Services. Subject to the terms of this Agreement, and contingent on
Customer's satisfaction of gxahost Host's credit approval requirements,
gxahost agrees to provide the web hosting services described in the Order for
the fees stated in the Order.
Term. The initial service term of the Agreement shall begin on the date that
gxahost generates an e-mail message to Customer announcing the activation of
the Customer's account (the "Service Commencement Date") and shall continue
for the number of months stated in the Order (the "Initial Term"). Upon
expiration of the Initial Term, this Agreement shall automatically renew for
as many successive renewal terms of the same length as the Initial Term
(each a "Renewal Term") unless gxahost or Customer provides the other with
written notice of non-renewal. The Initial Term and any Renewal Term may be
referred to collectively in this Agreement as the "Term."
Fees. Fees are payable in advance on the first day of each billing
cycle. Customer's billing cycle shall be monthly, annually bi-annually
as indicated on the Order, beginning on the Service Commencement Date.
gxahost may require payment for the first billing cycle before beginning
service. If the Order provides for credit/debit card billing, Customer
authorizes gxahost to bill subsequent fees to the credit/debit card on or
after the first day of each successive billing cycle during the Term of
this Agreement; otherwise gxahost will invoice Customer via electronic
mail to the Primary Customer Contact listed on the Order. Invoiced fees
may be issued on or before the 7th day before each billing cycle, and
the fees shall be due on the 7th day following invoice date. Payments
must be made in United States dollars. Customer is responsible for
providing gxahost with changes to billing information (such as credit
card expiration, change in billing address). gxahost may suspend the
service without notice if payment for the service is overdue. Fees not
disputed within thirty (30) days of due date are conclusively deemed
accurate. Customer agrees to pay gxahost's reasonable reinstatement fee
following a suspension of service for non-payment, and to pay gxahost's
reasonable costs of collection of overdue amounts, including collection
agency fees, attorney fees and court costs. Customers who either reside
in or have a primary billing address in Canada will be subject to the
appropriate GST/HST tax for their province. This tax will be included
and shown on all invoices issued by gxahost.
Fee Increases. gxahost may increase its fees for services effective the
first day of a Renewal Term by giving notice to Customer of the new fees
at least forty five (45) days prior to the beginning of the Renewal
Term, and if Customer does not give a notice of non-renewal as provided
in Section 2 above, the Customer shall be deemed to have accepted the
new fee for that Renewal Term and any subsequent Renewal Terms (unless
the fees are increased in the same manner for a subsequent Renewal
Taxes. At gxahost's request Customer shall remit to gxahost all sales, VAT
or similar tax imposed on the provision of the services (but not in the
nature of an income tax on gxahost), regardless of whether gxahost fails
to collect the tax at the time the related services are provided.
Early Termination. Customer acknowledges that the amount of the fee for
the service is based on Customer's agreement to pay the fee for the
entire Initial Term, or Renewal Term, as applicable. In the event gxahost
terminates the Agreement for Customer's breach of the Agreement in
accordance with Section 9 (Termination), or Customer terminates the
service other than in accordance with Section 9 (Termination) for
gxahost's breach, the unpaid fees for each billing cycle remaining in the
Initial Term or then-current Renewal Term, as applicable, are due on the
business day following termination of the Agreement.
Payments to gxahost are non-refundable except for the first payment which
falls under the thirty (30) day money back guarantee. Only shared,
reseller and semi-dedicated and VPS services are eligible for the thirty
(30) day money back guarantee. No other services provided by gxahost are
covered by this guarantee. The thirty (30) day money back guarantee is
not valid upon any terms of service or acceptable use policy violations.
All overcharges or billing disputes must be reported within thirty (30)
days of the time the dispute occurred.
Law/AUP. Customer agrees to use the service in compliance with applicable
law and gxahost's Acceptable Use Policy posted at http://gxahost.com/Legal/aup
(the "AUP"), which is hereby incorporated by reference in this Agreement.
Customer agrees that gxahost may, in its reasonable commercial judgment
consistent with industry standards, amend the AUP from time to time to
further detail or describe reasonable restrictions and conditions on
Customer's use of the Services. Amendments to the AUP are effective on the
earlier of gxahost's notice to Customer that an amendment has been made, or
the first day of any Renewal Term that begins subsequent to the amendment.
Customer agrees to cooperate with gxahost's reasonable investigation of any
suspected violation of the AUP. In the event of a dispute between gxahost and
Customer regarding the interpretation of the AUP, gxahost's commercially
reasonable interpretation of the AUP shall govern.
Customer Information. Customer represents and warrants to gxahost that the
information he, she or it has provided and will provide to gxahost for
purposes of establishing and maintaining the service is accurate. If
Customer is an individual, Customer represents and warrants to gxahost that
he or she is at least 18 years of age. gxahost may rely on the instructions
of the person listed as the Primary Customer Contact on the Order with
regard to Customer's account until Customer has provided a written notice
changing the Primary Customer Contract.
Indemnification. Customer agrees to indemnify and hold harmless gxahost,
gxahost's affiliates, and each of their respective officers, directors,
agents, and employees from and against any and all claims, demands,
liabilities, obligations, losses, damages, penalties, fines, punitive
damages, amounts in interest, expenses and disbursements of any kind and
nature whatsoever (including reasonable attorneys fees) brought by a third
party under any theory of legal liability arising out of or related to the
actual or alleged use of Customer's services in violation of applicable law
or the AUP by Customer or any person using Customer's log on information,
regardless of whether such person has been authorized to use the services by
Disclaimer of Warranties. gxahost does not warrant or represent that the
services will be uninterrupted, error-free, or completely secure. To the
extent permitted by applicable law gxahost disclaims any and all warranties
including the implied warranties of merchantability, fitness for a
particular purpose, and noninfringement. To the extent permitted by
applicable law, all services are provided on an "as is" basis.
Limitation of Damages. Neither party shall be liable to the other for any
lost profits, or any indirect, special, incidental, consequential or
punitive loss or damage of any kind, or for damages that could have been
avoided by the use of reasonable diligence, arising in connection with the
agreement, even if the party has been advised or should be aware of the
possibility of such damages. Notwithstanding anything else in the agreement
to the contrary, the maximum aggregate liability of gxahost and any of its
employees, agents or affiliates, under any theory of law (including breach
of contract, tort, strict liability, and infringement) shall be a payment of
money not to exceed the amount payable by customer for three months of
Suspension of Service. Customer agrees that gxahost may suspend services
to Customer without notice and without liability if: (i)gxahost
reasonably believes that the services are being used in violation of the
AUP; (ii) Customer fails to cooperate with any reasonable investigation
of any suspected violation of the AUP; (iii)gxahost reasonably believes
that the suspension of service is necessary to protect its network or
its other customers, or (iv)as requested by a law enforcement or
regulatory agency. Customer shall pay gxahost's reasonable reinstatement
fee if service is reinstituted following a suspension of service under
Termination. The Agreement may be terminated by Customer prior to the
expiration of the Initial Term or any Renewal Term without further
notice and without liability if gxahost fails in a material way to
provide the service in accordance with the terms of the Agreement and
does not cure the failure within ten (10) days of Customer's written
notice describing the failure in reasonable detail. The Agreement may be
terminated by gxahost prior to the expiration of the Initial Term or any
Renewal Term without further notice and without liability as follows:
(i) upon ten (10) days notice if Customer is overdue on the payment of
any amount due under the Agreement; (ii) Customer materially violates
any other provision of the Agreement, including the AUP, and fails to
cure the violation within thirty (30) days of a written notice from
gxahost describing the violation in reasonable detail; (iii)upon one (1)
days notice if Customer's Service is used in violation of a material
term of the AUP more than once, or (iv)upon one (1) days notice if
Customer violates Section 5 (Customer Information) of this Agreement.
Either party may terminate this agreement upon ten (10) days advance
notice if the other party admits insolvency, makes an assignment for the
benefit of its creditors, files for bankruptcy or similar protection, is
unable to pay debts as they become due, has a trustee or receiver
appointed over all or a substantial portion of its assets, or enters
into an agreement for the extension or readjustment of all or
substantially all of its obligations.
gxahost will make a best effort to retain user data/files for unpaid
services for up to thirty (30) days past the renewal invoice due date.
After thirty (30) days, gxahost will remove any data related to the
unpaid hosting service(s) from its systems. In the event a customer
requires restoration of the data, gxahost will attempt to recover the
account from backup systems. gxahost makes no guarantee the terminated
data will be recoverable from their backup systems. There will be a one
time $10 fee for account recovery/restoration. This fee applies to each
service the customer requires gxahost to restore. This restoration policy
and corresponding $10 fee will also be applied to any terminated
service(s) the customer has requested cancellation for in error.
Requests for Customer Information. Customer agrees that gxahost may, without
notice to Customer, (i) report to the appropriate authorities any conduct by
Customer or any of Customer's customers or end users that gxahost believes
violates applicable law, and (ii) provide any information that it has about
Customer or any of its customers or end users in response to a formal or
informal request from a law enforcement or regulatory agency or in response
to a formal request in a civil action that on its face meets the
requirements for such a request.
Back Up Copy. Customer agrees to maintain a current copy of all content
hosted by gxahost nothwithstanding any agreement by gxahost to provide back up
services. gxahost will make a good faith effort to keep seven (7) days worth
of backups through software accessible by client. However, gxahost makes no
absolute guarantee that a backup can be provided. The customer is ultimately
responsible for maintaining and storing their own backups.
Changes to gxahost's Network. Upgrades and other changes in gxahost's network,
including, but not limited to changes in its software, hardware, and service
providers, may affect the display or operation of Customer's hosted content
and/or applications. gxahost reserves the right to change its network in its
commercially reasonable discretion, and gxahost shall not be liable for any
resulting harm to Customer.
IP Address Ownership: If gxahost assigns Subscriber an Internet Protocol
address for Subscribers's use, the right to use that Internet Protocol
address shall belong only to gxahost, and Customer shall have no right to use
that Internet Protocol address except as permitted by in its sole discretion
in connection with the Services, during the term of this Agreement gxahost
shall maintain and control ownership of all Internet Protocol numbers and
addresses that may be assigned to Customer by gxahost, and reserves the right
to change or remove any and all such Internet Protocol numbers and
addresses, in its sole and absolute discretion. gxahost's allocation of IP
addresses is limited by ARIN's new policies. These new policies state that
use of IP addresses for IP based virtual hosts will not be accepted as
justification for new IP addresses. What this means to the Customer is that
you MUST use name-based hosting where possible. We will periodically review
IP address usage, and if we find that clients are using IP addresses where
name-based hosting could be used, we will revoke authorization to use those
IP addresses that could be used with name-based hosting.
Bandwidth Usage. gxahost will monitor Subscribers's bandwidth. gxahost shall
have the right to take corrective action if Subscriber's usage negatively
impacts other clients.
System and Network Security: Users are prohibited from violating or
attempting to violate the security of the Network. Violations of system or
network security may result in civil or criminal liability. gxahost will
investigate occurrences, which may involve such violations and may involve,
and cooperate with, law enforcement authorities in prosecuting Users who are
involved in such violations. These violations include, without limitation:
Accessing data not intended for such User or logging into a server or
account, which such User is not authorized to access.
Attempting to probe, scan or test the vulnerability of a system or
network or to breach security or authentication measures without proper
Attempting to interfere with service to any user, host or network,
including, without limitation, via means of overloading, "flooding",
"mail bombing" or "crashing".
Forging any TCP/IP packet header or any part of the header information
in any e-mail or newsgroup posting.
Taking any action in order to obtain services to which such User is not
Under no circumstances are you allowed to run any daemons, servers or
compile anything under your account without direct permission from
gxahost management. Shell access is meant to be used solely with basic
file system usage.
You're not allowed to use an excessive amount of system resources for an
extended period of time. If your account is found to be utilizing a
large amount of resources we will contact you and give you further
information. Under extreme cases suspension may be necessary until the
issue can be resolved.
You may not have cron jobs in intervals lower than 1 minutes a part.
You may use your account for personal use but not as a backup facility
for automated backups or things of that nature. If you're unsure if your
intended use violates this TOS please contact us so we can clarify it
All shared hosting plans are limited to 500,000 inodes. All semi
dedicated hosting plans are limited to 1,000,000 inodes. Each cPanel
account owned by a reseller hosting plan is limited to 500,000 inodes.
VPS plans do not have an inode limit.
Usage (Unlimited Plans)
Your account may not be used as a storage and/or backup space for
files/archives. Regular backups of databases, websites, etc, are
permitted within reason. Any account found to be using an excessive
and/or unreasonable amount of disk space may be asked to reduce their
usage or face suspension/termination. gxahost reserves the right to
suspend/terminate any service for resource abuse at their discretion.
Notices. Notices to gxahost under the Agreement shall be given via electronic
mail to the e-mail address posted for customer support . Notices to Customer
shall be given via electronic mail to the individual listed as the Primary
Customer Contact on the Order. Notices are deemed received on the day
transmitted, or if that day is not a business day, on the first business day
following the day delivered. Customer may change his, her or its notice
address by a notice given in accordance with this Section.
Force Majeure. gxahost shall not be in default of any obligation under the
Agreement if the failure to perform the obligation is due to any event
beyond gxahost's control, including, without limitation, significant failure
of a portion of the power grid, significant failure of the Internet, natural
disaster, war, riot, insurrection, epidemic, strikes or other organized
labor action, terrorist activity, or other events of a magnitude or type for
which precautions are not generally taken in the industry.
Governing Law/Disputes. The Agreement shall be governed by the laws of,
exclusive of its choice of law principles, and the laws of the United States
of America, as applicable. The Agreement shall not be governed by the United
Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR
ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE
AND FEDERAL COURTS IN ONTARIO, CANADA, AND EACH PARTY AGREES NOT TO DISPUTE
SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Support. gxahost provides support to it's subscribers. gxahost only ensures
that the service is online and is remotely accessible. gxahost does not offer
technical support for application specific issues. We encourage you to use
our Ticket System on our web site.
SPAM and Unsolicited Commercial Email (UCE). gxahost takes a zero tolerance
approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over
our network. Under no circumstances are you to solicit the sending of UCE or
SPAM over our network or you will be subject to penalties and service
termination. (a) Violation of gxahost's SPAM policy will result in severe
penalties. Upon notification of an alleged violation of our SPAM policy,
gxahost will initiate an immediate investigation (within 48 hours of
notification). During the investigation, gxahost may restrict customer access
to the network to prevent further violations. If a customer is found to be
in violation of our SPAM policy, gxahost may, at its sole discretion,
restrict, suspend or terminate customer's account. Further, gxahost reserves
the right to pursue civil remedies for any costs associated with the
investigation of a substantiated policy violation. gxahost will notify law
enforcement officials if the violation is believed to be a criminal offense.
c. As our Customers are ultimately responsible for the actions of their
clients over the network, it is advisable that Customers develop a similar,
or stricter, policy for their clients.
Miscellaneous. Each party acknowledges and agrees that the other party
retains exclusive ownership and rights in its trademarks, service marks,
trade secrets, inventions, copyrights, and other intellectual property.
Neither party may use the other party's name or trade mark without the other
party's prior written consent. The parties intend for their relationship to
be that of independent contractors and not a partnership, joint venture, or
employer/employee. Neither party will represent itself to be agent of the
other. Each party acknowledges that it has no power or authority to bind the
other on any agreement and that it will not represent to any person that it
has such power or authority. The terms on Subscriber's purchase order or
other business forms are not binding on gxahost unless they are expressly
incorporated into a formal written agreement signed by both parties. A
party's failure or delay in enforcing any provision of the Agreement will
not be deemed a waiver of that party's rights with respect to that provision
or any other provision of the Agreement. A party's waiver of any of its
right under the Agreement is not a waiver of any of its other rights with
respect to a prior, contemporaneous or future occurrence, whether similar in
nature or not. The captions in the Agreement are not part of the Agreement,
but are for the convenience of the parties. The following provisions will
survive expiration or termination of the Agreement: Fees, indemnity
obligations, provisions limiting liability and disclaiming warranties,
provisions regarding ownership of intellectual property, these miscellaneous
provisions, and other provisions that by their nature are intended to
survive termination of the Agreement. There are no third party beneficiaries
to the Agreement. Neither insurers nor the Subcriber's of resellers are
third party beneficiaries to the Agreement. Subscriber may not transfer the
Agreement without gxahost's prior written consent. gxahost's approval for
assignment is contingent on the assignee meeting gxahost's credit approval
criteria. gxahost may assign the Agreement in whole or in part. This
Agreement together with the Order and AUP constitutes the complete and
exclusive agreement between the parties regarding its subject matter and
supercedes and replace any prior understanding or communication, written or