Terms of Service
This Agreement is between eSited Solutions, a privately held company formed under the laws of the State of Colorado with its principal office in Canon City, CO (eSited Solutions) and the person (individual or legal person) who signs eSited Solutions's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of eSited Solutions's service.
Table of Contents
1. Services
2. Terms
3. Payments
4. Cancellation and Early Termination
5. Law/AUP
10. Suspension of Services/Termination
11. Resource Usage
12. Bandwidth Usage
13. Request for Customer Information
14. Back Up
15. Request for Rebuild/Restore of Hosting Package
16. Changes to eSited Solutions's Network
17. Notices
18. Force Majeure
20. Miscellaneous
21. Limited 30 day Money Back Guarantee
1. Services
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of eSited Solutions's credit approval requirements, eSited Solutions agrees to provide the hosting services described in the Order for the fees stated in the Order.
2. Term
The initial service term of the Agreement shall begin on the date that eSited Solutions generates an e-mail message to the 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 up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless eSited Solutions or Customer provides the other with written notice of non-renewal at least thirty (30) 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."
3. Payments
(A) Recurring Fees
Renewal notices are emailed two 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 June 12th, your invoice will be sent on June 10th and your card on file will be charged June 12th) Service will be made inactive on accounts that reach 10 business days past due. All orders made with a credit card are expected to approve on the monthly renewal date each month. Any accounts made inactive for non-payment is subject to a $5.00 reconnect charge for Shared services, $35.00 reconnect charge for VPS services, any other services that require reconnection may be charged at eSited Solutions discretion.
(B) 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.
(C) Taxes
At eSited Solutions's request Customer shall remit to eSited Solutions's all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on eSited Solutions, regardless of whether eSited Solutions fails to collect the tax at the time the related services are provided.
(D) Discounts
Discounts are applied to the vps plan only, no addon discounts are applied.
4. Cancellation and 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 eSited Solutions terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for eSited Solutions 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 eSited Solutions 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
* Cancellation request must be submitted from the main email address on file with eSited Solutions
* Cancellation request must contain the main IP address (VPS account) or main domain (shared/reseller account) of the hosting plan you wish to cancel
5. Law/AUP
Customer agrees to use the service in compliance with applicable law and eSited Solutions's Acceptable Use Policy, which is hereby incorporated by reference in this Agreement.
Customer agrees that eSited Solutions 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 eSited Solutions'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 eSited Solutions's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between eSited Solutions and Customer regarding the interpretation of the AUP, eSited Solutions's commercially reasonable interpretation of the AUP shall govern.
6. Customer Information
Customer represents and warrants to eSited Solutions that the information he, she or it has provided and will provide to eSited Solutions for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to eSited Solutions that he or she is at least 18 years of age. eSited Solutions 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 Contract.
7. Indemnification
Customer agrees to indemnify and hold harmless eSited Solutions, eSited Solutions'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
ESITED SOLUTIONS DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW ESITED SOLUTIONS 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 ESITED SOLUTIONS 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.
10. Suspension/Termination
(a) Suspension of Service
Customer agrees that eSited Solutions may suspend services to Customer without notice and without liability if:
(i) eSited Solutions 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) eSited Solutions 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 eSited Solutions's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
(b) 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 eSited Solutions 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 eSited Solutions prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows:
(i) upon five (10) 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 thirty (30) days of a written notice from eSited Solutions describing the violation;
(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 5 (Customer Information) of this Agreement.
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. Resource Usage
eSited Solutions Customers may not initiate the following (below), if any customer does eSited Solutions may terminate the account with no refund. Depending on the situation there will/won't be warnings sent.
a) Use 25% or more of system CPU resources for longer then 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
b) Use of any kind of distributed computing software, including but not limited to SETI@home, Node Zero and Folding@home
c) Run any type of interactive real-time chat applications that require server resources. Remotely-hosted services are fully allowed.\
d) Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons (applies to shared/reseller hosting only).
e) Run any software that interfaces with an IRC (Internet Relay Chat) network.
f) Run any file sharing, bit torrent or other P2P network services, client or server software
g) Run any gaming servers such as counter-strike, half-life, battlefield1492, etc
12. 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. Unused transfer in one month cannot be carried over to the next month.
13. Requests for Customer Information
Customer agrees that eSited Solutions 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 eSited Solutions 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. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by eSited Solutions nothwithstanding any agreement by eSited Solutions to provide back up services.
15. Request for Rebuild/Restore of Hosting Package
During any service term, customer may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a $35.00 one time fee will be enforced.
16. Changes to eSited Solutions's Network
Upgrades and other changes in eSited Solutions'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. eSited Solutions reserves the right to change its network in its commercially reasonable discretion, and eSited Solutions shall not be liable for any resulting harm to Customer.
17. Notices
Notices to eSited Solutions under the Agreement shall be given via electronic mail to the e-mail address legal@esited.com. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
18. Force Majeure
eSited Solutions shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond eSited Solutions'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.
19. Governing Law/Disputes
The Agreement shall be governed by the laws of the State of Colorado, 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 LOS ANGELES COUNTY, TERSUM, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
20. Miscellaneous
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 eSited Solutions 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 eSited Solutions's prior written consent. eSited Solutions's approval for assignment is contingent on the assignee meeting eSited Solutions's credit approval criteria. eSited Solutions 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 supercedes and replace any prior understanding or communication, written or oral. eSited Solutions has the right to refuse service to anyone for any reason.
21. Limited 30-Day Money Back Guarantee Policy
eSited Solutions offers a 30-day money back guarantee for new web hosting users. This entitles customers to enjoy a risk free trial of eSited Solutions services to test quality, performance and speed.
The 30-day money back applies to all eSited Solutions Shared, VPS.
Following services do not qualify for 30-day money back guarantee: domain names, license fees. additional items and services; web site design; web site promotion; search engine submission; dedicated internet bandwidth; items and services ordered through the reseller's or partner's program.
If you are not completely satisfied with our services within the first 30 days from your initial activation date and you are not in violation ofour terms and conditions, you will be given a full refund of the hosting fees excluding set-up, domain registration fee and overages. If you have used more than 40% of your alotted resources you will be issued a pro-rated refund of your remaining hosting fees excluding set-up, domain registration fee and overages.
All cancellations must be received in writing; regular mail, e-mail and fax notifications are acceptable. Phone requests will not constitute acceptance of any cancellation.
If paid by credit card, refunds will be issued to the original credit card provided at the time of purchase. If your account has been cancelled by us due to a breach of the terms and conditions on your part, you will not be eligible for a refund.
Domain name, license fees, and any other third party services are non-refundable. No refunds are available after 30 days. The 30-day money back guarantee does not apply to account renewals and upgrades. Please allow 1-2 weeks for the refund's processing.
22. Management
Our VPS Packages are managed for cPanel and Directadmin control panels only, it restricts to only the control panels and softwares (Apache/MySQL etc..) that we installed when we deploy the server. All other 3rd party softwares and programs that you installed, are not supported. If you have selected No Control Panel or Other free control panels, it is unmanaged.
Last Updated: July 23rd 2009
