Last updated: June 19, 2015
The TOU is not exhaustive and Hostway|HOSTING reserves the right to add, delete, or modify any provision of the TOU at any time with or without notice, effective upon either the posting of the modified TOU to www.hostway.com or other notification of the modified TOU as may be provided by Hostway|HOSTING at its sole discretion. Any complaints about a customer’s violation of the TOU should be sent to firstname.lastname@example.org . Except when expressly agreed to the contrary in writing by an authorized representative of Hostway|HOSTING, this TOU supersedes any other agreement with Hostway|HOSTING, whether written, verbal, or otherwise.
2. Hostway|HOSTING Billing Policy
The following terms and conditions apply to ALL Hostway|HOSTING customers for any product or service ordered.
All capitalized words in this TOU are defined as follows:
(a) “Billing Cycle” means the payment schedule for the Hostway|HOSTING Services you purchased. It begins on the date on which your customer account is activated by Hostway|HOSTING.
(b) “Hostway|HOSTING Services” means any products and services provided by Hostway|HOSTING to any customer as further described in the paragraph titled, “Hostway|HOSTING Services” below.
(c) “Services Agreement” means any document executed by you for the purchase of Hostway|HOSTING Services, including order forms and online registration forms.
1.2 Hostway|HOSTING Customer Account
Upon your execution of a Services Agreement, Hostway|HOSTING will assign to you a unique username (“UserID”) and password to access your customer account where you will be able to manage the Hostway|HOSTING Services that you ordered. The legal owner of the customer account is the legal entity whose name is identified as the “customer” in the Services Agreement and therefore so listed in Hostway|HOSTING’s database as the owner. It is the customer’s sole responsibility to ensure that their UserID and password are kept secure and that the contact identification information for their customer account are kept up-to-date in Hostway|HOSTING’s database. This includes regularly updating your customer account to accurately reflect any staff departures or changes in service providers that you used to sign up for the Hostway|HOSTING Services (for example, website design companies or online media management companies) who may have used their name as the contact person for your account. In the event of any inconsistency or dispute, or in the event of a reorganization or dissolution of the customer, the order of precedence for the legal owner of the customer account is as follows:
i. The company or organization listed on the account in Hostway|HOSTING’s database;
ii. The individual who executed the Services Agreement; then
iii. The individual who is the cardholder of the credit card that paid the most recent invoice for the customer account.
With regards to domain names, the legal entity listed as the “Registrant” of the domain name in the public Whois registry is the legal owner of that domain name. The ownership of a particular domain name is independent of the ownership of the customer account, even if that domain name is associated with the primary website hosted on the customer account. It is the customer’s sole responsibility to ensure that the Registrant name and contact information are up to date in the Whois registry.
In the event of a dispute over the ownership of your customer account (including any website(s) or domain names associated therewith), you must complete and submit to email@example.com a copy of Hostway|HOSTING’s Proof of Identity Form, and you agree to fully cooperate with and abide by any and all of Hostway|HOSTING‘s security measures and procedures. Hostway|HOSTING is not responsible or obligated to restore access to your customer account to any particular person if that person cannot meet Hostway|HOSTING’s security measures and procedures. You warrant your understanding that Hostway|HOSTING has no responsibility or obligation to you to act as an arbiter or authority between you and your employees (current or former), or between you and your third party service providers in the event of any ownership dispute. Hostway|HOSTING reserves the right to suspend your access to your customer account during the investigation of any ownership dispute.
If you have a customer account issue, please contact firstname.lastname@example.org.
1.3 Hostway|HOSTING Services
The Hostway|HOSTING Services include, but are not limited to:
(a) Cloud Hosting (https://www.hostway.com/cloud-hosting/);
(b) Managed Hosting (https://www.hostway.com/managed-hosting/);
(c) Colocation Hosting (https://www.hostway.com/colocation/data-center.html);
(d) Domain Name Registration (https://www.hostway.com/domain-name/);
(e) Website Hosting (https://www.hostway.com/web-hosting/);
(f) Email and Application Hosting (https://www.hostway.com/domain-email-apps/);
(g) Add-on and related services to (a) through (f) above;
(h) Technical support services;
(i) Any other service mentioned in the TOU or Services Agreement (as applicable), or any other service provided by Hostway|HOSTING to customers, whether used or not, and whether paid for or not;
Hostway|HOSTING reserves the right to amend, add, or discontinue any of the Hostway|HOSTING services offered and to add, delete, suspend or modify the terms and conditions of the Hostway|HOSTING services at any time, at its sole discretion, and to determine whether and when any such changes will apply to either or both existing and future customers.
1.4 Proxy Services
For domain name registration services where a third party provider is named in your place (“Proxy Services”), you agree that if Hostway|HOSTING or the third party provider does not receive a response to a communication sent to you within 48 hours of such communication being sent, then the sender of such communication may, at its sole discretion, suspend or terminate the Proxy Services. If Hostway|HOSTING provides the particular Proxy Services, then Hostway|HOSTING reserves the right to suspend or terminate any or all of the services provided to you entirely in such event.
1.5 Ownership of Equipment
Hostway|HOSTING owns all right and title to the Hostway|HOSTING Services, including any and all equipment (software and hardware) and licenses that it uses to provide the Hostway|HOSTING Services. You acknowledge and agree that Hostway|HOSTING does not transfer ownership of any equipment or licenses to you at any time for any reason. Notwithstanding the foregoing, Hostway|HOSTING acknowledges that a colocation customer will own all right and title to the hardware equipment that it has installed in Hostway|HOSTING’s data center(s) pursuant to the terms of its particular Services Agreement.
Hostway|HOSTING may at its sole discretion discontinue, upgrade, replace, modify, or change in any way, without limitation, including but not limited to the price of, any Hostway|HOSTING Service, and/or any software, application, program, data, hardware, equipment, or portions or components thereof, used to provide customers with the Hostway|HOSTING Services. Certain changes to the Hostway|HOSTING Services may affect the operation of your personalized applications and content. You are solely responsible, and Hostway is not liable, for any and all such personalized applications and content. Except as expressly agreed to by Hostway|HOSTING. Hostway|HOSTING may but is not obligated to provide customers with notice of any such modifications.
1.7 Backup of Data
All customers are solely and entirely responsible, and Hostway|HOSTING is in NO way responsible, for the management and backup of all customer data, and all updates, upgrades, and patches to any software that they use in connection with the Hostway|HOSTING Services unless you have specifically ordered backup services from Hostway|HOSTING and such backup services are included in your Services Agreement. If you have ordered backup services from Hostway|HOSTING, your backup services will be governed by Hostway|HOSTING’s Managed Backup Policy, available online at https://www.hostway.com/legal/ under “Product and Service Specific Policies”, which is in addition to this TOU and incorporated herein by reference.
1.8 Email Accounts
All email accounts (including, but not limited to POP email accounts) that have not been logged into for a period of 4 consecutive months or more shall be deemed abandoned and Hostway|HOSTING shall have the right to delete the email account (“Abandoned Mailbox”) and/or all emails residing in such Abandoned Mailbox (“Abandoned Emails”). At least 2 weeks in advance, Hostway|HOSTING shall send to the master email account a notice that the Abandoned Mailbox and/or the Abandoned Emails shall be deleted if the user or customer does not log into the Abandoned Mailbox within 2 weeks. Hostway|HOSTING has the right to delete all content stored in any of customer’s spam folders or email accounts for 30 days or more.
1.9 Illegal Use
The Hostway|HOSTING Services, including all equipment, may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Additionally, in purchasing Hostway|HOSTING Services, all customers certify that they and/or the organization they represent in procuring services from Hostway|HOSTING are not, nor have been designated, a suspected terrorist as defined in Executive Order 13224; are not owned or controlled by a ‘suspected terrorist’ as defined in Executive Order 13224; and are not on, are not a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all updates thereto.
Sending unsolicited bulk and/or commercial messages over the Internet (known as “spamming”) is prohibited, regardless of whether or not it overloads a server or disrupts service to Hostway|HOSTING‘s customers. The term “spamming” also includes, but is not limited to, maintaining an open SMTP policy, engaging in spamming using the service of another ISP or IPP and referencing in the spam a website hosted on a Hostway|HOSTING server, and selling or distributing software (on a website residing on a Hostway|HOSTING server) that facilitates spamming. Hostway|HOSTING requires that all customers’ emails and mailing lists (if any) are in full compliance with all applicable privacy and electronic communications legislation such as, but not limited to, the American Can-Spam Act as outlined here: http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business and Canada’s Anti-Spam Legislation as outlined here: http://www.canlii.org/en/ca/laws/stat/sc-2010-c-23/latest/sc-2010-c-23.html. Hostway|HOSTING also prohibits the use of third party/purchased mailing lists. The first violation of this policy will result in a written warning. A second violation will result in immediate suspension of the customer’s email services. Subsequent violations may result in customer’s account being closed entirely. Hostway|HOSTING reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.
1.11 System and Network Abuse
Violations of system or network security are prohibited and may result in criminal and civil liability. Examples of system or network security violations include, without limitation the following: unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
1.12 Viruses and Other Destructive Activities
Use of the Hostway|HOSTING Services or equipment for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any customer to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Hostway|HOSTING Services and equipment (or any connected network, system, service or equipment) or conduct their business over the Internet.
1.13 Child Pornography
The use of the Hostway|HOSTING Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Hostway|HOSTING is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, its services.
1.14 Customer Responsibility
Customers are required to use the Hostway|HOSTING network responsibly. This includes respecting the other customers of Hostway|HOSTING. Hostway|HOSTING reserves the right to suspend and/or cancel service with any customer who uses the Hostway|HOSTING network in such a way that adversely affects other Hostway|HOSTING customers. While Hostway|HOSTING may monitor its service electronically to determine that its facilities are operating satisfactorily, as a general practice, Hostway|HOSTING does not monitor its customers’ communications or activities to determine whether they are in compliance with the TOU. However, when Hostway|HOSTING becomes aware of any violation of the TOU or other user agreements, Hostway|HOSTING may take any action to stop or correct such violation, including, but not limited to, denying access to the Hostway|HOSTING Services and equipment or to the Internet. In addition, Hostway|HOSTING may take action against a customer or an end-user of such customer because of the activities of such end-user. Hostway|HOSTING anticipates that customers who offer Internet services will cooperate with Hostway|HOSTING in any corrective or preventive action that Hostway|HOSTING deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of Hostway|HOSTING policy and Hostway|HOSTING reserves the right to take any such action even though such action may affect other customers of the Hostway|HOSTING customer.
1.15 Actions Taken by Hostway|HOSTING
The failure by a customer to meet or follow any of the TOU is grounds for immediate account termination. Hostway|HOSTING will be the sole arbiter as to what constitutes a violation of the TOU. Hostway|HOSTING reserves the right to suspend or remove any customer account without prior notice and to refuse service to anyone at any time. When Hostway|HOSTING becomes aware of an alleged violation of its TOU, Hostway|HOSTING will initiate an investigation. During the investigation, Hostway|HOSTING may restrict a customer’s access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, Hostway|HOSTING may, at its sole discretion, restrict, suspend, or terminate a customer account and/or pursue other civil remedies. If such violation is a criminal offense, Hostway|HOSTING may notify the appropriate law enforcement authorities of such violation. An unlisted activity may also be a violation of the TOU if it is illegal, irresponsible, or constitutes disruptive use of the Internet. Hostway|HOSTING does not issue credits for outages incurred through service disablement resulting from TOU violations. Violators of this TOU are responsible, without limitations, for the cost of labor to rectify any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Hostway|HOSTING.
Furthermore, Hostway|HOSTING reserves the right to suspend or terminate your customer account if so ordered by an authoritative body of competent jurisdiction, or if the continuing provision of services to any customer may result in a legal or material risk to Hostway|HOSTING, or if it Hostway|HOSTING is not legally permitted to provide services to you.
You agree to protect, defend, hold harmless, and indemnify Hostway|HOSTING, any third party entity related to Hostway|HOSTING (including, without limitation, third party vendors), and Hostway|HOSTING‘s executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and affiliates, from and against any and all liabilities, losses, costs, judgments, damages, claims, or causes of actions, including, without limitation, any and all of Hostway|HOSTING’s legal fees and expenses, arising out of or resulting from your use of the Hostway|HOSTING Services.
The Hostway|HOSTING services are provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. Hostway|HOSTING expressly disclaims any representation or warranty that the Hostway|HOSTING service will be error-free, secure or uninterrupted. No oral advice or written information given by Hostway|HOSTING, its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. Hostway|HOSTING and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service.
Hostway|HOSTING reserves the right to terminate any Services Agreement for convenience upon thirty (30) days’ prior written notice to customer. Furthermore, in the event that you violate or otherwise breach the terms of this TOU, Hostway|HOSTING may immediately terminate your Services Agreement and your customer account pursuant to the provision regarding “Actions Taken by Hostway|HOSTING” above. If a customer becomes insolvent or any bankruptcy petition is filed by the customer or any third party against the customer, or if Hostway|HOSTING reasonably believes that the customer has become insolvent or is about to file for bankruptcy, Hostway|HOSTING may immediately terminate your Services Agreement and your customer account without prior notice or penalty. Such customer consents to the grant of relief from any automatic stay of proceedings against Hostway|HOSTING in such event. Upon the effective date of the termination of your Services Agreement (“Termination Date”), Hostway|HOSTING will close your customer account and delete any data remaining on Hostway|HOSTING’s servers from your customer account. You are solely responsible for ensuring that all of your customer data has been retrieved from your customer account prior to the Termination Date.
1.19 Limitation of Liability
To the maximum extent permitted by applicable law, in no event, and under no theory of law or equity, will Hostway|HOSTING (including, without limitation, Hostway|HOSTING‘s executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, affiliates, third-party providers, merchants, licensors, or the like) or anyone else involved in creating, producing, or distributing the Hostway|HOSTING Services, be liable for the loss of a domain name, or any business or personal loss, revenues decrease, expenses increase, costs of substitute products and/or Hostway|HOSTING services, or any other loss or damage whatsoever, or for any consequential, special, incidental, punitive or indirect damages of any kind arising out of any use of, or any inability to use, any Hostway|HOSTING services even if Hostway|HOSTING has been advised of the possibility of such damages. All claims and causes of actions arising in connection with Hostway|HOSTING or the Hostway|HOSTING Services are permanently barred unless the claim or cause of action is commenced within 6 months after the basis of the claim or the cause of action arose, regardless of any statutory limitation period allowing for a longer period. Hostway|HOSTING‘s total cumulative liability, if any, to customer, or any third party, for any and all damages, related to the TOU or the Hostway|HOSTING Services, including, without limitation, those from any negligence, any act or omission by Hostway|HOSTING or Hostway|HOSTING‘s representatives, or under any other theory of law or equity, will be limited to, and will not exceed, the actual dollar amount paid by the customer for the services which gave rise to such damages, losses and causes of actions during the 3-month period prior to the date the damage or loss occurred or the cause of action arose.
1.20 Third Party Licenses
Hostway|HOSTING makes a reasonable effort to provide customers with the Hostway|HOSTING Services, which may include certain services, products, technologies, developments, and innovations (collectively “Technologies”), all or part of which may be subcontracted, licensed, or co-branded, from or by, third party entities. Hostway|HOSTING makes NO warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of such Technologies. Moreover, Hostway|HOSTING specifically disclaims all warranties of merchantability and fitness for a particular purpose for such Technologies. Furthermore, no customer will hold Hostway|HOSTING liable in any way for the revocation of any license, which has been licensed to Hostway|HOSTING. The use of the Technologies obtained from or through Hostway|HOSTING, or any other referred third party, whether directly or indirectly, is at the sole risk of customers. Customers understands and agrees that their use of such Technologies may be subject to further agreements, policies, terms, and conditions provided by the third party vendor which are in addition to those contained or referenced in this Agreement. In addition, any mention of non-Hostway|HOSTING products or services that are not included in the Technologies by Hostway|HOSTING, its employees, or any third party entity related to Hostway|HOSTING is for information purposes only and does not constitute an endorsement or recommendation by Hostway|HOSTING. Hostway|HOSTING disclaims any and all liabilities for any representation or warranty made by the vendors of such non-Hostway|HOSTING products or services.
1.21 Hostway|HOSTING’s Intellectual Property
Customers will not, without Hostway|HOSTING‘s express written consent, copy, reproduce, republish, or otherwise use any material, in whole or in part, that is located on Hostway|HOSTING‘s website, and customers will not use any of Hostway|HOSTING‘s trademarks, service marks, copyrighted materials, or other intellectual property without Hostway|HOSTING‘s express written consent. Customers will not, in any way, misrepresent their relationship with Hostway|HOSTING, attempt to pass themselves off as Hostway|HOSTING, or claim that customers are Hostway|HOSTING.
Customers may not assign or delegate their rights or obligations under the TOU or other agreement for the Hostway|HOSTING Services, either in whole or in part, without the prior written consent of Hostway|HOSTING.
1.23 Minimum Age Requirement
Customers must be at least 18 years of age. Any individual under the age of 18 years (or under the age of majority in the State or country of your residence) (“Minor”) must have a parent or guardian accept the TOU in order for the Minor to become a Hostway|HOSTING customer. A parent or guardian who accepts the TOU on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the TOU, including the timely and full payment of the charges for Hostway|HOSTING services, and such primary liability will continue even when the Minor has attained the age of 18, unless the parent or guardian obtains Hostway|HOSTING‘s express written consent to the contrary. Any acceptance of the TOU or any other agreement for the Hostway|HOSTING Services will be deemed null and void to the extent that Hostway|HOSTING will not be liable in any way as a result of the Minor’s age or legal incapacity or the Minor’s use of the Hostway|HOSTING Services.
1.24 Dispute Resolution
Any and all claims or disputes arising out of or relating in any way to the Agreement, the relationship of the parties under the Agreement, or the Services provided under the Agreement (including but not limited to requests for specific performance) shall be submitted to mandatory binding arbitration. The arbitration shall be administered by the American Arbitration Association (“AAA”) and conducted pursuant to the AAA’s then current Commercial Arbitration Rule (the “Rules”). The arbitration hearing shall be conducted in the English language and shall take place in Chicago, Illinois before a single arbitrator selected in accordance with the Rules. The parties shall each bear the costs of the arbitration in equal shares. The parties shall also bear their own legal fees (including but not limited to attorneys’ fees) in connection with the arbitration, and the arbitrator(s) may not reallocate the legal fees in conjunction with their award. Any award rendered by the arbitrator shall be confirmed in a state or federal court of competent jurisdiction in Chicago, Illinois and each party hereby irrevocably submits and consents to, and waives any objection to, personal jurisdiction and venue in such court.
1.25 Governing Law and Severability
The TOU, and any other agreement for Hostway|HOSTING services, will be governed by and construed in accordance with the laws of the State of Illinois, USA without reference to its conflicts of laws principles. Any litigation or arbitration (as described above) between a customer and Hostway|HOSTING will take place in Chicago, Illinois, and the customer will consent to personal jurisdiction and venue in that jurisdiction. If any provision or portion of the TOU or other Hostway|HOSTING agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the TOU or the agreement will continue in full force and effect.
1.26 Force Majeure
Hostway|HOSTING will not be liable for delays in its performance of the TOU or Hostway|HOSTING services caused by circumstances beyond Hostway|HOSTING‘s reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively “Force Majeure”). Hostway|HOSTING will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of customers for the payment of money due.
1.27 Waiver and Amendment
Any waiver, modification, or amendment of any provision of the TOU or other agreement for Hostway|HOSTING services, initiated by a customer, will be effective only if accepted in writing and signed by an authorized representative of Hostway|HOSTING.
1.28 Independent Contractors
Nothing in this TOU will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between Hostway|HOSTING and its customers. Each of Hostway|HOSTING and its customers will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.
1.29 Construction and Interpretation
Wherever in this TOU the masculine, feminine, or neuter gender is used, it will be construed as including all genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires. The division of the TOU into sections/paragraphs, and the insertion of headings/captions, are for convenience of reference only and will not affect the construction or interpretation of the TOU. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the construction or interpretation of the TOU.
1.30 Complete Agreement and Exclusivity
The TOU, and/or any other specific agreement for Hostway|HOSTING services, constitutes the complete understanding and agreement between Hostway|HOSTING and its customers. Except when expressly agreed to the contrary in signed writing by an authorized representative of Hostway|HOSTING, the TOU supersedes any other written (including digitized/computerized) agreement, oral agreement, and/or agreement by conduct. This TOU, and/or any other specific agreement for Hostway|HOSTING services is between Hostway|HOSTING and its customers only and will not confer any rights in any third party except as otherwise expressly provided by Hostway|HOSTING.
If you purchase a domain through Hostway|HOSTING, Hostway|HOSTING reserves the right to immediately suspend, terminate, transfer, or modify your domain name registration for reasons including (i) your breach of this TOU, (ii) your use of the domain name registration services in a manner that is in contradiction of applicable laws or customarily acceptable usage policies of the Internet industry, including sending mass unsolicited commercial advertisements or otherwise spamming, making or sending threats, harassments or obscenities, (iii) your use of the domain name registration services in connection with unethical activity, (iv) Hostway|HOSTING‘s receipt of an order from a court of competent jurisdiction or an arbitration award, or (iv) any other grounds that impose a legal risk to Hostway|HOSTING as determined at its sole reasonable discretion. You agree that you shall not receive any refund whatsoever for any such suspension, termination, transfer, or modification to your domain name registration.
The following terms constitute Hostway|HOSTING‘s Billing Policy and apply to ALL Hostway|HOSTING customers:
All charges are shown in US Dollars. Payments are to be made in US dollars. Hostway|HOSTING accepts the following types of payment:
Check or Money Order
Credit Card (VISA, MasterCard, American Express, Discover)
Bank Wire Transfer
ALL PAYMENTS ARE DUE ON THE ACCOUNT STATEMENT DATE. The Account Statement Date is the Billing Cycle anniversary of the date on which your customer account was activated by Hostway|HOSTING. If you provide Hostway|HOSTING with your credit card information, you authorize Hostway|HOSTING to automatically charge your credit for all charges that apply to your customer account. All recurring charges will be posted to your credit card until such time that you cancel your customer account in accordance with the terms of this TOU. Charges subsequent to your initial order will accumulate in your account until such charges exceed $9.95. Hostway|HOSTING will then automatically charge your credit card on the next Account Statement Date. You are responsible for directly updating, or notifying Hostway|HOSTING, of any changes to your credit card (including, but not limited to card number, expiration date, billing address, or card status).
Customers not paying by credit card agree to make payment of their balance due within ten (10) days of the Account Statement Date.
Customer accounts that are past due may be suspended at any time with or without notice. Hostway|HOSTING reserves the right to terminate your customer account in its entirety at any time if you continue to remain past due following notification by Hostway|HOSTING. All past due and unpaid balances are subject to collection. In the event of collection, you will be liable for costs of collection including attorney’s fees, court costs, and collection agency fees.
2.2 Billing Cycles
Hostway|HOSTING offers three Billing Cycles for hosting charges: Monthly, Quarterly (3 months) and Yearly (12 months). Resellers are limited to the monthly Billing Cycle for all of their charges. Non-credit card payment methods are limited to Annual or Quarterly Billing Cycles.
You may elect to change your Billing Cycle at any time; however, the new Billing Cycle will only take effect at the time of the next plan renewal.
All additional features added to an account, including any domains, are charged monthly, or otherwise according to the schedule agreed to upon signing up for said features. Additional items are non-refundable.
2.3 Account Renewals
In order to ensure that your services remain uninterrupted, all services, including without limitation, hosting, domains, and any additional features, will automatically renew at the end of the relevant billing cycle or registration term. All renewal charges are based on the prevailing rate on the date of renewal according to the service selected. All services are renewed for the same billing cycle/term. If you wish to cancel any of your services before the relevant expiration/renewal date, please refer to the Cancellations paragraph below.
Domain name registrations and Web hosting accounts are handled by separate entities. In the event you need to cancel, you must specify whether you would like to cancel your domain name only, your hosting plan only, or both your domain and hosting accounts. The cancellation or expiration of your domain name does not automatically terminate your hosting account (or vice versa). If at any time you elect to manually renew any of your services (in whole or in part), you then become responsible for all future renewals of such services unless and until you notify Hostway|HOSTING otherwise.
Hostway|HOSTING does not mail paper invoices or statements. Statements can be viewed and printed through SiteControl. Customers may elect to receive their monthly account billing statement via email. This option may be selected in SiteControl.
Hostway|HOSTING charges a $25.00 fee for returned (NSF) checks. Customers that issue an NSF check will be required to submit future payments with a certified check or money order.
A $25.00 chargeback fee will be assessed for each credit card chargeback received by Hostway|HOSTING.
Hostway|HOSTING does NOT charge fees for accepting payment via bank wire, however, international wire transfers may be assessed a $20.00USD processing fee by an intermediary bank in New York. In addition, your issuing bank may also charge a fee for sending the wire. Please add these fees to the amount that you are sending to Hostway|HOSTING or the amount credited to your account will be less than your intended payment.
Customers that wish to reactivate a closed account will be assessed a $19.95 reactivation fee. A $99.95 fee will be assessed if Hostway|HOSTING restores your data files to your reactivated account.
Customers electing to change to a lower priced hosting plan on the same platform will be charged a $19.95 downgrade fee. There is no upgrade fee for upgrading to a higher priced plan, however, you will be charged any difference between the setup fee applicable to your new and former plans.
Customers that elect to change plans to a different operating system platform will be charged a $19.95 platform change fee.
Hostway|HOSTING encourages customers to merge hosting plans contained in two or more accounts into one account. There is no fee for this service. Customers may also request that Hostway|HOSTING separate one or more plans contained under one account into separate accounts. The fee for this service is $19.95 for each new account created and is charged to the new account. Please direct all requests for these services to: email@example.com.
Hosting plans will automatically renew until a plan is cancelled. In order to cancel any Hostway|HOSTING Service or close your customer account, you must contact Hostway|HOSTING‘s Customer Service Team, Monday through Friday, 8:00 A.M. to 5:00 P.M. Central Time, at (1-888-255-0151). Hostway|HOSTING‘s Customer Service Agents will assist you with the cancellation process. Please be aware that there are no pro-rated refunds after the first 30 days of service. Non-US customers may contact Hostway|HOSTING‘s Customer Service Team via email at firstname.lastname@example.org. Cancellation requests must be received by Hostway|HOSTING a minimum of thirty (30) days prior to the end of your Billing Cycle. Cancellations submitted later than this time may result in automatic renewal of your hosting plan for the next Billing Cycle. Cancellations become effective on the day processed by Hostway|HOSTING. Hostway|HOSTING is unable to cancel your account effective for a future date.
Hostway|HOSTING does not monitor, and will not automatically cancel, plans for problems related to domain name transfers, non-usage, Internic, your ISP, or any other secondary issues not directly related to the Hostway|HOSTING Services. Cancellation of your Hostway|HOSTING Services does not relieve you from paying any outstanding balance owed on your customer account.
2.7 30-Day Money Back Guarantee
Each of Hostway|HOSTING‘s shared hosting plans carries a 30-day unconditional money back guarantee. If you are not completely satisfied with our services or support within the first 30 days after ordering your plan, you will be given a full refund of the fees paid in advance (excluding setup fees) upon plan cancellation. The following services do not qualify for the 30 Day Money Back Guarantee: additional items and services; domain name registration; managed servers; items and services ordered through the reseller program; domain parking plus; and overage fees.
2.8 Billing Disputes/Refund Policy
Refunds are only available in accordance with the 30 Day Money Back Guarantee (above) and will be provided via the same payment method as the original payment. Cancellations received after the first 30 days of service are not eligible for any refund, either in whole or in part, of the fees already paid.
2.9 Credit Card Disputes/Chargebacks
Hostway|HOSTING has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment is subject to a fine, suspension and account termination at Hostway|HOSTING‘s discretion. A charge of $25.00 per chargeback will be assessed to all accounts that receive a chargeback.
2.10 Billing/Price Changes
Hostway|HOSTING‘s policies and prices are subject to change without notice. Any price changes become effective in the next Billing Cycle.
The following terms apply only to those customers who purchase Website Hosting and Ecommerce Hostway|HOSTING Services, and supplement the terms in Sections 1 and 2 above:
3.1 Server Resources
Any website that uses a high amount of server resources (such as, but not limited to, CPU time, memory usage, and network resources) will be given the option to either pay additional fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade its service to a Managed Hosting plan. Hostway|HOSTING will be the sole arbiter of what is considered to be a high server usage level. All Web Hosting and Ecommerce accounts come with a limit of 5,000 files per account. Each block of 5,000 files after the initial 5,000 will incur an additional charge of US$9.95/month. Any Web Hosting and Ecommerce account deemed to be adversely affecting server performance or network integrity will be shut down without prior notice.
3.2 CGI Scripts
Any scripts that pose a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. Hostway|HOSTING does not permit CGI script sharing with domains not hosted by Hostway|HOSTING or any scripts that may be abused for UCE purposes.
3.3 Chat Rooms
Hostway|HOSTING does not allow Web Hosting and Ecommerce customers to install their own chat rooms. Chat rooms tend to require significant system resources and therefore cannot be permitted as an account option. However, for a small charge, Hostway|HOSTING provides Java chat rooms that meet most users’ needs and run without hindering system performance.
3.4 Background Running Programs and Cron Jobs
Hostway|HOSTING may allow programs to run in the background. These programs will be considered on an individual basis and Web Hosting and Ecommerce customers will incur extra charges based on system resources used and operational maintenance needed. If you wish to run background programs please contact Hostway|HOSTING at email@example.com so that we can arrange set-up.
Hostway|HOSTING does not allow IRC or IRC bots to be operated by Web Hosting and Ecommerce customers.
3.6 Software Distribution
Hostway|HOSTING‘s Web Hosting and Ecommerce accounts are not configured for the purposes of distributing software and/or multimedia products. If you wish to distribute software and/or multimedia files, please contact firstname.lastname@example.org to make special arrangements.
3.7 Multimedia Files
Multimedia files are defined as any graphics, audio, and video files. Hostway|HOSTING Web Hosting and Ecommerce accounts are not to be used for the purposes of distributing and storing unusual amounts of multimedia files. Any website whose disk space usage for storing multimedia files exceeds 70% of its total usage, in terms of total size or number of files, will be considered to be using an unusual amount of multimedia files.
Any database stored on Hostway|HOSTING‘s Web Hosting and Ecommerce servers will be limited in size to 10% of the total disk space allotted for that particular domain’s plan/web hosting account.
The following terms apply only to those customers who purchase Managed Hosting and Cloud Hosting Hostway|HOSTING Services and supplement the terms in Sections 1 and 2 above:
4.1 Customer Security Responsibilities
Customers are solely responsible for any breaches of security affecting servers and cloud virtual servers under their control. If a customer’s server or cloud virtual server is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the customer is responsible for the cost to rectify any damage done to the customer’s server and any other requirement affected by the security breach.
Hostway|HOSTING allows Managed Hosting and Cloud Hosting customers the use of IRC inside the Hostway|HOSTING network as long as the use of IRC on a Hostway|HOSTING server or cloud virtual server does not violate any of the other terms of these TOU. As a policy, Hostway|HOSTING will not provide vanity IRC reverse DNS records. To enforce this policy Hostway|HOSTING does not turn the reverse address of IPs over to the customer. Authority over this information remains with Hostway|HOSTING.
4.3 Billing for Network Resources
Customers understand and agree that they are responsible for paying for any network resources that are used to connect the customer’s server to the Internet. A customer may request that their server be disconnected from the Internet, but the customer will still be responsible for paying for any network resources used up to the point of suspension or cancellation.
The Digital Millennium Copyright Act (“DMCA”) sets forth the law regarding the use of copyrighted materials on the Internet. All Hostway|HOSTING customers are subject to the requirements of the DMCA. Individuals or entities submitting notifications of copyright infringement by a Hostway|HOSTING customer (per the DMCA) to Hostway|HOSTING must follow the below procedures. Customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at Hostway|HOSTING‘s sole discretion.
5.1 DMCA Copyright Infringement Notification Requirements:
Physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner’s behalf (the “Claimant”).
Identification of the copyrighted work(s) claimed to have been infringed.
Identification of the material claimed to infringe the copyright(s), and enough information for Hostway|HOSTING to locate it including URLs and specific descriptions of the infringing material at each URL.
The Claimant’s name, address, and telephone number(s).
A statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or his agent.
A statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner.
Send the notification via mail, email, or fax to:
Legal Department – DMCA Complaints
100 N Riverside Suite 800
Chicago, IL 60606 USA
The DMCA contains very specific guidelines as to what proper notification of claimed infringement must contain. Copyright owners may obtain a copy of the DMCA, including these guidelines, by visiting the website of the U.S. Copyright Office at http://www.copyright.gov/title17/92chap5.html#512. Hostway|HOSTING is not required to respond to notices that do not meet the requirements of the DMCA. Copyright owners should be aware that there are substantial penalties for false claims and that Hostway|HOSTING will actively refer complainants who use the DMCA for improper purposes to relevant law enforcement agencies.
In the event that Hostway|HOSTING must remove, or disable access to, material on your website that is alleged to infringe another’s copyright under the DMCA, you acknowledge and agree that Hostway|HOSTING may do so by disabling access to your entire website.
5.2 DMCA Counter Notification Requirements:
If you have received a DMCA notification from Hostway|HOSTING or directly from any complainant, and you have a good faith belief that you are legally permitted to use the material at issue, the DMCA states that you may submit a counter-notification to Hostway|HOSTING which must include the following:
Physical or electronic signature of the Customer (ie., allegedly infringing website’s owner) or a person authorized to act on the Customer’s behalf.
Identification of the copyrighted work(s) claimed to have been infringed.
Identification of the material claimed to infringe the including URLs and specific descriptions of the infringing material at each URL.
The Customer’s name, address, and telephone number(s).
A statement under penalty of perjury that the Customer has a good faith belief that the material was removed or disabled or is a result of a mistake or misidentification.
A statement that the Customer consents to the jurisdiction of Federal District Court for the judicial district in which the Customer’s address is located, or if the Customer’s address is outside the U.S., for any judicial district in which the service provider may be found, and that the Customer will accept service of process from the complainant (or agent thereof).
Email the counter notification to email@example.com.
You understand and agree that Hostway|HOSTING is not required to respond to counter-notifications that do not meet the requirements of the DMCA as described above. Hostway|HOSTING is not an authority or arbiter on copyright or copyright infringement.
Hostway|HOSTING is concerned with the privacy of on-line communications and websites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, Hostway|HOSTING urges its customers to assume that all of their on-line communications are insecure. Hostway|HOSTING cannot take any responsibility for the security of information transmitted over Hostway|HOSTING‘s facilities. Additional details on privacy and Hostway|HOSTING‘s use of customer information can be found in Hostway|HOSTING‘s Privacy Statement located here.