Hostwinds Terms of Service

Terms of Service

These Terms of Service are an agreement (the "Agreement") between Hostwinds LLC ("Hostwinds") and you ("Client" or "you" or "your"). This Agreement states the terms and conditions of your use of the products and services (the "Services") made available by Hostwinds and the Hostwinds.com website. By using any of the Services, you agree to be bound by all of the terms and provisions of the Agreement."

Ownership

The owner of the payment method which is used for payment on the account is designated as the authorized owner of the account.

Third Party Providers

All transactions with third-party providers are solely between you and the individual provider. Hostwinds is not the agent, representative, trustee or fiduciary of you or the third-party provider in any transaction.

All discounts, promotions, and special third-party offers may be subject to additional restrictions and limitations by the third-party provider. All transactions with third-party providers are subject to the terms and conditions under which the provider agrees with you to provide goods or services. You should confirm the terms of any purchase and/or use of goods or services with the specific third party provider with whom you are dealing. All discounts, promotions, and special third-party offers may be subject to additional restrictions and limitations by the third-party provider. All transactions with third-party providers are subject to the terms and conditions under which the provider agrees with you to provide goods or services. You should confirm the terms of any purchase and/or use of goods or services with the specific third party provider with whom you are dealing.

Hostwinds does not make any representations or warranties regarding, and is not liable for, the quality, availability, or timeliness of goods or services provided by a third-party provider. You undertake all transactions with these providers at your own risk. Hostwinds does not warrant the accuracy or completeness of any information regarding third-party providers.

Use of Service

All Services may only be used for lawful purposes. The laws of the United States of America apply to all Clients of Hostwinds. You agree to indemnify and hold harmless Hostwinds from any claims resulting from your use of Hostwinds Services. You represent and warrant to Hostwinds that you are eighteen (18) years of age or older. Any use of or access to the Services by anyone under eighteen (18) years of age is prohibited.

If you use the Services on behalf of another party, you agree that you are authorized to bind such other party to this Agreement and to act on such other party's behalf with respect to any actions you take in connection with the Services.

Use of the Hostwinds Services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of another's copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting. If you believe that your copyright or trademark is being infringed upon, please email abuse@hostwinds.com with the information pertaining to your claim.

Using a shared account as a backup/storage device is not permitted, with the exception of one cPanel backup of the same account. Please do not take backups of your backups.

Examples of unacceptable material on all Shared, Business and Reseller servers include:

• X IRC Scripts/Bots

• Proxy Scripts/Anonymizers

• Pirated Software/Warez

• Image Hosting Scripts (similar to Photobucket or Tinypic)

• IP Scanners

• Bruteforce Programs/Scripts/Applications

• Mail Bombers/Spam Scripts

• File Dump/Mirror Scripts (similar to Rapidshare)

• Sale of any controlled substance without prior proof of appropriate permit(s)

• Lottery/Gambling Sites

• Sites promoting illegal activities

• Forums and/or websites that distribute or link to Warez/pirated/illegal content.

• Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com).

All of the files on our shared hosting accounts must pertain to your website(s). This space may only be used for web files, active emails, and content of Client Websites. Hostwinds shared hosting may not be used for massive file storage systems, or backup storage solutions (including media files, emails, or other data). You are not authorized to use Hostwinds for the hosting of download mirrors. You may have files for your clients/users/ to use; however, if your website is based around users downloading files, you will need to upgrade to a VPS Package with a link to our managed Linux page.

It is your responsibility to ensure that scripts/programs installed under your account are secure, and permissions of directories are set properly, regardless of installation method. When at all possible, you must set permissions on most directories to 755 or as restrictive as possible. Clients are responsible for all actions taken under their account. This includes the compromise of credentials such as Client name and password. You must use a secure password.

Solely for the purpose of providing the Services, you hereby grant to Hostwinds the right and license to access, store and use any content provided by you, and to remove all or any portion of such content if you violate the provisions of this Agreement.

Hostwinds may from time to time, and at any time, monitor your use of the Services to ensure your compliance with the provisions of this Agreement.

Payment

Hostwinds provides subscription-based services that renew automatically on a recurring basis to prevent any disruption of said services.

Payment for all non-hourly services is due and payable in advance of the time in which said services are provided. Payment for all hourly services is due and payable on the first (1st) of every month for the usage of the service for the previous month.

Using payment information for Credit Card, PayPal, or Alipay at the time of checkout will store that information on file for future use.

All invoices will be paid automatically using the payment information stored on file with Hostwinds, such as Credit Card, PayPal, or Alipay. This would include invoices for new orders, renewal of existing services, hourly service usage, invoices created from the Client Area, and fees of any kind.

Listed fees for Hostwinds services do not include any sales, use, revenue, excise, or other taxes imposed by any taxing authority. Any non-hourly service with an invoice that is outstanding for more than fourteen (14) days may be terminated. All services billed on an hourly rate must be paid for within one (1) days of their due date or risk suspension. Any hourly service that is unpaid beyond ten (10) days will be terminated.

Anniversary Billing

Hostwinds uses Anniversary Billing for service renewals and new service orders. The day of the month that an account is opened, would work as the recurring due date for the services purchased on the account and would function as the first day of every new billing cycle.

New services purchased on the account would have their first billing cycle and invoice prorated to allow for their next billing cycle to begin on the Client's recurring due date. Due to the nature of how they are provided, Anniversary Billing would not apply to services like Domains, SSLs, or Hostwinds offerings purchased prior to September of 2017.

Zero-Tolerance SPAM Policy

Hostwinds has zero-tolerance for Clients sending unsolicited e-mail, unsolicited e-mailing, and SPAM. "Safe lists," purchased lists, and selling of lists will be treated as SPAM. Any Client who sends out SPAM will have their account terminated, and may be terminated without notice. Additionally, Clients who engage in unsolicited mailing will, at Hostwinds' own discretion, be charged a consulting fee of two hundred fifty dollars ($250) per hour for any remedial actions that Hostwinds elects to take in the event that, as a result of a Client's activities, Hostwinds servers or IP space are placed in any third-party mail filtering software or blackhole lists.

To protect the IP reputation of our network, and as a proactive measure to prevent our IP space from being used to distribute unsolicited e-mail, Hostwinds reserves the right to apply an SMTP filter as a precaution to accounts flagged by our Abuse Team.

Transfers

Our Support Engineers will make every effort to assist you with the move of your website or server to us. Transfers are provided as a courtesy service, and Hostwinds does not make any guarantees regarding the possibility, prospect, or time required to complete a transfer of accounts. Every hosting company is structured differently, and some hosting platforms retain data in an inconsistent or proprietary configuration, which may result in migration attempts being immensely difficult and possibly impossible to migrate partial or all account data. In certain situations, we may not be able to provide you the assistance in the transferring of data from a previous hosting provider. In no event shall Hostwinds be held liable for any lost or missing data or files resulting from a transfer to or from Hostwinds. You are solely responsible for backing up your data in all circumstances. You are also solely responsible for ensuring the integrity of the data once our engineer provide notice that to the best of their knowledge the migration is complete.

Backups and Data Loss

Your use of Hostwinds Services is at your sole risk. Hostwinds servers are setup with RAID to constantly mirror all data to a second disk. Hostwinds is not responsible for files and/or data stored on Hostwinds servers. You agree to take full responsibility for files and data transferred and to maintain all appropriate backups of files and data stored on Hostwinds servers. Hostwinds does not take backups of any kind of customer data, customer's are responsible for managing and backing up their own data.

Hostwinds Backup Service

Your use of Hostwinds' Backup Service includes the fee associated with Hostwinds setting up your initial backup service, as well as all support requests you may put in related to your backups service. It is your responsibility to ensure the integrity of your backups. Hostwinds assumes no liability related to the validity, and or integrity of the data contained within your backups. You are responsible for notifying Hostwinds, should you believe there is a problem with your backups. You are also responsible for monitoring and ensuring your backups continue to function after Hostwinds completes the initial setup of the backups service.

Refunds

Payments made for eligible services provided by Hostwinds, LLC may be eligible for a prorated refund. In order to be eligible for a refund a service must be cancelled within our client portal. Once the service is cancelled a refund may be requested. The refund request must be made within seventy-two (72) hours of the payment transaction time. The transaction time means the time that the payment transaction or charge occurred. Generally speaking this is the date of original purchase or renewal for the service in question. Hostwinds will not grant refunds in advance. Refunds requested prior to cancellation or outside of the seventy-two (72) hour time window from the payment transaction time, are considered invalid and not eligible for a refund.

The following products and services are not eligible for refunds.

• Software Licenses

• Domains

• SSL Certificates

• IP Addresses

• Products or Services that are billed on an Hourly basis

• Products or Services that are terminated for violations of our Terms of Service

• Products or Services that are purchased using cryptocurrencies, tokens or digital assets

Unlimited Hosting Policy

Hostwinds will allocate an unlimited amount of disk space and bandwidth for our Shared, Business, Reseller, and White Label Reseller services. That unlimited disk space and bandwidth may only be used to store and transfer files relevant to the website(s) being hosted on those services. If a Client causes continuous server or service interruptions under their current plan, they will be asked to upgrade to a more powerful plan.

In the event that such interruptions are being caused, we would notify the Client, informing them they need to upgrade. In extreme cases, the service would be suspended to prevent further server or service interruptions. The service would also be suspended if the Client does not contact us after warning emails regarding the need to upgrade have been sent.

Bandwidth Overage Fees

The Cloud and Dedicated servers that Hostwinds provides come with a set amount of monthly Bandwidth based on the offered service's tier or resources. The amount of bandwidth each server has resets monthly on the services recurring billing day (day of month service invoices on). It is the Client's sole responsibility to monitor the resource usage of their server(s). Client's can track and monitor bandwidth usage at anytime within the cloud portal.

In the event that a Client should exceed the amount of bandwidth provided with their service. The client will be notified regarding the overage inside the Cloud Portal. The client will be billed a fee incrementally for bandwidth overages. This would be done at a rate of zero point zero one dollars ($0.01) per Gigabit (Gb) of additional bandwidth used during a given month. During the time the server is exceeding it's bandwidth limit a rate-limit of three Mbps (3 Megabits per second) will be applied to the client's server. The client can upgrade their server to a tier with a greater bandwidth allocation in order to have this limit removed, and avoid the bandwidth overage fees.

Abuse Towards Hostwinds

At Hostwinds, Clients are treated with respect. In return, Hostwinds expects an equal level of respect from their Clients. If Hostwinds feels that a Client is being disrespectful or demeaning towards any staff member, the Client may be asked to move to a new hosting provider. That Client will then be given seven (7) days to move to a new host. After this time period, Hostwinds reserves the right to completely remove/terminate the Client's account. The Client will not be entitled to any refunds. However, refunds may be issued for advanced payments if Hostwinds chooses to do so.

Server Abuse/Customer Abuse

Any attempted attack against any Hostwinds server and/or Client being hosted by Hostwinds will result in automatic termination of the offending account with no refund including, but not limited to, no refunds for advanced payments, and a permanent banning of the offending Client.

Price/Plan Changes

Hostwinds reserves the right to change prices at any time. We will provide you with at least thirty (30) days prior to you being billed at the updated price. It is your sole responsibility to periodically review billing information provided by Hostwinds through the customer portal.

Changes to the Agreement or the Services

Hostwinds may modify, add, or delete portions of this Agreement at any time. Hostwinds will post a notice on the Hostwinds website for a period of thirty (30) days before the effective date of any such change. Thereafter, your use any of the Services shall constitute agreement to such change.

Hostwinds may modify, change, or discontinue any aspect of the Services at any time.

Cancellations

With the exception of Domain name registrations, and items stored in Cloud Storage, it is required to request cancellation of a service through the Client Area on the service's management page. Attempting to cancel through any other form of contact, method, or actions taken with third parties would not be considered a valid cancellation request.

All valid cancellation requests are handled with immediate effect, resulting in the termination of the service and the deletion of any content that may have been stored on the service at the time of cancellation. It is the responsibility of the account owner to ensure they have taken any needed backups prior to requesting cancellation.

To prevent a service renewal, it is required to complete the cancellation process, as detailed above, prior to beginning of the service's next billing cycle. Failure to do this will result in the service automatically renewing as per details found in the "Payment" section of this agreement. Payments for such renewals would be subject to our refund policy as detailed in the "Refunds" section of this agreement.

Domain name registrations, and items stored in Cloud Storage are services that cannot be canceled as they do not work on a standard subscription basis.

Domain name registration will stop renewing once auto renewal of a given domain name is disabled on the domain's management page as found in the Client Area.

Items held in Cloud Storage need to be deleted by the account owner from within the Cloud Portal. The time such items are stored leading up to that deletion would be billed per the details of the "Payment" section in this agreement.

Hostwinds does not charge late fees, however, if a service is paid for late, the next due date for the service will not be adjusted.

Termination

Hostwinds may terminate your access to the Services, in whole or in part, including deletion or confiscation of all files, content, and/or domain name registrations, without notice in the event that: (i) you fail to pay any fees due; (ii) you violate the terms and conditions of this Agreement; (iii) your conduct may harm Hostwinds or others, cause Hostwinds or others to incur liability, or disrupt Hostwinds's business operations (as determined by Hostwinds in its sole discretion); (iv) you are abusive toward Hostwinds's staff in any manner; or (v) for any other lawful reason, including to comply with applicable law, or as otherwise specified in this Agreement. In such event, Hostwinds will not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination.

Upon termination of the services for any reason, user content, user websites, and other data will be deleted.

Account Credit

All account credits are tied to the account on which they were originally added. Account credits will not be refunded back to the Client.

Chargebacks and Disputes

In the event that we are notified that a chargeback or other payment dispute is filed, your account will automatically be placed on hold. Resulting in suspension for all active services on your account, and the risk of termination should the dispute not be immediately resolved. Resolving a chargeback would include providing proof of ownership for the payment method used, repaying any disputed transaction(s), and paying a two hundred fifty dollar ($250) penalty fee per transaction that has been disputed.

Failure to do this will result in the termination of the service(s) on the account as well as the account remaining on hold, preventing any new orders or purchases from being completed.

Reseller Web Hosting Agreement

This Agreement applies to Client's Services as well. All content hosted on any Hostwinds server is subject to this Agreement.

Hostwinds VPN DMCA

Hostwinds does not condone the use of our Services to facilitate copyright infringement. Hostwinds respects and abides by U.S. copyright laws including the requirements of the DMCA. Hostwinds implements an automated virtual private network (VPN) service. Our service is fully automated and we do not log our user's activities. We do not in any way select the recipients our users transmit to or the material our users access while using our service. We do not store, access, or modify any content that our users access while using our service. Hostwinds VPN service qualifies as a provider of transitory digital network communications under 17 U.S.C. A 512(a) of the Copyright Act. As we do not store any content accessed by our users, we are unable to delete any such content that may be infringing. Because we do not log our Clients activities in order to protect and respect their privacy, we are unable to identify particular users that may be infringing the lawful copyrights of others. To the extent Hostwinds can, Hostwinds will do its best to assist copyright owners and their agents that report copyright infringement by a Client that is using Hostwinds Services. However, before investigating any report of copyright infringement, Hostwinds requires the copyright owner or its authorized agent to give Hostwinds a valid and complete DMCA takedown notice if the copyright owner wishes to report what it believes is infringing activity by a third-party using Hostwinds VPN Services. If a copyright owner is unsure whether content on the Hostwinds network infringes the owner's copyright, then Hostwinds requests that the owner please first contact an attorney. Please deliver notices to Hostwinds designated DMCA Agent.

Disclosure to Law Enforcement

Hostwinds may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies. Hostwinds will cooperate fully with law enforcement agencies.

Hostwinds Proprietary Content

Except for content provided by the Client, all content available through the Services, including designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services ("Hostwinds Content"), are the property of Hostwinds. Hostwinds Content may not be used, modified, copied, distributed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. Client may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Hostwinds Content.

Prohibited Persons

The U.S. Department of the Treasury, through the Office of Foreign Assets Control ("OFAC"), prohibits U.S. companies from engaging in certain commercial activities with certain sanctioned countries (each a "Sanctioned Country") and certain individuals, organizations or entities, including without limitation, certain "Specially Designated Nationals" ("SDN") listed by OFAC. If you are located in a Sanctioned Country or if you are listed as an SDN, you are prohibited from registering for or using the Services. In addition, you may not use any Hostwinds Services in connection with, any Country-Code Top Level Domain Name ("ccTLD") for any Sanctioned Country.

HIPAA

Hostwinds is not "HIPAA compliant." You are solely responsible for any required compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Hostwinds does not control or monitor the information or data you store on, or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act ("HIPAA"). Customers requiring secure storage of "protected health information" as defined under HIPAA are expressly prohibited from using the Services for such purposes. You agree that Hostwinds is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA.

Disclaimer

Hostwinds shall not be responsible for any damages a Client's business may suffer. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by Hostwinds and its Clients. Hostwinds makes NO WARRANTIES of any kind, expressed or implied for Services provided. Hostwinds makes NO WARRANTIES of MERCHANTABILITY or FITNESS for a particular purpose.

IN NO EVENT WILL HOSTWINDS ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY USER CONTENT, USER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF HOSTWINDS IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, HOSTWINDS'S LIABILITY TO YOU, OR ANY PARTY CLAIMING THROUGH YOU, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO HOSTWINDS FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.

Indemnification

You agree to indemnify, defend and hold harmless Hostwinds, our affiliates, and their respective officers, directors, employees and agents (each an "Indemnified Party" and, collectively, the "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 attorney's 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 breach or violation by you of this Agreement; or (iii) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement.

Arbitration

By using the Services, you hereby submit to the exclusive jurisdiction of the American Arbitration Association ("AAA") in connection with any dispute relating to, concerning or arising out of this Agreement. The arbitration will be conducted before a single arbitrator chosen by Hostwinds and will be held at the AAA location chosen by Hostwinds in Washington. Payment of all filing, administrative and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Hostwinds will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this paragraph. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all parties. The arbitrator's authority to resolve and make written awards is limited to claims between you and Hostwinds alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate litigation or any other proceeding against Hostwinds in violation of this paragraph, you agree to pay Hostwinds' reasonable costs and attorneys' fees incurred in connection with Hostwinds enforcement of this paragraph.

Governing Law; Jurisdiction

Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based on an alleged tort, shall be governed by the internal laws of the State of Washington, without regard to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Entire Agreement

This Agreement, including documents incorporated herein by reference or otherwise referred to herein, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement and such other agreements constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.