- Skylark Hosting (SkylarkHosting, we, us or our) is pleased to have the individual or entity (you or your) agreeing to these Terms of Service (ToS) as our Customer. It is our hope that we will meet your expectations, and deliver the products and services set out on your Order Form (together, the “Services” and each, individually, a “Service”) as set out in this Agreement. The date that we accept an Order Form for a particular Service is the Effective Date. The initial term that we agree to provide the Services is also set out in your Order Form.
- SkylarkHosting and Customer agree that there are multiple components to their contract.
- 1.This ToS;
- 2.The Order Form;
- 3.Our Acceptable Use Policy (AUP) located here: Acceptable Use Policy
Collectively these documents are referred to as the Agreement. They are referred to by their individual names if necessary.
- We agree to provide the Services to you as set out in the Agreement during the Term, as defined in this Agreement, provided that you comply with the terms of this Agreement. As long as you are in compliance, we grant you a nonexclusive, nontransferable, nonsublicensable, revocable right to: (i) use and access the Services; and use the Services to provide your offerings to your customers. We agree to provide the Services as they are set out on the Product Page (as defined in this Agreement) as of the Effective Date, subject to the Agreement. We may make non-material changes to the Services from time-to-time, and may substitute Third Party Products with other products having the same, or similar functionality.
2. Payment Terms
- You agree to pay us the fees set out on the Order Form during the Term (Fees).
- The Fees are your sole and exclusive responsibility. They are non-refundable, unless stated otherwise.
- If taxes are assessed on your use of the Services, you agree that we may add them to the Fees, and you agree to pay them. We will not add taxes based on our income.
- If we are including products and services from third party providers in the Services, you agree to pay any Fees charged by these providers to us. These Fees are not refundable and are not subject to the Guarantee below. If the fees charged to us by third party providers increase, you agree to pay the proportionate amount of any such increase attributable to the Service.
- You understand and agree that your failure to pay the Fees when due, for whatever reason, except for fees that you dispute (which shall be paid promptly upon a determination by us that such Fees are valid) may lead to the suspension and termination of the Services. In some cases, suspension of a Service will lead to the loss of a particular Service permanently. For example, if you fail to pay us, and your domain name registration lapses, you may lose your domain name. We have no liability to you for such a loss based on your failure to pay the Fees. If your account is suspended for non-payment, you will be charged a reinstatement fee of $50.00. In the alternative, if you fail to pay the Fees when they are due, and have not disputed them as provided in this ToS, we will charge you interest in the amount of 1.5% per month, or the highest amount we are allowed to charge by the laws of the state governing this Agreement. You also agree to pay our reasonable costs of collection, including, but not limited to, our reasonable actual attorney’s fees. If you initiate a charge-back/chargeback, your Services will be suspended or terminated.
- We use good faith efforts to ensure our Fees are accurate. If you believe they are not, you agree to dispute them as set out in this paragraph. All questions about Fees must be presented to us in writing before the Fee is due. Failure to object to any Fees in a timely manner shall be deemed conclusive evidence that such Fees are valid. Your question must be in writing, and contain enough detail for us to investigate the dispute. Our investigation will take a maximum of thirty calendar days. After that period, we will either credit your account with the amount in dispute, or provide you with a written explanation of why the Fee remains due. You have fifteen calendar days to provide us with a written discussion of why our conclusions are incorrect. We will have thirty calendar days to review your discussion. If we agree with your discussion, we will credit your account as set out above. If not, our decision is final.
- We are confident that our Services will meet your needs. To underscore this confidence, we have a satisfaction guarantee (Guarantee).
- For our Linux Shared, Windows Shared, Re-seller and CDN Hosting Services, if you are unhappy with any Service, you may terminate that Service without penalty or charge within thirty days from that Service’s Effective Date.
- For Windows and Linux VPS and Private Cloud hosting Services, if you are unhappy with any Service, you may terminate that Service without penalty or charge within 7 days from that Service’s Effective Date.
- Our Guarantee only applies to the Services set out above. In addition, Third Party Products are not within our Guarantee. For example, domain name registrations are not refundable.
- Payments made via Bitcoins are non-refundable..
- Your Order Form may contain a set-up Fee. Set-up Fees are non-refundable for any reason and are not subject to our Guarantee.
- We may offer you a discount on the Fee if you agree to pre-payment, or to an extended Term. If you terminate this Agreement for any reason, other than our material breach, or if we terminate it based on your breach or violation of our AUP, you will not receive a refund of pre-paid amounts. If the Fee has been discounted based on your agreement to an extended Term, you agree to pay the balance of the Fee (Early Termination Fee) at the time of termination, as if the full extended Term had been completed. If you have provided us with a credit card, or other form of payment to which we may charge Fees, you agree that we may charge that method of payment for the Early Termination Fee.
- Discounts apply only during the initial Term of the Services, and do not renew. Unless expressly stated otherwise, they apply only to new customers.
- Promotional codes only apply to the Services set out in their description, and we reserve the right to remove promotional codes if we determine that they have been misapplied.
- Some Services may be changed based on your usage of those Services, or based upon third-party usage of such Services through you. The way we calculate these Fees is set out on our Product Pages. You agree to pay these Fees unless we have made an error calculating them, in which case you agree to comply with the Fee dispute provisions of this ToS.
- Opening multiple accounts, or Services, to bypass restrictions or overage charges set by us, or to obtain additional discounts reserved for new customers, is a violation of this Agreement.
- We must receive payment of the Fees within 310 days of the date set out on our invoice, or the date set out on our Order Form (Due Date). Fees must be paid without abatement or set-off. You authorize us to automatically charge Fees to the payment method we have on file on or no more than five days prior to the Due Date.
- Your order will be subject to fraud screening. As a result, your order may be rejected after you submit it. We have no obligation to provide the Services to you until your order is confirmed by us in writing. Note, that some Services, for example domain name registrations, may not be immediately processed. It is possible that between the time you place an order, the time the order is screened, and the time it is implemented by us, a particular Service or component of the Service may not be available.
3. Our Commitment to Service (SLA)
- We will use commercially reasonable efforts to make the Services fully controlled by us available 99.9% of the time during each monthly billing cycle. If we are unable to meet this service level, we agree to credit your account based on the following SLA standards:
97% to 99% uptime = 1 days charges for service
95% to 96.99% uptime = 2 days charges for service
90% to 94.99 uptime = 5 day charges for service
- Our SLA does not apply to downtime caused by you, our upstream bandwidth providers, or third parties whose products are included in our Services.
- If we provide SLA credits to you, they will be provided to offset future Fees. SLA credits may not exceed the total Fees owed by you in a given month for the Service to which the SLA credit applies. SLA credits may not be aggregated, carried over from month-to-month, bartered, transferred or sold.
- Our SLA is your sole and exclusive remedy for defects in the Service.
4. How we will provide the Services to you
- When you completed the Order Form you selected the Services for us to provide to you. The description of the Services is set out on our product description pages on our website www.SkylarkHosting.com (Product Pages). We agree to provide the Services as set out on our Product Pages (as of the date of our written confirmation of the Order Form) during the Term. However, we reserve the right to make minor, non-material changes to the Product Pages, and the Services, during the Term, provided that any such change does not materially impact your ability to use the Services. Material changes to the Product Pages will only apply to the Services we provide you when your Term renews.
- The Services are designed to be used by individuals and entities who have experience using internet infrastructure services. You agree that you have the necessary knowledge to use the Services without our support. Any support we provide you is based on the Service’s inability to function as set out in the Product Description. The information and data you place on our Services, or which you transmit using our Services, must be server ready. This means that we are not required to manipulate or validate this information and data. If we do agree to assist you in making your information or data server ready, you agree that we may add our hourly charges to the Fees, and you will pay them. However, we may also reject this material at any time, even if it was previously placed on the Services. You may not terminate this Agreement based on this rejection.
- If we, or our data center operator, are obligated to engage in any “hands on” labor to make the Services available due to your error, you agree that our hourly fee, or any charges assessed by our data center provider, will be added to the Fee, and you agree to pay those charges.
- You agree that we may investigate your use of our Services, and that of those who use the Services through you, to ensure compliance with this Agreement and the law. You agree to cooperate with us in this investigation at your cost. If we determine, based on our investigation, that you or your customer(s) (End User(s)) have violated this Agreement, or the law, you will be responsible for all costs of the investigation, and agree that we may debit the method of payment we have on file for you for these charges.
- If a third party audits our Services, you agree to provide reasonable cooperation with this audit, including, but not limited to, providing us with copies of applicable licenses.
- You will not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
- In the Order Form, and in all interactions with us, you agree to provide us with accurate information. You understand and agree that we will rely on this information in providing the Services to you. We have no liability for interruptions of the Service based on your failure to provide us with accurate information, or to update information that has become inaccurate. The individual or entity set out in our records as the customer hall be the owner of the account. We may take action based on the instructions of this individual. Neither the account, nor our Services, may be used by individuals who are under the age of eighteen, or who are residents of Iran, Syria, North Korea, Sudan or Cuba.
- We believe that the descriptions of the Services set out on our Product Pages (the Product Descriptions) are accurate. However, you may not terminate the Services without penalty unless the Product Descriptions are materially inaccurate.
- The Services may have limits or caps on their use. Our Product Descriptions set out these limits. Your use of the Services may be restricted, or you may be charged supplemental Fees, if you exceed these limits. You expressly agree that you are bound by these limits.
- You are responsible for providing equipment necessary for you to access the Services. Unless expressly set out in an Order Form, we do not warrant that your equipment will be compatible with the Services, or that the public Internet will be available when you seek to access and use the Services.
- If you’ve selected “back-up services” on your Order Form, they are provided on a commercially-reasonable-efforts basis, and as a supplement to your own back-up plans. You expressly acknowledge and agree that back-up services will not capture all data. If you ask us to restore material from back-up, it will be a bare metal restore. This means that all functionality that may have been available from the deployment of that information or data on our servers may need to be re-created. Creating this functionality will be at your expense. You agree that we will have no liability to you or any other person for loss, damage, integrity, usability accessibility or destruction of any data, other than in the case or our gross negligence or willful misconduct.
- The IP addresses assigned to you are our property. You have no ownership interest in them. We reserve the right to assign you new IP addresses from time-to-time and at any time.
- Following are a list of sites that will often require more than 10% of our systems resources: Multiple domains residing at a single IP address, domains with archives or galleries, (i.e. .gif, .jpg, .exe, .zip, .tar, etc.), and domain accounts offering download files. We are not saying that your web site cannot contain such files, however if at any time they consume 10% or more of our systems resources you will be contacted to resolve the problem.
- All our plans are offered with monthly bandwidth limit therefore if your bandwidth usage exceeds the allocated limit, it will attract additional charges.
- We may allow programs to run continually in the background. These are considered on a case-by-case basis and an extra charge will be incurred based on system resources used and operational maintenance needed.
- CAUTION: SkylarkHosting will allow the Cron jobs or schedulers to run for maximum thrice a day to avoid undue load on the server. If in case, there is some special requirement to run the Cron jobs/schedulers more than three times a day then we should be contacted at firstname.lastname@example.org with justifiable reasons.
5. Term and Termination
- The initial Term during which we agree to provide the Services to you is set out in the Order Form. If the Order Form or Product Page does not contain a Term, the term shall be one year. On the anniversary of the initial Term, and for every anniversary thereafter, the Term shall renew for additional periods equal to the length of the initial Term (the initial term and each subsequent term each referred to herein as a Term).
- You may terminate the Services at any time prior to the expiration of the Term by providing us with written notice of this termination. We will acknowledge your notice of termination within five business days. If we do not do so, the Services set out in your notice will not be terminated. If you terminate the Services prior to the end of a Term, you will be charged all the Fees you would have paid if you had completed the Term. If you provide us with notice no later than thirty days prior to the end of a Term that you do not intend to renew the Services, and the notice of termination is acknowledged as set out in this ToS, the Services will be terminated as set out in your notice.
- Either party may terminate Services for material breach by providing the other party with written notice of their material breach, sufficient information for the other party to attempt to cure the breach, and two calendar days to begin to cure the breach. If the other party fails to initiate a cure within the two day period, the Services set out in the notice of breach will terminate. Services not affected by the alleged material breach will continue to be subject to this Agreement.
- If we notify you that you have violated our AUP (an AUP Notice), and you do not cure this violation within the period set out in such AUP Notice, we may terminate the affected Services, or this Agreement. You remain liable for any Fees owed to-date, along with the balance of any Fees that would have been due for the remainder of the Term. If we suspend the Services while you are complying with our AUP Notice, you may be charged a reinstatement Fee as provided in Section 2(e).
- Upon termination, all licenses granted to you in the Agreement will terminate. It is your obligation to ensure that you transition to another provider, including , but not limited to changing email and re-pointing DNS, prior to the date of termination. Upon termination, we are not required to maintain any of your data that remains on our network.
- You may not use the Services in a way that jeopardizes (i) our ability to provide them to other customers or (ii) the stability of our network. Should we determine that you have used the Services in this manner, we reserve the right to limit your use of the Services to minimize these effects. Following our limitation of this use, we will notify you in writing of the steps you may take to mitigate these effects. If you do not accept these steps, we reserve the right to impose permanent restrictions or limitations on your use of the Services.
6. Security is a Shared Responsibility
- No Internet infrastructure service is 100% secure. You agree to this statement. We agree to implement industry standard measures to secure the network used to provide the Services to you. We agree to patch any software and hardware administered by us within seven business days of our determination that any such patch will not adversely affect our network.
- You agree to apply patches, updates and upgrades to the software and services administered by you and to observe appropriate security precautions in connection with passwords and other login credentials. This includes, but is not limited to, patching any announced security hole within seven calendar days of the licensor’s deployment of a patch.
- If you fail to apply a patch, or remedy a security hole, within the time period set out in this section, we may do so at your expense, and add our cost to the Fee.
- We agree to provide you with written notice within one day of our determination that our network has been accessed in a manner unauthorized by us (a “Security Breach”). Our Security Breach notice will contain the information we have learned up to that time. We agree to provide you with periodic updates, but no less than once per twenty-four hour period, until we determine that the Security Breach has been remediated. You agree that the information contained in our Security Breach notification is preliminary, unconfirmed, and may contain information that is later determined to be untrue. We have no liability to your or any third parties should you rely on this information. Providing you with this notice is our only responsibility in the event of a Security Breach.
7. We Each Support The Use of the Services
- We have designed the Services to operate in the manner consumed by most of our customers. We do not provide professional services to configure the Services to your specific needs. However we do provide a knowledge-base, forums, chat and limited telephone assistance (Support). Our Support is in addition to your own knowledge. If your use of Support demonstrates that you do not have the necessary knowledge to use the Services we may limit your use of it. You may need to purchase additional equipment in order for the Services to operate. In addition, your equipment must be configured properly to connect to or receive the services.
- Some aspects of the Services may be provided by third parties. Support for these items may be provided by these third parties. We have no liability for their support, or your inability to use the Services based on deficiencies in that support.
- You will cooperate with our investigation of outages, security problems, breaches of this Agreement or disputes between you, or an entity using the Services though you, and a third party.
8. We Have Obligations to Each Other
- Our warranties to you. We represent and warrant to you that (i) we have the power, authority and legal right to enter into this Agreement; and (ii) we have the power and authority to perform our obligations under this Agreement and all incorporated provisions.
- You will not copy, transfer, reverse engineer, disassemble, decompile, create derivative works of, or, other than as expressly set out in the Agreement, allow third parties to access the Services, nor will you remove any proprietary notices or labels that set out an ownership interest or contain prohibitions on use, or attempt or facilitate interference with the Services.
9. Our Liability is Limited
- Other than as set out in the paragraph entitled “Our Warranties to You” we make no warranties, and any implied warranties are expressly disclaimed. In particular, we make no warranties whatsoever about the materials posted on our FAQ, support, or other self-help websites. Your use of this information is at your own risk.
- EXCEPT AS REQUIRED BY LAW, CUSTOMER’S USE OF THE WEBSITE AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN DISCRETION AND RISK. THE SERVICES ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS,” AND EXCEPT AS EXPRESSLY PROVIDED HEREIN. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS, AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) AND/OR EQUIPMENT, WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE, OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.
- YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EXCEPT AS REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE 3 MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THAT IS THE CASE, YOU AGREE THAT IN THOSE JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
- THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK SET OUT IN THIS AGREEMENT ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH WE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. OUR PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
10. We Each Agree to Indemnify Each Other
- As set out below, a party agrees that it shall defend, indemnify, save and hold the other party harmless from any and all demands, liabilities, losses, costs and claims, including reasonable actually attorneys’ fees (Liabilities) asserted against the other party, its agents, officers and employees, that may arise or result from (i) any Service provided or performed or agreed to be performed or (ii) any product or service sold by you, your agents, employees, assigns or customers.
- You agree to indemnify us, pursuant to this section against Liabilities arising from:
- 1.any injury to a person or property caused by any products or services sold or otherwise distributed in connection with the Service;
- 2.any materials supplied by you, or your customer, or entity accessing the Services through you, that are infringing, or allegedly infringing the intellectual property rights of a third party;
- 3.any Security Breach attributable to your failure to apply security patches as set out in this Agreement, or use of the Services in such a way as to proximately cause a Security Breach.
- We agree to indemnify you, pursuant to this section, against Liabilities arising from claim that the Services, as wholly designed and operated by us, violate a valid, issued, U.S. copyright or patent.
11. We Each Agree to Keep Confidential Information Confidential
- We each agree that information of one party that is known by the other party to be confidential or proprietary, or which the disclosing party, or any third party, has marked as confidential, will be held in confidence and will not be disclosed or used except to the extent that such disclosure or use is necessary for the performance or use of the Services. This paragraph shall not apply to information that is independently developed by either party, which becomes a part of the public domain through lawful means, or which is learned by a party independent of its confidentiality obligations set out in this ToS, without reference to the confidential information.
- The Services are not designed to be compliant with laws mandating certain confidential treatment of data (for example the Health Insurance Portability and Accountability Act or “HIPAA”). Our obligation to keep your information, and that of your users, confidential, is strictly limited to the prior paragraph.
12. Miscellaneous Provisions
- You agree to enter into a written agreement with your customers, which shall contain provisions that are no less protective of our interests as those set out in this Agreement.
- Each of our rights and obligations set out in this Agreement are undertaken as independent contractors. Neither of the parties shall have the right to create an obligation on behalf of the other, unless expressly set out on the Service Order.
- If any provision of this Agreement is found to be unenforceable or contrary to law, it will be modified to the extent necessary to make it enforceable. The remaining provisions shall remain in full force and effect. The waiver by a party of any breach or condition of this Agreement, will not be construed to be a waiver of any other breach or condition.
- The only beneficiaries to this Agreement are the parties. Nothing expressed or implied in this Agreement is intended, nor shall it, confer on any person, other than the Parties and their permitted successors and assigns (as set out in Paragraph 6(k), below), any rights, remedies, obligations or liabilities.
- We are not required to provide information to you in conjunction with any civil litigation. If we choose to provide this information to you, it will be subject to a separate agreement, and you will be charged for our expenses in providing this information, including legal fees.
- Except for the obligation to pay the Fees, 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, failures of telecommunication carriers, 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 10 days from the beginning of the event.
- Your use of the Services is governed by U.S. export and use restrictions. You agree that you will not directly or indirectly export any data, information, software programs, or materials that violate U.S. export laws. You also agree, that you will not do business with individuals or entities with whom U.S. businesses may not transact. More information about U.S. export laws can be found herehttp://www.state.gov/strategictrade/overview/
- This Agreement shall be governed by the internal laws of the State of California, excluding its choice of laws. The parties agree that venue and jurisdiction are proper before these courts, and agree not to contest notice from them. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
- THE PARTIES WAIVE THEIR RIGHT TO TRIAL BY JURY.
- No waiver of rights under this Agreement, or any of our policies, or other agreement between the parties shall constitute a subsequent waiver of this or any other right under this Agreement.
- This Agreement may not be assigned by you. It may be assigned by us.
- Notices to you will be sent to the email address set out in our records. Notices to us shall be sent to the address located on our website. Notices shall be effective upon the date of delivery, or, if no delivery date is provided, five days from the date of sending, provided that an additional copy is sent by alternate means.
- This Agreement may be executed in one or more counterparts, transmitted by facsimile and acknowledged electronically each of which shall be deemed an original, but which together shall constitute one and the same document.
13. Dedicated Servers
- We reserve the right to relocate the equipment used to provide the Services at any time. You will have no physical access to this equipment, nor will you have any ownership interest in it.
14. VPS Customers
- Your use of the equipment provided by us is not exclusive. You will take no actions to limit the use of the equipment by our other customers or other entities in general. You will not alter, or attempt to alter mechanisms, including software, implemented by us to facilitate the sharing of the equipment. You understand that certain aspects of the VPS Services are designed to facilitate use by multiple parties and may affect your use and administration of the equipment. You may not terminate this Agreement based on the implementation of these feature. You understand that you will not have physical access to the equipment we use to provide the VPS Services.
15. Managed Services Customers
- We agree to monitor the network, physical infrastructure, servers and applications on a 24x7x365 basis. You agree that the Managed Services are subject to the technical limitations of the devices being managed and the equipment and our infrastructure.
- Managed Services may not be available at certain times as a result of technical difficulties or equipment malfunctions; during scheduled maintenance; or as a result of circumstances beyond our reasonable control.
- When you select Managed Services, you authorize us to log in and access the Services as necessary to configure the Services, for general server maintenance, and for other purposes reasonably required by us to provide the Managed Services to you.
16. Backup Services Customers
- If you purchase Back-up Services, we have designed those Services in a general manner. It is your responsibility to configure them to serve your unique needs. We will rely on your instructions when we configure the Backup Services.
- You agree and understand that (i) Back-up Services are not fool-proof; (ii) they will not back up all data; and that you will use a second source of back ups. Under no circumstance will we have any liability or responsibility for the loss of back-up data, content or other information, unless caused by our gross negligence or willful misconduct.
- Back-up Services are provided on an as-is and as-available basis, as a supplement to, and not in lieu of, your own back-up efforts. While we will use commercially reasonable efforts to ensure the effective operation of the back-up Services, you expressly agree that no back-up program or service is error-free or fail-safe. Our only obligation is to restore your server to operating condition. It is your responsibility to restore the functionality of your website. You may wish to maintain an operating copy of your website for this purpose.
17. Domain Name Customers
- The Domain Services will be provided to you through our third-party vendors, (I) Directi (reselleclub) and (II) eNom, Inc. (Domain Name Vendors). By purchasing Domain Services through us, you are bound by the Domain Name Vendor terms and conditions, which can be found at (I)http://www.resellerclub.com/privacy-policy (II) http://www.enom.com/terms/default.aspx and are incorporated into this Agreement. We strongly encourage you to review the Domain Name Vendor terms and conditions prior to your purchase of the Domain Services.
- You understand and agree that your domain name is not actually registered until you receive a registration confirmation from us. We have no liability for the failure of a domain name to register during the registration process.
- The Domain Name Vendor may reject your domain name application, or discontinue providing Domain Services to you, for any reason within thirty calendar days of a Domain Service initiation or renewal. Outside of this period, Domain Name Vendor may terminate or suspend the domain name at any time for cause, which without limitation, includes: (i) registration of prohibited domain name(s); (ii) abuse of the domain name; (iii) payment irregularities; (iv) allegations of illegal conduct; (v) failure to keep your account or WHOIS information accurate and up-to-date; (vi) failure to respond to inquiries from Domain Name Vendor for over ten calendar days; or (vii) if your use of the Domain Services involves us in a violation of any third party’s rights or acceptable use policies, including, but not limited to, the transmission of unsolicited email or the violation of any copyright. No refund will be made when there is a suspension or termination of Domain Services for cause.
- Either the Domain Name Vendor or we will notify you when renewal fees are due. It is your responsibility to keep current payment details on file with us. We have no liability should your domain name registration lapse because either we, or our partners, are unable to process your payment information.
- The Domain Name Vendor owns all database, compilation, collective and similar rights, title and interests worldwide in its domain name database, and all information and derivative works generated from the domain name database.
- You agree to be bound by the domain name transfer agreement located here: https://archive.icann.org/en/transfers/policy-12jul04.htm
- You agree to be bound by the ICANN Uniform Dispute Resolution Policy here: http://www.icann.org/dndr/udrp/policy.htm
- Only the owner may transfer a domain name or respond to a transfer request. You must unlock your domain prior to requesting a transfer. You must secure an EPP Authorization Code in order to transfer domains to an EPP registry.
18. Shared Hosting
- Linux shared hosting accounts can use up to 200000 inodes as FUP. Once the account has reached this limit, a notification will be sent at your registered email address asking you to reduce inode usage. Every file (images, web contents, emails etc.) on your account uses up to one inode. We may interrupt/suspend service if inode is not under the allotted limit.
- Windows shared hosting accounts can use up to 2GB email space per domain name. Once the account has reached this limit, the email message will start bouncing to sender.
- The email sending limit has been set to 200 emails/hr per domain for the users of Windows Hosting Plans whereas this limit for Linux users has been set to 500 emails/hr per domain. Exceeding this limit may result into interruption of email services.
- In order to avoid any possible negative impact on the performance of our mail server we strongly discourage all our clients to have “catch all” email accounts for their domains. It is observed that majority of the performance issues of a mail server are attributed to “catch all” mail accounts which are often being targeted by the spammers.
- It is also observed that the domains having “catch all” mail accounts are targeted by spammers by making a dictionary spam attack on it. It is a spamming technique in which a spammer sends out million of emails with mail addresses generated randomly using combination of letters added to a known domain name in the hope of reaching a percentage of actual email addresses. When this happens a mail servers has to accept a massive flood of spam messages and eventually it has to waste its valuable resource and processing time to deal with it. Sometime this makes the mail server completely unresponsive. In some cases it becomes next to impossible to get rid of the problem even after removing the “catch all” email account, because by the time we remove it, the spammer may have successfully delivered thousands of unique accounts and they now continue to send emails on daily basis.
- Considering above facts and also to avoid any possible inconvenience to any of our clients we strongly recommend you to use email forwarder instead of “catch all” email accounts.We have disabled the catch all facility in our Windows Mail Servers however the same is made available for our Linux Mail Servers.
- CAUTION: If we find any account/s which is causing problems to the normal function of our email server in whatever form, we shall immediately suspend all such domain/s without any prior notification. Though currently we do not curb any restrictions on any of our clients with regard to “catch all” email account/s, we reserve our rights to review, modify or change this policy appropriately as per the need at any time without any further or prior notification to this regard.
19. PCI DSS Compliance Disclamer
- Shared/Reseller Hosting: SkylarkHosting.com’s hosting environment is not intended for secure payment pages, and/or storing, transmitting, processing, and viewing credit card data. It is strictly prohibited to store, process, transmit, and view credit card data on SkylarkHosting.com’s servers and/or web hosting plans. Ecommerce transactions must be outsourced to third party vendors and ensure they do not connect to SkylarkHosting.com servers.
- Dedicated Hosting: For purposes of this section, the term “Cardholder Data” or “CDI” refers to the number assigned by the card issuer that identifies the cardholder’s account or other cardholder personal information, and “Personally Identifiable Information” or “PII” means any CDI or other personal or financial data relating to any individual or entity.
- The provisions set forth in this section apply to you that either itself, or through a processor or other agent, stores, processes, handles, or transmits cardholder data or PII in any manner.
- 1. You shall at all times comply with the Cardholder Data and Personally Identifiable Information requirements for cardholder data that are prescribed by the PCI Security Standards Council. Requirements documentation are available on the PCI Security Standards Council web site at https://www.pcisecuritystandards.org/.
- 2. You acknowledge and agree that cardholder data may be used only for assisting in completing a card transaction, for fraud control services, or as specifically agreed to by PCI Security Standards Council or as required by applicable law.
- 3. In the event of a breach or intrusion of or otherwise unauthorized access to cardholder data stored at or for you, you shall immediately notify the card issuer in the manner required in the PCI Security Standards Council requirements.
- 4. You shall maintain appropriate business continuity procedures and systems to ensure security of cardholder data in the event of a disruption, disaster, or failure of your primary data systems
- 5. You and you successors and assigns shall comply with the PCI Security Standards Council requirements after termination of this Agreement.
- 6. You acknowledge and agree that PII may be used only for assisting in completing an e-commerce transaction, including fraud control services associated with said e-commerce transaction, subject to applicable law.