Solar VPS LLC - Acceptable Use Policy ("AUP")
This AUP governs the use of Solar VPS's web hosting service. Violation of this AUP
may result in suspension or termination of your service. In the event of a
dispute between you and Solar VPS regarding the interpretation of this AUP,
Solar VPS's interpretation, in its reasonable commercial judgment, shall
govern. If you have any questions regarding this AUP, contact support@solarvps.com.
Offensive Content
You may NOT publish or transmit via Solar VPS's service any content that Solar VPS reasonably believes:
- constitutes child pornography
- constitutes illegal pornography
- is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech
- is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes
- is defamatory or violates a person's privacy
- creates a risk to a person's safety or health, creates a risk to public safety or health
- compromises national security, or interferes with a investigation by law enforcement
- improperly exposes trade secrets or other confidential or proprietary information of another person
- is intended to assist others in defeating technical copyright protections
- clearly infringes on another person's trade or service mark, patent, or other property right
- promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking
- is a peer 2 peer file sharing application such as Kazaa, Edonkey, WinMX or any other p2p file sharing application that demands high bandwidth and cpu resources. Use of these services negatively effects everyone on the main hardware node and will not be permitted.
- is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Solar VPS; or
- is otherwise malicious, fraudulent, or may result in retaliation against SolarVPS by offended viewers
- Use IRC except on services specifically designated for IRC access.
Content "published or transmitted" via Solar VPS's service includes Web
content, e-mail, bulletin board postings, chat, and any other type of posting
or transmission that relies on any Internet service provided by Solar VPS.
Security
You must take reasonable security precautions. You must protect the
confidentiality of your password, and you should change your password
periodically.
Bulk Commercial E-Mail
You must obtain Solar VPS's advance approval for any bulk commercial e-mail, which will not be given unless you are able to demonstrate all of the following to Solar VPS's reasonable satisfaction:
- Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure.
- Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given.
- You retain evidence of the recipient's consent in a form that may be promptly produced on request, and you honor recipient's and Solar VPS's requests to produce consent evidence within 72 hours of receipt of the request.
- The body of the e-mail must describe how the e-mail address was obtained, for example, "You opted in to receive this e-mail promotion from our Web site or from one of our partner sites," and information on how to request evidence of the consent, for example, "If you would like to learn more about how we received your e-mail address please contact us at abuse@**yourdomain.com** .
- You have procedures in place that allow a recipient to easily revoke their consent - such as a link in the body of the e-mail, or instructions to reply with the word "Remove" in the subject line. Revocations of consent are honored within 72 hours, and you notify recipients that their revocation of their consent will be honored in 72 hours.
- You must post an abuse@**yourdomain.com** e-mail address on the first page of any Web site associated with the e-mail, you must register that address at abuse.net, and you must promptly respond to messages sent to that address. You must post an abuse@**yourdomain.com** e-mail address on the first page of any Web site associated with the e-mail, you must register that address at abuse.net, and you must promptly respond to messages sent to that address.
- You must have a Privacy Policy posted for each domain associated with the mailing.
- You have the means to track anonymous complaints.
- You may not obscure the source of your e-mail in any manner. Your e-mail must include the recipients e-mail address in the body of the message or in the "TO" line of the e-mail; and
- You otherwise comply with the CAN SPAM Act and other applicable law.
Solar VPS may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time.
Unsolicited E-Mail
You may not send any unsolicited e-mail, either in bulk or individually, to any person who has indicated that they do not wish to receive it. You must comply with the rules of any other network you access or participate in using your Solar VPS's services.
Material Protected by Copyright
You may not publish, distribute, or otherwise copy in any manner any music, software, art, or other work protected by copyright law unless:
- you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner.
- you are otherwise permitted by established United States copyright law to copy the work in that manner
- Solar VPSwill terminate the service of repeat copyright infringers.
If you believe your copyright is being infringed by a person using the Solar VPS network, please send your written notice of copyright infringement to abuse@solarvps.com
Your notice must include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted words at a single site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SolarVPS to locate the material.
- Information reasonably sufficient to permit Solar VPS to contact you, such as an address, telephone number, and, if available, an e-mail address.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the copyright owner's agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Solar VPS strictly prohibits the use of any IRC client or server process running on its network unless that process is installed and running on one of our IRC allowed VPS or dedicated servers. The following packages currently allow the use of IRC clients and servers, IRC64MB, IRC128MB and IRC256MB.
Other
You must have valid and current information on file with your domain name registrar for any domain hosted on the Solar VPS network.
Disclaimer
Solar VPS is under no duty, and does not by this AUP undertake a duty, to monitor or police our customers' activities and disclaims any responsibility for any misuse of the Solar VPS network.
Internet Abuse
You may not engage in illegal, abusive, or irresponsible behavior. Solar VPS reserves the right to terminate service of any customer without refund for such behvior including:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures (including those belonging to Solar VPS and its customers) without express authorization of the owner of the system or network.
- >monitoring data or traffic on any network or system without the authorization of the owner of the system or network.
- Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
- Use of an Internet account or computer without the owner's authorization, including, but not limited to Internet scanning (tricking other people into releasing their passwords), password robbery, security hole scanning, and port scanning.>
- >Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting; or
- Any conduct that is likely to result in retaliation against the Solar VPS's network.
- Use of Solar VPS's network in a way that unreasonably interferes with Solar VPS's other customers use of the network.
- Attack, make threats or act in an inappropiate manner towards SolarVPS staff.
Newsgroup, Chat Forums, Other Network
You must comply with the rules and conventions for postings to any bulletin
board, chat group or other forum in which you participate, such as IRC and
USENET groups including their rules for content and commercial postings. These
groups usually prohibit the posting of off-topic commercial messages, or mass
postings to multiple forums.
Solar VPS LLC - Web Hosting Agreement ("TOS")
This Web Hosting Agreement (this "Agreement") is between Solar VPS LLC, an internet company formed under the laws of the State of Delaware ("Solar VPS") and the person (individual or legal person) whose signs Solar VPS's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of Solar VPS's Web hosting service.
1. Summary
The following is a list of terms that you agree to when signing up. For details information please read the appropiate section.
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Solar VPS's credit approval requirements, Solar VPS agrees to provide the web hosting services described in the Order for the fees stated in the Order.
3. Term
The initial service term of the Agreement shall begin on the date that SolarVPS generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew the same length as the Initial Term (each a "Renewal Term") unless Solar VPS or Customer provides the other with written notice of non-renewal at least ten (10) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
a) Fees
Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly, quarterly, semi-annually or annually as indicated on the Order, beginning on the Service Commencement Date. Solar VPS may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Solar VPS to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise SolarVPS will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 10th day following invoice date ( invoice due date ), but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing Solar VPS with changes to billing information (such as credit card expiration, change in billing address) At its option, SolarVPS may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Solar VPS may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Solar VPS may suspend the service without notice if payment for the service is overdue. Reconnection after suspension is $35 for VPS and $70 for dedicated. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay Solar VPS's reasonable reinstatement fee following a suspension of service for non-payment, and to pay Solar VPS's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
Bandwidth is counted as the combined total of in and out and is measured from your billing date to billing date. Overage above your quota is charged at $1/Gb and is payable at your billing date.
b) Fee Increases
Solar VPS may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
c) Taxes
At Solar VPS's request Customer shall remit to Solar VPS all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Solar VPS), regardless of whether Solar VPS fails to collect the tax at the time the related services are provided.
d) Early Termination
Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Solar VPS terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Solar VPS's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. Customer also acknowledges that a minimum of 10 days cancellation notice prior to the following renewal term must be given in writing to Solar VPS or the Customer will be responsible for full payment of the following term. Cancellation will only be accepted upon customer completing the Solar VPS Service Cancellation form at: https://www.solarvps.com/cancellation.php
e) Processing and Collection
Accounts that are unpaid and not collectable by Solar VPS LLC will be given to an outside collection agency. If your account is submitted to collections, you agree to pay a "Processing and Collection" fee of $100.00. This fee will be assesed at the time your account is submitted to the collection agency and will be included in the total amount to be collected by the collection agency.
4. Law/AUP
Customer agrees to use the service in compliance with applicable law and Solar VPS's Acceptable Use Policy posted at http://www.solarvps.com/aup.php (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that Solar VPS may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Solar VPS's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with SolarVPS's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Solar VPS and Customer regarding the interpretation of the AUP, Solar VPS's commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to Solar VPS that the information he, she or it has provided and will provide to Solar VPS for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to SolarVPS that he or she is at least 18 years of age. Solar VPS may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.
6. Indemnification
Customer agrees to indemnify and hold harmless Solar VPS, Solar VPS's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties
Solar VPS DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW SolarVPS DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
8. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Solar VPS AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
9. Suspension/Termination
a) Suspension of Service
Customer agrees that Solar VPS may suspend services to Customer without notice and without liability if: (i) Solar VPS reasonably believes that the services are being used in violation of the AUP, (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP, (iii) Solar VPS reasonably believes that the suspension of service is necessary to protect its network or its other customers, (iv) as requested by a law enforcement or regulatory agency, (v) Customer is overdue on the payment of any amount due under the Agreement or Customer refuses to pay for services under the Agreement Term or (v) the customer is abusive towards SolarVPS or any member of its staff. Customer shall pay SolarVPS's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
b) Termination
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Solar VPS fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by SolarVPS prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Solar VPS describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
c) Money Back Policy
As of July 1, 2007, Solar VPS no longer offers a 30 Day Money Back Policy. While we liked providing our customers with a way to trial our service, it unfortunately led to frequent abuse of the policy. In order to keep our pricing competitive and continue providing our top notch service and support, it is no longer possible for us to offer any refunds on VPS, DDS or Dedicated Server hosting.
For customers who signed up prior to July 1, 2007 and are still within 30 days of their beginning date of service, please see below for the criteria for receiving a refund. If this applies to you, please understand that you must still qualify for the refund. If any of the below exceptions apply to your situation, you are not qualified to receive a refund.
**OLD POLICY NO LONGER VALID IF SERVICE BEGAN AFTER JULY 1, 2007**
Solar VPS has a 30 Day Conditional Money Back Policy. If Customer is not satisfied with his/her service within 30 days of purchasing that service, he/she may cancel and will be issued a full refund less any applicable license/control panel fees. The exceptions to this are the following:
1. Customer account is cancelled due to a violation of our TOS/AUP.
2. A refund is requested due to limitations of Customer's technical knowledge that keep him/her from properly operating a VPS or other product or service offered by Solar VPS and purchased by Customer.
3. A refund is requested due to infrequent or non-use of Customer's service.
4. A refund is requested due to a technical issue that has not been brought to the attention of Solar VPS via one of our approved support channels.
5. Customer installs or operates software that causes instability in the VPS environment and is not supported by Solar VPS.
6. Customer has previously been a customer of Solar VPS and requested and received a refund under this policy for prior service held with Solar VPS.
7. Customer has previously held an account with Solar VPS and maintained an active service for more than 30 days with Solar VPS.
8. Dedicated Servers. Do to hardware costs, there are NO REFUNDS on dedicated servers for any reason whatsoever.
**OLD POLICY NO LONGER VALID IF SERVICE BEGAN AFTER JULY 1, 2007**
10. Requests for Customer Information
Customer agrees that Solar VPS may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that Solar VPS believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by Solar VPS nothwithstanding any agreement by Solar VPS to provide back up services.
Changes to Solar VPS's Network Upgrades and other changes in Solar VPS's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Solar VPS reserves the right to change its network in its commercially reasonable discretion, and SolarVPS shall not be liable for any resulting harm to Customer.
12. Uptime SLA Credits
Solar VPS offers a 99.9% uptime and power service level agreement on all VPS products. Uptime is defined as your main IP being accessible from the internet. For every 0.1% we are below our SLA, the customer may request a 10% credit on next months bill up to a maximum of 50%. Our SLA does not cover planned downtime or client mistakes.
13. Notices
Notices to Solar VPS under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.solarvps.com. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
14. Force Majeure
Solar VPS shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Solar VPS's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of the State of New Jersey, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
16. Intellectual Property
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its name, trademarks, service marks, trade secrets, inventions, copyrights, materials, data and other intellectual property. Neither party may use or allow access to any unauthorized personnel, the other party's name, trade mark, service marks, trade secrets, inventions, copyrights, materials, data or other intellectual property without the other party's prior written consent. Solar VPS shall make no claim of ownership of data transferred to Customer's server space as provided by Solar VPS unless the data is believed to be the owned by Solar VPS, its vendors, employees, other customers or agents.
17. Miscellaneous
The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Solar VPS unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without SolarVPS's prior written consent. Solar VPS's approval for assignment is contingent on the assignee meeting SolarVPS's credit approval criteria. Solar VPS may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
This Web Hosting Agreement (this "Agreement") is between Solar VPS LLC, an internet company formed under the laws of the State of Delaware ("Solar VPS") and the person (individual or legal person) whose signs Solar VPS's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of Solar VPS's Web hosting service.
1. Summary
The following is a list of terms that you agree to when signing up. For details information please read the appropiate section.
- All cancellations must be made at least 10 days before the next service renewal period using the form at: https://www.solarvps.com/cancellation.php
- We do not allow illegal content.
- We do not tolerate abuse to staff
- Failure to pay your bill on time will result in suspension of your account after 10 days.
- Reconnection after suspension is $35.
- All debts will be passed onto our appointed collection agents
- Network & Power Uptime SLA is 99.9%
- There are no refunds of any kind on dedicated server products, dynamic dedicated server products or VPS products.
See here for more information.
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Solar VPS's credit approval requirements, Solar VPS agrees to provide the web hosting services described in the Order for the fees stated in the Order.
3. Term
The initial service term of the Agreement shall begin on the date that SolarVPS generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew the same length as the Initial Term (each a "Renewal Term") unless Solar VPS or Customer provides the other with written notice of non-renewal at least ten (10) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
a) Fees
Fees are payable in advance on the first day of each billing cycle. Customer's billing cycle shall be monthly, quarterly, semi-annually or annually as indicated on the Order, beginning on the Service Commencement Date. Solar VPS may require payment for the first billing cycle before beginning service. If the Order provides for credit/debit card billing, Customer authorizes Solar VPS to bill subsequent fees to the credit/debit card on or after the first day of each successive billing cycle during the Term of this Agreement; otherwise SolarVPS will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 10th day following invoice date ( invoice due date ), but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing Solar VPS with changes to billing information (such as credit card expiration, change in billing address) At its option, SolarVPS may accrue charges to be made to a credit/debit card until such charges exceed $10.00. Solar VPS may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. Solar VPS may suspend the service without notice if payment for the service is overdue. Reconnection after suspension is $35 for VPS and $70 for dedicated. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay Solar VPS's reasonable reinstatement fee following a suspension of service for non-payment, and to pay Solar VPS's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
Bandwidth is counted as the combined total of in and out and is measured from your billing date to billing date. Overage above your quota is charged at $1/Gb and is payable at your billing date.
b) Fee Increases
Solar VPS may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
c) Taxes
At Solar VPS's request Customer shall remit to Solar VPS all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Solar VPS), regardless of whether Solar VPS fails to collect the tax at the time the related services are provided.
d) Early Termination
Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Solar VPS terminates the Agreement for Customer's breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Solar VPS's breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. Customer also acknowledges that a minimum of 10 days cancellation notice prior to the following renewal term must be given in writing to Solar VPS or the Customer will be responsible for full payment of the following term. Cancellation will only be accepted upon customer completing the Solar VPS Service Cancellation form at: https://www.solarvps.com/cancellation.php
e) Processing and Collection
Accounts that are unpaid and not collectable by Solar VPS LLC will be given to an outside collection agency. If your account is submitted to collections, you agree to pay a "Processing and Collection" fee of $100.00. This fee will be assesed at the time your account is submitted to the collection agency and will be included in the total amount to be collected by the collection agency.
4. Law/AUP
Customer agrees to use the service in compliance with applicable law and Solar VPS's Acceptable Use Policy posted at http://www.solarvps.com/aup.php (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that Solar VPS may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Solar VPS's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with SolarVPS's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Solar VPS and Customer regarding the interpretation of the AUP, Solar VPS's commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to Solar VPS that the information he, she or it has provided and will provide to Solar VPS for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to SolarVPS that he or she is at least 18 years of age. Solar VPS may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.
6. Indemnification
Customer agrees to indemnify and hold harmless Solar VPS, Solar VPS's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties
Solar VPS DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW SolarVPS DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
8. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Solar VPS AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
9. Suspension/Termination
a) Suspension of Service
Customer agrees that Solar VPS may suspend services to Customer without notice and without liability if: (i) Solar VPS reasonably believes that the services are being used in violation of the AUP, (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP, (iii) Solar VPS reasonably believes that the suspension of service is necessary to protect its network or its other customers, (iv) as requested by a law enforcement or regulatory agency, (v) Customer is overdue on the payment of any amount due under the Agreement or Customer refuses to pay for services under the Agreement Term or (v) the customer is abusive towards SolarVPS or any member of its staff. Customer shall pay SolarVPS's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
b) Termination
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Solar VPS fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by SolarVPS prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Solar VPS describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
c) Money Back Policy
As of July 1, 2007, Solar VPS no longer offers a 30 Day Money Back Policy. While we liked providing our customers with a way to trial our service, it unfortunately led to frequent abuse of the policy. In order to keep our pricing competitive and continue providing our top notch service and support, it is no longer possible for us to offer any refunds on VPS, DDS or Dedicated Server hosting.
For customers who signed up prior to July 1, 2007 and are still within 30 days of their beginning date of service, please see below for the criteria for receiving a refund. If this applies to you, please understand that you must still qualify for the refund. If any of the below exceptions apply to your situation, you are not qualified to receive a refund.
**OLD POLICY NO LONGER VALID IF SERVICE BEGAN AFTER JULY 1, 2007**
Solar VPS has a 30 Day Conditional Money Back Policy. If Customer is not satisfied with his/her service within 30 days of purchasing that service, he/she may cancel and will be issued a full refund less any applicable license/control panel fees. The exceptions to this are the following:
1. Customer account is cancelled due to a violation of our TOS/AUP.
2. A refund is requested due to limitations of Customer's technical knowledge that keep him/her from properly operating a VPS or other product or service offered by Solar VPS and purchased by Customer.
3. A refund is requested due to infrequent or non-use of Customer's service.
4. A refund is requested due to a technical issue that has not been brought to the attention of Solar VPS via one of our approved support channels.
5. Customer installs or operates software that causes instability in the VPS environment and is not supported by Solar VPS.
6. Customer has previously been a customer of Solar VPS and requested and received a refund under this policy for prior service held with Solar VPS.
7. Customer has previously held an account with Solar VPS and maintained an active service for more than 30 days with Solar VPS.
8. Dedicated Servers. Do to hardware costs, there are NO REFUNDS on dedicated servers for any reason whatsoever.
**OLD POLICY NO LONGER VALID IF SERVICE BEGAN AFTER JULY 1, 2007**
10. Requests for Customer Information
Customer agrees that Solar VPS may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that Solar VPS believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
11. Back Up Copy
Customer agrees to maintain a current copy of all content hosted by Solar VPS nothwithstanding any agreement by Solar VPS to provide back up services.
Changes to Solar VPS's Network Upgrades and other changes in Solar VPS's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Solar VPS reserves the right to change its network in its commercially reasonable discretion, and SolarVPS shall not be liable for any resulting harm to Customer.
12. Uptime SLA Credits
Solar VPS offers a 99.9% uptime and power service level agreement on all VPS products. Uptime is defined as your main IP being accessible from the internet. For every 0.1% we are below our SLA, the customer may request a 10% credit on next months bill up to a maximum of 50%. Our SLA does not cover planned downtime or client mistakes.
13. Notices
Notices to Solar VPS under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.solarvps.com. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
14. Force Majeure
Solar VPS shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Solar VPS's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes
The Agreement shall be governed by the laws of the State of New Jersey, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
16. Intellectual Property
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its name, trademarks, service marks, trade secrets, inventions, copyrights, materials, data and other intellectual property. Neither party may use or allow access to any unauthorized personnel, the other party's name, trade mark, service marks, trade secrets, inventions, copyrights, materials, data or other intellectual property without the other party's prior written consent. Solar VPS shall make no claim of ownership of data transferred to Customer's server space as provided by Solar VPS unless the data is believed to be the owned by Solar VPS, its vendors, employees, other customers or agents.
17. Miscellaneous
The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Solar VPS unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without SolarVPS's prior written consent. Solar VPS's approval for assignment is contingent on the assignee meeting SolarVPS's credit approval criteria. Solar VPS may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.
