By submitting payment and using our service, you agree to be bound by the terms below.
We will not modify this TOS arbitrarily. However, because the ways in which the Internet is used, and abused, evolve over time, we reserve the right to modify it. If a reasonable business person would believe that our modification materially alters the benefit of the bargain set out in this TOS, you may terminate this TOS (your service) prior to the expiration of the thirty day notice period. After that time, you will have been deemed to have accepted the changes.
1. The Services
1.1. The following provisions apply to all Cloud Services:
1.1.1. Descriptions of the features, characteristics and limitations of the products and services we offer are set out on our website. We agree to provide the Services to you, as they are described on our website, as of the Effective Date, during the Term. Should these characteristics change after the Effective Date, we are not obligated to modify your Services to reflect these changes. If we do so, and you agree to purchase them, the Fee may change. We may make changes to these Services if a supplier makes components unavailable, cost prohibitive, if a beta period ends, or at any time effective on the end of the term of a particular Service.
1.1.2. We provide two ways for you to purchase our Services: (i) through our website; or (ii) by opening a ticket to purchase additional Services (Ordering Process). When you place an order for the Services using either of these methods, you agree to purchase the Services selected by you during the Term.
1.1.3. We may decline to accept a request for Service if we determine that we require the facilities for other needs. Should operational needs require us to restrict or allocate Services among customers because of a shortage of facilities or causes beyond our control, we may do so without breaching this TOS.
1.1.4. Unless expressly set out during the Ordering Process, the Services may be provided from any of our facilities. You will have no ownership right in the facilities, or in components of the Services. You will only have the right to use the Services.
1.1.5. The individual or entity set out in our records is the only entity authorized to access the Services. It is your responsibility to secure passwords and other access methods used to access the Services. If you administer an account on behalf of another party, you warrant that you will administer that account in good faith, and indemnify us against all losses and liabilities incurred by us should you administer the account in ways that are adverse to your customer and which result in a claim against us.
1.1.6. If you resell the Service, or incorporate the Service into your own services, you are responsible for determining whether the Service will be appropriate for your customers (End Users) and for ensuring that they do not engage in any activity which would cause you to breach this TOS. Your End Users are not a third party beneficiary to this TOS, and you agree to indemnify us for any claims made against us by your End Users of any nature. Unless expressly set out during the Ordering Process, we have no obligation to provide support to End Users. If we cease providing the Service to you, for any reason, you are solely responsible for securing replacement services for your End Users.
1.1.7. We agree to use commercially reasonable efforts to provide Client with the Services according and subject to the terms of this TOS and all agreements incorporated by reference.
1.1.8. You must provide TEKSWIFT Inc with all information, access, and full good faith cooperation, including, if required, with your third party vendors, reasonably necessary to enable TEKSWIFT Inc to deliver the Services. We will rely on the information you provide to us. It is your obligation to keep this information up-to-date. We have no liability if communications are delayed, or not delivered, because of your failure to keep this information up-to-date. You agree that we may provide you with information that may negatively affect you by email. Please ensure that the email address you provide to us is configured in a way so that information from us is not rejected or marked as SPAM.
1.1.9. All software, hardware and some systems have a defined support lifetime (End of Life). Client may only use software, hardware and systems that are currently supported by their owners, including those that may have initially been provided by TEKSWIFT Inc in conjunction with the Services (for example, an operating system on a purchased server). When these items reach their End of Life, it is your responsibility to upgrade to a supported version. TEKSWIFT Inc has no responsibility to support End of Life items.
1.1.10. We will provide, at no cost to you, one primary IP address by default, which will be subject to change at any time. TEKSWIFT Inc shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by us and we reserve, in our sole discretion, the right to change or remove any and all such IP numbers and addresses; provided, however, that (i) we will provide you with at least thirty days prior written notice of any such change or removal; and (ii) you agree to provide TEKSWIFT Inc with all reasonably requested assistance to effect any such change or removal. TEKSWIFT Inc is required by ARIN (American Registry for Internet Numbers) to document on a “whois” server which entity is using the IP space. If you are assigned a static IP address, you consent to TEKSWIFT Inc’s inclusion of your name, company name if a business, postal address, e-mail address, IP address, and telephone number in such “whois” server.
1.1.11. It is your obligation to back up your data. If the Services include backup services, these are provided as a supplement to your own backup efforts. Because no backup method is failsafe, we make no warranties regarding the thoroughness of our backup solution. If your data is restored from backup, it will be restored in the manner it is stored by us. This may not include formatting and other elements necessary to make the restored data available on the internet, or in the form originally transmitted to us. We are not obligated to restore the data in that format.
1.2. The following provisions apply to shared, dedicated and VPS Services:
1.2.1. You have the right to use the Services covered by this paragraph 1.2 to connect to our network, on a 24 x 7 basis, limited by this TOS. You will have no physical access to the equipment used to provide the Services.
1.2.2. The Services covered by this paragraph 1.2 are provided to you on a standard basis. They are not customized for your use. In some cases, they may have the manufacturer’s default settings. This means that aspects of your website, or use of them, may not function without additional configuration by you. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your site, and any other items you deem necessary to use the Services, must be compatible with them. Unless set out during the Ordering Process, we are not obligated to modify the Services to accommodate your use.
1.2.3. You will ensure that neither you nor any of your End Users make excessive or wasteful use of our network by agreeing to the following:
188.8.131.52. A “Reasonable Use” policy will apply to maintain stable data traffic on shared hosting Services. For the shared hosting Services, this means that if your use of the shared hosting Services regularly generates more traffic than is customary for similarly situated customers, we may require you to modify your use of the shared hosting Services so that they no longer exceed this standard. If you do not modify your use, we reserve the right to terminate this TOS and assess an Early Termination Fee. Shared hosting Services may not be used for instant messaging, chat rooms, or similar activities, nor may they be used for software distribution.
184.108.40.206. Dedicated hosting Services and virtual private server Services (VPS Services) have a set bandwidth allocation applicable to each Service as set out during the Ordering Process. If in any calendar month you obtain any bandwidth or disk space usage over that basic allocation, then we will charge you its standard overage fee.
220.127.116.11. A “Reasonable Use” policy will also apply to data traffic on VPS Services. For VPS Services, this means that if your use of the Web Hosting Services regularly generates more traffic than is customary for similarly situated customers, we may require you to modify your use of the VPS Services so that they no longer exceed this standard. If you do not modify your use, we reserve the right to terminate your use of the VPS Services and assess an Early Termination Fee.
18.104.22.168. Our VPS Services allow you to connect with our network using a portion of a server partitioned in a manner that allows you to have virtual control over all features and aspects of that server, other than certain preset characteristics. While it will appear that you are the only entity using the server, some resources will be shared. 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 a server. You understand that our implementation of certain aspects of the VPS Services designed to facilitate use by multiple parties may affect your use and administration of the equipment. You may not terminate this TOS based on our implementation of these features.
22.214.171.124. For dedicated Services your site will be the only site operating on our equipment. This equipment is leased, and not sold to you. You will have no ownership interest in this equipment.
126.96.36.199. Unused bandwidth may not be carried over from month-to-month.
188.8.131.52. On termination or expiration of the Services, we shall be entitled immediately to block your access to the Services and to remove all data located on our equipment. It is your responsibility to download, or otherwise secure possession of, the data prior to the date of termination. If we terminate the Services without providing you with prior notice, we agree to preserve the data for a period of fourteen days, and allow you to download, or otherwise secure possession of, the data. If, after this period, you do not collect it, it may be deleted by us.
184.108.40.206. Websites hosted by Tekswift are required to carry insignia [Site Hosted by Tekswift, or similar] within their footer area. This insignia shall not detract from, or disrupt the site flow (UX) and is only required to appear on a single page. Site owners who choose to refrain from this requirement may contact support for additional information.
1.3. The following provisions apply to colocation Services.
1.3.1. When you purchase colocation Services from us, you are given a license (but not any other property rights) to occupy or use certain space (Space) within a TEKSWIFT Inc data center (Facility), as more particularly described during the Ordering Process. You may use the Space to colocate hardware, software and other equipment owned, licensed or leased by you or your designees, and utilized by you to receive the Services (Client-Provided Equipment).
1.3.2. The Facility and the Space
1.3.3. TEKSWIFT Inc shall perform such environmental systems and power plant maintenance and janitorial and other services as are reasonably required to maintain the Facility and Space in good condition suitable for the placement of the Client-Provided Equipment. The Space shall be delivered and accepted “as is.” The Facility will be monitored twenty-four hours per day, seven days per week, with card key access, conditioned power using UPS systems with back-up power generator capability.
1.3.4. You may occupy the Space and place (at your own expense) Client-Provided Equipment in the Space. You may not sublicense, sublet, rent, sell, or otherwise assign or transfer any of your use, occupancy or other rights in the Space to any third party without our prior written consent, which consent may be withheld in our sole discretion.
1.3.5. Prior to accessing the Space for any purpose, you shall provide TEKSWIFT Inc (and shall keep up to date) a list of your employees, agents, and contractors who will be entering the Facility on your behalf (Invitees). Invitees may access the Space at any time upon reasonable advance notice to TEKSWIFT Inc, and according to its requirements for appropriate behavior. You are responsible for the acts of your Invitees.
1.3.6. Client-Provided Equipment shall be installed, operated, inspected, maintained, repaired, replaced and removed (i) only by qualified agents of Client who are properly insured and, if applicable pursuant to standard industry practices, licensed; and (ii) in a safe and workmanlike manner. Prior written notice to TEKSWIFT Inc is required to use any loading docks. You shall not permit any liens to be placed against all or any portion of the Facility or any equipment of TEKSWIFT Inc.
1.4. The following provisions apply to domain name registration Services.
1.4.1. We resell domain name registration Services and through preferred vendors.
1.4.2. You agree, and understand, that the agreements linked above may contain further linked documents. It is your obligation to read, understand and agree to be bound by those agreements which are incorporated into this TOS by reference.
1.4.3. In addition, the consensus policies of ICANN apply to you: http://www.icann.org/en/resources/registrars/consensus-policies
You shall not alter the Facility or Space, including cabling and power supplies, without TEKSWIFT Inc’s prior written consent, which consent may be conditioned on our receipt and approval of your plans and specifications for any such alterations. All fixtures, additions, repairs, build-outs and other alterations in or to the Space (Fixtures) shall be part of the Facility and you shall not remove such Fixtures unless required by TEKSWIFT Inc. Any other removal shall be at your expense. Within fifteen days following termination or expiration of the colocation Services, you shall remove all of your Client-Provided Equipment from the Facility and shall, at TEKSWIFT Inc’s request, restore (at your expense) the Space to its condition as of the Effective Date, reasonable wear and tear excepted. If you fail to effect such removal and/or restoration, TEKSWIFT Inc may do so at your expense. Any Client-Provided Equipment remaining in the Facility after such fifteen day period may, at TEKSWIFT Inc’s sole discretion, be removed, stored or disposed of at your expense in any manner TEKSWIFT Inc determines, with any proceeds applied to any unpaid amounts owed to TEKSWIFT Inc. Exercise of any of the foregoing rights by TEKSWIFT Inc shall not relieve Client of any of its payment obligations under the Agreement. TEKSWIFT Inc may terminate this Agreement if upon inspection we determine that your equipment is not installed or maintained in accordance with this Agreement, and if such a failure does not endanger our facilities, you have not corrected this deficiency within ten days of our notice to you.
1.4.5. Right to Disconnect and Remove
If you fail to pay any amounts due and such failure continues for more than ten days, included in our right to terminate your use of the Space is the right to disconnect and remove any or all of the Client-Provided Equipment from the Space (including any data and/or software thereon), store such Client-Provided Equipment for a period not to exceed three months, and assess reasonable charges for such storage. Upon conclusion of the applicable storage period, we may, at your expense, dispose of the stored Client-Provided Equipment in any manner we determine, with any proceeds applied to any unpaid amounts owed to us. Exercise of any of the foregoing rights by TEKSWIFT Inc shall not relieve you of any of your payment obligations under the agreement.
Unless otherwise set forth in detail in the Service Order, the physical protection measures we provide shall consist solely of certain physical locks, security checks and monitoring at the Space. Client’s use of the Services shall constitute acknowledgment of the sufficiency of such protection measures. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SECURITY SOLUTIONS PROVIDED AS PART OF THE SERVICES DO NOT GUARANTEE NETWORK SECURITY OR PREVENT SECURITY INCIDENTS, ARE NOT INTENDED TO BE A COMPREHENSIVE SECURITY SOLUTION AND ARE CONSIDERED TO BE SERVICES FOR WHICH TEKSWIFT INC LIMITS ITS LIABILITY AND DISCLAIMS WARRANTY AS PROVIDED IN THIS TOS.
1.4.7. Compliance with Underlying Agreements.
Upon receiving notice from us, you shall take all actions reasonably necessary to comply with requirements of any lease, mortgage or other similar underlying agreement or instrument related to or encumbering the Facility.
During the Term, you shall maintain insurance coverage with reputable insurance companies, with a Best Rating of no less than “A,” which are licensed to do business in the state in which the Space is located as follows: (a) Commercial General Liability insurance of at least $1 million per occurrence for bodily injury and property damage or loss, covering your activities hereunder, naming Tekswift Inc as an additional insured; (b) “all risk” Property insurance or adequate self-insurance covering all Client-Provided Equipment (Tekswift Inc does not insure the Client-Provided Equipment); and (c) legally required worker’s compensation insurance and Employer’s Liability insurance in an amount not less than $500,000 each accident. Such insurance policies shall be primary and noncontributing with respect to any policies carried by, and shall deny the insurer/underwriter any rights of subrogation against, Tekswift Inc. You waive any rights of subrogation or recovery against Tekswift Inc for damage or loss to its property. Prior to placing any Client-Provided Equipment in the Space, Client shall furnish Tekswift Inc with certificates of insurance that evidence the minimum coverage set forth above and state that the insurer shall notify Tekswift Inc at least thirty days prior to termination or modification of the coverage provided. You shall provide to Tekswift Inc certificates of renewal for each such insurance policy within thirty days of renewal. In the event of your breach of any of the insurance obligations, we may upon written notice immediately suspend your physical access to the Facility until such breach is cured. If you do not cure such breach within ten days of suspension, Tekswift Inc may terminate this Colocation Addenda or the agreement as provided herein.
1.4.9. Cross Connect Services
You may use the Facility or Space to interconnect with telecommunications services provided by any third party in the following circumstances: (i) cross connects are only permitted for additional NICs; and (ii) the services must be within a reasonable physical proximity so that standard cabling may connect them. TEKSWIFT Inc may condition other types of cross connection on the payment of additional Fees.
We reserve the right to require you to relocate your Equipment. While we will not do so arbitrarily, it may be necessary to accommodate our network and facilities planning. If we do so, we will give you no fewer than seven days’ notice.
1.5. CPanel Transfers
We provide free cPanel account transfers for all new accounts (less than 30 days from sign-up date). Transfer requests submitted after this 30-day period are subject to transfer fees based on source account size. Please contact a member of our sales team for more information. All transfers from remote networks (servers hosted outside of the data centers) are not guaranteed. There are many factors that can affect remote transfers that may be out of our control (poor network connections, firewalls, missing/incorrect account credentials, corrupted source account data, etc.). We will use best efforts to transfer your data to our servers. If we are unable to complete the transfer, we will let you know so that you can handle the transfer yourself. We also cannot be held responsible for the integrity of your transferred data.
Source Server Requirements:
- Active cPanel license
- Recent stable version of cPanel
- Perl 5.8.8
- MySQL5 or later (Note: All servers/accounts come with MySQL5. Please ensure database compatibility before submitting request.)
2.1. This TOS will begin on the Effective Date and continue in effect as long as we are providing a Service to you (TOS Term).
2.2. The Effective Date of an individual Service, is the date we begin the Ordering Process (Service Term). We use fraud detection programs. If during the Ordering Process your order is flagged as potentially fraudulent, it may not be processed. Until we notify you that the Service is available, you should not assume that your order has been processed.
2.3. Upon the expiration of an initial Service Term, that Service shall renew for a period of equal length unless one party has provided the other with a notice of termination as set out in paragraph 4.
3.1. Fees for individual Services are set out on the page describing the Service (Fees). We will begin to charge you for those Fees on the Effective Date of that Service. Certain Fees are based on usage rate of the Services. These will be calculated as set out on the website describing the Fees, and added to the Fees. Other than usage based Fees, all Fees are billed in advance. Special promotions applied to Fees do not reoccur, nor will promotions offered to other customers necessarily be offered to you. Fees paid to third parties and set up fees are not refundable.
3.2. Fees do not include taxes. Any taxes imposed by a governmental entity on the Services will be added to the Fees unless you provide Tekswift Inc with a valid tax exemption certificate.
3.3. The date Fees are due is set out on the webpage describing the particular Services (Due Date).
3.4. If you provide us with a credit card to pay the Fees, we will attempt to charge your card no sooner than five days prior to the Due Date. It is your obligation to ensure that your credit card may be charged. We have no responsibility to provide the Services, or preserve data, if your credit card is declined for any reason.
3.5. If you fail to pay Fees by the Due Date, a late fee will be assessed to the invoice due. For Shared/Reseller Accounts 10 days past due, a late fee calculated at 30% of the balance or the maximum amount allowed by law will be due to re-activate service. For Dedicated Server Accounts 4 days past due, a $20.00 USD late fee or the maximum amount allowed by law will be due to re-activate service. For VPS Accounts 4 days past due, a $10.00 USD late fee or the maximum amount allowed by law will be due to re-activate service. Late fees will be compounded. If your overdue balance includes multiple services (for example shared/reseller, dedicated server, etc.), each associated late fee will be added to the late fees and compounded.
3.5.1. If an account holder submits a bank assisted dispute for services rendered, their hosting account will be de-activated within 48 hours if the payment issue has not been recovered. A $50.00 charge back fee will be added to the amount disputed by the customer.
3.5.2. Any debt not paid 90 days after the due date will be forwarded to an outside collections agency for proper collection. At that time, the account holder will incur a $50.00 USD collection fee added to the balance previously due, or the maximum amount allowed by law, and if it pursues collection efforts, you agree to pay all of our expenses, including, but not limited to, reasonable attorneys’ fees.
3.6. If you dispute any Fees, you agree to provide Tekswift Inc with written notice and evidence supporting your arguments prior to the Due Date. Tekswift Inc will review your dispute in good faith, and respond within thirty days of receiving notice of the dispute. If you disagree with our response, we both agree to negotiate in good faith for an additional thirty days. If after this period of time the dispute is not resolved, then we both may pursue the matter pursuant to the terms of paragraph 7. As consideration for providing you with a Fee dispute resolution provision, you agree to pay all Fees not in dispute and only use this procedure for bona fide, good faith, bill disputes.
3.7. If you terminate a Service in any manner other than as set out in this TOS, or fail to cure a material breach, then you agree to pay, within five days of giving notice of termination, all Fees that would have been payable to us had the early termination not occurred (Early Termination Fee). You agree to the Early Termination Fee as consideration to Tekswift Inc for foregone business opportunities associated with limited network resources, and agree that this is a material inducement to Tekswift Inc entering into this TOS .
3.8. If the Service Order includes a third party service, Tekswift Inc cannot guarantee that the fee charged by this vendor will remain the same during the Term. If the vendor changes its fee, this increase will be passed on to you.
4. Termination and Suspension
4.1. Either party may terminate a particular Service by providing the other with five days written notice prior to the expiration of a Term. **Your termination request must be received by us five days prior to your next billing cycle. If you fail to do so, you will not receive a refund of any Fees paid to renew the service.** In order for you to effectively terminate this Agreement, you must complete the cancellation form located here https://tekswift.com/web-hosting-cancellation-request-form/. Other forms of termination will not be accepted as termination of this Agreement. In addition, either party may terminate a particular Service if the other breaches a material term of the TOS and such a breach is not cured within thirty days of the non-breaching party’s presentation of written notice to the breach party, or immediately if the breach is incapable of cure. In the case of our AUP, you will be provided a time period to cure any breach. Either party may also terminate this TOS, or an individual Service, if the other party becomes the subject of any type of bankruptcy or insolvency.
4.2. Tekswift Inc may suspend the Services if you fail to pay the Fees by the Due Date, if providing them is prohibited by law or regulation, if you use End of Life software, hardware or systems on or in conjunction with the Services, or if you fail to cure a violation of our AUP or RAP within the amount of time set out in the notice, which the parties agree to be a material breach for which Tekswift Inc’s original notice was your opportunity to cure. In the latter case, Fees will continue to accrue until the violation is cured.
4.3. If you terminate services as set out in paragraph 4.1, we will process your termination request within 72 hours. Once we process your request, you have 24 hours from the time of our notification to you to withdraw your request. If the request is not withdrawn, your account will not remain on line.
4.4. The following provisions survive the termination of this TOS: 1.4.2, 1.4.3, 1.4.5, 1.4.8, 4.3, 5, 6, 7.2 through 7.5, and 7.8 through 7.13.
5. Warranties, Limitation of Liability and Indemnification
5.1. You warrant and represent that you own, or have the right to use, any and all data, software and hardware the transmission or use of which is facilitated by the Services.
5.2. We warrant that we own, or have been given a license by a third party to provide, the Services. OTHER THAN THE WARRANTIES SET OUT IN THIS TOS, WE PROVIDE NO OTHER EXPRESS OR IMPLIED WARRANTIES. EXCEPT AS SET OUT IN THIS TOS, THE SERVICES ARE PROVIDED AS-IS AND AS AVAILABLE. IN ADDITION, WE DISCLAIM ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. EACH OF THESE DISCLAIMERS APPLIES UNLESS PROHIBITED BY LAW.
5.3. Tekswift Inc’s liability, that of its contractors, and any third party vendors, to you arising out of this TOS is limited to direct damages up to the amount of Fees paid by you for the three months prior to the event giving rise to the liability, except as prohibited by law. This limitation of liability does not apply to TEKSWIFT Inc’s obligation to indemnify you set out in paragraph 5.5, or for a breach of its obligations of confidentiality set out in paragraph 6.
5.4. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF THE BASIS FOR A CLAIM, NEITHER PARTY, ITS AFFILIATES, OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) WHICH ARISE IN CONNECTION WITH THIS TOS AND/OR ANY AGREEMENTS INCORPORATED BY REFERENCE. THIS PARAGRAPH APPLIES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR THAT SUCH DAMAGES WERE FORESEEABLE. THIS LIMITATION DOES NOT APPLY TO A VIOLATION OF THE AUP, RAP OR A PARTY’S INDEMNIFICATION OBLIGATION.
5.5. Each of us shall indemnify and hold the other harmless from, and at our own expense agree to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against the other so far as it is based on: (i) a material breach of this TOS including the AUP and RAP; (ii) personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of the other party; (iii) in the case of Client, a claim against Tekswift Inc in the U.S., Canada, or the European Union that the Services have been used, or such use facilitated, by, Client in a way that violates copyright, patent, trademark or trade secret law, or a violation of the Tekswift Inc Policies; or (iv) in the case of Tekswift Inc, a claim against Client in the U.S. that the Services owned by Tekswift Inc violate copyright, patent, trademark or trade secret law. This paragraph will be conditioned on the indemnitee’s notifying the indemnitor promptly in writing of the claim and giving the indemnitor full authority, information, and assistance for the defense and settlement thereof; and that in the case of a claim for indemnification under this paragraph, the claim arises from an unauthorized modification of the Services by you, combination with other intellectual property not owned by you, or your failure to update software or hardware. The indemnitee shall have the right to participate in the defense of the claim at its own expense. The indemnitor shall not settle a claim without indemnitee’s approval if such a settlement contains an admission of liability or fault that could reasonably be attributed to indemnitee.
6.2. The following items are outside the definition of Confidential Information: information that is, or is made, publicly available without a breach of this paragraph; was known by a party without a legal obligation to keep it confidential; is independently developed by a party without reference to the Confidential Information; is a comment or suggestion Client volunteers to improve Tekswift Inc’s products or services.
6.3. Subject to this paragraph, the parties agree not to disclose the Confidential Information to third parties, other than as necessary to provide the Services, and then only for the purposes set out in this TOS. The parties agree to take reasonable steps to ensure the security and confidentiality of the Confidential Information, steps at least as protective as those used to protect their own Confidential Information. One party shall notify the other in writing within twenty four hours of its discovery of disclosure of the Confidential Information, and cooperate with the other to regain control and prevent further dissemination of the Confidential Information.
6.4. Either party may disclose the other’s Confidential Information to affiliates, or if required to comply with a court order or other government demand that has the force of law. However, the party subject to the court order agrees to give the other party notice within a reasonable period of time to allow the owner of the Confidential Information to protest it, unless notice is prohibited.
6.5. The obligations of this Section shall remain in effect for three years after termination of this agreement.
7. General Provisions
7.1. If Tekswift Inc or you are unable to perform our respective obligations due to circumstances outside our reasonable control (Force Majeure Event), performance shall be excused for the period of time that these circumstances persist, contingent on our taking steps to remedy those circumstances. The following circumstances are outside the scope of a Force Majeure Event: lack or unavailability of funds. If Tekswift Inc is unable to provide the Services for a period of thirty days or more, notwithstanding attempts to remedy the Force Majeure Event, you may terminate the affected Services without application of the Early Termination Charge.
7.2. From time-to-time we may receive warrants and subpoenas from law enforcement entities for information you provide to us (Law Enforcement Request). Unless the Law Enforcement Request prohibits, or requests, that it not be disclosed, we will inform you of our intent to disclose your information.
7.3. If you are involved in civil litigation we have no obligation to provide assistance to you to comply with civil litigation demands such as subpoenas. Should we be compelled to comply with a subpoena for the Services we provide to you, we will charge you $300 per hour, plus reasonable expenses, to comply.
7.4. This TOS is the final, and full, expression of our agreement, and supersedes all prior oral and written communications between the parties about its subject matter.
7.5. This TOS and all agreements incorporated by reference shall be governed by the laws of the State of West Virginia without regard to its choice of laws or conflicts of laws principals. All disputes between you and Tekswift Inc of any nature shall be brought before, and venue shall be proper in, the federal and state courts located in West Virginia. Neither party shall contest notice from such a court. THE PARTIES EACH WAIVE TRIAL BY JURY IN ANY DISPUTE. The U.N. Convention on Contracts for the International Sale of Goods shall not apply. Client acknowledges and agrees that pricing is based in large measure on the parties’ respective rights, obligations and limitations set out in this agreement.
7.6. This TOS and the Addenda may not be amended except upon the written consent of an authorized officer of Tekswift Inc and Client.
7.7. No failure to exercise, nor delay in exercising, any right, remedy or power shall be a waiver of it.
7.8. This TOS, and all contracts incorporated by reference, shall be binding on the parties and their successors and assigns. Either party may assign this TOS and all contracts incorporated by reference except in the following circumstances: to a competitor of the other; or to an entity having no assets and/or operations.
7.9. If any provision in this TOS, or a contract incorporated by reference, is found illegal or unenforceable, that provision shall be deemed restated in such a way as to be legal, enforceable and reflective of the parties intent and this TOS or other contract will remain in effect. Under no circumstances shall such a finding cause the contract to be void or unenforceable.
7.10. All notices shall be made in writing and effective upon: (i) the date of actual receipt; or (ii) five business days after recorded first class mailing. Notices to Tekswift Inc shall be sent to the address listed in the “about us” or similar page on the Tekswift Inc website to the attention of “General Counsel.” Notices to you shall be sent to the address set out in Tekswift Inc’s customer record to the attention of “Legal Notices.”
7.12. No person or entity, other than you and us and our respective successors and assigns, shall be entitled to bring any action to enforce any provision of this TOS or contracts incorporated by reference, against either of us. For the purposes of this agreement, we shall both be considered independent contractors, and cannot make representations, claims or warranties on behalf of the other. Each party agrees to indemnify the other pursuant to paragraph 5.5 if a claim is brought that is within the scope of this paragraph.
7.13. You are is advised that, as may be applicable to it under California Civil Code Section 1789.3, to initiate a complaint about the Service, you may contact Tekswift Inc using your portal, or as provided in the applicable Service Level Agreements. If you are dissatisfied with the manner in which Tekswift Inc responds to a complaint regarding the Services, you may contact Tekswift Inc at the address set out in Paragraph 7.10, and the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254. The charges for the Services are set out in the applicable Service Order.
7.14. We offer a 45 day guarantee (Guarantee). The Guarantee applies to new shared, reseller, and VPS services only. This means that if you have previously purchased services and add services, the Guarantee only applies to the new services for the 45 day period after their purchase.
7.15. To qualify for the Guarantee, you must follow the termination process set out in this TOS. In addition, your termination request must include a detailed statement discussing the reasons for your termination. If your termination request falls within the requirements set out in this paragraph, we will refund any payments made to the payment method used to purchase them. If you do not qualify for the Guarantee, we will reply by email. Domain registration, and third party vendor fees, do not qualify for the Guarantee and are not refundable.
By submitting payment and using our service, you agree to be bound by the terms below.
Tekswift, Inc. (hereafter referred to as Tekswift, we, us or our) is dedicated to providing its customers (hereafter referred to as Customer, you, or your) with an all-round top quality service, while at the same time satisfying our legal and ethical responsibilities. To this end, we have set out below our Acceptable Use Policy (AUP). Our AUP is incorporated into our Terms of Service (TOS) and any other contracts we have with you by this reference. Terms not defined in this AUP have the meaning given to them in your agreement with us (TOS)
We reserve the right to make changes to this AUP at any time. We will provide you with notice of these changes by sending a notice to the email registered on file and posting a complimentary notice in your CORE Client Area. If we make a change that materially impacts your ability to use the Services, you may terminate the affected Services without penalty. The most recent version of the AUP can be found on our website at https://tekswift.com
Failure to abide by the terms of this AUP shall be grounds for immediate account suspension or termination, in some cases without notice, and forfeiture of all fees paid. Please note that the evolving nature of the Internet prevents us from including in this AUP all possible unacceptable uses of the Services. We reserve the right to determine, in our sole discretion, what other activities are unacceptable.
It is your responsibility to ensure that your End Users comply with the terms of this AUP. Your failure to do so constitutes a violation of this AUP.
To report suspected abuses or any violations of these policies, please contact our abuse department at https://tekswift.com/support
The AUP contains three sections:
- Provisions for All Customers
- Provisions for Shared Hosting Customers Only
- Provisions for Dedicated and VPS Customers Only
A. PROVISIONS FOR ALL CUSTOMERS
Tekswift servers may be used for lawful purposes only. Transmission, storage, presentation or distribution of any information, data or material in violation of any applicable law or regulation is prohibited. Examples of such violations are provided below. This list is intended as a guide for you and your End Users, and does not represent all possible unlawful uses of the Services.
- obscene speech
- promoting violence or injury
- using defamatory, threatening or abusive language
- gambling, or similar activities such as HYIP (High Yield Investment Programs), Ponzi schemes or pyramid schemes
- online pharmacies
- violations of U.S. export control laws
- violation of intellectual property rights of others
- forging, misrepresenting, omitting or deleting message headers, return mailing information, or internet protocol addresses to conceal or misidentify the origin of a message
- creating or sending Internet viruses, worms or Trojan horses, flood or mail bombs, or engaging in denial of service attacks
- hacking, and/or subverting, or assisting others in subverting, the security or integrity of Tekswift’s services or systems
- acting in any manner that might subject us to unfavorable regulatory action, any liability for any reason, or adversely affect our public image, reputation or goodwill, as determined by us in our sole and exclusive discretion
- soliciting the performance of any illegal activity, even if the activity itself is not performed
- directly facilitating violation of a law or regulation and/or instructing others in prohibited activities
The only email marketing activities allowed under this AUP are those compliant with the CAN-SPAM Act. We strongly encourage you to familiarize yourself with this act before engaging in any email marketing activities using our services. Please note that activities permitted under the CAN-SPAM Act can still be violations of this AUP for other reasons, and may result in immediate suspension or termination of your account, without notice, as determined by us in our sole discretion.
Spam is strictly prohibited under this AUP. Violations of our spam policy shall result in a minimum $200 fine and possible termination and/or suspension of your account or Services. We reserve the right to determine, in our sole discretion, what constitutes a violation of this spam policy, but include the following as a guide: unsolicited or unauthorized advertising and promotional materials such as “junk mail,” “instant messaging,” “chain letters,” or “pyramid schemes.” An electronic message is “spam” IF: (1) the recipient’s personal identity and context are irrelevant because the message is equally applicable to many other potential recipients; AND (2) the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent; AND (3) the transmission and reception of the message appears to the recipient to give a disproportionate benefit to the sender.
The sending of Unsolicited Bulk Email (UBE) from another service provider advertising a web site, email address or utilizing any resource hosted on Tekswift’s servers, is also prohibited. All bulk e-mail must be solicited, meaning that the sender has an existing and provable relationship with the e-mail recipient and the recipient has not requested not to receive future mailings from the sender. Documentation of the relationship between the sender and the recipient must be made available to Tekswift upon request. Tekswift accounts or services may not be used to solicit customers from, or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider. Running Unconfirmed Mailing Lists Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by Tekswift customers must be Closed-loop (“Confirmed Opt-in”). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing lists of email addresses from 3rd parties for mailing to from any Tekswift-hosted domain, or referencing any Tekswift account, is prohibited.
Operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database at www.spamhaus.org is also prohibited.
This AUP also prohibits any actions that compromise our system and/or network security, the security of our customers, and that of the Internet generally. We reserve the right to immediately suspend or terminate your account, without notice, as a result of such actions by you or your End Users. You may also be exposed to criminal and civil liability based on your actions. Examples of such actions include, but are not limited to, unauthorized access, use, probe, or scan of a system security or authentication measure, data or traffic; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
You are aware that the Internet can be an insecure environment, and are responsible for ensuring the security of your data, passwords, username and confidential information.
Tekswift complies with the United States Copyright Office pursuant to the Digital Millennium Copyright Act (DMCA). If you feel that your site has been copied by one of our customers or an End User, in such a way that could violate the DMCA, you must provide us with proper notice of such infringement. The DMCA sets forth very specific guidelines of what your notice must contain. These guidelines are available here: http://www.copyright.gov/title17/92chap5.html#512
Our designated agent for receipt of notices pursuant to the DMCA is:
DA: Abuse Division Manager
Attn: Legal Reports
364 Patteson Drive
Morgantown, WV 26505
You shall not, and your End Users shall not, use our services to violate the intellectual property rights of others, including, but not limited to, copyright, trademark, trade secret and patent rights. You shall not, and your End Users shall not, use our services to violate the recognized rights of others, including, but not limited to, acts that defame, harass, abuse or threaten others.
Use of the Services to disseminate or display images classified under U.S. law as child pornography, child erotica and/or bestiality is strictly prohibited. We shall immediately terminate the accounts of any customers and/or End Users who are using the Services in this manner, and report them as required by law, without prior notice. Further information about child pornography may be found at http://www.ncmec.org
Use of the services by you and/or your End Users is governed by U.S. export control laws. These laws apply regardless of whether you and/or your End User actually reside in the United States. You may not use our services in violation of these laws, or to conduct business with third parties from sanctioned countries. More information about U.S. export laws may be found at: http://www.export.gov/exportcontrols.html
We own the IP numbers and addresses that may be assigned to you pursuant to your use of the services. These addresses may not be assigned or transferred, and are recycled upon termination of the services. We reserve the right to change these numbers. We are required to comply with ARIN policies and procedures regarding IP addresses. You may not terminate your Services should a change in ARIN policy affect your use of the Services.
You are responsible for ensuring that materials disseminated or posted using our services comply with this AUP and relevant laws, including materials that have been posted by third parties. We do not review, edit, censor, or take responsibility for any information customers or End Users may create. Therefore, we cannot accept any responsibility from customers, users of our services through third parties, or third parties, that results from inaccurate, unsuitable, offensive, or illegal content or transactions.
Use of our service requires a certain level of knowledge in the use of Internet languages, protocols, and software. This level of knowledge varies depending on the anticipated use of the services. Customer agrees that he or she has the knowledge and skills necessary to properly use the Services. It is not our responsibility to provide such knowledge or skills beyond our commitment to support your use of our servers as set forth in the TOS.
Your violation of any of the terms of this AUP may result in immediate suspension or termination of your account, without notice. We are the sole arbiter of what constitutes a violation of this AUP.
Upon learning of an alleged violation, we shall initiate an investigation. During this time, it may be necessary to restrict your access to the Service to prevent further potentially unauthorized activity. If such violation could constitute a criminal offense, we may notify the appropriate law enforcement authorities.
Under no circumstances shall we issue credits for suspension of your Service because of an AUP violation. You agree to hold Tekswift harmless from any claims that a suspension or termination of Services for this reason has damaged an End User.
We may disclose information, including information that you and your End Users may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request. We have no obligation to inform customers or End Users that this information has been disclosed and in some cases may be prohibited by law from doing so. We also may disclose such information when it is necessary to protect us or others from harm.
The use, and misuse, of our services changes over time. If we determine that your use of our services negatively impacts our ability to provide services to other customers, may subject us to liability, indicates your unfamiliarity with use of the services, or if you abuse our support staff, we may terminate your account.
On occasion, we may need to communicate with you by email about issues related to billing, service changes, additions and modifications to our network. It is your responsibility to provide us with a working, monitored, email address, and to update us on any changes to your account or contact information. We have no responsibility for communications misdirected as a result of your failure to provide us with correct contact information.
14. Routine Updates & Security Audits
Periodic and random security screenings of the server and its data will be performed to ensure compliance with software patching, AUP and TOS. We may contact you regarding changes to the server based on this criteria. However, contact processes regarding violations of the governing terms shall not be modified by this provision.
The provisions of this section also apply to all customers with shared hosting accounts:
You agree to restrict your use of the shared hosting services to the direct serving of web content over the HTTP protocol. Misuses include, but are not limited to, scientific/grid/distributed computing, data warehouse/backup storage, and bandwidth sinks. We shall determine, in our sole discretion, what constitutes a misuse of the shared hosting services. If you are unsure of an application’s fitness for the shared hosting services, you should consult with us before using the Services in that manner.
Any customer who uses an unacceptably high level of server resources, including, but not limited to, CPU time, memory usage, and network resources, must either: (a) pay extra for a dedicated server or semi-dedicated server, depending on the resources needed, or (b) reduce their use to an acceptable level. Our Resource Abuse Policy sets out these standards. We shall be the sole arbiter of what is considered a high vs. acceptable server usage level.
Shared hosting accounts cannot be transferred or used by anyone other than a customer. You may not sell, lease or assign the connection or parts of the connection to any party other than those named in our records. Allowing ftp access and hosting websites of End Users is not a violation of this AUP.
Shared web hosting accounts may not be used for distributing software or multimedia products. If you wish to distribute software and/or multimedia files, please contact email@example.com for permission.
Our web hosting accounts shall not be used to distribute and store an unusual amount of multimedia files. Multimedia files are defined as any graphics, audio, and video files. An unusual amount refers to any web site with disk space usage for storing the multimedia files exceeding 70% of its total usage, either in terms of total size or number of files.
We do not allow chat rooms on our shared hosting environments. We also do not allow proxy servers or scripts, torrent trackers or torrent clients to be run from our shared/reseller hosting servers, and will not register or install any third party DLLs/EXEs or software on our shared/reseller hosting servers.
The provisions of this section also apply to all customers with Dedicated and VPS accounts:
You are solely responsible for any breaches of security affecting the servers under your control. If your server is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such an event, you shall be responsible for the cost to rectify any damage done to your server and any other requirement affected by the security breach.
You may not engage in activities designed to monitor Internet traffic other than your own. This means, that you may not monitor our Internet traffic, nor the Internet traffic of any other entity.
1. Background Running Programs
We do not allow background Daemons such as IRC bots; eggdrop; BitchX; XiRCON; and any other program that interferes with normal server operation.
We do not allow IRC server, IRC bots, or IRC shells to be operated on our network.
3. Domain Names
We will take necessary steps to register domain names on your behalf when requested. However, you are responsible for renewing your domain names. We do not take responsibility for failing to renew domain names. If your domain name was registered by us, you must check and take appropriate actions to renew your domain when it is about to expire. We do not handle renewals unless you send, within 7 days prior to its expiration, a ticket to our helpdesk.
This web site availability Service Level agreement (SLA) applies to you if you have ordered any hosting plan (“service”) and you are in good financial standing with Tekswift Inc.
In the event that there is no web site availability, Tekswift Inc will credit the monthly service charge for the service as calculated below and as measured 24 hours a day in a calendar month. The maximum credit is not to exceed the monthly service charge for the affected month:
In order for you to receive a credit on your account, you must request such credit within seven (10) business days after you experienced web site unavailability so that we may verify the claim. You must request credit by sending a request to our billing department via our helpdesk. The message must contain your domain name, the dates and times of the unavailability of your web site, and such other customer identification requested by Tekswift Inc. Credits are generally restored within sixty (60) days of your credit request. Credit to your account shall be your sole and exclusive remedy.
Credits shall not be provided to you in the event that you have no web site availability resulting from (i) scheduled maintenance, (ii) your behavior or the performance or failure of your equipment, programs or applications, or (iii) circumstances beyond Tekswift’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, DDoS attacks (distributed denial-of-service), unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your Web Site.
Technology gremlins are always lurking. Internet services are built in layers, and not all layers are within our domain. There may come a time when you cannot access your website or other service. Outages may not necessarily be due to trouble with our infrastructure. Examples include, but are not limited to: Your ISP experiencing technical difficulties, routing problem between your ISP and our data center, and others. As such, tertiary connection issues are not covered by our Uptime Guarantee. Tekswift expressly limits damages for any non-accessibility time or other downtime to the effective pro-rata monthly charge for the active billing cycle, during the qualifying system unavailability. Tekswift denies responsibility for any extenuating damages arising as a consequence of such unavailability. Our external monitoring agents determine the available uptime of our services, and not any one client’s experience.
Dedicated Server Restore
Tekswift is not responsible for the restoration of data to your account. We strongly recommend that your purchase backup options for your server, and keep copies of your data off-site with you for emergency purposes. If hardware failure and data loss occur, you are responsible for providing backup data for restoration. Tekswift is not responsible for preserving your website backup data, except where such services are specifically requested by the Client.
Hardware replacement will occur within 1-8 hours of the reported problem, Tekswift will refund 3% of the monthly fee per additional 8 hours of down time (up to 100% of customer’s monthly fee). In order to reduce replacement hardware downtime, we retain a quantity of pre-built systems on hand to swap out hardware so that your server can be back online in the shortest amount of time. For hard disk failures, we keep pre-installed drives with our standard partitioning for immediate deployment. In order to request a SLA hardware violation credit, you must contact our sales department via our helpdesk within 10 days of the suspected violation. SLA violations will be reviewed by our personnel Monday – Friday 9AM to 5PM EST.