---------------- Terms of Service ---------------- vanVPS Hosting (also referred to as 'the Company', 'vanVPS', and 'vanVPS Hosting' in the proceeding text) agrees to furnish services to the Subscriber, subject to the following TOS (Terms of Service). Use of vanVPS Hosting Service constitutes acceptance and agreement to vanVPS Hosting's AUP as well as vanVPS Hosting's TOS policy (Terms of Service). All provisions of this contract are subject to the TOS (Terms of Service) of vanVPS Hosting, and AUP (acceptable use policy). The TOS and AUP may be changed at any time at the discretion of the Company. Subscriber understands that changes in policy by the Company shall not be grounds for early contract termination or non-payment. This Agreement shall be construed in all respects in accordance with the laws of the province of British Columbia, Canada applicable to contracts enforceable in that province. 1. Disclosure The AUP specifically prohibits the use of our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition vanVPS Hosting shall have the right to terminate all service set forth in this Agreement. 2. Service Rates Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Subscriber. Subscriber is aware that the Company may prospectively change the specified rates and charges from time to time. The promotional offer is contingent upon Company achieving and maintaining its cost of service goals including but not limited to rates charged to company by its suppliers. 2a. Bandwidth Overages: All vanVPS bandwidth overages are billed at $1 per GB for metered transfer customers, unless Subscriber agrees to upgrade to a package with more allotted bandwidth. Customers on 95th percentile billing will be billed an overage rate agreed to upon sign-up, or their current Per Mbps 95th percentile rate, whichever is higher. Unused bandwidth during service term is not carried over to the next term. 3. Payment Establishment of this service is dependent upon receipt by the Company of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month's service. Subscriber agrees that The Company automatically charges subscriber's credit card every month. vanVPS Hosting reserves the right to process client credit cards from 1 to 5 days before the actual due date to ensure that the funds are received by the due date. 4. Payments and Fees Credit cards that are declined for any reason are subject to a $1.00 declination fee. Service will be interrupted on accounts that reach 4 days past due. Service interrupted for nonpayment is subject to a $50 reconnect charge. Please note that vanVPS Hosting, reserves the right to take ownership of colocated equipment should the account be more than 30 days past due on any payments. If the equipment is sold, the selling price will be used towards the bill, minus a 15% processing fee, with any remainder leftover being held indefinitely. Accounts not paid by due date are subject to a $25 late fee. Accounts that are not collectable by vanVPS Hosting may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a "Processing and Collection" Fee of not less than $50 nor more than $150. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS. 5. Refund and Disputes All payments to vanVPS Hosting, are nonrefundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 30 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in vanVPS Hosting' sole discretion is a valid charge under the provisions of the TOS and /or AUP, you agree to pay vanVPS Hosting an "Administrative Fee" of not less than $50 and not more than $150. 6. Failure to Pay The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees. 7. Account Cancellation All requests for canceling accounts must be confirmed by vanVPS personel at 1-888-9-VANVPS (1-888-982-6877) within at least 72 hours before the next invoice due date. You must have all account information to cancel and accounts must be paid in full before the cancellation will be considered complete. 8. Service Disruptions Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons. Therefore, subscriber agrees that the company shall not be liable for any damages. In no event shall the company be liable for any special or consequential damages, loss, or injury. 9. Support Boundaries vanVPS Hosting, provides 12 Hour SLA for support tickets that are created (at https://client.vanvps.com) between 8AM to 6PM PST. Tickets made outside the 8AM to 6PM PST will be processed the following day by 12PM PST. All servers housed at our facility are unmanaged, vanVPS only ensures that the server is online and is remotely accessible. vanVPS Hosting does not provide technical support for YOUR customers. 10. SPAM and Unsolicited Commercial Email (UCE) vanVPS Hosting takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM (of any kind) over our network. Very simply this means that customers of vanVPS may not use or permit others to use our network to transact in UCE. Customers of vanVPS Hosting may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service. 11. Memory Allocation Memory allocations listed on our website are the total amount of dedicated physical memory. Some memory overhead from the KVM hypervisor is expected, and only the minumul amount is used from the physical memory allocation. Violation of vanVPS Hosting's SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, vanVPS Hosting will initiate an immediate investigation (within 48 hours of notification). During the investigation, vanVPS Hosting may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, vanVPS Hosting may, at its sole discretion, restrict, suspend or terminate customer's account. Further, vanVPS Hosting reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. vanVPS Hosting will notify law enforcement officials if the violation is believed to be a criminal offense. First violations of this policy will result in an "Administrative Fee" of $250 and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $500 and immediate termination of your account. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $175 per hour that vanVPS Hosting personnel must spend to investigate the matter. PLEASE, DO NOT SPAM from your account. As our Customers are ultimately responsible for the actions of their clients over the vanVPS Hosting network, it is advisable that Customers develop a similar, or stricter, policy for their clients. Any customer found to have UCE coming out of their server(s) will, at the discretion of our own employees, be charged $2 per IP address retroactively from when the IP assignment was made. IMPORTANT NOTICE: Anyone hosting websites or services on their server that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server immediately removed from our network. The server will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the server to confirm that all material has been COMPLETELY removed. Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second violation WILL be immediately and permanently removed from our network without notice without refund. 11. Network IP Address Ownership: If vanVPS Hosting assigns Customer an Internet Protocol address for Customer's use, the right to use that Internet Protocol address shall belong only to vanVPS Hosting, and Customer shall have no right to use that Internet Protocol address except as permitted by vanVPS Hosting in its sole discretion in connection with the Services, during the term of this Agreement. vanVPS Hosting shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by vanVPS Hosting, and vanVPS Hosting reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Our 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 you 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. All IPs that are allocated to client must be utilized within 48 hours. If allocated IPs are not utilized within this time frame The Company reserves the right to retract IPs that are not being utilized without notifying the client. Bandwidth Usage. vanVPS Hosting will monitor Customer's bandwidth. vanVPS Hosting shall have the right to take corrective action if Customer's usage negatively impacts other clients. System and Network Security: Users are prohibited from violating or attempting to violate the security of the vanVPS Hosting Network. Violations of system or network security may result in civil or criminal liability. vanVPS Hosting 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 authorization. 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 or access to which such User is not entitled. Using any method to change, mask, hide, or otherwise obscure the source of any IP packet, including but not limited to the use of "spoofing" techniques, open relays or proxies, or the use of any inaccurate or unauthorized innformation or domain name, including TLD, in a PTR or other reverse DNS record that provides for IP to name resolution, including records hosted on vanVPS Hosting DNS servers or any other server to which IP to name resolution authority is delegated or otherwise assigned. 12. Notification of Violation vanVPS Hosting is under no duty to look at each customer's or user's activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities. First violation: Any User, which vanVPS Hosting determines to have violated any element of this Acceptable Use Policy, shall receive an email, warning them of the violation. The service may be subject at vanVPS Hosting's discretion to a temporary suspension pending a User's agreement in writing, to refrain from any further violations. Second Violation: Users that vanVPS Hosting determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice. We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer's network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible. 13. Suspension of Service or Cancellation vanVPS Hosting reserves the right to suspend network access to any customer if in the judgment of the vanVPS Hosting network administrators the customer's server is the source or target of the violation of any of the other terms of the AUP or for any other reason which vanVPS Hosting chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer's machines were suspended. 14. Changes in Policy vanVPS Hosting reserves the right to amend its policies at any time. All Sub-Networks, resellers and unmanaged servers of vanVPS Hosting must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation. You will be held responsible for the actions of your clients in the matter described on these Terms and conditions. Therefore, it is in your best interest to implement a similar or stricter Terms and conditions or otherwise called Acceptable Terms of use policy. 15. Indemnification vanVPS Hosting wishes to emphasize that in agreeing to the vanVPS Hosting Acceptable Use Policy (AUP) and Terms of Service (ToS), customer indemnifies vanVPS Hosting for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in loss to vanVPS Hosting or the bringing of any claim against vanVPS Hosting by any third-party. This means that if vanVPS Hosting is sued because of a customer's or a customer of a customer's activity, the customer will pay any damages awarded against vanVPS Hosting, plus all costs and attorney's fees. 16. Miscellaneous Provisions You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts are used, in that order of preference. A waiver by the Company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof. Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber. Company reserves right to cancel customers rights under this contract at anytime without further obligation. vanVPS Hosting takes no responsibility for any material input by others and not posted to the vanVPS Hosting Network by vanVPS Hosting. vanVPS Hosting is not responsible for the content of any other websites linked to the vanVPS Hosting Network; links are provided as Internet navigation tools only. vanVPS Hosting disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party's violation of this policy.
vanVPS Hosting is not responsible for any damages your business may suffer. vanVPS Hosting does not make implied or written warranties for any of our services. vanVPS Hosting denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by vanVPS Hosting. 17. Responsibility for Content You, as vanVPS Hosting' customer, are solely responsible for the content stored on and served by your vanVPS Hosting server. 18. Colocation Liability vanVPS Hosting assumes zero liability for colocated hardware, including, but not limited to, lost or damaged equipment. Additionally, the customer assumes full liability for maintaining insurance on their own hardware in colocation with vanVPS. 19. Price Errors vanVPS Hosting reserves the right to not deliver a product or service that was ordered at a certain price if the price is deemed by vanVPS Hosting to be a mistake. 20. Resource Usage Customer agrees that vanVPS may suspend or terminate Agreement with Customer, with or without warning if any of the following software or activities are found by vanVPS: Customer is using maximum allocated CPU resources in an abusive manner; Customer is using maximum allocated network port limit in an abusive manner; Customer is using swap space in an abusive manner; Customer is using IRC (internet relay chat) client or server software; Customer is using proxy scripts (public anonymous proxies) or software that allows the public to access external web sites via vanVPS's network; Customer is using benchmark or performance testing software in an abusive manner; Customer is using distributed computing software, such as SETI@home or Folding@home. vanVPS reserves the right to suspend or terminate Agreement with Customer if vanVPS determines Customer's actions are affecting other Customers or general operating level of vanVPS servers or services. ---------------------------------------- Collection and Disclosure of Information ---------------------------------------- At the time the Subscriber begins a relationship with vanVPS and during the course of that relationship, vanVPS may collect Information from the Subscriber including: name, address, date of birth, occupation, and/or a copy of the Subscriber's government-issued identification. vanVPS limits the collection and use of Information to what we require to serve the Subscriber and administer our business, including verifying the Subscriber's identity and deterring fraudulent activities on the vanVPS network. Any Information the Subscriber provides to vanVPS will not be disclosed to any third party, except in the following circumstances: (a) with the Subscriber's consent; (b) in response to a court order, search warrant or other demand or request, which we believe to be valid; (c) to satisfy any legal and/or regulatory requirements applicable to us; (d) when we buy or sell all or a part of our business or when considering such transactions; (e) to help us collect a debt or enforce an obligation owed to us by the Subscriber. ----------------------- Service Level Agreement ----------------------- 100% Uptime on Power and Network vanVPS Hosting will provide, to each client dedicated server, VPS, and client co-located server, both a minimum of 100% uninterrupted transit to the Internet and a minimum of 100% uninterrupted access to electricity. vanVPS Hosting offers clients the following considerations in the event that vanVPS Hosting fails to provide both 100% uninterrupted transit to the Internet a 100% uninterrupted access to electricity: 1. Should transit to the Internet or electricity to a client dedicated server, VPS, or co-located server become unavailable for a cumulative period of up to 5 minutes beyond the 100% minimum in any month of service, the client will be entitled to receive credit for the equivalent to 5% of the client's Recurring Monthly Fees for that month that would otherwise be payable to vanVPS for the effected services. 2. Should transit to the Internet or electricity remain unavailable for a cumulative period beyond 5 minutes, the client will be entitled to an account credit equivalent to 5% of the client's Recurring Monthly Fees for the month that would otherwise be payable to vanVPS for the effected services for each cumulative 1 hour period that network or power is unavailable. All credits pursuant to section 2 above shall be calculated in 1 hour periods. Any and all credits issued in accordance with this SLA during any one month's time related to any single dedicated server, VPS, or co-located server shall not exceed 100% of the Recurring Monthly Fees for that single dedicated server, VPS, or co-located server that would otherwise be payable to vanVPS during that month for the effected services. No part of this agreement covers outages or other service interruption that is caused by equipment and/or events that are the effect of or under the control of the client. No part of this agreement shall cover loss of power to a server as a result of the client's utilization of remote power management tools that may be made available to them by vanVPS Hosting. No part of this agreement covers limited service interruption that is caused by one or more devices on our network being the target or source of a DoS, DDoS, or other form of malicious attack. No part of this agreement covers outages or other service interruption that is caused by scheduled or emergency network and systems maintenance. All scheduled or emergency network and systems maintenance will be announced via the vanVPS Status Page, located at http://status.vanvps.com/. Clients are encouraged to regularly check this page for upcoming network and systems maintenance announcements. Clients will be emailed individually for maintenances which will result in planned downtime. No account credit shall be issued until an SLA credit request is made by the client. All requests for credits must be made within 5 days of the incident. All requests for credits must be made by creating a support ticket by emailing support@vanvps.com. 2 Hour Hardware Replacement vanVPS Hosting guarantees to replace any standard failed server hardware components provided by vanVPS Hosting at no cost to the client within two hours of diagnosis as confirmed by vanVPS Hosting staff. In the event that it takes vanVPS Hosting longer than two hours to replace any standard failed server hardware component after problem diagnosis by vanVPS Hosting staff, vanVPS Hosting will issue a company credit for 5% of the monthly service fees for each additional 60 minutes of downtime up to 100% of clients's service fees for one month on the affected server. --------------------- Acceptable Use Policy --------------------- This Acceptable Use Policy (the "Policy") for vanVPS Hosting services (the "Services") is designed to help protect vanVPS Hosting, its customers and the general Internet community from abusive or, in some cases, illegal activities. Each company (or person) who uses or purchases the Services is responsible for the activities of its customer base and/or end-users and, by accepting such service from vanVPS Hosting, is agreeing to ensure that its customers and/or end-users abide by this Policy. Complaints about customers" or end-users" conduct in respect of the Services must be forwarded to abuse@vanVPS Hosting.com for action. Under Terms and Conditions, vanVPS Hosting has the right to terminate the account of a customer for violation of this Policy, or to take, without notice, any other action that vanVPS Hosting considers appropriate in relation to the Services (e.g., address filtering, server disconnection). Each company (or person) who uses or purchases the Services shall not, nor shall they permit or assist others to, use the Services in a manner, or for a purpose, that is abusive or illegal. Abusive conduct includes, but is not limited to, the following: 1. Sending unsolicited e-mail that causes complaints from the recipients of such e-mail; 2. Sending e-mail that results in IP addresses being blacklisted 3. Mailbombing or spamming (sending large quantities of unwanted or unsolicited e-mail to newsgroups or individual e-mail accounts); 4. Unauthorized attempts by a user to use or gain access to any account or computer resource not belonging to that user (e.g., "spoofing"); 5. Using any means or device to obtain, or attempt to obtain, the Services with the intent to avoid the applicable charges; 6. Using any means or device to gain unauthorized access to, alter, or destroy (or any attempt thereof) the data or information of any other customers and/or their end-users; 7. Engaging in any activities that will cause a disruption of the Services (e.g., synchronized number sequence attacks) to other customers and/or their end-users; 8. Engaging in any activities that will damage the systems of, or cause a disruption of internet services to, third parties; or, 9. Using the Services in violation of the law, or in aid of any unlawful act, or to interfere with the use and operation of vanVPS Hosting"s network. 10. Use of the services for adult content or gambling purposes without the express consent of vanVPS Hosting. 11. If we find evidence of malicious processes running on your VPS, such as port scanners or bulk packet transmitters (like DDOS, stealth, etc), your VPS be will shut down without notice and you will have to pay a reconnection fee. 12. Legal rights of others. Using vanVPS Hosting"s services in a manner that may violate the legal rights of others. This may include, but is not limited to, defamation, infringing copyright or Intellectual Property, distribution of content or code that is intended for illegal or mischievous purposes. Abusive or illegal conduct may result in vanVPS Hosting suspending, terminating or taking such other action without notice as vanVPS Hosting in its sole discretion may deem appropriate. vanVPS Hosting reserves the right to modify this Policy at any time. All servers sending mail must use an IP address that has a valid reverse dns entry. The domain listed on the reverse dns entry must have a valid and active web page (it may not be a boilerplate type web page). The web page must contact valid contact information. If the server is sending any kind of bulk mail, the unsubscribe feature must be clearly available and functional on the home page. The above applies to all IP addresses configured on a server.