- Overview
The Universal Terms of Service Agreement
sets forth the general terms and conditions of your use of the Site and the
Services. This Hosting Service Agreement this (“Service Agreement”) governs
your use of Exerax’s Hosting services “Hosting Services”). Capitalized terms
used in this Service Agreement, but not defined are defined in the Agreement.
- DESCRIPTION
OF SERVICES
- Web
Hosting: Web
Hosting plans place your site within one or more servers. Resources are
shared between many customers on the same servers; however, your site is
given a unique address (DNS)
- Virtual
Private Server (“VPS”): VPS plans place your site within a server
shared with other customers, but you will have full control over your
server space and the complete configuration of your virtual instance on
the server. You will have administrator (root) access and a dedicated IP
address
- Dedicated
Server: Dedicated
and Game Server plans reserve an entire server exclusively for your
account and usage. You will have exclusive rights to your server's bandwidth,
memory, and storage space, and your server’s performance will not be
affected by traffic and the usage patterns of other customers
- Website
Backup: Website
backup and restore services saves all your website files to the cloud
once per day. These backups and restore services are available with
website hosting plans and may be available for an additional fee with our
other hosting service plans. For hosting backup services available as
part of a Hosting subscription plan, those services will be canceled if
the Hosting subscription plan is canceled.
- ACCOUNT
TERMINATION; LIMITATIONS
- Migration
of Servers: You
acknowledge and agree that as a normal course of business, it may be
necessary for us to migrate our servers. As a result, even if you have a dedicated
IP, you may be assigned a different IP number. We do not warrant that you
will be able to consistently maintain your given IP numbers.
- Termination
of Hosting Services: You acknowledge and agree that upon
expiration or termination of your Hosting Services, you must discontinue
use of the Hosting Services and relinquish use of the IP addresses and
server names assigned to you in connection with Hosting Services,
including pointing the domain name system (“DNS”) for your domain
name(s) away from our servers. Prior to termination of the Hosting
Services, you are responsible for moving your website or server content
off our servers. We will not transfer or FTP your website or server
content to another provider. If you fail to move your website or server
content off our servers prior to cancellation, we will delete all such
content and we will not be able to provide a copy of such content.
- Free
Products Credits: Upon termination of the Hosting Services,
all free products provided as part of the Hosting Services will be
cancelled or revoked.
- Notice
Regarding Licensed Images on Migration or Export (where available): Subject to all other
applicable licenses terms and conditions, images available and licensed
for use are intended for Exerax hosted customers only and are subject to
the terms and conditions of third-party intellectual property rights and
licensing restrictions. To the extent you wish to export or migrate your
hosted product or service to another service provider (if available as an
option), it is solely your responsibility to ensure your continued right
to use any images incorporated therein, and you acknowledge and agree
that Exerax does not warrant and shall have no responsibility for any
claims resulting from your continued use after migration and/or
termination (whichever occurs first).
- Storage
Capacity: The
total amount of usable storage capacity for your Hosting Service(s) may
differ from the represented capacity, as there is required space for the
operating system(s), system file(s), and other supporting file(s).
- YOUR
OBLIGATIONS; REPRESENTATIONS AND WARRANTIES
- Justification. You acknowledge and agree
that we shall have the right to seek justification in connection with
your use of the Hosting Services, specifically your purchase of IP
addresses, and you shall be obligated to provide all information
reasonably sought by us pursuant to such justification. In connection
with such purchase, you acknowledge and agree that your name and
justification may be disclosed to certain registries including, but not
limited to, the American Registry of Internet Numbers, in accordance with
policies promulgated by all such registries and such information may be
displayed publicly on the Whois database.
- Abusive
Activities and Other Threats. You acknowledge and agree that you may not use
our servers and your website as a source, intermediary, reply to address,
or destination address for mail bombs, Internet packet flooding, packet
corruption, denial of service, or other abusive activities that threaten
the stability of our network or will damage the systems of, or cause a
disruption of internet services to, Exerax, our customers, or third
parties. Server hacking or other perpetration of security breaches is
prohibited and we reserve the right to remove sites containing
information about hacking or links to such information. Use of your
website as an anonymous gateway is prohibited. We prohibit the use of
software or scripts run on our servers that cause the server to load
beyond a reasonable level, as determined by us. You agree that we reserve
the right to remove your website temporarily or permanently from our
servers if you are in violation of this Service Agreement and/or there
are activities that threaten the stability of our network. You acknowledge
and agree that all websites associated with your hosting account may be
removed if one website is in violation of this Service Agreement. You
further acknowledge and agree that Exerax reserves the right to scan your
hosted account for malicious content (e.g., malware), and that, in the
event any such content is discovered, it may be removed in Exerax's
discretion for security purposes.
- Storage
and Security. You
shall be solely responsible for undertaking measures to: (1) prevent any
loss or damage to your website or server content; (2) maintain
independent archival and backup copies of your website or server content;
and (3) ensure the security, confidentiality and integrity of all your
website or server content transmitted through or stored on our servers.
Our servers are not an archive and we shall have no liability to you or
any other person for loss, damage or destruction of any of your
content. The Hosting Services are not intended to provide a PCI
(Payment Card Industry) or HIPAA (Health Insurance Portability and
Accountability Act) compliant environment and therefore should not be
used or considered as one. You shall not use the Service in any way, in
our sole discretion, that shall impair the functioning or operation of
our services or equipment. Specifically, by way of example and
not as a limitation, you shall not use the Hosting Services as: (1) a
repository or instrument for placing or storing archived files; and/or
(2) placing or storing material that can be downloaded through other websites.
You acknowledge and agree that we have the right to carry out a forensic
examination in the event of a compromise to your server or account.
- Website/Server
Content. You
shall be solely responsible for providing, updating, uploading and
maintaining your website or server and all files, pages, data, works,
information and/or materials on, within, displayed, linked or transmitted
to, from or through your website or server including, but not limited to,
trade or service marks, images, photographs, illustrations, graphics,
audio clips, video clips, email or other messages, meta tags, domain
names, software and text. You acknowledge and agree that while providing
you with technical assistance, it may be necessary for our support staff
to modify, alter or remove the content of your hosted product. Your
website or server content shall also include any registered domain names
provided by you or registered on behalf of you in connection with the
Hosting Services.
If access to a third-party hosting website is required in the provision
of any Service, you represent and warrant that you are authorized to
provide us with access to the third-party hosting account for the
purposes of this Service Agreement. You agree that you retain sole
contractual and any other legal or fiduciary responsibilities related to
your third-party hosting account.
If you request that we install any Third Party Software (defined below)
not provided as part of the Hosting Services, you represent and warrant
that (1) you have the right to use and install the Third Party Software,
(2) you have paid the applicable licensing fees for the Third Party
Software, and (3) the Third Party Software does not and shall not
infringe on the intellectual property rights of any other person or
entity.
- PROVISIONS
SPECIFIC TO WEB, BUSINESS AND MANAGED WORDPRESS HOSTING
- Storage
and Plan Limits. All
Web Hosting and WordPress Hosting plans, including the unlimited plans,
are subject to a limit of no more than 250,000 inodes per account for
Linux® hosting accounts or 500,000 files and folders per account for
Windows® hosting accounts. The plans are also limited to no more than
1,000 tables per database and no more than one gigabyte of storage per
database. Any account or database that exceeds these limits may be issued
a network violation warning and will be required to reduce the number of
inodes, files and folders, tables or gigabytes (as the case may be), or
may be temporarily or permanently suspended, in our sole discretion. All
Linux hosting plans are subject to the following limitations: no more
than a) 25% of one CPU core; b) 512MB of RAM; c) 100 website connections;
d) 100 active processes; e) 1 MB/s disk IO. In the event these
limitations are exceeded, your site may slow down or not be served until
more resources are added. More resources may be added for additional
fees.
WordPress Hosting may only be used to host a WordPress website. Only a
single WordPress installation is allowed per website. Any WordPress
hosting account found to be hosting a non-WordPress website may be issued
a network violation warning and will be required to remove the
non-WordPress website, or may be temporarily or permanently suspended, in
our sole discretion. Additionally, you may be required to purchase an
appropriate hosting plan in order to host the non-WordPress site should
you wish to continue hosting the non-WordPress site on our network.
Free Trial hosting credits are subject the following limitations: no more
than a) 25% of one CPU core; b) 256MB of RAM; c) 10 website connections;
d) 100 active processes; e) .5 MB/s disk IO; f) 50,000 inodes; g) 1 GB
diskspace; h) 10 GB monthly bandwidth. In the event these limitations are
exceeded, your site may slow down or not be served until more resources
are added. More resources may be added by upgrading to a paid plan.
You acknowledge and agree that inbound UDP is not supported in shared
hosting environments.
- Website/Server
Content. Your
website may not include any of the following content: (1) image hosting
scripts that allow an anonymous user to upload an image for display on
another website (similar to Photobucket or Tinypic); (2) banner ad
services for display on other websites or devices (commercial banner ad
rotation); (3) file dump/mirror scripts that allow an anonymous user to
upload a file for other to download (similar to rapidshare); (4)
commercial audio streaming (more than one or two streams); (5) push
button mail scripts that allow the user to specify recipient email
addresses; (6) anonymous or bulk SMS gateways; (7) backups of content
from another computer or website; (8) Bittorrent trackers; or (9) any
script that causes a degradation in the performance of our server or
network environment.
- Unlimited
Disk Space/Bandwidth/Website Plans. Web Hosting and WordPress Hosting plans are
designed to host most personal, small business and organization websites,
and thus we offer unlimited bandwidth and some plans offer unlimited disk
space and websites. This means that we do not set a limit on the amount
of bandwidth, websites or disk space you may use in the operation of your
website, provided it complies with this Service Agreement. In the event
the bandwidth, number of websites or disk space usage of your website
presents a risk to the stability, performance or uptime of our servers,
data storage, networking or other infrastructure, you may be required to
upgrade to a VPS or Dedicated Server, or we may take action to restrict
the resources your website is utilizing.
- Website
Accelerator Service. Our Website Accelerator service (“Website
Accelerator”) provides a content delivery network (CDN) designed
to optimize your website performance through caching and secure
distribution of static website content on a network of nationally
dispersed servers. You acknowledge and agree that your website content
will be stored throughout the United States. You acknowledge and agree
that Website Accelerator may be discontinued or suspended at any time,
and your participation is subject to eligibility, as detailed below.
- PROVISIONS
SPECIFIC TO VPS AND DEDICATED HOSTING
- IP
Addresses. You
acknowledge and agree you are required to begin using at least ninety
percent (90%) of your purchased IP addresses within thirty (30) days of
assignment of such IP addresses to you. In the event you do not begin
using at least ninety percent (90%) of your assigned IP addresses within
thirty (30) days of assignment, you acknowledge and agree that we shall
have the right to reclaim any unused IP addresses.
- FTP
Back-Up. We
offer an FTP Backup option for an extra fee. You acknowledge and agree
that purchasing FTP Backup may require additional down time to install
and maintain. You further acknowledge and agree that in utilizing the FTP
Backup option, you shall be subject to a maximum disk space and bandwidth
usage according to the plan you purchase. Subject to the terms and
conditions of this Service Agreement, we shall use commercially
reasonable efforts to provide FTP Backup services on a twenty-four (24)
hours per day, seven (7) days per week basis throughout the term of this
Service Agreement. You acknowledge and agree that from time-to-time the
FTP Backup services may be inaccessible or inoperable for any reason,
including, without limitation: (1) equipment malfunctions; (2) periodic
maintenance procedures or repairs that we may undertake from time to
time; or (3) causes beyond our control or that are not reasonably
foreseeable including, but not limited to, interruption or failure of
telecommunication or digital transmission links, hostile network attacks,
network congestion or other failures. FTP Back-up may not be available on
all hosting plans.
- Configuration
Add-Ons. We
offer multiple configuration options (“Configuration Add-Ons”) for
an extra fee. The specific Configuration Add-Ons available depend on which
hosting package you purchase, but may include a control panel, database,
external firewall or RAID. You acknowledge and agree that installing a
Configuration Add-On will use some of your available storage, may require
additional provisioning time, will require us to install Third Party
Software (defined below), third party hardware or internally developed
custom software to your server, and, in some cases, may limit the
versions of Third-Party Software available for use with your server.
Third Party Software, third party hardware and internally developed
customer software will be supported by us. If you wish to cancel RAID,
you will be required to cancel your server and purchase a new one.
- Plesk.
In the event you add Plesk to your server, you agree to be bound by
the Plesk EULA, which is hereby
incorporated by reference.
- cPanel.
In the event you add cPanel to your server, you agree to be bound by the cPanel EULA, which is hereby
incorporated by reference.
- cPanel
Fair Usage Policy: This policy is a guide to understand the
intended uses of our Services, and to prevent exploitation and abuse of
the unlimited features offered in our plans. VPS and dedicated hosting
with cPanel offer unlimited number of accounts. Although we do not wish
to set a specific limit, as a guideline, a threshold of 100 accounts
will be considered normal, reasonable use. We evaluate your usage in
comparison to typical levels of usage engaged in by other users. In the
event that you exceed this threshold, Exerax may in its sole and
absolute discretion, assess additional usage charges for accounts in
excess of the threshold or restrict additional accounts from being
created. Where possible, Exerax will provide a notice of your usage in
excess of the normal use.
- PROVISIONS
SPECIFIC TO MANAGED SSL
If you purchased Managed SSL and are
using an SSL certificate on a website hosted by us, we will generate and
securely store a corresponding private key. For security reasons, at no time
will we release your private key, even per your request. If you wish to export
your SSL certificate for use on a non-Exerax server, request a re-key of the
SSL certificate - your current SSL certificate will become invalid and we will
issue a new certificate for use on your non-Exerax server.
We will automatically validate, issue and install the new
certificate every two years for subscribing customers using our hosting
products. Customers using 3rd party hosting products will be
required to reinstall the new certificate after we automatically validate and
issues a new certificate. We will alert customers when to take action via the
product dashboard and email.
You are permitted to assign a representative the authority to (1) sign and
submit, or approve a certificate request on your behalf, (2) sign and submit a
Subscriber Agreement on your behalf and/or (iii) to acknowledge the Terms of
Use on your behalf, provided you acknowledge and agree that you are and will
remain subject to and bound by all terms and conditions of this Agreement.
- PROVISIONS
SPECIFIC TO SUPPORT PLANS
- Hosting
Migrations. If
you have your domain name registered with us and the web hosting
associated with the domain is provided by a third-party, we may, at your
request and in our sole discretion, attempt to assist you to move the web
hosting for the domain name to us (“Hosting Migration”). Hosting
Migrations are provided as a courtesy service, and we do not make any
guarantee regarding the availability, possibility, or time required to
complete a Hosting Migration. Each hosting company is configured
differently, and some hosting platforms save data in an incompatible or
proprietary format, which may make us unable to assist you in the
transfer of data from a third-party host.
You are solely responsible for reviewing the functionality and accuracy
of migrated content in its new location following a Hosting Migration. If
you are satisfied with the data migration, you will need to update the
DNS record for the domain name in order to publish the website in its new
location. We will not perform website backups or archives in connection
with a Hosting Migration, and we recommend that you back up your
third-party hosted website before migration to ensure that no data is
lost. You agree not to make any changes or revisions to your website
during the migration process.
You agree that we are not liable for any delay in website resolution or
loss of data related to your Hosting Migration. Hosting Migrations are
not available for websites with over 10GB of data or more than 100,000
files.
We may install a plugin on your external WordPress site for the purpose
of facilitating your WordPress migration into our own Managed WordPress
hosting environment. This plugin will not change anything on your source
site. Its purpose is to facilitate the Hosting Migration of your
WordPress files. You are welcome to disable the plugin on your source
site after the Hosting Migration has been completed.
- SERVICE
UPTIME GUARANTEE
We offer a Service uptime guarantee of
99.9% (“Service Uptime Guarantee”) of available time per month. If we
fail to maintain this Service Uptime Guarantee in a particular month (as solely
determined by us), you may contact us and request a credit of 5% of your
monthly hosting fee for that month. The credit may be used only for the
purchase of further products and services from us and is exclusive of any
applicable taxes. The Service Uptime Guarantee does not apply to service
interruptions caused by: (1) periodic scheduled maintenance or repairs we may
undertake from time to time; (2) interruptions caused by you from custom
scripting, coding or the installation of third-party applications; (3) outages
that do not affect the appearance of your website but merely affect access to
your website such as FTP and email; (4) causes beyond our control or that are
not reasonably foreseeable; and (5) outages related to the reliability of
certain programming environments.
- THIRD
PARTY SOFTWARE
- Definition
and Scope. As
part of the Hosting Services, you may be allowed to use certain software,
widgets, or other applications (“Software”) developed, owned, or licensed
by a third-party. Your use of this Software may be subject to additional
terms. If the Software is accompanied by or requires a license agreement
from the third-party provider, your use of the Software is subject to
that license agreement, in addition to this Service Agreement.
- Terms
and Conditions Applicable to all Software and Operating Software. You may use the Software
and Operating Software solely as part of the Services. You may not
remove, modify, or obscure any copyright, trademark, or other proprietary
rights notices that are contained in or on the Software. Additionally,
you may not sell, modify, re-use reverse-engineer, decompile,
disassemble, reverse compile, create derivative works of or attempt to
derive the source code from the Software.
Exerax may provide your personal information to third-party providers as
required to provide the third-party Software. Exerax reserves the right
to modify, change, or discontinue provision of the Software at any time.
Exerax makes no representations or warranties about any third-party
Software offered in connection with the Hosting Services, and expressly
disclaims any liability.
You will indemnify, defend, and hold harmless Exerax from and against all
claims imposed upon or incurred by Exerax directly or indirectly arising
from your use or misuse of the third-party Software. The providers of the
third-party Software are third-party beneficiaries to this Services
Agreement for purposes of enforcing their rights under this Services
Agreement.
The Hosting Services may be operated in both Linux® and Windows®
environments. Each time you commission a server, we will provision the
server with the operating system you choose.
We reserve the right to modify, change, or discontinue any Third-Party
Software at any time, and you agree to cooperate in performing such steps
as may be necessary to install any updates to the Third-Party Software.
The Third-Party Software is neither sold nor distributed to you, and you
may use the Third-Party Software solely as part of the Hosting Services.
You may not use the Third-Party Software outside of the Hosting Services.
We may provide your personal information to third-party providers as
required to provide the Third-Party Software. You acknowledge and agree
that your use of the Third-Party Software is subject to our agreement(s)
with the third-party providers. In addition, if the Third-Party Software
is accompanied by or requires consent to a service or license agreement
from the third-party provider, your use of the Third-Party Software is
subject to such service or license agreement. You may not download,
install, or use any Third-Party Software that is accompanied by or
requires consent to a service or license agreement from a third-party
provider unless you first agree to the terms and conditions of such
service or license agreement. You may not remove, modify, or obscure any
copyright, trademark, or other proprietary rights notices that are
contained in or on the Third-Party Software. You may not reverse engineer,
decompile, or disassemble the Third-Party Software, except and only to
the extent that such activity is expressly permitted by applicable law.
You acknowledge and agree that the third-party providers (and their
affiliates and suppliers) make no representations or warranties about any
Third-Party Software offered in connection with the Hosting Services, and
expressly disclaim any liability or damages (whether direct, indirect, or
consequential) arising from the use of the Third-Party Software. You
acknowledge and agree that any Third-Party Software will be supported by
us and not by the third-party providers (or their affiliates or
suppliers).
- Additional
Terms and Conditions Applicable to images and Software. The third-party
providers listed in this section make no representations or warranties
about any Software offered in connection with the Hosting Services, and
expressly disclaim any liability or damages (whether direct, indirect, or
consequential) arising from the use of the Software.
You are responsible for managing and maintaining in good standing any
paid subscription and/or account required with a third-party provider.
You must cancel or terminate your paid subscription and/or account with
the applicable third-party provider and not Exerax.
Regarding this Section 9.3, “Personal
Data” means any information relating to an identified or identifiable natural
person or, to the extent applicable under Applicable Laws, a household; an
identifiable person is one who can be defined, directly or indirectly, notably
but not limited to by reference to a user identification or unique identifier,
such as name, identification number, precise geo-location data, online user
identification, or by reference to one or more factors specific to physical,
physiological, genetic, economic, cultural, or social identity. “Personal Data”
does not include aggregated, anonymous, or de-identified data, such as Usage
Data. “Usage Data” as used herein means all information reflecting the access
or use of the Hosting Services by or on your behalf, including, but not limited
to visit-, session-, steam-data and statistical or other analysis, information
or data based on or derived from any of the foregoing. You acknowledge and
agree that you have no rights to Usage Data. , as such terms are defined by
Applicable Laws.
Any use of any Hosting Services involving Exerax’s Dedicated Servers running on
the DED4 Platform that involves You storing specially protected data is subject
to the following additional terms:
- You
will not submit through the Hosting Services any unencrypted Protected
Health Information, as defined in the Health Insurance Portability and
Accountability Act (“HIPAA”) (“PHI”);
- You
will not submit through the Hosting Services any encrypted PHI unless
the Parties have entered into a mutually acceptable Business Associate
Agreement (“BAA”) in accordance with HIPAA;
- You
will not submit through the Hosting Services any unencrypted Personal
Data subject to regulatory protection under Applicable Laws of the
United States federal, state, or local governmental authorities; and
- You
will not submit through the Hosting Services any encrypted Personal Data
without providing prior notice and obtaining prior consent from the data
subject, as required by Applicable Law