Subject to the terms of this Agreement, and contingent on Customer's satisfaction of MalayaliHost's credit approval requirements, MalayaliHost agrees to provide the web hosting services described in the Order for the fees stated in the Order.
The initial service term of the Agreement shall begin on the date that MalayaliHost 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 up to three successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless MalayaliHost or Customer provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
(a) Recurring Fees.
MalayaliHost employs the anniversary billing process. Accordingly, all packages will renew on the first day of each month. Signup invoices for Customer orders received between the 1st and 15th of the month will reflect prorated charges from the date of the order to the 1st of the following month. Customer orders received between the 16th and the last day of the month will include prorated charges for the balance of the current month PLUS the renewal charge for the following month. Service will be made inactive on accounts that are not paid by the due date at 10AM EST. An account means all hosting services provided to Customer. MalayaliHost includes a five (5) day grace period for all invoices. This grace period extends from the date invoices are issued. MalayaliHost reserves the right to revoke their grace period if a pattern of late payment is observed. All orders made with a credit card are expected to work on the monthly renewal date each month. Any accounts made inactive for non-payment is subject to a 15% late payment fee. If your invoice is not paid by the 10th of every month, we reserve the right to terminate your service entirely and reformat your server.
Customers selecting manual PayPal payments are responsible for submitting payment of all invoices by 10:03am EST on the due date reflected on said invoices. Customers selecting automated PayPal are responsible for ensuring that their PayPal subscription reflects accurate current renewal amounts. Customer is responsible for updating their PayPal subscription when upgrades or downgrades are processed.
(c) Credit/Debit Cards.
If Customer selects credit/debit card as payment method, the card details are stored on file and the card will automatically be charged each month on the date renewal invoices are issued (two days prior to the actual renewal date). It is critical that the address on file matches the billing address for the debit/credit card on file. For security purposes, our payment gateway will NOT accept transactions where the address does not match. If our payment gateway detects an address mismatch, Customer may briefly see a pending charge on their account if they use a credit card or see funds withdrawn in the case of a debit card; however, these transactions will normally be cleared within 24-48 hours by the card provider. Issues relating to declined transactions due to address mismatch are the responsibility of the Customer and should be resolved by contacting the card provider for assistance.
Package upgrades are processed by Customer via my.MalayaliHost.com. Customers can, at any time, login and upgrade, downgrade or add-on to their VPS packages, with the exception of additional IPs. Requests to add-on or remove additional IPs must be submitted to sales(at)MalayaliHost.com by Customer from the primary email address on file for Customerís account.
At MalayaliHostís request, Customer shall remit to MalayaliHost any or all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on MalayaliHost), regardless of whether MalayaliHost fails to collect the tax at the time the related services are provided.
4. Cancellation and 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 MalayaliHost 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 MalayaliHost 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. Customer also acknowledges that a minimum of 7 days cancellation notice or downgrade of current package prior to the following renewal term must be given in writing to MalayaliHost or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:
Cancellation request must be submitted to the billing department (link)
Cancellation request must be submitted from the main email address on file with MalayaliHost
Cancellation request must contain the main IP address (VPS account) or main domain (VPS account) of the hosting plan you wish to cancel
Customer agrees to use the service in compliance with applicable law and MalayaliHost's Acceptable Use Policy posted at aup.html (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that MalayaliHost 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 MalayaliHost'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 MalayaliHost's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between MalayaliHost and Customer regarding the interpretation of the AUP, MalayaliHost's commercially reasonable interpretation of the AUP shall govern.
6. Customer Information.
Customer represents and warrants to MalayaliHost that the information he, she or it has provided and will provide to MalayaliHost for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to MalayaliHost that he or she is at least 18 years of age. MalayaliHost 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.
Customer agrees to indemnify and hold harmless MalayaliHost, MalayaliHost'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 Customer.
8. Disclaimer of Warranties.
MalayaliHost DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW MalayaliHost 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.
9. 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 POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF MalayaliHost 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 SERVICE.
(a) Suspension of Service.
Customer agrees that MalayaliHost may suspend services to Customer without notice and without liability if: (i) MalayaliHost 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) MalayaliHost 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 MalayaliHost's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
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 MalayaliHost 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 MalayaliHost prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon five (5) 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 ten (10) days of a written notice from MalayaliHost 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 five (5) 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.
11. Resource Usage
MalayaliHost Customers may not initiate the following (below), if any customer does MalayaliHost may terminate the account with no refund. Depending on the situation there will/won't be warnings sent.
a) Misuse of System Resources: Intentional misuse of system resources, including but not limited to employing programs that consume excessive network capacity, CPU cycles, or disk IO.
b) Use 20% or more of system CPU resources for longer then 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
c) Use of any kind of distributed computing software, including but not limited to SETI@home, Node Zero and Folding@home
d) Run any file sharing, bit torrent or other P2P network services, client or server software.
e) Run any gaming servers such as counter-strike, half-life, battlefield 1492, etc
12. Bandwidth Usage
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount Solusvm will suspend you automatically but you can upgrade to a larger VPS and have the service restored. Unused transfer in one month cannot be carried over to the next month.
13. Requests for Customer Information.
Customer agrees that MalayaliHost 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 MalayaliHost 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.
14. Back Up Copy.
Customer agrees to maintain a current copy of all content hosted by MalayaliHost nothwithstanding any agreement by MalayaliHost to provide back up services.
15. Request for Rebuild/Restore of Hosting Package
During any service term, customer may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a $5 one time fee will be enforced.
16. Changes to MalayaliHost's Network.
Upgrades and other changes in MalayaliHost'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. MalayaliHost reserves the right to change its network in its commercially reasonable discretion, and MalayaliHost shall not be liable for any resulting harm to Customer.
Notices to MalayaliHost under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://support.MalayaliHost.com/. 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.
18. Force Majeure.
MalayaliHost shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond MalayaliHost'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.
19. Governing Law/Disputes.
The Agreement shall be governed by the laws of the State of Virginia, 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 FAIRFAX COUNTY, MalayaliHost, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
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. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on MalayaliHost 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 customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without MalayaliHost's prior written consent. MalayaliHost's approval for assignment is contingent on the assignee meeting MalayaliHost's credit approval criteria. MalayaliHost 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 oral.