.
A. Suspension of Service
Customer agrees that 10 Gigs Hosting may suspend services to Customer with or without notice and without liability.
10 Gigs Hosting reserves the right to terminate the Agreement or deny services at any time with or without notice and without liability. 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 10 Gigs Hosting 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 Customer may also terminate this agreement as per Section 5.
Either party may terminate this agreement upon five (5) 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.
11. Bandwidth Usage
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all services, or termination of this agreement, which actions may be taken is in 10 Gigs Hosting's sole and absolute discretion. 10 Gigs Hosting believes in communicating with our clients and will try to work with our clients to resolve any overage issues before taking action which could cause a client's service to become unavailable. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee and you are responsible to pay for any overage. Bandwidth usage is measured on a monthly basis coinciding with Client's billing cycle. Both incoming and outgoing traffic are counted. In the event that a customer exceeds the included allocation, 10 Gigs Hosting may, at its sole discretion, collect a deposit in the amount of $0.25 per GB for the projected overage for the month, immediately against customer's credit card on file with 10 Gigs Hosting. Client agrees to pay 10 Gigs Hosting any additional fees for bandwidth overages within 3 days of the invoicing period at a rate of $0.25 per GB of bandwidth used over the Allocation. Any bandwidth overage bill not paid within three (3) days of invoicing will subject the server and services to suspension. Unused bandwidth allocations cannot be carried over to future months, or applied to other servers.
12. IP Allocations
All IP addresses which are assigned to Client must be justified per ARIN Guidelines at http://www.arin.net/policy/nrpm.html. If it is determined that IP addresses which have been assigned to Client are not being used in accordance with these guidelines, they may be revoked.
13. SPAM and Unsolicited Commercial Email (UCE)
10 Gigs Hosting takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or spam over our network. Very simply this means that customers of 10 Gigs Hosting may not use or permit others to use our network to transact in UCE. Clients of 10 Gigs Hosting may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. In addition, it is not acceptable to transmit bulk email through remote SOCKS, HTTP or other similar proxies who in turn make a SMTP connection to the destination mail servers. This technique may result in account suspension or termination. Violations of this policy carry severe penalties, including termination of service. In order to prevent unnecessary blacklisting due to spam we reserve the right to occasionally sample bulk email being sent from servers.
Violation of 10 Gigs Hosting's email policy, as outlined in the Acceptable Use Policy ("AUP") will result in severe penalties. Upon notification of an alleged violation of our AUP, 10 Gigs Hosting will initiate an immediate investigation (within 48 hours of notification). During the investigation, 10 Gigs Hosting may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our AUP, 10 Gigs Hosting may, at its sole discretion, restrict, suspend or terminate customer's account. Further, 10 Gigs Hosting reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. 10 Gigs Hosting will notify law enforcement officials if the violation is believed to be a criminal offense.
First violations of this policy will result in an "Administrative Fee" of $250 and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $500 and immediate termination of your account. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $175 per hour that 10 Gigs Hosting personnel must spend to investigate the matter.
As our Clients are ultimately responsible for the actions of their clients over the 10 Gigs Hosting network, it is advisable that Clients develop a similar, or stricter, policy for their clients.
14. Customer Backups
Customer agrees to maintain a current copy of all content hosted by 10 Gigs Hosting notwithstanding any agreement by 10 Gigs Hosting to provide back up services. 10 Gigs Hosting is not responsible for the completeness, integrity, or freshness of your account(s) backup. 10 Gigs Hosting recommends you have your own backup system in place as a secondary measure of precaution. Nightly backups are intended for disaster recovery purposes only. 10 Gigs Hosting reserves the right to charge fees for restores which are requested that are not for disaster recovery purposes.
15. Courtesy Transfer Service
10 Gigs Hosting performs all account transfers, account moves, cPanel transfers, server transfers and any other service which involves 10 Gigs Hosting copying files of yours from a third party service to your 10 Gigs Hosting service, hereafter known as a "transfer" as a courtesy service only. By requesting 10 Gigs Hosting to perform a transfer you agree indemnify and hold harmless 10 Gigs Hosting from any and all liability arising from the transfer and/or copying of your accounts. You also agree 10 Gigs Hosting is not responsible for any issues relating to the transfer of your accounts, both on your 10 Gigs Hosting service and at any other third party service from which 10 Gigs Hosting may be transferring your accounts from, including but not limited to, missing or corrupted files, improperly transferred accounts, any and all fees you may incur from third party services such as bandwidth fees or charges from delays in transferring account, settings or files from third party providers which may not transferred, any downtime or outages, DNS problems, accounts set up on incorrect IP addresses, any issues at third party services which delay or prevent 10 Gigs Hosting from performing the service, or any other issues. 10 Gigs Hosting makes no guarantees regarding the availability of our transfer service or the amount of time it takes to perform transfers. 10 Gigs Hosting can only perform transfers from any service which uses the same control panel that is used on your 10 Gigs Hosting service (ie. cPanel). 10 Gigs Hosting will still provide "best effort" assistance which includes general advice on file transfer and configurations, DNS settings, MySQL database imports, and other general assistance for Clients whose 3rd party service does not use the same server control panel.
16. Force Majeure
10 Gigs Hosting shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond 10 Gigs Hosting'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.
17. Harassment and Abuse
10 Gigs Hosting does not tolerate abuse of any kind towards it's employees. This includes all verbal harassment, yelling, swearing, rudeness, threats, and any intentionally disruptive behavior directed at 10 Gigs Hosting or any of it's staff or agents. Client agrees to engage our 10 Gigs Hosting in a professional manner whether in email, helpdesk tickets, live chat, forums, or on the telephone. Any abuse will be construed as a violation of this Terms of Service agreement. No refunds will be provided for any service termination which arises as a result of a violation of this clause.
Client acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of The Company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, Client agrees that the company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of The Company. Client further acknowledges that The Company's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by Client for services during the period damages occurred. In no event shall The Company be liable for any special or consequential damages, loss or injury.
10 Gigs Hosting is not responsible for any damages your business may suffer. 10 Gigs Hosting does not make implied or written warranties for any of our services. 10 Gigs Hosting denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by 10 Gigs Hosting.
Client agrees that 10 Gigs Hosting's failure at any time to enforce any of the provisions of this TOS or any right or remedy available hereunder, or at law or equity, or to exercise any option herein provided, shall in no way be construed to be a waiver of such provisions, rights, remedies, or options or in any way to affect the validity of this TOS. The exercise by 10 Gigs Hosting of any rights, remedies, or options provided hereunder, or at law or equity, shall not preclude or prejudice 10 Gigs Hosting from exercising thereafter the same or other rights, remedies, or options.
20. Auto-update Softaculous Scripts
Client agrees that 10 Gigs Hosting's at its sole discretion with or without notice may update clients' wordpress, drupal, and other CMS or softaculous scripts if outdated version poses a threat to server security or if best practices from developer recommends a crucial update. Clients that host clients of their own should be given notice that their outdated installations will be auto-upgraded if outdated installations pose server harm. If you do not wish to have your outdated installation auto-upgraded, we strongly advise you not to host your sites with 10 Gigs Hosting. Client also agrees to keep their scripts up-to-date at all times. After notices of updates have been sent out, users who do not upgrade their scripts to the latest recommended version from Softaculous may be suspended or terminated if outdated installation poses security threat to the server. 10 Gigs reserves the right to terminate accounts after multiple suspensions and/or if an account has been suspended for a period of over 3 days without contact from customer.
We reserve the right to refuse service to anyone at any time for any reason. The Company is not responsible for data integrity on equipment reclaimed for non-payment. Anything not explicitly stated in this TOS is subject to interpretation at 10 Gigs Hosting's sole and absolute discretion. You, as 10 Gigs Hosting's client, are solely responsible for the content stored on and served by your 10 Gigs Hosting service. 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 10 Gigs Hosting 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 10 Gigs Hosting's prior written consent. 10 Gigs Hosting's approval for assignment is contingent on the assignee meeting 10 Gigs Hosting's credit approval criteria. 10 Gigs Hosting 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.