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.
The owner of the payment method (credit card, Google checkout, PayPal) 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.
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 THE SERVICES
All Services may only be used for lawful purposes. The laws of the United States of America apply to all Clients of Hostwinds.com. 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 18 years of age or older. Any use of or access to the Services by anyone under 18 years of age is prohibited.
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 and Reseller servers include:
All of the files on our shared hosting accounts must pertain to your website(s). Hostwinds shared hosting may not be used for massive file storage systems, or backup storage solutions. 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 a user downloading files, you will need to look obtain a VPS solution.
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 the Hostwinds Service Agreement or 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 for all Services is due and payable in advance of the time when such Services are provided.
Until you notify Hostwinds of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with Hostwinds.
Listed fees for the Services do not include any sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to your invoice as a separate charge to be paid by you. All fees are non-refundable when paid unless otherwise stated.
All invoices must be paid within ten (10) days of the invoice due date. Any invoice that is outstanding for more than ten (10) days may result in the suspension or termination of Services. Access to your account will not be restored until payment has been received. If you fail to pay the fees as specified herein, Hostwinds may suspend or terminate your account and pursue the collection costs incurred by Hostwinds, including without limitation, any arbitration and legal fees, and reasonable attorneys' fees. Hostwinds will not activate new Services for Clients who have an outstanding account balance.
Dedicated servers will be reclaimed and all content deleted if you fail to make a timely payment. If you make a late payment dedicated servers will not be automatically reactivated. You must contact Hostwinds directly after you make a late payment to reactivate the dedicated server.
ZERO TOLERANCE SPAM POLICY
Hostwinds has zero tolerance for Clients sending unsolicited e-mail, bulk emailing, and spam. "Safe lists", purchased lists, and selling of lists will be treated as spam. Any Client who sends out spam will have such Client’s account terminated, and may be terminated without notice. Hostwinds also reserve the right to charge Clients who engage in spam mailing a consulting fee of $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 black hole lists. Hostwinds also reserves the right to require all client's requesting more than 32 IP addresses to pay a deposit of up to $250 in order to be allowed to send emails. The deposit will be refunded at cancellation time, as long as no spam complaints have been received.
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. We also backup all Shared, Business, and Reseller, client's files every night. These backups are for Hostwinds internal disaster recovery only, and is not offered as a service to client's. 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 backup of files and data stored on Hostwinds servers. Hostwinds does not take backups of Dedicated Servers or Premium VPS's, unless the Client has purchased the R1Soft Backup Solution.
60 DAY MONEY-BACK GUARANTEE
The 60 Day Money-back Guarantee does NOT apply to dedicated servers.
Hostwinds offers a 60 day money-back guarantee for the following products: shared hosting, business hosting, reseller hosting, vps hosting, windows vps hosting, ssd vps hosting, minecraft VPS hosting, VPN hosting, Shoutcast hosting This gives the Client an opportunity to test the Hostwinds service and see if it is appropriate for the Client. You are eligible for the money back guarantee if you cancel your product or service within the first 60 days of usage. In order to receive your refund we must receive your request in writing within 30 days, after we have completed the cancellation and termination of your services. If the Client is in their second month, they are only entitled to receive a refund for that month. Clients are only eligible for refunds on the first product purchased from Hostwinds. You may not receive refunds for additional products ordered after the first product. The VPS reserves the right to refuse refunds to Clients who are using Hostwinds servers for any kind of mining (Example: Bitcoin). Payments made using Bitcoin and Skrill as the payment method are not eligible for refunds.The following products and services are NOT covered under our 60 day money back guarantee:
Note: the 60 day money-back guarantee does not apply for Domains, Software Licenses, SSL's, Services Performed, IP Addresses, Product Upgrades, Cloud Servers, Dedicated Servers,Software Licenses of Any kind, Product addons of any kind.
UNLIMITED HOSTING POLICY
Hostwinds will allocate Clients an unlimited amount of disk space and bandwidth. The unlimited disk space and bandwidth may only be used to store and transfer files relevant to the website(s) being hosted. If a Client causes continuous server or service interruptions under their current plan, then they will be asked to upgrade to a more powerful plan (Business, VPS, or Dedicated). In these extreme cases, the client will be notified of the need to upgrade. We will NEVER terminate a Client’s account, and we will only suspend accounts in the most extreme circumstances (in the event of causing the server to crash), or if the client has not contacted us after we send out warning emails of the abuse.
Clients may not use more than their burstable RAM. If a Client repeatedly overloads their VPS's burstable RAM then that Client will be required to upgrade to the next level up of a VPS. Using more than your burstable RAM will cause your VPS to crash. Because of Hostwinds advanced monitoring systems, we will reboot your VPS for you to minimize downtime, but repeat offenders will need to upgrade to a higher level. In addition, Clients using their Burstable RAM more than 80% of the time will also be required to upgrade to a higher level VPS, to help keep VPS usage fair among Clients.
VPS accounts may also not exceed a 15 minute load average greater than two (2) times the amount of CPU cores given.
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 one week (7 days) to move to a new host. After this time period, Hostwinds reserves the right to completely remove/terminate 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.
PROMOTION CODE USAGE
Any Client caught signing up with multiple accounts to take advantage of our promotion code offers will have their accounts merged, suspended, and billed for the full amount that would be due had the Client not created multiple accounts to take advantage of offers more than once. The accounts will not be unsuspended until the amount due is paid in full.
Client's who take advantage of a lifetime recurring promotion, are entitled to the usage of said promotion for the lifetime of the product it was originally applied to, any downgrades or upgrades will remove the promotion from the clients product.
Any Client caught posting their coupon codes generated for affiliate payouts on public coupon code websites (such as RetailMeNot.com) will be promptly dropped from Hostwind’s affiliate program. The appropriate use of Hostwinds affiliate code system is to either post the codes on your website which you own that promotes hosting. Anyone found to be using the Hostwinds brand name in promoting their affiliate offers (Example: Targeting Traffic For the Keyword "Hostwinds Coupon Codes"), will have those affiliates removed from their account. The purpose of our affiliate program is to gain new customers we would have otherwise not had the opportunity to meet. Attempting to profit from customers who are already looking for Hostwinds, is not how the program is intended to function.
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.
VIOLATION OF HOSTWINDS SERVICE AGREEMENT
Failure to fully comply with the Hostwinds Service Agreement or this Agreement may result in an immediate suspension and/or terminated without any refund. There will be no refunds for advanced payments. Hostwinds Clients must adhere to their Hostwinds Service Agreement and with this Agreement. If a Client is uncertain about the terms of the Hostwinds Service Agreement or this Agreement, or has any other questions about these Agreements, they should contact Hostwinds via the Hostwinds support portal (client area) for clarification.
Hostwinds reserves the right to remove/suspend any account without notice of the Hostwinds Service Agreement or this Agreement is violated. If a Client violates the Hostwind Service Agreement or this Agreement, Hostwinds will either give the Client warning, if Hostwinds so chooses, or immediately terminate/delete Client’s account. No warning is required.
The amount a Client pays for hosting will never increase from the date of purchase, unless Hostwinds incurs undue costs associated with providing the service. In this event Hostwinds will provide all affected clients a minimum of 30 days notice. Hostwinds reserves the right to change prices listed on https://www.hostwinds.com.
CHANGES TO THE AGREEMENT OR TO 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 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.
All cancellations must be received via the Client area before the next billing cycle begins. Failure to do this will result in your being automatically billed, for which refunds will not be given. All cancellation are processed in one hour or less. So please ensure you have full backups of all of your data prior to submitting the request online. The cancellations must be submitted directly on the product page, simply opening a support ticket is not considered a cancellation request.
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. Services that are not properly canceled through the appropriate methods will remain active. If a Client has multiple services with Hostwinds, failure to pay one of their active services without a proper cancellation, may result in their other active service’s suspension due to the account having an outstanding invoice. Hostwinds will send several reminders and warnings prior to this action given the severity of full account suspension.
Custom Dedicated Cluster Solutions must have cancellation request received at least 14 days prior to the next bill being due, failure to provide written cancellation before this deadline, will result in an automatic renewal.
Hostwinds may terminate your access to the Services, in whole or in part, without notice in the event that: (i) you fail to pay any fees due; (ii) you violate this Agreement; or (iii) as otherwise specified in this Agreement. In such event, Hostwinds shall 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.
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 dispute is filed, all of your active services will be immediately terminated from our system, and your account will be immediately closed. Threatening to chargeback in any communication with Hostwinds, can at Hostwinds sole discretion result in permanent account closure.
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.
WHITE LABEL RESELLER PROVISIONS
The free domain, and WHMCS license that are granted with all white label reseller accounts, are only active while the white label reseller account is active. Cancellation of the white label reseller account, shall result in forfeiture of the domain and of the WHMCS license.
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, and Hostwinds relies on t good and you Clients want to do the same. 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. § 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 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.
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.
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.
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’ 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 (THREE) 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.
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 Oklahoma. 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 upon an alleged tort, shall be governed by the internal laws of the State of Oklahoma, 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.
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.