This agreement ("Agreement") is between VMS Internet Services, ("VMS") at PO Box 17901, Salt Lake City, Utah and the customer ("CUSTOMER") specified in the order form annexed herein by reference ("Order"). The agreement is made effective as of the date of the order.
The parties agree as follows:
Overview
This agreement is intended to cover any and all web hosting services provided by VMS and received by the Customer. This agreement contains the entire understanding between VMS and Customer with respect to the services ("Services") described in the Order and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between VMS and Customer. Customer acknowledges and agrees that its entire right relating to VMS Services are as set forth in this agreement and hereby waives all other rights that it may have by implication of law or otherwise.
1. Services
Subject to the terms and conditions of this agreement, VMS agrees to provide the web hosting and/or related services specified in the Order. Subject to Customer's right to terminate this agreement and section 5 of this Agreement, VMS may expand or contract the scope of the VMS's services by issuing to Customer an amended order form at least 30 days in advance of such change.
2. Initial Term
The initial term of this Agreement is stated in the Order ("Initial Term"). The Initial Term shall not commence until VMS accepts the completed order from the Customer and until first payment as set out in the Order is made in full by the Customer for Services to be provided during the Initial Term.
3. Renewal Term
Unless terminated in accordance with section 5 of this Agreement, this Agreement will automatically renew for successive terms of equal length to the Initial Term at the applicable rate and discounts.
4. Fees and Payment
The Customer agrees to pay VMS, without limitation, for its hosting and related services as specified in the Order and all other fees incurred by the Customer related to supplemental services including, but not limited to: professional, consulting, or support services supplied by VMS. These services and fees are outlined at www.vmsnet.com. VMS reserves the right to charge the Customer standard hourly rates ($85/hour US), minimum $25 per instance to cover the resolution of excessive or unusual problems or complaints.
4.1 Measuring Usage - VMS will measure usage of the Services in accordance with VMS's policies and practices in effect from time to time. VMS may at its sole discretion amend its policies relating to measuring usage on thirty (30) days advance notice to Customer.
4.2 Invoices - Installation Fees will be invoiced in advance. Monthly Base Fees will be invoiced thirty (30) days in advance, Dedicated Server customers will buy Bandwidth in advance and Colo-customers will be billed for Bandwidth usage in arrears. Support Fees will be invoiced in arrears. Customers are fully responsible to ensure payment of all amounts due are paid on time independently of recieving billing notifications by email or otherwise from VMS. VMS will however attempt to email an invoice for Monthly fee(s) seven days in advance. All dollar amounts on invoices shall be in US currency. Payment in full for amounts due must be received fifteen (15) days of billing date. After the initial fifteen (15) days, their account will be suspended for an additional 48 hours and then cancelled unless alternative arrangements are made with VMS management.
4.3 Other Charges - Customer will pay all sales and value-added taxes, duties or levies imposed by any authority, government, government agency or commission or crown corporation in connection with the VMS web hosting and related services as provided under this agreement.
4.4 Fee Changes - VMS may increase or decrease any of the Customer Fees by issuing the Customer an amended Schedule(s) at least thirty (30) days in advance of such changes.
4.5 Deposits - VMS may require the Customer to provide a deposit during the term of the agreement in such amounts and at such times as VMS determines to be reasonable.
4.6 30 Day Money Back Guarantee - The intent of VMS's 30 Day Money Back Guarantee is to help assure new customers that VMS provides a quality of hosting service at least equal to industry standards and follows acceptable industry practices. If VMS fails to deliver this quality of service then the customer can request a refund for the first 30 days of hosting. This refund will not include one-time fees, including but not limited to setup and support fees, or bandwidth fees or charges (including flat rate bandwidth fees). No refunds of any kind will be made to a Customer for actions taken by VMS in response to a violation the Acceptable Use Policy (AUP). Apart from this policy, all monies paid to VMS are non-refundable.
4.7 Cancellation Policy - All hosting contracts, unless otherwise negotiated, are month-to-month. The cancellation of any month-to-month hosting contract must occur via email notification to billing@vmsnet.com. The email must be submitted at least 24 hours prior to the start of the next billing period. There are no partial refunds or credits for early cancellations. All payments to VMS Internet Services are final and non-refundable.
5. Customer Obligations
Customer shall at all times comply with and help ensure that their clients comply with the terms of the current version of the Acceptable Use Policy (AUP) posted at www.vmsnet.com. Customer agrees that VMS may amend the terms of the AUP from time to time by posting a new or different version of the Acceptable Use Policy at www.vmsnet.com. The Customer shall include the terms and conditions set out in the Acceptable Use Policy in an Acceptable Use Policy with its own clients.
5.1 Compromised (Hacked) Server Policy:
A compromised or "hacked" server is a serious threat to our network. VMS, at its sole discretion, will take any and all measures to prevent a compromised server from doing additional damage to its own system and files or to the rest of the network.
Determination that a server has been compromised:
By the Client - If you believe your system may have been hacked, immediately report the situation to VMS technical support. VMS will examine your system and may implement additional monitoring of your system.
By VMS - If a VMS System Administrator believes a server on our network is compromised, VMS will: 1) disconnect the server from the network, 2) contact the client, and 3) provide evidence of the server being "hacked".
Restoration of a compromised server:
For a minimum $85 restoration fee, VMS will erase the drive, reinstall the OS with most recent patches from original media and replace the server on the network. Unless additional arrangements are made with VMS’s technical support division, clients are solely responsible for rebuilding their applications, restoring their data files and securing their server to prevent future break-ins. It is highly recommended that dedicated server clients remain up-to-date with the latest patches and security measures. Clients that subscribe to VMS's backup service can request a restoration of critical data to the new server. Please Note: No restoration can be guaranteed to be successful and this service does not include the configuration of applications or recovery of data not part of our regular backup service.
5.2 Server Transfers:
A request to move from one server to another similar server for any reason other than a hardware failure is subject to a minimum $85 transfer fee. To facilitate the transfer, VMS will provide use of the original server and the new server for a period of one week. After one week an additional $200 transfer fee will be assessed each week the server remains in use.
Unless additional arrangements are made with VMS's technical support division for billable support, client's are solely responsible for rebuilding their applications and restoring their data files on the new server. Clients that subscribe to VMS's backup service can request a restoration of critical data to the new server. Please Note: No restoration can be guaranteed to be successful and this service does not include the configuration of applications or recovery of data not part of our regular backup service.
6. VMS Obligations
6.1 99.99% Uptime Guarantee - VMS endeavors to provide the most reliable network infrastructure possible to its Customers. To Customers in good financial standing with VMS we guarantee that our network is available 99.99% of the time in a given month, excluding scheduled maintenance. The network is defined as core network infrastructure excluding the hardware, services and software running on your server. Network downtime is measured from the moment the Customer notifies a VMS support representative of a network failure to the time the Network responds to an external "ping" request. Notification of network failure must occur at the time of the outage and not after the fact. If network downtime exceeds 99.99% in a given month, the Customer will be refunded 5% of their monthly hosting fee and an additional 5% for each addition 2 hours of downtime up to 50% of the Customer's monthly hosting fee. Refunds shall not be provided to the Customer if network downtime is the result of: a) scheduled maintenance b) circumstances beyond VMS's reasonable control, including, but not limited to: ddos or other network attacks, upstream or 3rd party network outages, war, fire, flood, sabotage, labour disturbance, acts of government and c) breaking this Agreement or VMS's Acceptable Use Policy.
6.2.0 Dedicated Server: Bandwidth Programs VMS offers 2 levels of bandwidth service: Level 1 = a 100Mbps access port to a full duplex, fully redundant 100Mbps gateway and Level 2 = a un-metered 1.5Mbps (T1) access port to a redundant, full duplex, shared 100Mbps gateway. A 1.5Mbps access port is sufficient for the majority of web servers. However, for enterprise and high bandwidth users are best served by a full 100Mbps network connection. This level of connectivity is purchased in 50GB or greater increments and is billed automatically. For the latest bandwidth prices and bulk discounts contact sales@vmsnet.com.
6.2.1 Server Colocation: Metered Bandwidth Program For Colocated customers, VMS offers a redundant, full duplex, metered 100Mbps network connection. This bandwidth can be purchased on a usage or a speed based model. For the latest bandwidth prices and bulk discounts contact sales@vmsnet.com.
6.3 Temporary Suspension - The Customer agrees that it may be necessary for VMS to temporarily suspend Services for technical reasons or to maintain the VMS network, the Equipment or any other facilities, the timing of which will be as determined by VMS. Such suspension of the Services will not be an "interruption" of the VMS Services for the purpose of calculating network availability or the Customer's entitlement to credit for network interruption.
6.4 Emergency Suspension - VMS may interrupt the VMS Services at any time for any duration of time, without penalty or liability for any claim by Customer, where necessary to prevent improper or unlawful use of the VMS Services, VMS's service facilities or connections or VMS 's network. Such suspension of the Services will not be an "interruption" of the VMS Services for the purpose of calculating network availability or the Customer's entitlement to credit for network interruption.
6.5 Daily Backups - VMS offers daily and snapshot backups of critical data files. We make every effort to ensure the reliability of this process. However, because of technical issues regarding backups on live servers and the possibility of data corruption on backup and restore, VMS cannot guarantee any data can be fully restored. The Customer will hold VMS without penelty or liability for any claim resulting from a failed backup and/or restore procedure.
7. Compromized/Hacked Server
A compromised or "hacked" server is a serious threat to our network. VMS, at its sole discretion, will take any and all measures to prevent a compromised server from doing additional damage to its own system and files or to the rest of the network.
Determination that a server has been compromised:
By the Client - If you believe your system may have been hacked, immediately report the situation to VMS technical support. VMS will examine your system and may implement additional monitoring of your system.
By VMS - If a VMS System Administrator believes a server on our network is compromised, VMS will: 1) disconnect the server from the network, 2) contact the client, and 3) provide evidence of the server being "hacked".
Restoration of a compromised server:
For a $85 restoration fee, VMS will erase the drive, reinstall the OS with most recent patches from original media and replace the server on the network. Unless additional arrangements are made with VMS’s technical support division, client's are solely responsible for rebuilding their applications, restoring their data files and securing their server to prevent future break-ins. It is highly recommended that dedicated server clients remain up-to-date with the latest patches and security measures. Clients that subscribe to VMS's backup service can request a restoration of critical data to the new server. Please Note: No restoration can be guaranteed to be successful and this service does not include the configuration of applications or recovery of data not part of our regular backup service.
8. Server Transfer Requests
A request to move from one server to another similar server for any reason other than a hardware failure is subject to a $85 transfer fee. To facilitate the transfer, VMS will provide use of the original server and the new server for a period of one week. After one week an additional $200 transfer fee will be assessed each week the server remains in use. Unless additional arrangements are made with VMS's technical support division for billable support, client's are solely responsible for rebuilding their applications and restoring their data files on the new server. Clients that subscribe to VMS's backup service can request a restoration of critical data to the new server. Please Note: No restoration can be guaranteed to be successful and this service does not include the configuration of applications or recovery of data not part of our regular backup service.
9. Proprietary Rights
9.1 Equipment - Customer acknowledges and agrees that title to the Equipment and all other material provided to Customer by VMS under this agreement shall at all times remain with VMS and Customer shall acquire no property or other rights in or to any of the foregoing other than as specifically provided in this agreement during the Term or any subsequent renewal period.
9.2 Trade Marks and Trade Names - The Customer shall not display or otherwise use any trade mark, trade name, logo, symbols, coined word or combination of words used by VMS or permit the same to be displayed or otherwise used in connection with any business conducted or controlled by the Customer except as may be specified or approved by VMS in writing.
10. Termination of Agreement
If Customer breaches any of its obligations under this agreement then VMS may terminate this agreement by giving Customer notice of termination, which termination will take effect when notice is given.
11. Limitation of Liability
Customer acknowledges and agrees neither VMS nor any of its members, shareholders, directors, officers, employees or representatives will be liable for any special, indirect, consequential, punitive or exemplary damages, or damages (including but not limited to damages for loss of profits or savings, loss of data, or loss of use) in connection with this agreement. If, despite the foregoing limitations, VMS or any of its shareholders, directors, officers, employees or representatives should become liable to Customer or any other person in connection with this agreement for ANY REASON, then the maximum aggregate liability of VMS, its members, shareholders, directors, officers, employees and representatives for all such things and to all such parties will be limited to the lesser of the actual amount of loss or damage suffered by the claimant or the amount payable by Customer to VMS for one month of service under this agreement.
12. Indemnity
Customer will indemnify and save harmless VMS and its members, shareholders, directors, officers, employees, agents, contractors, and representatives from and against all damages, losses, costs and expenses (including actual legal fees and costs), fines and liabilities incurred by or awarded, asserted or claimed against VMS or any of its members, shareholders, directors, officers, employees and representatives in connection with Customer's negligence, activities or omissions, or breaches of its obligations under this agreement, including claims brought by a person using or relying upon any advice given or publication produced and distributed by Customer.
13. Governing Law
This agreement shall be interpreted in accordance with and be governed in all respects by the laws of the State of Utah. The courts of Utah shall have non-exclusive jurisdiction to entertain any action or proceeding brought by the parties in connection with this agreement or any alleged breach of this agreement. The parties each attorney irrevocably to the jurisdiction of such courts.
14. Customer Acknowledgement
Customer acknowledges that it accepts all risk of any unauthorized or illegal use of the VMS Network or any inter-connected network by third parties. VMS will use reasonable commercial efforts to assure a reasonable level of security for its network, however it provides no warranties, makes no representations, and accepts no liability for the unauthorized or illegal access or interference with the Customer's network unless such access or interference is caused by the intentional unlawful acts of VMS, its agents or employees.
15. Electronic Commerce
The Customer is solely responsible for all aspects of their online store or e-business. This includes, but not limited to:
- The accuracy of statements and materials related to your products and/or services.
- The accurate calculation and application of shipping and sales tax.
- Processing Customer orders, inquiries and complaints.
- Maintaining the confidentiality of your Customer's credit card numbers and private information.
16. IP Address Ownership and Usage
VMS assigns IP (Internet Protocol) addresses to Clients for their use. Clients have no right to use VMS IP addresses not assigned to them or in ways not permitted by VMS. VMS maintains ownership of all IP addresses that are assigned to Customers and reserves the right to change or remove them at its sole and absolute discretion. Typically, however, these changes are rare and made only at the request of ARIN or an upstream provider. PLEASE NOTE: The allocation of IP addresses is restricted by the policies of ARIN. These policies now dictate that name-based hosting MUST be used whenever possible. VMS reserves the right to periodically review IP address usage and revoke authorization to use those IP addresses not being utilized or where name-based hosting could be used.
17. VMS Administrative Account and Software
For the purposes Datacenter/Network/Server maintenance, inventory and related activities, VMS staff and management retain the right to administrative access to any and all dedicated/shared servers on their network. To facilitate this, all VMS dedicated and shared servers include a VMS administrative account and/or daemon designed for these purposes. See Acceptable Use Policy (AUP) for more details
