Terms of Service
Our Terms of Service defines general rules that must be followed if you have a hosting account of any type with us, which does include dedicated or colocated servers.
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.
2.1 The Customer agrees to pay the Company the service fees for the Services as outlined in the Order Form.
2.2 The Company reserves the right to increase the Service Fees (i) as specified in the service description and (ii) at any time after the expiration of the Initial Term, provided ten (10) days prior written notice is given to the Customer.
2.3 Service Fees do not include applicable sales, use, revenue, excise, or other taxes imposed by any tax authority concerning the Services or software provided (excluding taxes on the Company's net income). All such taxes will be itemized separately on invoices and must be paid by the Customer. All fees are non-refundable once paid.
2.4 Unless stated otherwise, all fees and charges are due and payable on the same day as the due date of the invoice. If any invoice remains unpaid past its due date, the Company will charge the Customer a late fee of 25% of the overdue amount after 24 hours. Additionally, any unpaid amounts will accrue interest at a rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is lower.
2.5 If the Company must recover any overdue payments through legal means, a collection agency, or court proceedings, or if the Company prevails in any legal dispute with the Customer, the Customer will be liable for all associated costs, including court costs and reasonable attorneys' fees.
2.6 If any payment remains overdue for two (2) days, the Company reserves the right to terminate this Agreement immediately and/or suspend or withhold Services at its sole discretion.
2.7 A minimum reinstatement fee of $10.00 applies to accounts that have been suspended or terminated. However, the standard late fee is typically 25% of the unpaid invoice amount.
2.8 A minimum charge of $150.00 applies to any credit card chargebacks.
2.9 The Customer agrees that the Company may pre-charge service fees to the credit card provided during registration for the Initial Term.
2.10 The Customer acknowledges, agrees, and authorizes the Company to automatically bill or charge their credit card for successive terms of the same duration as the Initial Term.
2.11 Cancellations for Dedicated or VPS servers must be submitted at least the same day as the invoice due date. If not canceled, the invoice will remain unpaid and must be cleared before any new service can be activated.
2.12 Affiliate Payment and Integrity Conditions:
3.1 UnderHost offers a limited Money Back Guarantee for new clients. This guarantee is designed to allow new clients to evaluate UnderHost's services to ensure they meet industry standards for performance and reliability. If, within the first 14 days of service, the client finds UnderHost has not met these standards, they may request a refund by submitting a cancellation request via "My Services" > "View Detail" > Submit Cancellation Request (located in the upper right). Refunds will be issued either as a full refund or a prorated refund for unused days at UnderHost's discretion.
A month is defined as a 30-day period. For example, if a client cancels on the third day of service, they will receive a prorated refund for 27 unused days (90% of their payment).
Refunds do not include setup fees or any hourly support fees paid to UnderHost.
3.2 All refund and/or cancellation requests must be submitted through "My Services" > "View Detail" > Submit Cancellation Request. Payments made to UnderHost are final and non-refundable in any other circumstances, including violations of our Terms of Service (TOS) or Acceptable Use Policy (AUP).
3.2a Abuse of UnderHost staff in any format or medium will result in immediate suspension or termination of services without refund.
3.3 For account cancellations requested within the first 14 days, a $10 refund processing fee applies for yearly service packages. No refunds are issued after 14 days. Once a service is canceled, the account will be suspended and deleted within 30 days. Refunds will be processed using the same payment method as the original transaction. Refunds are issued within 48 business hours. For example, requests over a weekend will typically be processed on Monday.
3.3a If a cancellation request is made within the first 14 days and the client has used UnderHost’s free transfer service, a fee of $7.95 per website and/or database transferred will be deducted. The free transfer service is offered as a courtesy to new clients.
3.3b No prorated refunds will be issued for account cancellations after the initial 14-day period. Credits or "Add Funds" payments are non-refundable and can only be applied toward UnderHost services. For example, payments made multiple times due to overlapping PayPal subscriptions will be credited to the account and cannot be refunded via PayPal.
3.4 No refunds will be issued for the following services: Dedicated Servers, Virtual Private Servers (VPS), Semi-Dedicated Hosting, Domain Names, Web Traffic, and account add-ons such as SSL certificates, dedicated IPs, and additional space or bandwidth.
3.4a All fees associated with UnderHost services 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 with billing disputes should contact [email protected].
3.4b Clients agree not to chargeback PayPal or credit card payments for services rendered. Any chargeback will incur a $250 penalty and be subject to collection through an authorized agency.
The following payment methods are non-refundable. Refunds for these methods will be issued as account credit:
Only first-time accounts are eligible for a refund. For example, if a client has previously held an account with UnderHost, canceled, and subsequently signed up again, they are not eligible for a refund. This also applies to clients who open a second account.
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.
UnderHost retains sole discretion in determining what constitutes a violation of these terms. We reserve the right to deactivate and remove any offending site immediately, without refund. Repeat violations of our phishing policy will incur a $20 fee per incident, and abusive content folders will be renamed with _DISABLED/PHISHING. If the same domain reappears in your account, it may lead to account termination or a $100 removal fee applied to your invoice.
4.2 UnderHost complies with all copyright infringement reports that adhere to the Digital Millennium Copyright Act (DMCA) and applicable copyright laws in Canada. We are committed to protecting intellectual property rights as required by law.
4.2a Offshore Hosting operates under the laws of the server's host country. As such, DMCA requests are not applicable in these jurisdictions and will be automatically disregarded without prior notice. Offshore hosting clients are subject to the local copyright laws of the server’s location.
4.2b DMCA Copyright Infringement Policy. In compliance with the Digital Millennium Copyright Act, UnderHost has implemented a policy to address cases of copyright infringement. We respect the intellectual property rights of others and expect our users to do the same. At our discretion, we may suspend or terminate accounts found to repeatedly infringe upon copyrights. If you believe your work has been used in a way that constitutes copyright infringement or otherwise violates your intellectual property rights, you may submit a claim to our Copyright Agent. Your claim must include the following details:
Please direct all copyright infringement claims to our designated Copyright Agent, who can be reached at the following:
By Mail:
Attn: Abuse Department
UnderHost Inc.
600 de Maisonneuve Blvd. West, Suite 1800, Montreal, QC, H3A 3J2
By Email: [email protected]
5.1 If UnderHost determines that a customer's account is consuming an excessive amount of system resources, we reserve the right to temporarily deactivate the account. In extreme cases, an eviction notice may be issued, giving the customer ten (10) days to find a new provider. Each case will be analyzed individually, and UnderHost will be the sole arbiter of what constitutes a violation.
5.2 Attempts to bypass domain parking restrictions, such as using selective HTTP redirects or other methods to divert traffic from parked domains, are strictly prohibited. Customers requiring multiple domains with separate content must use the appropriate account type.
5.2a Domains cannot be transferred within the first 60 days of registration or renewal. After this period, you may request your EPP/Auth Code and domain unlocking via a billing ticket. Domains with unpaid invoices cannot be transferred until all debts are cleared. Domains can still be used until the debt is sent to a collection agency. If domain settings need adjustments during the transfer process, our team can assist via the same ticket.
5.2b Domains can be pushed to our partner, Dynadot LLC, after the 60-day period for a $10 administrative fee. This will close your access to the domain through our Customer Panel.
5.2c In cases where UnderHost registers a domain for a longer period than the customer's renewal term, the customer must pay for the remaining period if they wish to transfer the domain. For example, if you register a domain for one year, but UnderHost registers it for three years, the additional two years must be paid before the transfer. Failure to renew will result in UnderHost retaining ownership of the domain.
5.2d Domains paid for via Bitcoin are subject to a $3 USD processing fee, charged after the invoice is created and the BTC payment address is provided.
5.3 Clients are not permitted to install their own chat rooms, as they consume significant system resources. Clients may use the pre-installed chat systems available on all accounts.
5.4 Customers are not allowed to run background programs on shared hosting servers, as they consume excessive system resources and can negatively impact other customers on the server.
5.5 Cron Jobs are permitted and can be managed through the "Cron Jobs" section of cPanel.
5.6 IRC and IRC bots are prohibited on UnderHost servers. Accounts violating this policy will be immediately suspended or deactivated without a refund.
5.7 Shell access is not available for shared hosting accounts. It is only provided for semi-dedicated, dedicated, and VPS hosting plans.
5.8 Monthly bandwidth allocations vary by hosting package. If your account exceeds its allocated bandwidth, UnderHost may:
5.8b Reseller, VPS, and Dedicated hosting accounts exceeding their bandwidth allocation will incur a $0.09 per GB overage fee, billed on an invoice due within 10 days to avoid suspension.
5.8c Servers used for CDN or streaming purposes that exceed the 95th percentile bandwidth threshold for more than seven (7) consecutive days may be restricted to 100 Mbps until a dedicated lane is added. Pricing for the upgrade depends on server location and will be provided upon request.
5.9 The sending of unsolicited emails (SPAM) from an UnderHost server or using a return email address hosted on an UnderHost server is STRICTLY prohibited. Advertising a site hosted on the UnderHost network through SPAM also constitutes a violation of this policy. UnderHost will be the sole arbiter in determining violations of this provision. Accounts found in violation will be immediately deactivated with no refund issued.
Help us combat SPAM! Please report any violations of our SPAM policies to [email protected]. Include the original message for examination—do not delete it.
UnderHost has a zero-tolerance policy for SPAM. This prohibition extends to the use of other services to send unsolicited bulk emails that, in any way, implicate UnderHost’s network, even if the emails did not originate from our servers.
5.9a UnderHost occasionally uses **MailBaby** as an email relayer to enhance the reliability and deliverability of outgoing emails. When active, MailBaby helps reduce blacklisting risks and ensures compliance with anti-SPAM regulations. However, not all email traffic is routed through MailBaby, and customers remain responsible for adhering to SPAM policies regardless of the relayer used.
5.9b MailBaby Integration:
Violations of this NO-SPAM policy may result in one or more of the following actions:
Repeated violations will result in the immediate termination of services with no possibility of reactivation. UnderHost reserves the right to take all necessary legal and technical measures to prevent unsolicited bulk email or other unauthorized email transmissions through its network.
PLEASE NOTE: Sending SPAM, including counterfeit emails, may result in civil and criminal penalties under various laws, including the CAN-SPAM Act of 2003.
5.9c IPs on VPS and Dedicated Servers are a valuable and limited resource. For customers allocated more than 4 IPs, an IP allocation contract must be signed and approved. Additional IPs will only be assigned after justification and utilization of the initial 4 IPs. Abuse or blacklisting of IPs may result in a $250 fee and suspension of services.
5.9d IP Allocation Limits:
5.10 Any attempt to undermine or cause harm to an UnderHost server or another customer is strictly prohibited. Violations include, but are not limited to, unauthorized access, malware injection, or denial-of-service (DDoS) attacks.
UnderHost will be the sole arbiter in determining violations of this provision. Customers found to be in violation will face immediate account deactivation without refund. Additionally, UnderHost reserves the right to report abuse incidents, including customer contact information, to the appropriate authorities and pursue legal action as necessary.
6.1 UnderHost provides free nightly backups for hosting accounts. However, these backups are maintained for internal administrative purposes only and are NOT GUARANTEED. Customers are responsible for maintaining their own backups on personal devices. UnderHost assumes no liability for data loss or incomplete backups, even in cases of negligence.
While we strive to ensure accurate and complete backups using two separate systems on our shared servers, the availability of these backups is not guaranteed. We strongly recommend customers back up their sites regularly to their own devices. For more details about our backup policies and services, visit https://underhost.com/backup.php.
6.1a Accounts exceeding 10GB of disk space are not included in our internal backup system. Customers with larger accounts must manage their own backups or purchase a 10GB off-site backup add-on for $3.95/month.
6.2 Your use of UnderHost services is at your own risk. UnderHost is not liable for the files or data stored on your account. Customers are solely responsible for maintaining backups of their files and data. In cases where accounts are suspended due to non-payment, customers must clear outstanding invoices to regain access to backups.
6.3 Restoration of data from our backup servers incurs a $5 administrative restore fee. This fee does not apply if you provide your own backup. UnderHost offers a FREE migration service when setting up your account, and there is no charge for your first backup restoration request or for restoring your own provided backup.
7.1 Your account will be set up after payment is received and the order has been screened for potential fraud by us and/or our payment partners. It is your responsibility to provide a primary email address that is not associated with the domain(s) you are signing up for. This email will be used for all communications, including abuse issues or urgent matters. It is essential to keep the email address on file accurate and up-to-date. Providing false contact information may result in account termination. For dedicated server purchases or high-risk transactions, we may require government-issued identification and a scanned copy of the credit card used for payment. Failure to meet these requirements may result in the order being marked as fraudulent and denied.
7.2 Our transfers team will make every effort to assist you in migrating your website to our platform. However, this is provided as a courtesy service, and we cannot guarantee the availability, speed, or success of the transfer process, as configurations vary between hosting providers. While we strive to assist with all migrations, there may be instances where we are unable to facilitate the transfer of your data from your previous host.
7.3 Dedicated servers may require additional IP addresses. We offer IP blocks with a maximum of 16 IPs per server during the initial order. Additional IPs may be requested once the initial 16 are fully utilized, following RIPE/ARIN guidelines and subject to compliance with our terms of service and no abuse issues. Additional IPs will be assigned progressively as justified.
7.4 The "UnderHost" package name has been retired from our shared hosting plans. Moving forward, shared hosting plans will be referred to as "UnderMini," "UnderScene," "UnderShare," and "UnderBusiness." Existing plans may reflect these name changes in the billing panel, but all plan resources and support will remain unchanged.
8.1 Failure to comply fully with these Terms of Service (TOS) and Acceptable Use Policy (AUP) may result in account suspension or deactivation, with or without a refund, at UnderHost’s sole discretion.
All accounts, servers, and services provided by UnderHost must adhere to the policies outlined in this agreement. We reserve the right to remove any account or service without prior notice. Accounts deactivated due to policy violations forfeit all rights to refunds, including for advanced payments.
While our standard procedure includes issuing a warning for the first offense and deactivating the account upon a second offense, UnderHost reserves the right to deactivate accounts immediately for severe violations without prior warning.
UnderHost Networks Ltd retains the sole discretion to deactivate or remove any site or content hosted on our servers that it deems unacceptable, undesirable, or otherwise inappropriate.
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.
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 arising from an alleged tort, shall be governed by the substantive laws of the province of British Columbia. The 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 PROVINCIAL OR FEDERAL COURT LOCATED IN VANCOUVER, BRITISH COLUMBIA, CANADA. 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. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION TO THE LAYING OF VENUE IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION, OR PROCEEDING 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.
11.1 UnderHost reserves the right to revise its Terms of Service (TOS) and policies at any time without prior notice. Customers are encouraged to review the TOS periodically to stay informed of any updates.
Revised: November 18, 2024 (content updates to sections 4.1, 5.1–5.9, 6.1–6.3, 7.1–7.4, 8.1)
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