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This Master Services Agreement (“MSA”), which includes the agreements, policies, and documents referenced in this MSA, governs the relationship between Hostway Services, Inc. (dba SolVPS) and any persons using the Services (as defined below). Upon the date Client submits an Order Form or starts using the Services (as applicable), Client agrees to be bound by this MSA as updated from time to time in accordance with the amendment provisions herein. Depending on the type of Services applicable, Client may be subject to certain supplemental terms as described in the Service Addenda attached hereto and incorporated by reference. If there is any conflict between this MSA and any relevant Service Addendum, then the terms of the Service Addendum will govern Client’s use of the applicable Services solely to the extent of the conflict. This MSA is comprised of the following and includes such further agreements, policies, and documents as referenced in each of the following:
These General Terms apply to all persons using Services.
1.1.1. All other defined terms not listed in this section are defined in their respective sections below or in the applicable Service Addenda and apply to the MSA as a whole (and not limited to the section the term is defined in).
“Abuse of Services” means Client’s use of the Services (including making any component of the Services available to Client’s resellers, customers or End Users) in a manner that (a) contravenes applicable laws, including regulations, policies, and rules thereto, (b) creates legal liability or other actual or potential material risk or harm to SolVPS, its Affiliates, SolVPS other clients and end users, or SolVPS Systems, (c) is a material violation of the MSA, or (d) is generally considered materially objectionable in the Internet community, including but not limited to child pornography, racism, hate speech.
“Affiliate” means any person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such first person, with “control” meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, and “person” broadly construed to include any natural person or any incorporated or unincorporated entity or association, trust, joint venture, joint stock company or other entity.
“Billing Cycle” means the recurring period of time for which Service Fees are payable by Client to SolVPS as specified in the Order Form, Client Portal, or invoice (as applicable).
“Business Day” (or “business day”) means the period from 8:00 A.M. to 5:00 P.M. Central Time on a day which is not a weekend or statutory holiday in Chicago, Illinois, USA.
“Claim” means any claim, demand, action, or proceeding (including law suits and administrative proceedings).
“Client” means the person (individual, company, etc.) named in the Order Form as the Client or, in the absence of Client’s name on such Order Form, the person otherwise using Services.
“Client Account” means the account set up by SolVPS, attributed exclusively to Client, identified by the Client ID, and used for the provisioning and administration of the Services to Client.
“Client Data” means personal information relating to Client and data owned or controlled by Client, including (a) names, addresses, and other personally identifiable information pertaining to Client, (b) usage data collected by Client, (c) Client’s content hosted on SolVPS Systems, including Client’s Uniform Resource Locators, Web pages and other website data, software and applications, Protected Healthcare Information as such term is further described in the appropriate section below, and (d) any of the same relating to or owned by an End User.
“Client Device(s)” means the personal computer(s), server(s), network and systems owned by Client and installed at Client’s own premises.
“Client ID”, or “customer ID” means the combination of alphanumeric characters designated by SolVPS which (a) is unique to Client, and (b) identifies the Client and the Client Account to SolVPS.
“Client Portal” means SolVPS online portal or interface tool for Client to manage the Client Account and associated Services.
“Effective Date” means The Effective Date of each Order Form is the later of the date that the Order Form is executed by Client and submitted to SolVPS or the date that the Services are made available to Client (in whole or in part).
“End User” means any third party who accesses or uses the Services via Client or any Affiliate of Client.
“End User Data” means personal information relating to an End User and data owned or controlled by the End User, including (a) names, addresses, and other personally identifiable information pertaining to End User, (b) usage data collected by Client or End User regarding an End User’s own use of the Services, and (c) an End User’s content hosted on SolVPS Systems, including End User’s Uniform Resource Locators, Web pages and other website data, software and applications, Protected Healthcare Information.
“Intellectual Property” means any and all rights, title, interest, and ownership, whether by registration, statute, common law or other operation of law, in and to: (a) copyrights, (b) patents, (c) trademarks, (d) trade secrets, (e) any other proprietary, intellectual, or industrial property rights of any kind or nature, (f) registrations and registration applications of the foregoing in any jurisdiction, (g) in SolVPS case, SolVPS Data and SolVPS Systems, and (h) in Client’s case, Client Data.
“Late Charges” means the interest, equal to 1.5% monthly and 18% annual (or the maximum permitted by law if lesser), to be applied to any portion of the Service Fees not paid by Client to SolVPS before the applicable due date.
“Losses” means any loss, liability, damage, penalty, cost, or expense (including reasonable lawyer fees, witness compensation, and court fees).
“Migration Services” means services which involve moving Client Data from Client’s former hosting provider to SolVPS.
“Minimum Term” means the specific period described in the Order Form, during which time Client may not terminate the Order Form, any Services ordered thereunder, or this MSA.
“MSA” means this document and all Service Addenda that are attached hereto and incorporated herein by reference.
“Order Form” means SolVPS online or hard copy form or statement of work, which (a) references, incorporates, and is an integral part of this MSA (including the applicable Service Addenda), and (b) describes the Services to be provided to Client.
“Party” means either SolVPS or Client individually and “Parties” means both of them collectively.
“Renewal Term” means the period or successive periods starting from the expiration of the Minimum Term specified in the applicable Order Form for which the Order Form and the Services thereunder are renewed.
“Representatives” means, collectively, a Party’s shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders.
“Services” means the products, services, and licenses provided to Client by SolVPS, whether or not used or paid for by Client, which may include any combination of the following:
“Service Fees” means the money amounts or rates, specified in, as applicable, the Order Form, Client Portal, invoice from SolVPS, or which Client has otherwise agreed to pay to SolVPS in consideration of the Services provided, whether used by Client or not.
“SolVPS Data” means any data relating to SolVPS, all Services or SolVPS Systems, including (a) IP addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by SolVPS regarding Client’s use of the Services, and (e) all other data owned or controlled by SolVPS.
“Systems” means the technology (including systems, networks, facilities, infrastructure, computer servers, other hardware, software, online application program interfaces, IP addresses, and other technologies) owned, licensed, controlled, or otherwise used by SolVPS to provide Services to Client, and, as applicable, to End Users and Client Affiliates.
“Technical Support” means the assistance and advice SolVPS technical support staff provides to Client, as part of the Services, via electronic mail, telephone, or other means of communication as designated by SolVPS (including SolVPS ticketing system).
“Third Party Products” means the equipment, software, products or services procured from a Third Party Vendor which SolVPS, in turn, provides to Client as part of, or in combination with, SolVPS own products and services which are part of the Services.
“Third Party Vendor” means a third party vendor who provides SolVPS with Third Party Products to be, in turn, provided to Client by SolVPS as part of, or in combination with, the Services.
“Third Party Vendor Audit” means an audit performed by either SolVPS or a Third Party Vendor with respect to the Third Party Products.
1.1.2 Order of Precedance Unless stated expressly in an Order Form or any Service Addenda, if there is an inconsistency or conflict between the terms of those documents and the MSA, then the terms of this MSA will govern.
1.1.3 References All references in the MSA to particular titles, headings, and sections will be references to the titles, headings, and sections of the MSA only, unless specific reference is made otherwise. Such titles, headings, and sections are for reference purposes only and will have no effect on the interpretation of the MSA. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning will refer to the MSA in its entirety, which includes all Order Forms and Service Addenda, and not to any particular provision of the MSA. Bolding, underlining, or italicizing of words herein are for ease of reference only and the application or omission of them will have no effect on the interpretation of the MSA.
1.1.4 Without Limitation When used for listing purposes, the term “including” and “includes” will be deemed to mean “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in the MSA that the masculine, feminine or neutral gender is used, it will be construed as including all applicable genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires.
1.1.5 Translations The MSA was written in the English language. If there is any discrepancy between the English version and a version in any other language, then the English version will control in all respects.
1.2.1 TermThis MSA will continue in full force and effect until all Order Forms and the Client Account are terminated in their entirety. The term of each Order Form will commence upon the Effective Date and will continue for the duration of the Minimum Term, and any successive Renewal Terms, until terminated by a Party in accordance with this MSA. In the event that Minimum Term and Renewal Term are not specified in the Order Form, the term of each will be one month.
1.2.2 Renewal Upon expiration of the Minimum Term, the Order Form will automatically renew for successive Renewal Terms until either Party terminates the Order Form, or the Client Account and the MSA in their entirety, in accordance with the termination provisions herein.
In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with this MSA, including all applicable Service Addenda, SolVPS will provide to Client the Services as described in the Order Form. In furtherance of providing the Services to Client, SolVPS hereby grants to Client a worldwide, limited, non-exclusive, non-transferable, fully revocable license to use SolVPS Systems in connection with the Services as permitted in this MSA. SolVPS may, at its sole discretion, add to, modify, remove, or re-price any particular product or service from the Services based on factors including the unavailability of any relevant Third Party Products. To prevent downtime caused by outdated components or malfunction and to protect the security of SolVPS Systems, Client hereby consents to (a) SolVPS upgrading, repairing, or replacing its Systems that are hosting Client Data at any time with or without notice to Client, and (b) SolVPS migrating Client Data within its Systems at any time with or without notice to Client. SolVPS may (at SolVPS sole discretion) provide any of the Services (in whole or in part) through an Affiliate of SolVPS, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within SolVPS Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access. In the event that Client refuses or fails to permit such access, Client understands and agrees that SolVPS is not responsible for any malfunction or delay in the performance of the Services resulting therefrom. In connection with Technical Support, SolVPS makes no representation or warranty that SolVPS will be able to find the cause of, or resolve, the problem for which Client contacts SolVPS for Technical Support. Unless otherwise expressly specified in the Order Form, SolVPS is not responsible for providing Technical Support, or any other support (including customer service, billing support, and sales support), to Client’s resellers, customers, and End Users.
SolVPS will ensure that its Systems are connected to the Internet in order to provide the Services to Client. Client is solely responsible, and SolVPS is not responsible, for sourcing and paying for network resources used to connect Client to the Internet.
Client will agree to, be bound by, and comply with the terms of any license or other agreement for Third Party Products that may be required by the applicable Third Party Vendor (such as, but not limited to, the any named in this Section 1.5). Client acknowledges that Client’s use of Third Party Products is subject to Client’s agreement to, and compliance with, the terms and conditions of the Third Party Vendors who provide the respective Third Party Products. The Third Party Vendors are permitted to perform directly Third Party Audits on SolVPS Systems (including any computer server or other hardware licensed to Client by SolVPS as part of the Services) with regards to their respective Third Party Products. All trademarks and other Intellectual Property rights associated with or attached to a Third Party Product belong solely to the relevant Third Party Vendor and are used by SolVPS subject to license from such Third Party Vendor. Except as permitted in the licenses which are a part of the Third Party Products, nothing herein grants to Client any right, title, or interest in or to a Third Party Vendor’s Intellectual Property. SolVPS makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of Third Party Products. Client acknowledges that Third Party Products may, at any given time, be no longer be available or may be revoked at the discretion of the Third Party Vendor. Any mention of Third Party Products by SolVPS, its employees, or any third party entity related to SolVPS is for information purposes only and does not constitute an endorsement or recommendation by SolVPS. SolVPS disclaims any and all liabilities for any representation or warranty made by the Third Party Vendors of the Third Party Products.
Upon Client’s submission or execution of an Order Form, SolVPS will create a unique Client Account and Client ID for Client. Once the Client Account and associated Client ID have been set up, SolVPS will provide Client with appropriate login credentials and access to the Client Portal.
The legal owner of the Client Account is the person who is identified as the “Client” in the applicable Order Form or, in the absence of such name in the Order Form, the person otherwise using Services. It is Client’s sole responsibility, and not SolVPS responsibility, to ensure that (a) Client’s correct full legal name is stated on the Order Form and in the Client Account, (b) Client’s current name and other contact information is kept up-to-date with SolVPS, (c) the Client ID and associated password are kept secure and disclosed only to those with a need to know, and (d) SolVPS receives all documentation reasonably requested by SolVPS to ascertain the correct legal owner of the Client Account in the event of a dispute or verification of Client’s identification. The includes regularly updating the Client Account to accurately reflect staff departures or changes in service providers Client may have used to subscribe for Services (e.g., website design companies or online media management companies) who may have used their name as the contact person for the Client Account. In the event of a dispute, or in the event of a reorganization or dissolution of the Client, the legal ownership of the Client Account will be as follows in order of precedence: (1) the company or organization listed on the Client Account in SolVPS database; (2) the individual who submitted or executed the Order Form; (3) the individual who is the cardholder of the credit card used to pay the most recent Service Fees for the Client Account.
Client acknowledges that (a) the person listed as the “Registrant” of the domain name in the public Whois registry is the legal owner of that domain name, (b) the person listed as the “Admin” (or administrative contact) of the domain name in the Whois registry has access to the username and password, which gives such person the ability to change the Whois information, (c) ownership and administration (including registration renewal and billing) of a particular domain name is independent of the ownership and administration of the Client Account even if the domain name is associated with the Client Account, (d) it is Client’s sole responsibility, and not the responsibility of SolVPS, to ensure that the Registrant and Admin information are up-to-date in the Whois registry, and (e) domain names are subject to the standard terms and conditions, as amended from time to time, of the ICANN-accredited domain name registrar and applicable registry, which Client is bound by at the time Client registers the domain name(s).
Each time Client wishes to communicate with SolVPS about the Client Account or Client Data, Client will abide by SolVPS then-current security measures and identification verification processes, including answering identification verification questions over the phone and submitting a proof of identity form. SolVPS is not responsible or obligated to restore access to the Client Account to any person if that person is unable to meet SolVPS security measures and procedures to SolVPS sole reasonable satisfaction.
SolVPS has no responsibility to act as an arbiter, mediator or other authority in the event of a dispute over the ownership of the Client Account or domain name associated with the Client Account or any other dispute between Client and a third party (including Client’s current or former employees, contractors, agents or vendors). SolVPS may suspend Client’s access to, or place an administrative lock on, the Client Account and associated domain name(s) pending an investigation into the ownership thereof.
SolVPS will have continuous root administrative access and physical access to its Systems at any time, including any computer servers and other hardware licensed to Client as part of the Services. Client acknowledges that SolVPS requires such access to in order to provide the Services, including Technical Support. The access provided hereunder may also be used by SolVPS for the purposes of conducting or performing an audit or report, whether by SolVPS directly or by an authorized third party, or pursuant to compliance with any applicable statute, government regulation, or Third Party Vendor requirement (such as in the course of a Third Party Audit
Client will not physically access any of SolVPS Systems, including computer servers and other hardware licensed to Client as part of the Services. Client may access the Client Account through the Client Portal using only Client’s own authentication credentials (username and password). Client is prohibited from accessing or attempting to access the client account, billing data, or other data of any other person using the Services.
All email accounts, including POP email accounts, which have not been logged into for a period of 4 consecutive months or more will be deemed abandoned and SolVPS may, at its sole discretion, delete the email account (“Abandoned Mailbox”) and all emails residing in the Abandoned Mailbox (“Abandoned Emails”). In such case, SolVPS will send an email to the master email account identified under the Client Account to notify that the Abandoned Mailbox and the Abandoned Emails will be deleted if the Abandoned Mailbox is not logged into within 14 calendar days. SolVPS may delete all content and data stored in any of Client’s spam folders, junk mail folders, and email accounts for 30 calendar days or more.
Client represents and warrants that Client is the owner of, or is duly authorized or licensed by the legal owner to, hold, store, upload, create, destroy, use, run, implement, modify, edit, or otherwise manage the Client Data. In the event that Client Data includes any software or application that is not provided by SolVPS, Client is solely responsible for supporting such software or application including maintaining the licenses and installing updates and upgrades to such software or application. SolVPS is in no way liable for the support of such software or application, including Client’s use or misuse thereof. Client is solely liable, and SolVPS will not be liable, for any unpaid licenses installed by Client on SolVPS Systems that are reported in the course of a Third Party Vendor Audit. Client further warrants that the access by SolVPS of any and all materials and data as furnished by Client to SolVPS in the provision of the Services will not violate or conflict with any Intellectual Property or privacy rights of any third parties including copyrights, patents and trademarks, protected health information, or personally identifiable information. Client warrants that it is authorized to permit SolVPS to use all relevant code for the purposes of performing the Services hereunder. In the event that Client requests SolVPS assistance or participation in any third party audit of the Client Data or of Client’s use of the Services, SolVPS agrees to reasonably cooperate with Client (at Client’s expense) to respond to any audit inquiries solely as related to the Services.
If Client uses, transmits, or otherwise handles any information related to an individual’s past, present, or future physical or mental health condition, any treatment for that condition, and any payment for that treatment which information identifies the individual or could reasonably be used to identify the individual (such information referred to as “Protected Health Information” or “PHI”), then Client will: (a) inform SolVPS in writing of Client’s intended use of the Services for PHI, (b) comply with all requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing rules and regulations, (c) comply with all requirements of the Health Information Technology for Economic and Clinical Health Act, codified at 42 U.S.C. §§17931-17953 (“HITECH”) and its implementing rules and regulations, and (d) execute, as between Client and SolVPS, a Business Associate Agreement as mandated by HIPAA and HITECH (in SolVPS standard form), whereby Client is the covered entity and SolVPS is the business associate or whereby Client is the business associate and SolVPS is the subcontractor if Client is the service provider of a covered entity (as the terms “covered entity”, “business associate”, and “subcontractor” are defined by HIPAA and HITECH). In addition to Client’s indemnification obligations under this MSA, Client will further indemnify SolVPS (including SolVPS Representatives) from and against any Claims against SolVPS or Losses incurred by SolVPS that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding Protected Health Information, or (ii) Client’s breach of HIPAA, HITECH, or any other relevant statute.
If Client orders Migration Services, then Client agrees that:
In addition, the Migration Services will further by governed by the Professional Services Service Addenda.
Unless the Order Form expressly includes SolVPS data backup services as part of the Services to be provided, Client is solely responsible, and SolVPS is not responsible in any way, for the backup (copy and storage for purposes of retrieval or data loss recovery) of Client’s data or the management of such backup. Client acknowledges that for any of SolVPS data backup services, Client’s data is backed up onto SolVPS Systems “as is” and that SolVPS backup services do not include any software, application, or other method for monitoring, remediating, or preventing viruses, malfunctions, corruptions, or other security issues with Client’s data or the backup thereof. It is Client’s sole responsibility, and not the responsibility of SolVPS, to (a) secure and protect, including encrypt, all Client Data which may be backed up through SolVPS Systems, (b) implement and maintain a disaster recovery plan, including adequate offsite backup commercially reasonable given the nature, scope, and sensitivity of Client’s data, and (c) locally backup all essential data on Client’s own systems independent of SolVPS (including at Client’s own premises) for purposes requiring data recovery or retrieval. Client is solely responsible, and SolVPS is not responsible, for the backup of any of Client’s data which may have resided on SolVPS Systems at one time but which no longer resides on SolVPS Systems at the time SolVPS backup services, if expressly included in the Order Form, is implemented. SolVPS expressly disclaims the usability, functionality, or accuracy of Client’s data backed up using SolVPS backup services. SolVPS makes no warranty of any kind (either express or implied) regarding any of SolVPS backup services, including (a) the format, readability, configuration, accuracy, completeness, retrievability, functionality or restorability of Client’s data backed up on SolVPS Systems to its original state, and (b) the functionality, compatibility or reliability of any of SolVPS backup services with any firewall or software or updates and upgrades thereto. If expressly included in the Order Form, then SolVPS provides its backup services “as is” without warranties of merchantability or fitness for a particular purpose. Under no circumstances will SolVPS be liable for any loss of Client’s data or for third party fees related to the recovery or restoration of Client’s data. Client’s use of SolVPS backup services is at Client’s sole risk.
SolVPS will use industry standard measures to detect and prevent unauthorized third parties from accessing SolVPS Systems. Notwithstanding anything to the contrary, Client acknowledges that SolVPS does not guarantee, and does not represent or warrant, that SolVPS Systems cannot or will not be accessed by unauthorized third parties.
Client hereby consents to SolVPS disclosing Client’s data required to be disclosed by any (a) law of the U.S.A., or (b) court order of any jurisdiction in the U.S.A. or other jurisdiction in which either SolVPS or Client operates its business. However, if and to the extent allowed by such law or court order, SolVPS will promptly notify Client in writing of the legal obligation and, if Client chooses, Client may seek protective measures against the requirement at Client’s sole expense and reimburse SolVPS for any reasonable expenses (including costs for legal advice, staff hours, and disbursements) incurred by SolVPS in complying with such requirement.
If Client engages in the “processing” of any “personal data” (as such terms are defined in the EU General Data Protection Regulation 2016/679 (“GDPR”)) from the European Union, then Client will: (a) inform SolVPS in writing of Client’s intended use of the Services for processing personal data from the EU, (b) comply with all requirements of the GDPR and all implementing rules, associated policies, and directives, (c) execute, as between Client and SolVPS, a data processing agreement in compliance with the GDPR (on SolVPS standard form), whereby Client is the data controller and SolVPS is the data processor or whereby Client is the data processor and SolVPS is the sub-processor (or level 2 processor) if Client is the service provider of a data controller (as the terms “processor”, “controller”, and “sub-processor” are defined by the GDPR), (d) adhere to the GDPR, including the designation of Client’s data protection officer and execution by Client of data processing agreements with data controllers and Client’s own sub-processors, and (e) ensure that Client is fully transparent about the nature and purpose of its processing of personal data. In addition to Client’s indemnification obligations under this MSA, Client will further indemnify SolVPS (including SolVPS Representatives) from and against any Claims against SolVPS or Losses incurred by SolVPS that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding processing of personal data from the EU, or (ii) Client’s breach of the GDPR or other applicable law.
In no way will any license granted by SolVPS in this MSA be an assignment of rights, title, or ownership in any of SolVPS Intellectual Property, including any of its Systems, and SolVPS retains sole and exclusive right, title and ownership in and to all of SolVPS Intellectual Property. As between SolVPS and Client, all IP addresses provided to Client by SolVPS belong exclusively to SolVPS. Client acknowledges that Client has no right to use such IP addresses except as permitted by SolVPS in connection with the Services and in accordance with this MSA. SolVPS may change or remove Internet Protocol numbers and addresses at its sole discretion. Except as otherwise expressly permitted in this MSA, Client may not use SolVPS Intellectual Property without obtaining the prior written consent, in each instance, of SolVPS. SolVPS Intellectual Property includes any data relating to SolVPS, the Services, or its Systems, including (a) IP addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by SolVPS regarding Client’s use of Services, and (e) all other data owned or controlled by SolVPS.
Client will not take any action or use any of SolVPS Intellectual Property or any Third Party Vendor’s Intellectual Property in a manner that (a) acquires, or may reasonably acquire, any rights, title, or interest in or to SolVPS Intellectual Property or any Third Party Vendor’s Intellectual Property by Client or a third party, or (b) compromises or diminishes SolVPS rights, title, or interest in or to SolVPS Intellectual Property or any Third Party Vendor’s rights, title, or interest in or to their Intellectual Property. If Client does acquire any rights, title, or interest in or to any of SolVPS Intellectual Property, by operation of law or otherwise, then Client will immediately assign such rights, title, or interest to SolVPS at Client’s sole cost. Client will not, and will not permit any third party, including its resellers, customers or End Users, to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any of the Services, SolVPS Systems, and Third Party Products to ascertain, derive, or appropriate for any reason or purpose the source code or source listings thereof or trade secrets contained therein.
Client is solely responsible, and SolVPS is not responsible, for the activities of any End User and for the activities of Client’s resellers and customers. Client will ensure that the use of Services by Client’s resellers, customers, and End Users will not be in contravention this MSA. If SolVPS receives complaints about Client’s resellers, customers or End Users (including complaints about infringement of a third party’s Intellectual Property), subject to SolVPS rights in this MSA to suspend Services, SolVPS may at its sole discretion (a) send a notice directly to the reseller, customer or End User requesting them to cease, remedy, and resolve the matter, or (b) forward the complaint to Client whereupon Client will take immediate action to ensure that the matter is resolved to SolVPS satisfaction. If the particular activity continues or the complaint is otherwise unresolved, then Client may be subject to termination or other action as SolVPS may deem appropriate.
If the Services provided to Client includes domain name registration services where SolVPS or a third party provider is named as the Registrant or Admin Contact in Client’s place (“Proxy Services”), Client agrees that if SolVPS or the third party provider does not receive a response to a communication sent to Client within 48 hours of such communication being sent, then SolVPS or the third party provider, as applicable, may suspend the Proxy Services or terminate all services (including, as applicable, all Services) at its sole discretion.
Client represents and warrants to SolVPS as follows:
Notwithstanding anything to the contrary in this MSA, SolVPS (a) makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, completeness, non-infringement, or validity of the Services, SolVPS Systems, or Third Party Products, and (b) provides all aspects of the Services, SolVPS Systems, and Third Party Products “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Client acknowledges that Client uses the Services, SolVPS Systems, and Third Party Products at Client’s sole risk. The Services cannot not prevent actions performed directly by Client or Client’s officers, directors, employees, contractors, or agents (for example, clicking on bad link), and SolVPS is not responsible or liable for such actions, including any loss or damage resulting therefrom. No verbal advice or written information given by SolVPS, its employees, licensors or the like, will create a warranty and Client will not rely on any such advice or information as a warranty.
SolVPS will not be liable for delays in its performance of this MSA caused by circumstances beyond SolVPS reasonable control including natural disasters and other “acts of God”, fire and other destruction, sabotage, terrorism, war, insurrection, embargo and other acts of any governmental body, or strikes and other labor disturbances (“Force Majeure”). If SolVPS is affected by a Force Majeure, SolVPS will (a) promptly give written notice to Client, and (b) make reasonable efforts to reduce to a minimum and mitigate the effect of the Force Majeure.
Under no circumstances will SolVPS be liable to Client for any consequential, indirect, special, general, incidental, reliance, exemplary, or punitive damages arising out of or relating to this MSA or the Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if SolVPS has been advised of the possibility of such damages. SolVPS aggregate liability to Client, if any, arising out of or relating to this MSA or the Services will not exceed the aggregate amount of Service Fees paid hereunder during the 3 calendar months immediately preceding the event giving rise to the liability. No Claim by Client against SolVPS, relating to this MSA or the Services, will be effective after 1 calendar year (12 calendar months) from the time the event or cause of action comprising the basis of the Claim first occurred regardless of any statutory limitation period allowing for a longer period.
If SolVPS, or any Representative of SolVPS, incurs any Losses because of any Claim arising out of or in connection with the acts or omissions of Client or its employee, contractor, or agent which amount to (a) breach of this MSA (including a breach of any representations or warranties made by Client herein), (b) gross negligence or willful misconduct, (c) misrepresentation, or (d) alleged or actual violations by Client of any law, regulation or rule, then Client will indemnify, reimburse, and compensate SolVPS and, as applicable, SolVPS Representatives, for all Losses, as they accrue and become payable by SolVPS, and defend, hold harmless, and protect SolVPS, including SolVPS Representatives, from and against all Claims. “Representatives” means, collectively, shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders. In addition, if SolVPS (including SolVPS Representatives) incurs Losses because of any Claim arising out of, or in connection with, the acts or omissions of any of Client’s resellers, customers, or End Users, then Client will indemnify, reimburse, and otherwise compensate SolVPS for all Losses related thereto, as they accrue and become payable by SolVPS, and defend, hold harmless, and protect SolVPS from and against all Claims related thereto.
SolVPS agrees to give prompt written notice to Client of the Losses and the Claim for which indemnification is sought, and Client will have the right to control the defense and settlement of any Claim at the sole expense of Client. SolVPS agrees to fully cooperate in the defense or settlement of any Claim at the sole expense of Client. Notwithstanding the foregoing, the failure of SolVPS to give prompt notice, cooperate, or timely mitigate will not affect SolVPS rights to indemnification, except (and only to the extent) that Client’s ability to provide indemnification is impeded or frustrated, or Losses would have been avoided or mitigated. Client will obtain the prior written agreement of SolVPS for any settlement or proposal of settlement, which will not be unreasonably withheld
Client will use the Services only in a manner that is legal, lawful, ethical, and generally acceptable in the Internet community. Client will not engage in, and will ensure that Client’s resellers, customers, and End Users do not engage in any Abuse of Services. Without limiting the generality and scope of the definition of Abuse of Services in this MSA, Abuse of Services include (i) infringement of a person’s Intellectual Property or other rights, (ii) publishing or transmitting material which is threatening, obscene, or defamatory, (iii) non-compliance with applicable anti-spam legislation, including the U.S. Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act), as amended, and Canada’ Anti-Spam Legislation (CASL), as amended, (iv) violation of applicable import or export control laws, regulations, and policies, and (v) system or network security violations. System or network security violations include the following: (A) unauthorized access to or use of data, systems or networks, including any attempt to ping, probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network); (B) interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system, denial of service attacks, and broadcast attacks; (C) forging any TCP-IP packet header or any part of the header information in an email or a newsgroup posting; (D) creating or sending Internet viruses, worms or Trojan horses; (E) engaging in any other activity which is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services and SolVPS Systems (or any connected network, system, service or equipment) or conduct their business over the Internet. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Services) is not engaged in any activity which is, or may reasonably be deemed, an Abuse of Services.
Client will not use the Services, in whole or in part, to do business with any person who has been determined to have committed or supported, or who poses a risk of committing or supporting, acts of terrorism or who otherwise is subject to the prohibitions of Executive Order 13224. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Services) is not, and has not been designated, (a) a “suspected terrorist” as defined in Executive Order 13224, (b) owned or controlled by a “suspected terrorist” as defined in Executive Order 13224, or (c) a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all amendments thereto.
Client will not use the Services, in whole or in part, to do business with any country, person or group sanctioned by the United Nations, U.S.A., or Canada, including those identified by the Office of Foreign Assets Control, as updated from time to time. Client will not export the Services, in whole or in part, to any country, person or group sanctioned by the United Nations, U.S.A., or Canada. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Services) is not, and has not been designated, (a) a resident of a country sanctioned by the United Nations, U.S.A., or Canada, or (b) a person or member of a group sanctioned by the United Nations, U.S.A., or Canada. Client further represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Services) is not engaged in any activity which is, or may reasonably be deemed, in contravention of any of the abovementioned sanctions.
SolVPS may, at its sole discretion and without prior notice, immediately suspend the Services and the Client Account if SolVPS determines that Client is engaging, or has engaged, in any Abuse of Services or if the Client Account is involved in any way, whether directly or indirectly, in an attack on another person’s server or system (“Third Party Server”) or SolVPS Systems. SolVPS will promptly notify Client in writing upon suspending Services pursuant to an Abuse of Services. A suspension based on an Abuse of Services or an attack on a Third Party Server may be implemented until the Abuse of Services or threat has been remedied to SolVPS sole reasonable satisfaction. Service Fees will continue to accrue during the suspension and Client will ensure timely payment of all Service Fees due. If Client engages in or the Client Account is involved in any Abuse of Services, Client will be responsible for all costs, including labor and other resources, to remedy any damage done to SolVPS Systems or attend to complaints received by SolVPS.
If Client purchases a domain through SolVPS, SolVPS may exercise its suspension and termination rights in this MSA against such domain name registration for reasons including (a) Client’s Abuse of Services or other breach of this MSA, or (b) SolVPS receipt of an arbitration award or order from a court of competent jurisdiction instructing the suspension, termination or transfer of ownership of the domain name. Client acknowledges that Client will not receive any refund whatsoever for any such suspension, termination, transfer, or modification to Client’s domain name registration.
Client must be at least 18 years of age or the age of majority in the state, province, or country of Client’s residence in order to agree to this MSA and submit an Order Form. If the person wishing to use Services is under such age of majority (a “Minor”), then such person must have a parent or legal guardian accept this MSA, and submit the Order Form, in the name of the parent or legal guardian in order for the Minor to use Services. If Client is a parent or legal guardian who accepts this MSA and submits an Order Form on behalf of a Minor, then Client will be the legal owners of the Client Account and primarily liable for (a) the use of Services by the Minor, and (b) for the Minor’s compliance with this MSA, including timely payment of all Service Fees. Client will remain primarily liable for (a) and (b) mentioned above even after the Minor has reached the age of majority unless Client executes a valid assignment of the Client Account to transfer ownership to the Minor. Any agreement to this MSA or submission of an Order Form by a Minor will be deemed null and void to the extent that SolVPS will not be liable in any way as a result of the Minor’s age or legal incapacity or the Minor’s use of the Services.
Client may not assign or otherwise transfer Client’s respective rights or obligations under this MSA without the prior written consent of SolVPS, which will not be unreasonably withheld. Without requiring Client’s prior consent, SolVPS may assign or otherwise transfer this MSA, and SolVPS rights and obligations hereunder, to (a) any of its Affiliates, or (b) to any third party who succeeds to all or substantially all of SolVPS business, stock or assets. Any assignment or transfer in violation of this MSA will not have any effect against SolVPS. This MSA will be binding and have effect upon SolVPS and Client and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than SolVPS and Client and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities in connection with this MSA. Notwithstanding the foregoing, Client acknowledges that SolVPS may, at its sole option, perform any of its duties or obligations hereunder, by itself or with or through any of SolVPS Affiliates, which will not be deemed an assignment of this MSA.
No waiver by SolVPS of a breach of any provision of this MSA will take effect or be binding upon SolVPS unless expressly waived in writing, and such waiver will extend and apply only to the particular breach so waived and will not limit or affect the rights of SolVPS in respect of any future breach or in respect of a breach of any other provision hereof. If any portion of this MSA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability will not affect the validity of the remainder of this MSA. Any specific right or remedy provided in this contract will not be exclusive but will be cumulative of all other rights and remedies.
While a Client of SolVPS and for a period of 1 year thereafter, Client will not, individually or in association or in combination with any other person or entity, directly or indirectly solicit for employment, entice away from SolVPS, induce, or procure services directly from any employee of SolVPS. Nothing in this MSA will be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between SolVPS and Client. Each of SolVPS and Client will be deemed an independent contractor at all times and will not have any right or authority to assume or create any obligation on behalf of the other party except as may be expressly permitted herein. This MSA is for the sole benefit of SolVPS and Client only and does not create any rights on the part of any third party, including Client’s resellers, customers or End Users.
SolVPS and Client each acknowledge that the relationship between them in connection with the Services and this MSA is non-exclusive and that SolVPS may grant a license to use, market, sublicense, or distribute the Services, including providing access to SolVPS Systems, to other parties who may engage in the same or similar activities as Client, or who may compete with Client or Client’s goods or services.
The provisions of this MSA which by their nature continue beyond the termination of this MSA will survive such termination, including the provisions of this MSA relating to ownership, Intellectual Property, representations and warranties, disclaimer, limitation of liability, indemnification, and governing law and jurisdiction.
The MSA is for the sole benefit of the Parties and does not create any rights on the part of any third party, including Client’s resellers, customers, and End Users. Client acknowledges that SolVPS obligations under the MSA are to Client only. Client is solely responsible, and SolVPS is not responsible, for ensuring Client satisfies all of Client’s obligations to Client’s resellers, customers, and End Users.
This MSA will be governed and construed in accordance with the laws of the State of Illinois without giving effect to any rule of conflicts of law. Any Claim against a Party in connection with the subject matter of this MSA (or the MSA itself) will be brought in Chicago, Illinois. This MSA will not be governed by or construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods.
All Claims arising out of or relating in any way to this MSA (including requests for specific performance) will be submitted to mandatory binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted pursuant to the AAA’s then current Commercial Arbitration Rules. The arbitration hearing will be conducted in the English language and will take place in Chicago, Illinois before a single arbitrator selected in accordance with the Commercial Arbitration Rules. The parties will each bear the costs of the arbitration in equal shares. The parties will also bear their own legal fees (including lawyer fees and witness costs) in connection with the arbitration and the arbitrator may not reallocate the legal fees in conjunction with the award. Any award rendered by the arbitrator will be confirmed in a state or federal court of competent jurisdiction in Chicago, Illinois and each of SolVPS and Client hereby irrevocably submits and consents to, and waives any objection to, personal jurisdiction and venue in such court.
Any notice or other communication between the Parties required or permitted under this MSA will be in writing and will be delivered by commercial courier or transmitted by electronic mail. It is Client’s responsibility to ensure that Client’s contact information is kept up to date with SolVPS, and SolVPS will not be liable for Client missing any notice or communication as a result of an outdated or seldom accessed address, phone number, or email address.
Client acknowledges that the Internet and information technology industries (and the laws, regulations, policies, and risks associated with them) are constantly and rapidly changing and, as such, Client further acknowledges that SolVPS, at its sole reasonable discretion, may update the MSA from time to time to address the changes affecting the MSA and the Services. If SolVPS makes any amendment to the MSA or any portion thereof, such as any Service Addenda, SolVPS may post a notice on SolVPS at https://www.solvps.com/. Client’s continued use of Services following notice of the amendment constitutes Client’s agreement and acceptance of the amendments.
This MSA, which includes the Order Forms, Service Addenda, and all other agreements, policies, and documents referenced herein, constitutes the complete agreement between SolVPS and Client relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto – whether verbal, written, or otherwise.
These Billing Terms apply to all persons using Services.
Client will pay to SolVPS the Service Fees on or before each due date as specified in the Client Portal or invoice (as applicable). Except where Service Fees are calculated based on Client usage or as otherwise provided in the Service Addenda, Client acknowledges that Service Fees will start accruing from the time the Client Account is created and Services are made available to Client, whether or not Client uses the Services. If the Order Form includes Services that are billed based on usage, then Client’s Service Fees will vary accordingly in each Billing Cycle depending on Client’s actual usage. If the Order Form includes Services that are billed based on the time and materials used by SolVPS (including any of its Affiliates or Third Party Vendors) such as Professional Services, then Client acknowledges and agrees that Client’s Service Fees are subject to change from the amount described in the Order Form depending on SolVPS actual time and materials used, provided that SolVPS will obtain Client’s prior approval for any additional billable time that exceeds the amount described in the Order Form.
Client’s Billing Cycle will start from the time SolVPS creates the Client Account and makes the particular Services available to Client. The Billing Cycle may vary depending on the billing period selected by Client and depending on the particular Services ordered (different Services may have different Billing Cycles). Resellers are limited to the monthly Billing Cycle. Unless Client chooses to manually renew Client’s Services, the Billing Cycle will automatically renew for the same successive period until Client cancels the Client Account or terminates this MSA in accordance with the cancellation provisions and termination provisions herein. If Client elects to manually renew the Services, Client is solely responsible, and SolVPS is not responsible, for ensuring the timely renewal of the Services to avoid service interruption. Client may elect to change the Billing Cycle, but the new Billing Cycle will take effect only at the end of the current Billing Cycle and upon renewal. The Billing Cycle will end upon the applicable anniversary date the Billing Cycle began (“Due Date”), which will be for Service Fees in advance with adjustments in arrears for Service Fees based on usage, if applicable. The Billing Cycle applies to Service Fees for all Services except domain name registrations, which are paid according to registration periods as set by the domain name registrar. Client acknowledges that SolVPS does not provide invoices and that Client is solely responsibility for viewing information pertaining to the Billing Cycle and Due Date through the Client Portal and ensuring payment of Service Fees before the Due Date. Add-on features to Services added to the Client Account may be charged monthly or according to the Billing Cycle or otherwise based on an alternate payment schedule as agreed by SolVPS when Client orders such features. Add-on features are non-refundable.
Refunds for Services pertaining to Web Hosting and E-Commerce are available for shared hosting plans and virtual private server (“VPS”) plans only. Each shared hosting plan and VPS plan carries a 30-day money back guarantee. Client will have 30 calendar days from the date of Service(s) deployment to test and evaluate the newly deployed Service(s), and if such Service(s) does not meet the specifications agreed to between the Parties, then Client may cancel that particular Service(s) without penalty by providing written notice to SolVPS. If Client so cancels a shared hosting plan or VPS plan within the first 30 calendar days in accordance with the cancellation process set forth below, Client may request a refund of any Service Fees (excluding setup fees) that Client has paid for the Service being cancelled. Cancellations received after the first 30 days do not qualify for any refund. Refunds will be provided to the original payee via the same payment method as the original payment.
Notwithstanding the foregoing, the Service Fees for the following Services are NOT refundable: (a) software licenses; (b) add-on features to Services; (c) domain name registrations; (d) domain parking; and (e) overage fees. In addition, if Client merely chooses not to use the Services, such non-usage does not qualify for a refund under this policy.
If Client fails to pay the Service Fees on or before the Due Date, then SolVPS may charge Client Late Charges to be applied to any portion of the Services Fees unpaid past the Due Date. If the Client Account has Service Fees unpaid past the Due Date, then SolVPS may suspend the Client Account (and the Services associated with it) with or without notice at any time at SolVPS sole discretion. SolVPS may also terminate this MSA and cancel the Client Account in its entirety if the Service Fees remain past due following reasonable notification from SolVPS to the contact person listed in the Client Account. Client is solely responsible, and SolVPS is not responsible, for keeping Client’s contact information up to date and for any failure to receive such notification of Client Account cancellation.
Client will pay the Service Fees via the payment method indicated in the Order Form, which will be selected from one of the following:
Check or Money Order. If Client elects to pay by check, then Client will (a) make the check payable to Services, Inc. at SolVPS principal place of business as specified in the Client Portal or such other notice provided to Client by SolVPS, and (b) include the Client ID on the check. SolVPS may charge Client a $25.00 administrative fee for checks or money orders returned as non-sufficient funds (“NSF”) as well as any other bank fees incurred by SolVPS because of the NSF. Client is solely responsible, and SolVPS is not responsible, for ensuring that the Client ID is accurately and legibly written on the check to avoid Late Charges.
Credit Card If Client elects to pay by credit card, then Client will provide SolVPS with a valid credit card number, associated full name on the credit card, expiration date, and card verification number. Client will notify SolVPS in writing of all changes to Client’s credit card, including card number, expiration date, and billing address. For credit card payments, Client hereby authorizes SolVPS to automatically charge Client’s credit card each Billing Cycle for Service Fees. Client hereby also consents to SolVPS charging Client the chargeback fee assed against SolVPS from the credit card company for each credit card chargeback received by SolVPS. Client acknowledges that recurring Service Fees will be charged to Client’s credit card each Billing Cycle until Client cancels the Client Account or otherwise terminate the Order Form or this MSA in accordance with the cancellation provisions and termination provisions of this MSA.
Bank Wire or ACH. If Client elects to pay by bank wire or ACH, then SolVPS will provide Client with the bank wire or ACH details. Client will submit payments of all Service Fees, before the Due Date, to the bank account designated by SolVPS and include the Client ID in the transmission details. Client will pay for all administrative and processing fees associated with the bank wire or ACH and Client acknowledges that SolVPS may charge Client for such amounts. Client is solely responsible, and SolVPS is not responsible, for ensuring that the Client ID is accurately included in the transmission details to avoid Late Charges.
2.6.1 Chargeable Tax The Service Fees quoted by SolVPS, whether on SolVPS website, this MSA, any Order Form, quotation, or sales proposal provided to Client, or in Client’s Customer Portal or on Client’s invoice, do not include sales or any other taxes which may be applicable. If any federal, state, provincial or other goods and services tax (excluding any tax levied on property or income) is applicable to Client’s purchase of the Services (“Tax”) and is required by law to be collected from Client by SolVPS, then (a) SolVPS will charge Client for such Tax in addition to the Service Fees, (b) Client consents to such Tax being charged to Client, and (c) SolVPS will remit such collected Tax to the applicable tax authority.
2.6.2 Audit Cooperation If SolVPS is audited by a tax authority or other governmental entity with legal authority over the matter, Client agrees to reasonably cooperate with SolVPS (at SolVPS expense) in order to respond to any audit inquiries in a proper and timely manner so that the audit, and any resulting controversy, may be resolved expeditiously.
2.6.3 Tax Exemption If a Tax exemption is available and Client complies with the exemption procedures thereto, including submitting to SolVPS all documentation evidencing the exemption, then SolVPS will not charge or collect such Tax during the effective period of such exemption.
2.6.4 Withholding Tax If any applicable tax authority requires withholding taxes be paid on money amounts payable by Client to SolVPS pursuant to the MSA (“Withholding Tax”), then Client will (i) be entitled to deduct such Withholding Tax from the money amounts payable to SolVPS hereunder, (ii) remit such amounts to the appropriate tax authority, and (iii) provide to SolVPS, on a quarterly (every 3 calendar months) basis, the statements of the Withholding Taxes paid.
If Client wishes to reactivate a closed Client Account, then Client will be charged a reactivation fee of $19.95. A further fee of $99.95 will be charged to the Client Account if SolVPS restores Client Data to the Client Account as part of the reactivation. SolVPS may charge Client a fee of $19.95 for certain changes to the Client Account (“Account Change Requests”), including requests to:
There is no upgrade fee for upgrading to a higher priced hosting plan, but Client will be charged any difference between the setup fees applicable to Client’s new and former hosting plans. For Account Change Requests, contact billing@solvps.com.
This MSA will continue through the Minimum Term and any Renewal Term stated in an Order Form. Client may terminate this MSA, a particular Order Form, or the Client Account in its entirety, only in accordance with the terms herein. SolVPS may terminate this MSA or a particular Order Form for convenience upon 30 calendar days’ written notice to Client. Without limiting SolVPS rights under Abuse of Services and Suspension above, SolVPS may also terminate this MSA or a particular Order Form for Client’s material breach upon 2 business days’ written notice to Client if such material breach is uncured within such time.
To cancel the Client Account or particular Services after the expiration of the Minimum Term or during a Renewal Term, Client must contact SolVPS customer service department on a Business Day (Monday through Friday, excluding holidays, at email billing@solvps.com, and must specify the exact Services, or domain name, that Client is cancelling. The cancellation process is not complete or effective until SolVPS confirms the closure of the Client Account by providing Client a confirmation number either over the phone or through email at Client’s contact information recorded on the Client Account. Client acknowledges that there are no pro-rated refunds after the Services are made available to Client. Cancellation requests must be received at least 30 calendar days before the end of Client’s Billing Cycle or Client’s Billing Cycle will automatically renew for a successive Billing Cycle. SolVPS does not monitor, and will not automatically cancel, plans for any problems arising out of or related to domain name transfers, non-usage, InterNIC, Client’s ISP, or any other secondary issues not directly related to the Services. Cancellation of Client’s Services does not relieve Client from paying all outstanding balances owed on the Client Account.
Upon any termination of this MSA or the Client Account, SolVPS may delete all Client Data residing on SolVPS Systems. It is Client’s sole responsibility, and not the responsibility of SolVPS, to ensure that all Client Data is either retrieved prior to termination or otherwise backed up on systems other than SolVPS Systems or using Services. Client acknowledges that (a) termination of this MSA or any particular Order Form does not automatically cancel the registration of any of the domain names associated with the Client Account, and (b) the cancellation or expiration of Client’s domain names associated with the Client Account does not automatically terminate this MSA or the other Services.
This MSA, and all Order Forms, will automatically terminate if Client makes a general assignment for the benefit of Client’s creditors, Client appoints or has appointed on its behalf a receiver, trustee in bankruptcy or similar officer to take charge of all or part of its assets, Client files or has a petition filed against Client for bankruptcy, or Client is otherwise adjudicated insolvent or bankrupt.
SolVPS will maintain records of the Services provided to Client and the billing thereof. If there is an inconsistency between SolVPS records as stated in the Client Portal and Client’s records, then SolVPS records will be deemed the controlling records. If Client wants to dispute the amounts, then contact SolVPS customer service department on a Business Day (Monday through Friday, excluding holidays, at email billing@solvps.com. Disputes Client may have over any portion of Service Fees will not exempt Client’s payment obligations for undisputed Service Fees whether such non-disputed amounts pre-date, post-date, or are concurrently dated with the disputed amounts. If Client fails to provide to SolVPS written notice of a disputed amount of Service Fees within 7 calendar days after the Service Fees are made available through the Client Portal, then Client will be deemed to have accepted the amounts owed and will be obligated to pay such amounts.
SolVPS may, at its reasonable discretion, add to, modify, remove, or re-price any particular product or service from the Services with or without notice. Price changes become effective on the next Billing Cycle.
Client Accounts in arrears with past due and unpaid Service Fees are subject to collections. In the event of collection, Client will be liable for Late Charges and all costs of collection, including attorney’s fees, court costs, and collection agency fees.
Unless stated otherwise, all money amounts stated by SolVPS, including on SolVPS website, this MSA, any Order Form, quotation, or sales proposal provided to Client, the Customer Portal, and any invoice issued by SolVPS are in U.S. Dollars.
This MSA includes SolVPS Privacy Policy, as amended from time to time, posted at https://solvps.com/terms/ (or such other redirected webpage or alternate URL as designated by SolVPS), which is incorporated herein by reference (“Privacy Policy”). By agreeing to this MSA, Client is also agreeing to the Privacy Policy.
Depending on the type of Services that Client orders, Client may be subject to certain Service-specific terms that are set forth in the relevant Service Addendum below. If there is any conflict between this MSA and a particular Service Addendum, then the Service Addendum will govern Client’s use of the relevant Services solely to the extent of the conflict. The Service Addenda below are collectively an integral part of this MSA and supplement the General Terms and Billing Terms above and are hereby incorporated into this MSA by reference.
This Web & Apps Service Addendum applies only to those Clients and End Users using Services relating to Web Hosting, Domains, Emails and E-Commerce and other Applications or Web Solutions.
The backbone of SolVPS's service is a commitment to service availability. To support this commitment, SolVPS provides the following service level availability guarantees (each an “SLA”, together the “SLAs”), and observes the following schedule of penalties when the SLAs are breached. SolVPS guarantees that Services hosted on the SolVPS networks will be available more than 99.99% of the time in a given calendar month. Availability is defined as the ability of an external system or user to communicate with Services hosted on the SolVPS networks via web, ICMP, RDP, or another protocol
A. Infrastructure & Resource Availability
Each VPS system provided by SolVPS includes a "quota" for the usage of memory, processor, and other host system resources. SolVPS guarantees that the quotas specified for each VPS plan will be made available to the customer, and will consider unavailability of said resources to contribute to the calculation of service unavailability. SolVPS takes proactive measures to guarantee the redundancy of its hardware systems. Nonetheless, unavailability caused by hardware failures, host server crashes, and related spontaneous incidents will be compensated by the SLA.
B. Network Availability
Service unavailability resulting from network unavailability will be compensated by the SLA only if such network unavailability was caused by the negligence of SolVPS, or by failure of systems directly administered by SolVPS. As a provider of Internet services, SolVPS relies on a number of bandwidth providers (ISPs) to provide connectivity to customer end-points. Outages on these providers' networks, which may temporarily prevent customers from accessing services, or may even prevent outgoing connections from SolVPS's networks and systems, will not be compensated by the SLA.
C. Scheduled Maintenance
While SolVPS's systems are designed to accommodate hot-swappable components and live maintenance, situations may arise in the general course of systems maintenance that require temporary downtime of customer services. SolVPS will do everything possible to schedule maintenance cooperatively with affected customers, during timeframes that will be most convenient for customers.
D. Downtime Credit Procedure
Customers who record a significant amount of service unavailability (downtime) may report it to SolVPS Customer Service and request a service credit as compensation.
In the event of a breach of service availability, each 1 hour of unavailability will be compensated with a credit equal to 5% of the most recent payment made by the customer. Unavailability amounting to less than 1 hour will be pro-rated at the same rate. The maximum amount of service credit provided in a billing period will be 100% of the billing period's Service Fees.
Requests for service unavailability credits should be submitted to the Billing department via support ticket or email, and must be submitted within 30 days of the reported outage to be eligible for credit. Upon receipt of downtime reports, SolVPS will review information submitted by the customer, and provide a service credit if appropriate.
Service credits are provided in the form of account credits, which may be applied to any invoice generated by SolVPS for a new or existing service, upgrade, or one-time fee. Service credits are not cash equivalents, cannot be withdrawn or deposited to a PayPal account, and cannot be transferred among customer accounts.
E. Limitations
While SolVPS continuously monitors the status of its networks, and the physical hosts located there, it does not monitor the status of individual applications used by its customers. The guarantees provided by this SLA are meant to encompass large-scale outages caused by system failures and network unavailability, and do not apply to any particular software or services running inside the customers's server, nor to a server's Operating System.
Guarantees made by this SLA do not apply in any situation where downtime is caused by, or could have been prevented by, the customer.
Guarantees made by this SLA do not apply in circumstances where downtime has been caused by forces beyond the Company's control, for example carrier outages and natural disasters.
In addition to the Abuse of Services provision of the MSA, this Acceptable Use Policy (“AUP”) is provided to clearly define prohibited activities and uses of Web Hosting, Domains, Emails and E-Commerce and other Applications or Web Solutions provided by SolVPS. All users of the Services, including those who access some Services but do not have accounts, as well as those who pay SolVPS for hosting Services, must comply with this AUP.
A. Expressly Prohibited Uses
SolVPS strictly prohibits the following uses of the Services or of the SolVPS network:
B. Server Resources
Any website that uses a high amount of server resources (including CPU time, memory usage, and network resources) will be given the option to either pay additional Service Fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade the Services ordered for an additional fee. SolVPS will be the sole arbiter of what is considered to be a high server usage level. All Web Hosting and E-Commerce plans come with a limit of 5,000 files per Client Account. Each block of 5,000 files after the initial 5,000 will incur an additional charge of $9.95 per month. Any Web Hosting and E-Commerce plan deemed to be adversely affecting server performance or network integrity may be shut down without prior notice.
C. CGI Scripts
Any script that poses a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. SolVPS does not permit CGI script sharing with domains not hosted by SolVPS or scripts which may be abused for UCE purposes.
D. Chat Rooms
Client is not permitted to install chat rooms because chat rooms tend to require significant system resources. However, for a small charge, SolVPS may provide Client with Java chat rooms.
E. Background Running Programs and Cron Jobs
SolVPS may allow programs to run in the background, which programs will be considered by SolVPS on a case-by-case basis. Client will incur extra Service Fees based on system resources used and operational maintenance needed. If Client wishes to run background programs, contact SolVPS at support@solvps.com to arrange the setup.
F. IRC
Client is not permitted to operate IRC or IRC bots.
G. Software Distribution
Client is not configured for the purposes of distributing software or multimedia products.
H. Multimedia Files
Client is not permitted to use the Client Account to distribute or store unusual amounts of graphics, audio, or video files (collectively “Multimedia Files”). If the Client Account’s disk space usage for storing Multimedia Files exceeds 70% of its total usage, in terms of total size or number of files, SolVPS may suspend or cancel the Client Account.
I. Databases
If Client stores any database on SolVPS Web Hosting and E-Commerce servers, Client must limit the size to 10% of the total disk space allotted for the particular domain name associated with the Client Account.
SolVPS assigns each Client one or more unique IP addresses for each VPS unit. The right to use and broadcast from IP addresses assigned by SolVPS will belong only to SolVPS, and Client will have no right to use IP addresses except as permitted by SolVPS. SolVPS will maintain and control ownership of all IP numbers and addresses that may be assigned to subscribers by SolVPS. SolVPS reserves the right to change or remove any such IP addresses at its sole and absolute discretion, at any time. IP addresses, and access to dedicated IP resources, may not be resold or transferred without the direct consent of SolVPS. Client’s usage of dedicated IP address space must be reported to SolVPS Customer Service upon request, and will be periodically verified by SolVPS Customer Service representatives. Client may not use assigned IP addresses for any purpose that results in negative IP reputation, including blacklisting by Spamhaus, Barracuda, SORBS, Cisco, and other IP reputation services. Clients responsible for damaging or degrading the reputation of assigned IP address resources will be assessed a maintenance fee of $25 USD per IP address. If a maintenance fee is assessed, Client’s Services may be suspended, without access to hosted data or backups, until Client's account becomes current with all outstanding fees and other due subscription payments.
Bandwidth, measured in total megabytes sent plus total megabytes received, will not exceed the maximum number of megabytes per month for the service plan subscribed to by Clien ("Agreed Usage"). SolVPS will monitor Client’s bandwidth usage, and Client may view a live-updated record of their usage within the Client Portal. In the event of a bandwidth overage, Client’s VPS system may be automatically suspended or restricted. Client will be warned of approaching or exceeded resource limits via email by SolVPS's automated notification system.
This Professional Services Service Addendum apply only to those Clients and End Users using Services relating to IT Assessment, Migration Services, or other services requiring time and materials or deemed professional services by SolVPS.
“Change Request Form” means SolVPS written order form describing the modifications to an applicable Order Form requested by Client.
“Dedicated Server” means a computer server which (a) is licensed to Client by SolVPS, (b) is for the exclusive access and use by Client, its End Users, and Client Affiliates only, and (c) is used to copy, store, or host Client Data on SolVPS Systems.
“Professional Services” means, as specified in the applicable Order Form, (a) SolVPS products and services relating to Migration Services, and (b) certain Third Party Products.
In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with these Professional Services Service Addendum, the Order Form, and the MSA, SolVPS will perform, and provide to Client, the Professional Services as described in the Order Form. SolVPS may (at SolVPS sole discretion) provide any of the Professional Services (in whole or in part) through an Affiliate of SolVPS, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the Professional Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within SolVPS Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access.
Service Fees for Professional Services are based on time estimates and are subject to change (because of factors such as unknown variables and project scope modifications). If Service Fees increase by less than $600, then Client may approve such increase via email, the Client Portal, or other applicable project management system offered by SolVPS or Third Party Vendors. Increases in Service Fees of $600 or more will require an amendment to the Order Form reflecting the change in scope of Professional Services. Client acknowledges that Professional Services will be performed only during the hours of 8am to 5pm Eastern Time, Monday through Friday, except statutory holidays. Requests for Professional Services to be performed outside of such times will be subject to SolVPS approval and premium additional Service Fees.
(a) Requirement. All Professional Services which Client wishes to receive from SolVPS must be stated in the Order Form. SolVPS is not responsible for any non-delivery of Professional Services, including missed launch dates or other deficiencies, if the Professional Services were not expressly stated in the Order Form signed by Client and a copy delivered to SolVPS. Each Order Form is an integral part of the Professional Services Service Addendum.
(b) Conditions. SolVPS completion of the deliverables described in the Order Form is subject to Client promptly giving SolVPS all materials, data, and cooperation reasonably requested by SolVPS, and otherwise specified in the Order Form, including materials, data, and cooperation from Client’s third party vendors, subcontractors or end-users involved in Client’s intended use of the Professional Services. SolVPS will not have any obligation, responsibility or liability for delays, unavailability, or deficiencies (including delays in sourcing equipment and other components of SolVPS Systems or Professional Services) caused in whole or in part by factors such as Client’s unresponsiveness, Client’s third party suppliers, Third Party Vendors, non-fitness or non-functionality of source code for Client’s intended use of the Professional Services, or other reasons beyond SolVPS reasonable control.
(a) At Client’s Request. If Client wishes to add to or otherwise modify the Professional Services as described in a particular Order Form, then Client will send a written request to SolVPS and, upon SolVPS approval, the Parties may execute (a) a Change Request Form specifying the proposed modifications, which will be an integral part of the applicable Order Form, (b) an amendment to the Order Form reflecting the desired modifications, or (c) a new Order Form reflecting the desired modifications to replace the existing applicable Order Form. Client acknowledges that modifications to Professional Services may affect Service Fees as described above.
(b) By SolVPS. SolVPS may at any time, at its reasonable discretion, add to, modify, remove, or re-price any particular product or service from the Professional Services based on factors including unavailability of Third Party Products.
Last updated: October 21, 2024
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