9. REFUSAL OF SERVICE
10. RESOURCE USAGE
11. BANDWIDTH USAGE
- 12.1. HostNine grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by HostNine solely to access and use the Services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in HostNine's technology shall remain with HostNine, or its licensors. You are not permitted to circumvent any devices designed to protect HostNine, or its licensor's ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
- 12.2. You grant HostNine, or to any third parties used by HostNine to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free, license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your End Users, in conjunction with the Services. This license terminates on the expiration or termination of this Agreement. All right, title and interest in your technology shall remain with you, or your licensors.
- 12.3. HostNine offers one (1) free WHMCS license per Customer with an eligible hosting package. Hosting packages that are eligible for this offer are Level 1, 2, 3, 4, and 5 Reseller Packages, US 1, 2, 3 and UK 1, 2, 3, 4, 5 dedicated server packages. Shared hosting, VPS, and cloud reseller packages are not eligible for this offer. This offer is only valid while an eligible hosting package is active and current in payments. To reduce fraud, the free WHMCS license provided is only valid for a domain that is actively hosted on HostNine owned equipment. Any account found to be violating these terms may have its license revoked without notice and charged a license fee of $9.95 for each month the account was in violation. HostNine reserves the right to disable a WHMCS license at any time for any or no reason, with or without notice. Additionally, HostNine may end this offer at any time for any or no reason, with or without notice.
13. SERVICE MODIFICATIONS
- 13.1. HostNine reserves the right to add, modify, or remove any or all features from any service HostNine provides, at any time, with or without notice. This includes, but is not limited to, disk space limits, bandwidth limits, domain limits, pricing, and third party applications. These changes can be made for any or no reason and HostNine does not guarantee the availability of any feature, whether written or implied. If the removal of a feature materially impacts your ability to use the Service, you may terminate this Agreement. For the purposes of this paragraph only, the term “materially” means that a reasonable business person would not have purchased the Services for the purposes used by you.
14. UPTIME GUARANTEE
- 14.1. HostNine guarantees that your website and services that directly affect its display to the Internet (such as HTTP or MySQL) will be accessible 99.9% of the time in any given calendar month. If HostNine fails to meet its Uptime Guarantee, you will be issued a credit equivalent to one (1) day of service per sixty (60) minutes downtime. The first 60 minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of service.
- 14.2. Credits are only available for future services/invoices and cannot be issued as refunds. All credit requests must be sent via our official request form at http://www.hostnine.com/credit/ no later than the tenth (10th) day of the month following the SLA (as that term is defined below) violation. Credits are issued based on the uptime for the previous calendar month only and requests not submitted within the required time frame cannot be approved.
- 14.3. The following circumstances are not eligible for credit and are specifically excluded from our Uptime Guarantee: scheduled maintenance, DDoS or similar attack, hardware failure, third-party software failure, customer maxing its resource container, issues resulting from errors or omissions by the customer, issues relating to the customer's ISP, firewall blocks/bans, or any other circumstance beyond our reasonable control. This clause does not apply to subscribers of Virtual Dedicated Server (“VDS”) or Dedicated Server packages. All credits are at the discretion of HostNine, based on its investigation of any issue that is covered by this section.
- 14.4. If HostNine provides a credit, or Service Level Agreement, for a particular Service, this shall be your sole and exclusive remedy for defects in, or issues with, the Service.
15. SUPPORT POLICY
- 15.1. HostNine will provide technical support to you twenty-four (24) hours a day, three-hundred-sixty-five (365) days a year. The only official method for technical support is viHostNine's help desk at http://support.hostnine.com. Telephone and live chat support are not official methods of support and are governed by the terms and conditions set forth in the following clause.
- 15.2. Limited support will be provided, at HostNine's discretion and subject to availability of staff, via telephone and/or live chat. HostNine will always do its best to provide fast, friendly, and helpful support over the telephone and live chat, but these options are not official methods of support and no guarantee is made as to the availability, accessibility, or technical expertise provided via these mediums.
- 15.3. Inquires via telephone or live chat support should be limited to general questions which do not require access to any account or server to investigate or resolve and should not be used to request the status of or provide updates to a help desk ticket. Any issue requiring investigation, research, or access to an account/server should be sent via the help desk. HostNine reserves the right to direct any issue to the help desk at its discretion and to refuse to provide support for such issues via telephone or live chat.
- 15.4. Resellers are responsible for supporting their own customers. HostNine does not provide support to its resellers' customers. If a reseller's customer contacts HostNine, HostNine reserves the right to place the customer account on hold until the reseller can assume its responsibility for its customer. All support requests must be made by the reseller on its customers' behalf for security purposes. Resellers are also responsible for all content stored or transmitted under their reseller's account and the actions of their customers. HostNine will hold any reseller responsible for any of its customers' actions that violate the law or the terms of service set forth in this Agreement.
16. ADVANCED SUPPORT POLICY
- 16.1. Support to Customer is limited to HostNine's area of expertise and is available only for issues related to the physical functioning of the Services. HostNine does not provide support for any third party software including, but not limited to, software offered by but not developed by HostNine. HostNine reserves the right to refuse assistance with and/or assess an "Advanced Support Fee" of $35.00 USD per hour (1 hour minimum) for any issue that, at HostNine's sole discretion, is: (a) outside the scope of standard support; or (b) caused by customer error or omission. HostNine will always ask for your permission before providing advanced support that may be subject to a fee. By providing your permission, you agree to pay Advanced Support Fees as billed.
17. BACKUP SERVICES
- 17.1. Your use of HostNine's Services is at your sole risk. This service is provided to you as a courtesy. HostNine is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on HostNine's servers. Any and all backup services provided by HostNine, whether paid or not, are offered with no warranty or guarantee of their date, accuracy, and integrity.
- 17.2. Backups are performed on servers that house shared and reseller packages only. No backups are performed for virtual private server (VPS/VDS) or dedicated server packages, unless you specifically purchase an additional service for this purpose. If your hosting account exceeds 150,000 inodes, the account will not be included in HostNine's automatic backup process.
- 17.3. If you ask HostNine to restore a backup of your data that is located on a backup server maintained by HostNine, you agree to pay a non-refundable "restoration fee" of $10.00 per backup restored to complete the request. By requesting that HostNine restore a backup for you, you also confirm a backup restoration will overwrite any and all current data on your account. HostNine cannot be held liable if a backup restoration does not complete successfully. HostNine will never charge a backup fee to restore a backup to address an error or omission caused by HostNine.
18. DOMAIN NAME REGISTRATIONS, TRANSFERS, AND RENEWALS
- 18.1. HostNine will make every effort to ensure domain names are registered, transferred, and/or renewed on time. If a domain name registration, renewal, or transfer is not processed when due, it is your responsibility to contact HostNine within fifteen (15) days of the incident for HostNine to investigate. Redemption fees may be charged to Customer for domains that remain expired for more than thirty (30) days, when no contact is made to HostNine in the required timeframe. HostNine's liability is limited to the amount paid for the domain name.
- 18.2 For generic top-level domains governed by ICANN, you agree that you may not transfer your domain registration to another domain registrar during the first sixty (60) days from the effective date of your: (1) initial domain registration or (2) completion of a domain transfer into HostNine. If you choose to utilize our transfer lock service, you agree to provide written authorization (electronic acceptance is acceptable) to HostNine for the transfer of the domain to another registrar and agree to pay any and all fees that may be charged by HostNine to effect the transfer. You agree your request to transfer your domain to another registrar may be denied pursuant to the Inter-Registrar Transfer Policy (available here).
- 18.3 For country-code top-level domains, as established by each registry, you agree that you may not transfer a domain to another registrar during the first sixty (60) days of the initial registration or after expiration of the domain. You agree your request to transfer your domain to another registrar may be denied pursuant to the Inter-Registrar Transfer Policy (available here).
19. EXPIRED DOMAIN DELETION POLICY
- 19.1. Immediately after the expiration of the term of a domain name's registration services and before deletion of the domain name in the applicable registry's database, you acknowledge that HostNine may direct the domain name to name servers and IP address(es) designated by HostNine, including, without limitation, to no IP address or to IP address(es) which host a parking page and/or a commercial search engine that may display advertisements. You acknowledge that HostNine may either leave your WHOIS information intact or that HostNine may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name.
- 19.2. For a period of approximately thirty (30) days after expiration of the term of domain name registration services, you acknowledge that HostNine may provide a procedure by which expired domain name registration services may be renewed. You acknowledge and agree that HostNine may, but is not obligated to, offer this process, called the "reactivation period." You acknowledge that you assume all risks and all consequences if you wait until close to or after the expiration of the original term of domain name registration services to attempt to renew the domain name registration services. You acknowledge that HostNine, for any reason and in its sole discretion, may choose not to offer a reactivation period and that HostNine shall not be liable therefore. You acknowledge that reactivation period renewal processes, if any, may involve additional fees which HostNine may determine at its discretion. You acknowledge and agree that HostNine may make expired domain name services(s) available to third parties, that HostNine may auction off the rights to expired domain name services (the auction beginning near the end or after the end of the reactivation period), and/or that expired domain name registration services may be re-registered to any party at any time.
20. IP ADDRESS ALLOCATION
- 20.1. Any dedicated IP order, in addition to ones provided with a hosting package, may be subject to IP justification. Justification practices are subject to change to remain in conformity with policies of American Registry for Internet Numbers (“ARIN”). HostNine reserves the right to deny any dedicated IP request based on insufficient justification or current IP utilization.
21. ACCEPTABLE USAGE POLICY
- 21.1. You shall use HostNine's services only for lawful purposes. Transmission, storage, or presentation of any information, data, or material in violation of the laws of the State of North Carolina or the United States is prohibited. This includes, but is not limited to: copyrighted material in which you are not the copyright holder, material that is threatening or obscene, or material protected by trade secrets or other statutes. You agree to indemnify and hold harmless HostNine from any claims resulting from the use of the service which damages you or any other party.
- 21.2. HostNine reserves the right to terminate Services for any customer or End User activity that exposes it to legal liability or endangers its ability to provide services to other customers. The contents, links, or actions on any Services listed below are a violation of this Agreement. This is not an exhaustive list, but is designed to assist you in evaluating whether HostNine is the appropriate service provider for you:
- Child Pornography - Hosting, Distributing, or Linking to Pornography Involving a Person Under Legal Age
- Copyright Infringement - Hosting, Distributing, or Linking to Copyright Infringed Materials
- CPU/Memory/Resource Abuse - Consuming Excessive Amount of Server Resources Causing Server Performance Issues
- DoS Source - Source of Denial of Service Attack
- DoS Target - Target of Denial of Service Attack
- File Scripts - File Dump/Mirror Scripts (similar to rapidshare)
- Forgery - Faking an IP Address, Hostname, E-Mail Address, or Header
- Fraud Site - Hosting or Linking to a Website Intended to Deceive the Public including, but not limited to sites listed at aa419.org & escrow-fraud.com
- HYIP - Hosting or Linking to a High Yield Investment Program Website
- Identity Theft - Hosting, Distributing, or Linking to Stolen Account Identification Information
- Infection - Hosting, Distributing, or Linking to Exploits, Trojans, Viruses, or Worms
- Investment Sites - FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme, High-Yield Interest Programs (HYIP) or Related Sites
- IRC - Internet Relay Chat Server, including IRC Scripts/Bots
- Mass Storage - Storing Mass Amounts of Backups, Archives, Videos, etc.
- PayDay Loan Sites - including any site related to PayDay loans, PayDay loan affiliate programs, etc.
- Pharmacy Sites - Sites that engage in the illegal distribution of prescription medications, including, but not limited to, promotion, marketing, or sale of prescription medications without a valid prescription.
- Phishing - Identity Theft by Email Under False Pretense
- Proxy Site - Hosting of or linking to an Anonymous Proxy Server
- Bulk Email - No more than 500 emails of similar content (Opt In)
- Spam Email - Unsolicited Commercial Email (UCE) or Unsolicited Bulk Email (UBE)
- Spam List - Hosting, Distributing, or Linking to Email Address Lists for Spam
- Spam Site - A Site Advertised by Spam Email or Spam Web
- Spam Ware - Hosting, Distributing, or Linking to Software Designed for Spamming
- Spam Web - Unsolicited, Bulk, or Forged Site Advertisement in Web Logs, Forums, Guestbooks, or Social Media
- Spamhaus - Spam Causing Blacklisting of an IP at www.spamhaus.org for Malicious Activity
- Terrorist Site - Hosting or Linking to a Site Advocating Terrorism
- Toolz - Hosting, Distributing, or Linking to Tools or Instructional Material on Hacking/Cracking or Other Illegal Activity
- Trademark - Hosting, Distributing, or Linking to Trademark Infringed Materials
- Warez - Hosting, Distributing, or Linking to Crackz, Hackz, KeyGenz, Serialz, or Pirated Software
- Any other material HostNine judges to be threatening or obscene.
- 21.3. In addition, hosting accounts may not be resold unless the account is a Reseller account, VPS, or dedicated server. You may not resell individual services within any single account such as web space, emails accounts, add on domains, or mailing lists. All domains, add-on domains, and sub domains must be for sites controlled by or promoting published content or businesses that are solely controlled by the owner of the account as described above.
- 21.4. HostNine's designated agent for receipt of copyright complaints is: Douglas Hanna. You may contact HostNine's agent via email by emailing abuse at hostnine dot com (please make replacements as necessary). Copyright complaints are handled pursuant to the Digital Millennium Copyright Act (“DMCA”). Complaints that do not comply with the DMCA will not be processed. You are required to comply with the DMCA in using HostNine's Services, and presenting copyright complaints.
22. RESTRICTIONS ON STORAGE SPACE USAGE
- 22.1. All accounts are subject to the following restrictions on storage space usage: a) accounts must have valid, working websites, and not violate any previously subscribed terms; b) accounts are not for use of mass storage of backups, files, audio, video, zip files or others, as determined by HostNine, at its sole discretion; and c) accounts are not for use of mass distribution of files, such as torrents or mirrors. Any account found violating these terms may be suspended or terminated without warning.
23. MULTI-LOCATION HOSTING
- 23.1. HostNine does not guarantee the availability of any and all host locations, and reserves the right to add, move, modify, or remove any location at any time without notification. HostNine also reserves the right to deny the transfer of any account to a new location for any or no reason.
- 24.1. Your Warranties to HostNine
- 24.1.1. You represent and warrant to HostNine that: (i) you have the experience and knowledge necessary to use the Services; (ii) you will provide HostNine with material that may be implemented by it to provide the Services without extra effort on HostNine's part; and (iii) you have sufficient knowledge about administering, designing, and operating the functions facilitated by the Service to take advantage of it.
- 24.1.2. You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all material provided to HostNine, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
- 24.2. HostNine's Warranties
- 24.2.1. YOU EXPRESSLY AGREE THAT USE OF HOSTNINE'S SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED AS-IS AND AS-AVAILABLE. OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, HOSTNINE HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OR NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OR MERCHANTABILITY, AND/OR TITLE. NEITHER HOSTNINE, ITS PARENT, ITS EMPLOYEES, AGENTS, RESELLERS, THIRD PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, WARRANT THAT HOSTNINE'S SERVICES WILL NOT BE INTERRUPTED OR BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, OR RELIABILITY, OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH HOSTNINE'S NETWORK, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. HOSTNINE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY HOSTNINE. NO WARRANTIES MADE BY THESE THIRD PARTIES TO HOSTNINE SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
- 24.2.2. THE WARRANTY DISCLAIMERS CONTAINED IN THIS AGREEMENT EXTEND TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM HOSTNINE, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
- 24.2.3. SOME STATES DO NOT ALLOW HOSTNINE TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
- 24.3. The parties expressly disclaim the applicability of the United Nations Convention on the International Sale of Goods.
25. LIMITATION OF LIABILITY
- 25.1. YOU ALSO ACKNOWLEDGE AND ACCEPT THAT ANY DAMAGES WILL BE LIMITED TO NO MORE THAN THE FEES PAID BY YOU FOR ONE (1) MONTH OF SERVICE.
- 25.2. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL HOSTNINE, ITS OFFICERS, AGENTS OR THIRD PARTIES PROVIDING SERVICES THROUGH HOSTNINE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY THIRD PARTY; OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO HOSTNINE RECORDS, PROGRAMS OR SERVICES. YOU AGREE THAT THIS PARAGRAPH APPLIES EVEN IF HOSTNINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENTS ON ALL SERVERS AND ALL SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS, HOSTNINE'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
- 26.1. You agree to indemnify, defend and hold harmless HostNine, and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and collectively, “indemnified parties”) from and against any and all claims, damages, losses. liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of, or relating to: (i) your use of the Services; (ii) any violation by you of any of HostNine's policies; (iii) any breach of any of your representations, warranties or covenants contained in this Agreement; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services the use of which is facilities by HostNine.
27. GOVERNING LAW AND DISPUTES
- 27.1. This agreement shall be governed by the laws of the State of North Carolina, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. Exclusive venue for all disputes arising out of or relating to this Agreement shall be the state and federal courts in Durham County, North Carolina, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
28. PARTIAL INVALIDITY
- 28.1. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. HostNine and Customer agree to renegotiate any term held invalid and to be bound by mutually agreed substitute provision.
29. CHANGES TO THE TERMS OF SERVICE
- 29.1. HostNine reserves the right to modify this Agreement, in whole or in part, from time-to-time. HostNine will provide you with notices of such a change by posting notice on your control panel. Unless HostNine is required to make a change in an emergency, any change will be effective thirty (30) days after it is posted. If such a change materially diminishes your ability to use the Services, you may terminate this Agreement. You are encouraged to review the content of this Agreement on a regular basis.
- 30.1. This Agreement may be assigned by HostNine. It may not be assigned by you. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
31. FORCE MAJEURE
- 31.1. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event.
32. NO WAIVER
- 32.1. No waiver of rights under this Agreement or any HostNine policy, or agreement between Customer and HostNine shall constitute a subsequent waiver of this or any other right under this Agreement.
33. NO AGENCY
- 33.1. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
- 34.1. The following paragraphs shall survive the termination of this Agreement: 19, 25 through 28, and 34.