ALNITECH VIRTUAL AND DEDICATED HOSTING SERVICE AGREEMENT
1. HOSTING SERVICES. Host will provide connection to all organizations and individuals who agree to abide by Host's access terms, conditions, and fee schedules.
User is responsible for providing any equipment and/or software necessary to access Host's system and Internet facilities, unless otherwise provided for in this Agreement.
User is entitled to use any Internet services and time-share computer software provided by Host. User is responsible for any licensing fees for any "shareware" products provided by Host to User.
Host will provide the Hosting services provided in the service package chosen by User, and set forth on page one of the Service Order Form or the web order confirmation page, including dedicated space on a server, connection of the server to Host's high-speed network, backup of the server's hard disk and other maintenance on the server, domain name, e-mail, and file transfer services as provided in the chosen service package, automated server monitoring and limited log file generation and access. All equipment provided by Host shall remain Host's property.
The services and software offered are subject to change and limitation at Host's discretion, as is any pricing schedule. Host will notify User of any changes by electronic or postal mail to the agent named in this Agreement or other User officer a minimum of 14 days in advance, unless the change is judged by Host to be necessary to preserve proper security or functioning of Host's system. If User objects to any change in service, unless the change is one Host has determined is necessary for security purposes or to maintain proper operation of Host's system, User will be entitled to cancel its account.
User's continued use of the Hosting services after the effective date of such modified general terms and conditions, policies, or changes in services or software will constitute User's acceptance of such modified terms.
This Agreement covers only Internet services and any time-share software related to the provision of Internet services, Dedicated Hosting services, and any ancillary services such as domain name service and electronic mail.
2. FEES. User will pay (a) subscription fees in advance, (b) fees for other goods or services as invoiced, and (c) any security deposit, in each case per the applicable price schedule set forth on page one of the Service Order Form.
3. TERMINATION AND REINSTATEMENT. This Agreement may be terminated by either party on not less than 30-days prior written notice subject to the following:
If User (a) becomes bankrupt or otherwise insolvent or (b) fails to pay for services rendered in accordance with the terms hereof or (c) commits any other breach of this Agreement, Host may, at its sole discretion and without notice or judicial intervention, discontinue performance and terminate this Agreement for default and pursue any other remedies available at law or in equity.
If User's account is suspended due to lack of payment, User will pay the then current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of service.
4. CUSTOMER SUPPORT. Host will provide to User reasonable amounts of consultation via telephone and/or electronic mail in the use of the system, but cannot promise to assist with any services that are not maintained or controlled by Host.
5. DISCLAIMER AND LIMITATION OF LIABILITY. With the exception of any express warranty herein, neither Host, nor its affiliates (hereinafter "Host"), nor its suppliers make any warranty, and each of them disclaims any liability, with respect to:
(a) the accuracy, completeness, correctness, error-free nature, or fitness for any particular purpose of any data or services accessed on or through the Host system, or
(b) system performance levels, including but not limited to resource utilization, response time or overhead, unless such a performance guarantee is part of the chosen Hosting services package represented by a SLA, or
(c) any loss or inconvenience associated with Host's suspension, termination, or deletion of User's account, or
(d) ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NO ORAL ADVICE OR WRITTEN ADVICE GIVEN BY HOST OR ITS STAFF OR AGENTS SHALL CREATE A WARRANTY.
Host will not be liable for delay in delivery or performance of hosting or design services, and is excused from any failure to deliver or perform, due to causes beyond its reasonable control unless a specific level of service is guaranteed via a SLA.
Host will not be liable for any damage or inconvenience caused by any necessary or scheduled maintenance to Host's system, or for any service lapses or loss of customer data caused by forces beyond Host's reasonable control. Host recommends that User make archival copies or otherwise download any important information stored on Host's system, in addition to any backups Host may perform.
THE SOLE AND ENTIRE MAXIMUM LIABILITY OF HOST TO ANY USER FOR ANY AND ALL PROVEN LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND (INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT) WITH RESPECT TO ALL SERVICES PROVIDED BY HOST AND ANY ACT OR OMISSION OF HOST WILL CONSIST OF A DUTY TO REFUND NOT MORE THAN THE AMOUNTS PAID BY THE USER TO HOST DURING THE YEAR PRECEDING SUCH LOSS, CLAIM, DAMAGE OR LIABILITY. IN NO EVENT WILL HOST BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
User, by signing this Agreement or connecting to the Host system, (a) accepts the use of the system/interconnection (including any programs, data, or services) "AS IS"; and (b) waives any and all claims relating thereto, whether such claims are against Host or any of its suppliers or affiliates.
Should any legal action or threat of legal action result as a result of User's use, or of any of Host's system, interconnection facilities, or services, User agrees to indemnify Host, its staff, or Host's other Users, for any costs incurred in defending against any such threat or action, including reasonable attorneys' fees and any equipment replacement costs, even if User is no longer a customer of Host when such expenses arise. This clause also applies to third party claims as well as any legal action taken by Host against User for breach of this Agreement, damage caused by User to Host's system, or for failure to pay expenses User is obligated to pay Host.
6. USE RESTRICTIONS AND INDEMNIFICATION. User agrees to adhere to Host's "Acceptable Use Policy", a copy of which is attached to this Agreement, and which policy may be changed from time to time - User agrees to adhere to all such changes it has notice of.
User will indemnify and hold Host harmless from any costs, expenses (including reasonable attorneys fees) or liability resulting from any claim based on User's use of the system. Such indemnification will not be applicable with respect to claims of gross negligence, wilful misconduct or infringement by Host. Such indemnity will survive the termination or expiration of this Agreement.
7. GENERAL. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of this Agreement or any provision thereof. If any provision of the Agreement is or becomes illegal or otherwise unenforceable, such provision will not invalidate the other provisions hereof; provided if Host determines that any such unenforceable provision is essential, it may terminate this Agreement upon notice.
User grants any permissions or licenses (including but not limited to copyright licenses), as may be required, and within User's power to grant, to Host in order to provide Internet and related services to User, or as may be required for Host to operate for User's benefit.
This Agreement constitutes the entire Agreement between Host and User, and supersedes all prior agreements, proposals, representations, or other communications, relative to the subject matter hereof. Paragraph headings are included for convenience and are not to be used to interpret this Agreement.
This Agreement may not be assigned by User with the written consent of Host.
8. CHANGES IN LEGISLATION. Should any changes in legislation require any changes to this Agreement or any services provided by Host, Host reserves the right to make any such changes, as are determined necessary or prudent, at Host's sole discretion, without giving User advanced notice. If such changes are made, Host promises to send by electronic or postal mail notice of any changes in a reasonable time period. In event of such changes, User may terminate service without the required 30 day notice, but is not entitled to a refund of any payments already made for services.
9. 1Gbps METERED PORT. For 1Gbps port customers Ethernet link-level port speed will be set to 1Gbps. Traffic usage is metered at link layer, in each direction separately. All accounts with traffic in excess of monthly allotment are subject to traffic overage policies. It is your responsibility to monitor your traffic usage in order to stay within the traffic quota. We reserve the right to apply traffic shaping/policing techniques to maintain service availability to all users.
10. TRAFFIC OVERAGE. Should an account exceed its monthly traffic allotment, we may, at our discretion, apply any or all of the following:
1. A traffic overage charge in amount of $10 per Terabyte of excess in each direction
2. A restriction of transmit/receive speeds to lower values
3. A suspension of the service, as a measure of last resort
Any and all overage charges are to be payed no later than the due date for the subsequent billing cycle. In case of service termination, overage charges are due immediately and apply to any traffic in excess of prorated quota. Overage charges are not refundable and are not subject to money-back guarantee and/or free trial period.
11. MONEY-BACK GUARANTEE. All money-back requests are to be submitted no later than 21 days from product purchase date. No money-back request will be honored past 21 days from the date of purchase. Money-back guarantee applies only to the products purchased without any changes, as they appear in "Product Configuration" during the check-out process. Any additional product customization and/or additional services are non-refundable. Non-refundable services and customizations include, but not limited to: additional IP addresses, additional bandwidth, hardware configuration changes, software installation and management. A refund is not to exceed the amount paid during the initial check-out of the product.
12. COMMUNICATIONS LANGUAGE. Official language for all comunications with Alnitech including support tickets is English. Client must have basic skills which allow him/her to read, write and comprehend English, including basic IT terminology.
ALNITECH MONITORING SERVICE AGREEMENT
1. YOUR ACCOUNT. You must provide a valid email address and contact information, and keep all information up-to-date. You are responsible for keeping your login and password secure. You may only set up checks to monitor sites or hosts which you own or that you are authorized to monitor with services such as our monitoring service. You may only use monitoring services in accordance with all applicable laws.
2. FEES. Alnitech provides a monitoring subscription service, which you pay in advance on a monthly basis. Pricing is as specified on order form with no ability to prorate and/or to refund. We will charge the fee to your credit card or bank account automatically each month until you cancel monitoring service from within https://availability.alnitech.com. You are responsible for keeping your credit card and other payment information up-to-date whether or not we notify you that the card is about to expire. If the payment is declined for any reason, including if the credit card is expired, we will suspend checks and notifications for your account.
3. ACCOUNT CANCELLATION. You can cancel your subscription at any time. We may terminate your account at any time if in our sole discretion we believe you are abusing the account or using it for improper purposes. We can cancel your account at the end of any billing cycle for any reason.
4. REFUNDS. We do not provide refunds for cancellations, regardless of when in the billing cycle you cancel your account.
5. CHANGES TO THE MONITORING SERVICE OR TO THE TERMS OF THE MONITORING SERVICE. We reserve the right to modify the monitoring service from time to time, which may include adding or removing monitoring services or features. We reserve the right to discontinue the monitoring service at any time after your current billing cycle. We will not increase what we charge you without your consent, but if you do not agree to new rates or changes in monitoring services, we may end your account. We reserve the right to change the terms of this agreement with notice on this site, and once you have actual notice of the changes, your continued use of the monitoring service beyond the end of your current billing cycle constitutes agreement to the terms. We may also send notices via email.
6. DISCLAIMER AND LIMITATION OF LIABILITY. Alnitech monitoring services are provided "as is" and "as available" and without any expressed or implied warranties of any kind. In no event will we be liable for any direct, indirect, incidental, special, exemplary, or consequential damages of any kind for any reason, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses resulting from anything, ever. That includes your inability to use monitoring service, the costs of procuring some other services, any loss of data, or loss of use of data, information, or other services, or any other kind of damages whether or not we know about them or are informed they may occur. We are not responsible for any statements made by you or anyone else, or decisions made on the basis of those statements. In no event will Alnitech's total liability to you for all damages, losses, and causes of action and on any theory of liability, whether in contract, strict liability, or tort (negligent or otherwise) exceed the amount paid by you, if any, for accessing or using the service.
You may choose to use monitoring service to monitor sites or services for which our system needs to have information that is proprietary or confidential. For example, in order to monitor a web page on your site that is password-protected, the configuration for that check needs to include the login information. We will not use the information you provide other than for the purpose it is intended, namely for the purpose of the monitoring as you configure it in monitoring service or for supporting that monitoring upon your request. However, beyond normal precautions that we take at our discretion for all of the information in our systems, we are not responsible for maintaining the confidentiality of your information or maintaining the security of your servers or systems. You should configure checks and the permissions you set up for checks so that any configured logins have no more access than is necessary to perform the monitoring. For example, if you use our ssh check and provide credentials for the check to log in, you should restrict those credentials so that they cannot be used to run arbitrary software on your server. Additionally, you should not re-use passwords.
7. INDEMNIFICATION. You agree to defend, indemnify, and hold harmless Alnitech, its owners, suppliers, and licensors from and against any and all claims and expenses, including attorneys' fees, arising out of your use of the monitoring service, including but not limited to out of your violation of any representation or warranty contained in this Alnitech monitoring service agreement.
8. THAT IS ALL THERE IS. This Alnitech monitoring service agreement is the entire agreement between Alnitech and you concerning the use of monitoring services. A waiver or failure to enforce by either party of any term or condition in this agreement or any breach of the agreement will not waive the term or condition or any subsequent breach.
SERVICE LEVEL AGREEMENT (SLA)
1. Service Level Goals; Service Level Agreement. ALNITECH shall use all reasonable commercial efforts to ensure that the ALNITECH Network, as defined below, is operating and available to Customers. In the event that the ALNITECH Network is not available as set forth below, or in the event Customer experiences any of the service performance issues defined below due to ALNITECH'S failure to provide Services, Customer will be eligible to receive the Service Credits described below ("Service Level Agreement").
(a) Network Latency and Packet Loss. ALNITECH will use all commercially reasonable efforts to ensure the ALNITECH Network satisfies the Network Latency Objective and Packet Loss Objective, as these terms are defined below.
(i) Changes to Objectives. A change to the Network Latency Objective and/or Packet Loss Objective that is beneficial to the Customer will apply to the Customer immediately; however, a change that is not beneficial will apply upon the commencement of the next Renewal Term.
(ii) Measurement of Network Latency and Packet Loss. ALNITECH will measure Network Latency and Packet Loss using a performance measurement server connected to each Internet Data Center ("IDC") and/or PBN, as defined below.
(b) Network Availability. The ALNITECH IDC Network Infrastructure, as defined below, will be available 100% of the time in any calendar month for multiline customers. The ALNITECH IDC Network infrastructure will be available 99.95% of the time in any calendar month for singleline customers. ALNITECH will measure Network Availability based on the IDC Network Infrastructure, as defined below.
2. Definitions. The following definitions shall apply to the Service Level Agreement:
(a) "Internet" shall mean the worldwide, publicly accessible network of interconnected computer networks that transmit data using the standard Internet Protocol (IP). The Internet's connection point is the outermost ALNITECH controlled IDC router. The Internet does not include, among other things, any Access Facilities, Backhaul Facilities, or Customer Equipment.
(b) "Downtime" shall mean the inability of the IDC Network Infrastructure to propagate all data from the Customer to the Internet. Downtime shall be measured at each IDC on a monthly basis. Downtime shall not include any Packet Loss or Downtime during ALNITECH'S scheduled maintenance of the IDCs, network and service(s), as described in the ALNITECH AUP.
(c) "Downtime Period" shall mean: (a) for BGP Multiline and Static Multiline customers, a period of five (5) consecutive minutes; and (b) for Static Singleline and Flat Rate customers, a period of fifteen (15) consecutive minutes.
(d) "IDC Network Infrastructure" shall mean the IDC routers, customer service routers, and associated ports that connect the IDC to the Internet. This does not include any Customer Equipment.
(e) "Network Latency" shall mean the time it takes for an Internet Protocol (IP) packet to cross a network from source to destination and back to the source.
(f) "Network Latency Objective" shall mean the target monthly average amount of allowable Network Latency from the customer equipment to the edge of the internal IDC network. ALNITECH may change the Network Latency Objective from time to time.
(g) "Packet Loss" shall mean the failure to deliver IP packets.
(h) "Packet Loss Objective" shall mean the target monthly average for allowable Packet Loss. ALNITECH may change the Packet Loss Objective from time to time.
(i) "Performance Problem" shall mean Packet Loss in excess of the Packet Loss Objective and/or Network Latency in excess of the Network Latency Objective.
(j) "Primary Backbone Node" or "PBN" shall mean a node on the Internal IDC Network as identified by ALNITECH from time to time.
(k) "Service Credit" shall mean an amount equal to the pro-rata monthly recurring connectivity charges (i.e., all monthly recurring bandwidth-related charges) for one (1) day of Service.
3. Service Credits. Customer shall be eligible to receive Service Credits as stated below, and subject to the limitations set forth in this Service Level Agreement:
(a) For Failure to Meet Latency and Packet Loss Objectives: Customer shall be eligible to receive three (3) Service Credits for each failure by ALNITECH to meet either the Network Latency Objective or the Packet Loss Objective in a particular calendar month. For example, if ALNITECH fails to meet both the Network Latency Objective and the Packet Loss Objective, Customer shall be entitled to receive six (6) Service Credits. Credits not issued due to the limitations set forth in Section 5 below will not be carried over to subsequent calendar months.
(b) For Failure to Meet Network Availability Objective. In the event Customer experiences a Downtime Period, Customer shall be eligible to receive from ALNITECH a Service Credit for each Downtime Period. Examples: If Customer experiences one Downtime Period, it shall be eligible to receive one Service Credit. If Customer experiences two Downtime Periods, either from a single event or multiple events, it shall be eligible to receive two Service Credits.
4. Availability; Packet Loss and Latency. In the event that ALNITECH discovers or is notified by Customer that Customer is experiencing Downtime or performance related issues, ALNITECH will take all actions necessary to determine the source of the Downtime or performance issue.
(a) Time to Discover Source of Performance Problem; Notification of Customer. Within sixty (60) minutes of discovering or receiving notice of the Performance Problem, ALNITECH will determine whether the source of the Performance Problem is limited to the Customer Equipment and the ALNITECH equipment connecting the Customer Equipment to the IDC Network. If ALNITECH determines that the Customer Equipment and ALNITECH connection are not the source of the Performance Problem, ALNITECH will determine the source of the Performance Problem within an additional sixty (60) minute period. In any event, ALNITECH will notify Customer of the source of the Performance Problem within thirty (30) minutes of identifying the source.
(b) Remedy of Packet Loss and Latency. If the source of the Performance Problem is within the sole control of ALNITECH, ALNITECH will remedy the Performance Problem within sixty (60) minutes of determining the source of the Performance Problem. If the source of and remedy to the Performance Problem reside outside of the IDC Network, ALNITECH will use commercially reasonable efforts to notify the party(ies) responsible for the source of the Performance Problem and cooperate with such party(ies) to resolve such problem as soon as possible.
(c) Failure to Determine Source and/or Remedy. In the event that ALNITECH (i) is unable to determine the source of the Performance Problem within the time periods described in subsection 4 (a) above and/or; (ii) is the sole source of the Performance Problem and is unable to remedy such Performance Problem within the time period described in subsection 4 (b) above, ALNITECH will deliver a Service Credit to Customer for each two (2) hour period in excess of the time periods for identification and resolution described above.
ACCEPTABLE USE POLICY (AUP)
1. LEGAL USES.
Host's system and services may not be used in any way which violates Federal, State, Local, or International law. This prohibits, but is not limited to, any actions which are threatening, obscene, defamatory, or which violate trade secret, copyright or patent protection, or rights of privacy or publicity, or which result in the spread of computer viruses or other damaging programs or data files, or which violate any export restrictions (including making non-exportable information or software available to foreign nationals as may be prohibited by law). In the event User is suspected of any such violation, Host reserves the right to immediately suspend or terminate User's account.
2. NETWORK TRANSMISSIONS.
User is responsible for any materials passed via Host's system to other networks, and agrees to comply with any restrictions posed by the other network's terms of service or acceptable use policies.
3. PROHIBITED MATERIALS.
User is strictly forbidden from hosting websites that contain illegal pornographic materials or that send Unsolicited Commercial Email (UCE) otherwise known as SPAM.
Host will protect to the best of its ability the confidentiality of any files and electronic mail stored on or exchanged over the system, except as may be necessary to provide the requested Internet services, or as may be necessary to preserve the security and proper operation of Host's system, or to protect Host's rights or property.
Host, except as otherwise provided for in this Agreement or as required by law, will use its best efforts to avoid disclosing the contents of private electronic mail to anyone other than addressees, authorized recipients, or those to whom such disclosure is necessary to assure forwarding or delivery.
User acknowledges that no system on the Internet can be guaranteed safe from unauthorized intrusion, and therefore any confidential information stored on or transmitted through Host's system is stored or transmitted at User's own risk.
5. SECURITY CONCERNS.
User is responsible for choosing a secure password and for keeping it secret.
User may not attempt to bypass any security mechanisms in place on Host's system, or use any of Host's systems or services to attempt to bypass any security mechanisms in place on any remote system. This includes, but is not limited to, port scanning, running any password cracking software, or attempting to access a system which any user knows or reasonably should know he or she is not authorized to access in the manner or to the extent attempted.
6. COPYRIGHT ISSUES.
User agrees not to upload to, download from, make available for public access on, or transmit through Host's system any copyrighted material in violation of the copyright owner's rights in that material. By uploading, downloading, making available for public access, or transmitting any copyright-protected material, User warrants that User has the proper authorization to make or authorize the making of any copies involved with such uploading, downloading, making available for public access, or transmission. Unauthorized copying, or authorizing the copying of protected works in excess of any legal right through Host's system is a violation of federal law and international treaties, and may result in not only termination of User's account, but also may result in civil and/or criminal fines and prison sentences.
User agrees not to remove any copyright ownership information, or falsify such information, on any files uploaded, downloaded, made publicly available through, or transmitted via Host's system.
User explicitly licenses Host to make any copies of copyright protected materials necessary to provide Internet and related services to User, as well as make any necessary copies necessary to preserve and maintain Host's system and User's files and electronic mail.
User explicitly licenses Host to make any copies, without limitation, of any copyrighted materials submitted to a public forum maintained on Host's system, or submitted to any forum to which Host provides access. This clause cannot be modified by either party unless any modification is in writing and signed by both parties.
7. OUTBOUND EMAIL DELIVERY POLICY.
Alnitech prohibits the use of the Alnitech network to accept, transmit or distribute unsolicited bulk email. Bulk email is defined as the same or similar messages sent to 20 email addresses or more. In addition, email sent, or caused to be sent, to or through the Alnitech network that makes use of or contains invalid or forged headers, invalid or non-existent domain names or other means of deceptive addressing will be deemed to be counterfeit. Any attempt to send or cause such counterfeit email to be sent to or through the network is unauthorized. Similarly, email that is relayed from any third party's mail servers without the permission of that third party, or which employs similar techniques to hide or obscure the source of the email, is also unauthorized. Alnitech does not authorize anyone to send e-mail or cause e-mail to be sent through the network that violates Alnitech's Terms and Conditions.
Unauthorized use of the Alnitech network in connection with the transmission of unsolicited bulk email, including the transmission of counterfeit email will result in immediate suspension of all services and may result in civil and criminal penalties against the sender, including those provided by the Computer Fraud and Abuse Act (18 U.S.C. 1030 et seq.) and the CAN-SPAM Act of 2003.
The following standards apply to the delivery of outbound email through the Alnitech network and at Alnitech's sole discretion we may enforce the following policies:
- Alnitech's servers or networks will not accept connections from unsecured systems. These include open relays, open proxies, open routers, or any other system that has been determined to be available for unauthorized use.
- Alnitech's mail servers will not accept connections from systems that use dynamically assigned or residential IP addresses.
- Alnitech will not deliver email that contains a hex-encoded Universal Resource Locator (URL). (Ex: http://%6d%6e%3f/)
- Alnitech's mail servers will reject messages with more than 100 recipients.
- Alnitech's mail servers will reject messages with attachments that exceed 100MB.
- Alnitech will reject connections from servers that consistently generate a higher than 10% invalid recipient rate (i.e. over 10% of a sender's mailing list is destined for users that do not exist).
- Alnitech will reject connections from senders who are unable to accept at least 90% of the bounce-return messages (mailer-daemon failure/error messages) destined for their systems.
- Complaints and/or blacklists from sources deemed reasonable credible by Alnitech will be used as a basis for refusing connections from any mail server.
- Alnitech will make commercially reasonable attempts to provide communications to the technical contact of record who may be in violation of Alnitech's policies.
8. IPv4 ADDRESS SPACE USAGE POLICY.
Due to IPv4 address space exhaustion, user is to maintain efficient use of the IPv4 address space under his control: at least 80% of addresses should be in use (replying to ARP requests and/or participating in IP traffic) at all times. User agrees to release unused addresses within 48 hours from our request in order to maintain the 80% efficiency.