Terms of Service

This Master Services Agreement (the “Agreement”) contains the complete terms and conditions applicable to your subscription to the Web hosting, Virtual Private Servers, Domain Registrations or other related services (the “Services”) provided by Data393, as specified in the Service Level Agreement (the “SLA”). Colocation and Dedicated Server clients should refer to their Data Center Agreements or Server Hosting Agreements respectively.

As used in this Agreement, “Data393” means Data393, Ventures Online, and Huge Hosting (“Data393”), Inc. and “Client”, “Customer”, “Subscriber”, “you”, and “your” means you.

By clicking on the “Submit Order” button, you acknowledge that you have read and agree to the entire terms and conditions contained herein and all policies posted on the Data393 website.

Service Level Agreement

Data393 agrees to provide Customer the Services listed on the Service Order in accordance with the terms contained in this Master Services Agreement and the policies posted on the Data393 website. Any additional Services subsequently ordered shall be governed by the terms of this Agreement. Data393 shall provide Customer with Services in accordance with service levels set forth below.

Shared Hosting

Shared Hosting plans include the Plesk control panel, allowing customers easy management of multiple websites through a single interface. Sub-domains and add-on domains are included. Shared Hosting plans also include E-mail (POP, IMAP, and Webmail), MySQL database, FTP access, FrontPage support, PHP, Perl and Python support and CGI-bin for scripting. Linux plans provide Shopping cart and Spam filtering. Windows plans include the option to add on Cold Fusion. Due to the shared SSL certificate, Customers do not need to purchase their own certificate. Shared Hosting servers are fully managed and monitored, with Data393 responsible for server administration and maintenance. However, support is not provided for third party applications or custom scripts that the customer may be using.Data393 guarantees 99.99% network uptime.

Virtual Private Servers

Using SWsoft’s Virtuozzo server virtualization technology, an isolated virtual server environment is created on a high-performance server. The customer receives a specific amount of server resources (memory, disk space, processing power) based on the VPS plan they subscribe to. However, service levels are easily upgradeable. All VPS products include the Fedora Red Hat operating system and Plesk control panel allowing 30 domain licenses with an option to upgrade. VPS plans also provide managed OS, SSH access (no root access), 3 IP addresses with additional IPs available for purchase, and high-performance server hardware with RAID5 for redundancy. Network monitoring is included, however service monitoring is an additional service. Data 393 provides hardware/software support 24 /7 /365. Data backups are not provided by default and must be purchased as an add-on service. Data393 guarantees 99.99% network uptime.

Dedicated Servers

Dedicated Server clients should refer to the Server Hosting Agreement for detailed specifications.

Colocation

Colocation clients should refer to their Data Center Agreement for detailed specifications.

Support

Data393 provides Clients with Technical Support 24/7/365 via its online support dashboard.

Colocation

The level of support provided to colocation customers will be specified on the Data Center Agreement signed by the Client and Data393.

Shared Hosting Servers

Shared Hosting accounts reside on Shared Servers. Data393 provides hardware and operating system support for the Shared Servers. Data393 also supports all functions of Shared Servers necessary to provide the services defined by the hosting plans it offers.

Virtual Private and Dedicated Servers

Data393 will support the virtual private and dedicated server hardware as well as the standard operating system and software application configuration upon initial release of the server to the Client. However, removing, altering, or deleting the files and base configurations installed by Data393 may place all software support for the server into a fee-based category.

Further support parameters including Service Level Agreements are defined in the Server Hosting Agreement.

Application Support

Data393 offers technological expertise pertaining to our hosting services, but not web development, application development or consulting. As such, Data393 does not guarantee assistance with issues including, but not limited to:

• Custom configuration and detailed usability questions about included third party features including control panel, database, and email applications.
• Questions related to a third party product or script that the client introduces to the server. These questions must be directed to the third party vendor or creator of the script.

Programs not created or programmed by Data393

Data393 cannot fulfill programming and/or debugging requests not created or programmed by Data393 staff. Data393 may perform ‘best effort’ support for programming issues related to programming done by our staff or initial installation and configuration on the selected Data393 Server environment. For example, a test script may be installed to verify that the server is functioning correctly. Data393 Support Staff may be able to refer and/or recommend resources to assist the customer in resolving unsupported issues.

Monitoring Services

Data393 provides a variety of monitoring services, so communication with customers may be necessary and/or part of a paid service. The customer is responsible for informing Data393 of contact changes, such as e-mail address, phone numbers, and password changes as appropriate.

Services requiring action by Data393 / Root password

Clients subscribing to such services must ensure that their current root password is on record at all times. Data393 will not be responsible for responding to failure notifications should the current root password not be available.

Port Accessibility

Clients subscribing to monitoring services will be responsible for ensuring that monitored ports are accessible by our monitoring system. Monitoring services may be inhibited by use of a firewall, intrusion detection system, or customer server configuration. Data393 will not be responsible for notification failures or false notifications that result.

Frequent monitoring notifications

Should an ongoing problem result in a high frequency of monitoring notifications, Data393 will work directly with Client to resolve the issue. Data393 may recommend that Client take specific action to resolve the issue so that it does not impact our ability to effectively support other Clients. Should you choose not to follow our recommendation, Data393 reserves the right to discontinue monitoring services.

Virtual Security

Virtual Security Data393 offers email filtering and services designed to help prevent virus infection. However, these services do not guarantee protection against all viruses. The proliferation of viruses on the Internet cannot be directly controlled. Therefore, Data393 cannot be held responsible for virus infections that may occur.

Shared Servers

Data393 will maintain the best possible security of its Shared Servers through the installation of applicable software upgrades, patches, and updates as they become available, if safe for the production environment. Data393 also reserves the right to remove or disable third party applications that pose a security risk to its Shared Servers. Shared Hosting clients are responsible for maintaining the security of passwords corresponding to their account(s). Data393 is not responsible for security breaches resulting from compromised passwords.

Virtual Private Servers and Dedicated Servers

The Client is responsible for the installation of applicable software upgrades, patches and updates necessary to maintain the security of a Virtual Private or Dedicated Server unless otherwise specified. Clients purchasing ‘managed services’ will receive the level of support specified in the terms defined by the product. If the security of a Virtual Private or Dedicated Server is compromised, the Client will pay support fees necessary to diagnose and/or repair the server. The Client is responsible for maintaining services running on the server unless otherwise specified by additional service or support agreements.

Privacy Policy

Protecting your privacy is very important to Data393, so we operate our website under specific guidelines to safeguard your personally identifiable information. Please click on the Privacy Policy link for detailed information, as use of the Services constitutes acceptance of and agreement to this policy.

Term

By submitting the order, Customer hereby agrees to be bound by the service term selected on the online order form or via applicable promotional codes. This Agreement begins on the date you register for the Services and shall continue in effect on a month-to-month basis from the first of each month to the end of each month unless otherwise specified by separate agreement (the “Term”). Termination must be in accordance with the provisions of this Agreement.

Terms of Payment

During the term of this Agreement, Client will pay Data393 the fees and charges for the Services ordered. All amounts shall be paid in U.S. dollars and Data393 shall either:

• Debit client’s credit card, where Client authorizes charges to be made in advance each month to the Client’s credit card, or
• Debit Client’s bank account, where such information is provided by and charges are authorized by the Client, and/or
• Deliver by e-mail an invoice to the Client in accordance with the applicable Service Fees for the current month. Invoices are due upon receipt.

Delinquency

Data393 shall be entitled to immediately terminate this Agreement for Client’s failure to make timely payments. For further information, see Late Payments.

Refund policy

Shared Hosting, VPS, Dedicated Server and Colocation Subscribers agree to a no refund policy in advance. Set up fees and monthly service fees are non-refundable.

Fees and Reinstatement

Setup fees

Applicable setup fees must be paid in full before Services can be used.

Server Rental Charges

Server rental charges will be incurred immediately at sign up. If service begins after the First of the month, fees will be pro-rated for the remaining days of the month.

Service Fees

During the term of the Agreement, Customer shall pay the fees for the Services set forth on the online form, including initial installation fees and monthly recurring fees. If Shared Hosting Customers use bandwidth or disk space beyond what is set forth on the order form, Customer agrees to pay additional charges.

Late Payments

Payments not received within twenty-five (25) days of the invoice date, will be assessed a late fee of one point five percent (1.5%) per month or the highest rate allowed by applicable law, whichever is lower. The minimum late fee is $5.00. Late fees will continue to accrue as long as there is an outstanding balance. Accounts with balances 45 days past due are delinquent and eligible for discontinuation without further notice. Delinquent accounts require payment by credit card to return to good standing. Accounts that are not paid within 10 days of discontinuation are subject to immediate termination.

Returned Item Fee

Accounts with returned checks and/or e-checks will be assessed a $25.00 returned item fee. New payment must be made by credit card immediately or account will be in delinquent status. Illegitimate credit card charge backs will be assessed a $50.00 returned item fee.

Domain Name Registration Fee

If you register a domain name(s) through Data393, you acknowledge and agree to pay a registration fee(s) to register the domain name(s) with the applicable registrar. Data393 does not offer refunds for domain name registrations for any reason, including misspelling of the domain name.

Taxes

Customer will be responsible for payment in full of any taxes and similar fees imposed on the transaction and/or the delivery of Services. Data393 shall have the right at any time, to invoice to customer any new or increased taxes, fees, assessments, or other charges imposed or required by any governmental agency. Client will indemnify and hold harmless Data393 from any and all taxes associated with or arising from Client’s use of the Services. These include any penalties and interest as well as any costs associated with the collection or withholding thereof.

Reinstatement / non-payment fees

Shared Hosting

If Data393 suspends a Shared Hosting account for non-payment, Client shall be allowed to reinstate use of the Services within ten (10) business days upon approval and full payment of balances due. A re-instatement fee of $25.00 will apply.

Virtual Private, Dedicated or Colocation Servers

If Data393 disconnects a Virtual Private Server, Dedicated Server, or Colocation Server for non-payment, the Client shall pay a fee of $50.00 prior to any re-instatement of Client’s server. Once Data393 receives payment, Client’s account will be activated within 48 business hours. Data393 will maintain an archival copy of Client’s data files for 5 days after disconnection.

Termination and Cancellation

Either party will have the right to terminate this Agreement upon notice to the other party. If Client is terminating this Agreement, Client must submit their cancellation in writing.

Notice

All Cancellation requests must be received Five (5) days prior to the cancellation effective date (end of current cycle date). Cancellation requests must be made via submission of a written support request at http://support.data393.com, or written letter mailed to:

Data393
Attn: Billing Department
393 Inverness Drive
Englewood , CO 80112

Date

If a Client terminates their account, Data393 will disable the server/account on the day the Client specifies. It is the responsibility of the Client to remove any data off the server prior to the date provided in their cancellation notice. Data393 will not maintain an archival copy of the Clients data files. No service charge refunds will be given if Client chooses a date before the end of the current billing cycle (end of the month).

Outstanding Fees

If Client terminates this Agreement, you shall be responsible for any outstanding fees owed and agrees to pay any and all fees incurred by Client. For Services provided on a monthly basis, Client will be responsible for Service Fees incurred each month, regardless of when Client provides notice of termination. Discount/Prepaid Accounts If Client has agreed to a specific term in exchange for a discount of fees and/or has pre-paid Data393 for such Services, no refunds will be issued, even if cancelled before the pre-paid term ends.

Client Liability and Indemnification

The parties agree that in no event shall Data393 be liable to any third party for Client’s breach or alleged breach of any of the terms and conditions set forth in this Agreement. Client agrees to defend, indemnify, and hold harmless Data393 from any and all expenses, losses, liabilities, damages, or third party claims resulting from Client’s breach or alleged breach of any Client obligations set forth hereunder.

Customer shall pay to Data393 all expenses incurred by Data393 in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including, but not limited to, reasonable attorneys’ fees and the fees of any collection agency retained by Data393.

In any legal proceeding between the parties under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorney’s fees.

Client Content

Client agrees that it will not distribute, electronically transmit, or display any materials to or from any Data393 server which:

• Violate any state, federal, or international laws or regulations
• Infringe on any intellectual property rights (e.g. copyright, trademark, patent, or other proprietary rights) of Data393 or any third party;
• Are defamatory, slanderous or libelous;
• Are threatening or harassing;
• Are discriminatory based on gender, race, or age;
• Promote hate or violence;
• Violates any Data393 policy posted on the Data393 site including, but not limited to those listed in our Terms of service (TOS);
• Contain viruses or other computer programming defects which result in damage to Data393 or any third party; or
• Are considered spam

Acceptable Use Policy

Data393 provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such services. However, certain activities are prohibited or restricted by Data393. For details, please read our Acceptable Use Policy, as use of our services constitutes acceptance of this policy.

Disk Space

Shared Hosting Accounts

Client may occupy only the amount of disk space on the Shared Server allotted by Data393 for the hosting plan selected by the Client. Additional fees will be charged for exceeding specified disk space. Disk space measurement includes all content from your website and includes, but is not limited to: database, ftp, email and mailing list data stored in user directories for virtual accounts. Data393 is not responsible for the accuracy of measurements provided by individual control panel software, which may or may not include all the customer data in its measurements.

Virtual Private and Dedicated Servers

The Disk Drive and/or Disk Space Quota for these accounts are limited by the size of the server configuration selected by the Client. Available disk space excludes the space required for the Operating System, Control Panel, and other services that come with the server set up selected by the Client. Client controls utilization of all disk space for Virtual Private and Dedicated Servers and may remove, delete and/or alter the installed files and configurations. Maintaining disk space is the responsibility of the Client; assistance required from Data393 is not included and will be considered fee-based.

Bandwidth

Shared Hosting Accounts

Data393 does not, by default, limit the amount of bandwidth to the account/server unless required by the control panel software. If a Shared Server Client wishes to have their bandwidth capped, we will do so upon request, software permitting. Additional fees will be charged for exceeding the network bandwidth allowance of your selected plan. This includes, but is not limited to any excess bandwidth resulting from server configuration changes made by the Client, Denial of Service attacks, or faulty applications or scripts.

Virtual Private, Colocation and Dedicated Servers

Virtual Private Server, Dedicated Server and Colocation accounts are limited only to port speed. Default port setting is 10 Mb.

Licensed Software Only

Client agrees to use only properly licensed third party software or open source software in connection with clients use of the Services.

Backup Files and Processing

Data393 will disclose the terms of service directly to Clients subscribing to backup processing Services. For a minimal fee, Shared Hosting Clients can request restoration of files automatically archived by Data393. However, Data393 does not guarantee the existence, accuracy, or regularity of its backup Services. Therefore, the Client is responsible for backing up their files. We suggest downloading a copy of data to a personal computer or disk. Data393 also does not guarantee the accuracy and quality of backup processes provided by third party software, such as individual third party control panels.

Restoration

Clients requesting data restoration must provide a listing of the directories and/or files to be restored and the location that the data should be returned to. Requests for the restoration of database data will result in the restoration of the database in its entirety. After restoration, it is the Client’s responsibility to verify the accuracy of the data and take any further actions necessary for the data to be usable.

Dedicated Server Accounts

Back-up processing is not guaranteed when data is being backed up to an on-board disk drive. The Client is responsible for ensuring that backup processing is occurring as well as verifying the existence and accuracy of the data being backed up. For mission critical data, Data393 highly recommends higher quality off-server backup services as well as periodic local backups.

Disclaimer of Warranty

THE SERVICES AND THE DATA393 SITE ARE PROVIDED TO CLIENT ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ALL PRODUCTS AND SERVICES DISPLAYED OR OFFERED ON THE DATA393 SITE, ALL TEXT, GRAPHICS, LINKS AND APPLICATIONS. DATA393 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO EACH OF THE FORGOING, WITHOUT LIMITATION: ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICUALAR PURPOSE, NON-INFRINGEMENT OR ARISING UNDER FROM A COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DATA393 SPECIFICALLY DISCLAIMMS ANY WARRANTY THAT (1) THE SERVICES WILL BE UNINTERUPTED OR ERROR-FREE; (2) DEFECTS WILL BE CORRECTED; (3) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, AND (4) THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT.

Limitation of Liability

IN NO EVENT SHALL DATA393 BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS, USE OF THE DATA393 SITE OR ANY DATA393 PRODUCTS OR SERVICES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL DATA393 CUMULATIVE LIABILITY EXCEED AN AMOUNT GREATER THAN FIVE HUNDRED DOLLARS ($500 US).

THE DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY ARE MATERIAL TO THIS AGREEMENT.

Miscellaneous

Severability

If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provisions or portions thereof shall be deemed omitted.

Integration

This Agreement, including the Exhibits, attachments, and/or any addenda, represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties. No obligations beyond those set forth in this Agreement shall be assumed.