Terms of Service
This User Agreement ("Agreement") is an agreement between UnderHost.com. ("Company") and the party set forth in the related order form ("Customer" or "You") incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services ordered by Customer on the Order Form (collectively, the "Services").
Any questions regarding this agreement should be sent to UnderHost prior to signing up for service.
PLEASE READ THIS AGREEMENT CAREFULLY
BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
UnderHost has a responsibility to protect each client and provide them with the best service possible. The following guidelines were designed to ensure that our services remain of the utmost quality, by preventing the actions of one client from adversely affecting others, Customers may not sublease, sub host, or give away control of any portion of their UnderHost space and/or resources (including, but not limited to, e-mail accounts, space, ftp accounts, etc.), unless otherwise stated in writing.
The Terms of Service (TOS) are the rules and regulations for using our hosting services. All use of our hosting services is subject to these terms. Please read them carefully and ensure that you understand and agree to all parts. Your use of UnderHost services implies your agreement with these terms.
Acceptable Use Policy. Under this Agreement, Customer shall comply with Company's then current Acceptable Use Policy ("AUP"), as amended, modified or updated from time to time by Company, which currently can be viewed under the Policies Details section of this web site, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Service (the "Customer Content"). Customer Content includes content of Customer's customers and/or users of Customer's website. Accordingly, under this Agreement, You will be responsible for Your customers content and activities on Your website. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the AUP. In the event Company takes corrective action due to a violation of the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer's customers due to any corrective action that Company may take (including, without limitation, disconnection of Services).
1.1 Service Availability. Under this agreement we agree to take you order, verify your billing details and reserve the right to ask for further details and hold the order pending this further verification process. We aim to complete this process within a 24 hour period and may require to communicate (Written or spoken) with you to verify the details you have given. Our onsite - advertised 99.9% up time is worked out using the total number of servers we operate by any affected servers and any time - this is how we have arrived at 99.9% up time.
1.2 Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Web site.
1.3 Customer will cooperate fully with Company in connection with Company's performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer's performance of its obligations under this Agreement will extend the time for Company's performance of its obligations that depend on Customer's performance on a day for day basis. Customer will notify Company of any change in Customer's mailing address, telephone, electronic mail or other contact information.
1.4 Customer assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
1.5 Because the Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site, including all back-ups. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Company to provide the Services, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Services will be available on Company's Web site. Customer shall periodically access Company's Web site to determine if Company has made any changes thereto. Company shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Company to provide the Services.
1.6 Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content.
Billing and Payment
2.1 Customer will pay to Company the service fees for the Services in the manner set forth in the Order Form.
2.2 Company may increase the Service Fees (i) in the manner permitted in the service description and (ii) at any time on or after expiration of the Initial Term by providing ten (10) days prior written notice thereof to Customer.
2.3 The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company's net income). All such taxes will be added to Company's invoices for the fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid.
2.4 Unless otherwise specified, all fees and related charges shall be due and payable within seven (7) days before the due date of the invoice. If any invoice is not paid before overdue date of the invoice, Company charge Customer a late fee of 25% of the due invoices for after 24 hour; in addition any amounts payable to Company not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
2.5 If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company's reasonable attorneys' fees.
2.6 In the event that any amount due to Company remains unpaid two (2) days after such payment is due, Company, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
2.7 There may be a minimum $10.00 charge to reinstate accounts that have been suspended or terminated but usually charged at 25% of the unpaid invoice as late fee.
2.8 There may be a minimum $150.00 charge to for all credit card chargebacks.
2.9 Customer acknowledges and agrees that Company may pre-charge Customer's fees for the Services to its credit card supplied by Customer during registration for the Initial Term.
2.10 YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM
2.11 Dedicated/VPS server cancellation must be done at least 1 week before due date (7 days) if not you will still being charged for the next month.
Money Back Guarantee
3.1 UnderHost offers a limited Money Back Guarantee to all new clients. The purpose of this guarantee to allow clients to experience UnderHost's services and determine that they meet or exceed industry standards. To this end, if UnderHost has not met industry standards for service performance and reliability during the first 14 days of a new hosting account being online and the client requests a refund and/or cancellation must be requested through "My Services" > "View Detail'' (New) > then submit a cancellation request on the upper right, UnderHost will refund the pro-rated difference of the client's hosting fees for the month or full refund at our discretion.
A month is defined as a 30 day period. For example if a customer cancels on the third day of service they would receive a 27 day pro-rated refund, or 90% of their payment.
This refund will NOT include any setup fees or hourly support fees paid to UnderHost.
3.2 All refund and/or cancellation must be requested through "My Services" > "View Detail'' (New) > then submit a cancellation request on the upper right, In all other circumstances monies paid to UnderHost are final and nonrefundable if you break our TOS or/and AUP you will not be eligible for a refund.
3.2a Any abuse of our staff in any medium or format will result in the suspension or termination of your services without refund.
3.3 In the event you request account cancellation before 14 days, a refund fee of 10$ is applicable for service on yearly package. no refund issued after 14 days. once your service has been cancelled your account will be suspended from use. It will then be deleted within 30 days. If for any other reason your account becomes suspended and remains suspended it will be deleted after a 30-day period. Refund are refunded via the same payments method/transaction. No different payment method can be used for refunding and refund are issued into the same account/credit card, refund are also issued within 48 business hour. eg: over weekend refund are usually issued on monday.
3.3a In the event you request account cancellation before 14 days and used our free transfer services, a fee of 7.95$ is applicable per website and/or database transfered by our team. We offer FREE transfer as courtesy for new client.
3.3b NO pro-rated refund will be issued in case you cancel your account after 14 days. Credit / "Add Funds" money paid to your account are non-refundable and can only be used to use our service. Eg: Invoices that have been paid more than once with multiple Paypal subscriptions are added in credit towards the account and cannot be refunded via PayPal.
3.4 NO REFUND ON DEDICATED SERVERS, VIRTUAL PRIVATE SERVERS, SEMI-DEDICATED HOSTING, DOMAIN NAMES, WEB TRAFFIC AND ACCOUNT ADDON SUCH AS SSL, DEDICATED IP AND SPACE/BANDWIDTH.
3.4a All these services rendered by UnderHost are non-refundable. This includes, but is not limited to: setup fees, one time fees, monthly service fees, upgrade fees, additional service fees, administrative fees, and late fees. Customers seeking to resolve billing errors are instructed to e-mail email@example.com
3.4b Customer agrees not to chargeback any paypal/credit card payments for services rendered. A charge-back of payment for services rendered will result in an additional charge of $250 and will be subject to collection by an authorized collection agency.
The following methods of payments are non-refundable, and refunds will be posted as credit to the hosting account:
- Bank Wire Transfers
- Money orders
Only first-time accounts are eligible for a refund. For example, if you've had an account with us before, cancelled and signed up again, you will not be eligible for a refund or if you have opened a second account with us.
4.1 All services provided by UnderHost may be used for lawful purposes only. This includes, but is not limited to: copyrighted material, material we judge to be threatening or obscene, or material protected by trade secret and other statute. The subscriber agrees to indemnify and hold harmless UnderHost from any claims resulting from the use of the service which damages the subscriber or any other party.
Examples of non-acceptable content
- Child Porn
- Bulk Email related products
- Phishing website and email (50$ fee for IPs blacklisting removal will be charged)
- Copyrighted software, music or video hosting, DMCA free in offshore location
- Illegal material or material that is against public policy
- Sites containing or linking to material that may be considered detrimental to the public health, safety, or welfare.
(Such as, but not limited to: Anarchists Cookbook, bomb making, weapon information, or anything else that may be considered detrimental or illegal.)
- Fraudulent card website, pony script, DDoS script, website stresser, any scam scheme such as fake business, pet scam, store scam, tor exit are not acceptable in our networks.
UnderHost will be the sole arbiter as to what constitutes a violation of this provision, and reserves the right to deactivate and remove any site at any time for this reason without refund! 20$ fee will also be charged for repeated abuser of our phishing policy for each website our abuse team need to remove. When removing a domain our abuse team will rename the site folder with _DISABLED/PHISHING. If a domain removed by our abuse team return to your account we will either terminate your account or charge a 100$ removal fee on your next invoices.
4.2 UnderHost will respond to all reports of infringement that are formatted in accordance with the Digital Millennium Copyright Act and any other applicable copyright laws in Canada.
4.2a Offshore Hosting are not covered by DMCA and other applicable copyright are applicable from housed servers country laws. DMCA request are neglect automaticly without prior notice.
4.2b DMCA Copyright Infringement Information. In accordance with the Digital Millennium Copyright Act, we have adopted a policy to suspend or terminate the accounts of website owners found to be in violation of copyright. We respect the intellectual property of others, and we ask you to do the same. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent (identified below) the following information:
- A electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work or other intellectual property that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the site;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf
Our agent for notice of claims of copyright infringement can be reached as follows:
Attn: Abuse Departement
600 de Maisonneuve Blvd. West Suite 1800, Montreal, QC, H3A 3J2
By email: firstname.lastname@example.org
System Resource Usage
5.1 If we (UnderHost staff) determine that a customer's account is utilizing an unacceptable amount of system resources, we may temporarily deactivate the account in question. If we deem it necessary, an eviction notice may be sent to the customer of an offending account providing them with ten (10) days in which to locate a new provider. This only occurs in extreme cases.
UnderHost will be the sole arbiter as to what constitutes a violation of this provision. Because of the nature of this provision, each account will be considered and analyzed individually.
Domain Transfer/Domain Parking Circumvention
5.2 Any attempt to circumvent domain parking restrictions by using selective HTTP redirects or any other method to send traffic from parked domains to sites other than the main site is strictly prohibited. If multiple domain names with separate content are required the appropriate account type must be used.
5.2a Domain transfer cannot be completed within the first sixty days of a registration or renewal, after that sixty days passed you may as you wish request via "Billing Ticket" your EPP Code/Auth Code and your domain to be unlocked, as soon this action has been performed you won't be able to modify nameservers details. In case you have unpaid invoice remaining on your account, we will ask you to pay your current debt before approving any transfers, domain can still be used until debt goes to collection agency. If you need through to change setting during transfers we will be able to manually modify your domain, simply reply to the same billing ticket.
5.2b If you wish to get your domain moved over our partners Dynadot LLC, using push function it can also be done after the first sixty days of renewal/registration, 10$ administrative fee will be charged to move the domain and close your domain access via our CustomerPanel.
5.2c It may happen UnderHost register domain for a longer period than your current "renewal" date, the due date is the one show on your account without exeption. If you wish to transfers your domain away from UnderHost you will be requested to pay any "renewal" to cover the real expiration date. (Eg: You registred the domain mydom.com via UnderHost for 1 years, UnderHost registred that domain for 3 years upon transfer we will ask you to pay for the 2 years that we paid upfront to be able to transfers the domains) If you do not renew the domain UnderHost became the owner of that said domain.
5.2d Domains ordered paid via bitcoin are subject of a processing fee of 3$ USD, The fee is charged after invoices has been created when we give you the BTC payments address via ticket.
5.3 We do not allow clients to install their own chat rooms. These tend to be large system hogs and we cannot allow it as a account option. Clients are free to use any and all of the three chat systems that come pre-installed on all accounts.
Background Running Programs (bots/daemons/monitors)
5.4 Customers are not permitted to run programs in the background on shared hosting servers. This tends to use a lot of system resources, and can impair service to other customers on that server.
5.5 We do allow Cron Jobs to be conducted on our servers. You can setup and manage the cron jobs for your account from the "Cron Jobs " section of Cpanel.
IRC (Internet Relay Chat)
5.6 We do not allow IRC or IRC bots to be operated on our servers. Any account found to be in violation of this provision will be immediately suspended and/or deactivated and no refund will be issued.
5.7 Shell access is not provided on hosting accounts. only on semi-dedicated, dedicated and vps.
5.8 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.
5.8b Reseller, VPS and Dedicated are charged 0.09$ per GB once you pass over the allocated amount to your servers/package, those fee will be included into an invoices that need to be paid within 10 days to avoid suspension.
5.8c Server used as CDN/Streaming machine are subject to upgrade to dedicated lane in case 95th percentile is maxed over more than a 7 days period, server will be limited to 100mbps until dedicated lane as been added. Price slightly differ on location and our staff will be able to provide you a quotes for that upgrade.
Unsolicited Email (SPAM)
5.9 SPAMing, or the sending of unsolicited email, from a UnderHost server or using a return email address that is maintained on a UnderHost server is STRICTLY prohibited. Using SPAM to advertise a site hosted on UnderHost network also constitutes as a violation of this provision. UnderHost will be the sole arbiter as to what constitutes a violation of this provision. Sites found to be in violation of our SPAM policies will be immediately deactivated and no refund will be issued.
Help us STOP SPAM! Please email@example.com immediately to report a violation of our SPAM policies. Don't delete the message - we will want to examine it.
UnderHost.com will not tolerate any spamming by any of its Customers. This prohibition of spam extends to the sending of unsolicited mass mailings from another service, which in any way implicates the use of UnderHost Networks Ltd services whether or not the message actually originated from our network.
Violation of this NO-SPAM policy will result in UnderHost Networks Ltd taking one or more of the following actions:
Suspension of your site until further notice,
Removal of DNS for the advertised/originating site, or
Temporarily blocking outgoing mail from your site.
Repeated violation of this NO-SPAM policy will result in immediate disconnection of service with no re-activation.
UnderHost.com reserves the right to take all legal and technical steps available to prevent unsolicited bulk e-mail or other unauthorized e-mail from being sent from or transmitted through the UnderHost Inc.
PLEASE NOTE: The transmission of spam, including the transmission of counterfeit e-mail, may result in civil and criminal penalties against the sender, under various federal, state, and local laws and regulations, including the federal CAN-SPAM Act of 2003.
5.9a IP ALLOCATION: IPs on VPS and Dedicated Servers are precious. IPv4 are costly, hard to get and maintain, once you have more than 4IPs allocated we will ask you to sign our IP allocation contract. Once approved and signed by you, IP will be assigned per usage you need to have those 4IPs used before we deliver any other IPs. Abuse or Blacklisting our IP may result aditional fee of 250$ and suspension of your services.
5.9b VPS are limited to 4IPs we through can be able to do an agreement upon justification, Dedicated Servers are limited to 16IPs we through can be able to do an agreement upon justification. Canadian i3 servers are limited to 4IPs as they are small cheap machine and no VM should be run on it.
5.10 Any attempts to undermine or cause harm to a UnderHost server or customer of UnderHost is strictly prohibited.
UnderHost will be the sole arbiter as to what constitutes a violation of this provision. Customers found in violation of this provision will be subject to account deactivation without refund. UnderHost will turn all available information about abuse incidents, including customer contact data, over to the proper authorities and press charges.
6.1 UnderHost hosting accounts include a free nightly backup service but these backups are for internal administrative purposes only, and are in NO WAY GUARANTEED! Customers are responsible for maintaining their own backups on their own personal computers. UnderHost does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly, even if the malfunction was due to negligence on UnderHost part. We will do our best to ensure complete and accurate backups via 2 different backup on all our shared servers, but assume no responsibility for this duty. Always back your site up to your personal computer! We make no guarantees about the availability of backups.
6.1a Account over 5GB Space are not backup on our internal servers, you need yourself to backup your account or get an 10GB off-site backup addons for $3.95/m
6.2 Your use of the service is at your sole risk. UnderHost is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on UnderHost servers.
if your site are suspended due to non-payments. We will ask you to pay your invoice before get access to your backup.
6.3 Restoration from our backup servers are only done after payments of administrative restore fee. Fee are actually 5$ and does fee dosen't apply when you provide your own backup, we offer FREE migration service when you order your account and NO CHARGE are made upon your first request or for your own backup restoration.
Account Setup / Email on file
7.1 We will setup your account after we have received payment and we and/or our payment partner(s) have screened the order(s) incase of fraud. It is your responsibility to provide us with an email address which is not @ the domain(s) you are signing up under. If there is ever an abuse issue or we need to contact you, the primary email address on file will be used for this purpose. It is your responsibility to ensure the email address on file is current or up to date at all times. Providing false contact information of any kind may result in the termination of your account. In dedicated server purchases or high risk transactions, it will be necessary to provide government issued identification and possibly a scan of the credit card used for the purchase. If you fail to meet these requirements, the order may be considered fraudulent in nature and be denied.
7.2 Our transfers team will make every effort to help you move your site to us, however, we can not make guarantees of the transfer process. We provide this as a courtesy service and can not make guarantees regarding its availability or the amount of time it may take as each host is configured a little differently. We will try our best, however, in some cases we may be unable to assist you in a transfer of data from an old host.
7.3 Any dedicated servers can need more dedicated IP, we do offer IP block on our servers maximum of 16IPs can be added to your servers during orders, while you can orders more once your first 16 Address are used per RIPE/ARIN rules has stated on our terms of service and without abuse issue, other IP will be progressively assigned.
"Shared Hosting" name change
7.4 We have removed the "UnderHost" package from our shared hosting plans. We will now use "UnderMini, UnderScene, UnderShare and UnderBusiness" your existing plans might have a name change in our billing panel. In contrast, your plans will remain the same as before, same resources and support.
Failure to Follow Policies
8.1 Failure to fully comply with these terms and AUP is grounds for account suspension and/or deactivation (with or without refund at UnderHost discretion).
Any accounts and/or servers and/or service contained within UnderHost must adhere to the above policies.
We reserve the right to remove any account without prior notice. If we deactivate your account for violating policy, you will forfeit your rights to a refund--and none will be given. No refunds for advanced payment. Our normal policy is a warning first, and account deactivation the second offence, but no warning is required.
UnderHost Networks Ltd reserves the right to deactivate and remove any site hosted on our servers that contains any content that it deems in its sole discretion to be unacceptable, undesirable or contraindicated.
Disclaimer of Warranty
9.1 Customer agrees to use all Services and any information obtained through or from Company, at Customer's own risk. Customer acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "COMPANY PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
9.2 Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer's sole and exclusive remedy, and Company's sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees pro rated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
9.3 The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company's reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer's equipment or any third-party equipment not within the sole control of Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED �AS IS� WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Limitation of Liability
9.4 IN NO EVENT WILL COMPANY'S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
9.5 COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
9.6 EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
9.7 The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Customer's indemnification obligations.
9.8 Notwithstanding anything to the contrary in this Agreement, Company's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
9.9 Customer understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Customer or one if its customers or a reseller, that corrective action may adversely affect other customers of Customer or other reseller customers, and Customer agrees that Company shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Company.
9.10 This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
10.1 Independent Contractor. Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
10.2 Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the province of quebec. Canada Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A STATE OR FEDERAL COURT LOCATED IN QUEBEC, CANADA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
10.3 Headings. The headings herein are for convenience only and are not part of this Agreement.
10.4 Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's web site.
10.5 Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
10.6 Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer's electronic mail address as maintained in Company's billing records.
10.7 Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
10.8 Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
10.9 Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
10.10 Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company's records of such execution shall be presumed accurate unless proven otherwise.
10.11 Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
10.12 No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
10.13 Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
10.14 Marketing. Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.
Changes to the TOS
11.1 UnderHost reserves the right to revise its policies at any time without notice.
revised: January 28, 2022 (site update)