Terms of Service (the “TOS”)

Services
Term
Payment
Law / AUP
Customer Information
Indemnification
Disclaimer of Warranties
Limitation of Damages
Suspension / Termination
Requests for Customer Information
Back Up Copy
Changes to GPowerHost.com’s Network
Notices
Force Majeure
Governing Law
Miscellaneous
Miscellaneous Fees, Late Fees & Interest
Entire Agreement

PLEASE READ THIS AGREEMENT AND OUR ACCEPTABLE USE POLICY CAREFULLY, AS YOU ARE BOUND BY THEM.

Service Agreement

This Agreement (“Agreement”) is between “GPowerHost” and the person (individual or legal person) who signs GPowerHost’s order form (“Order”) incorporating this Agreement by reference (“Customer”).

This Agreement governs Customer’s use of GPowerHost’s Web Hosting and/or related services.

1. Services

Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of GPowerHost’s credit approval requirements, GPowerHost agrees to provide Customer with web hosting and / or related services selected by Customer from GPowerHost’s then published list of services (“Services”) and as described in the Order, for the fees stated in the Order.

The Services to be provided initially to Customer shall be as selected in the Order and thereafter as established through correspondence between Customer and GPowerHost.

2. Term

The initial term of the Agreement shall begin on the date that GPowerHost generates an order confirmation email 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”).

However, no service shall commence unless and until GPowerHost receives and accepts a completed Order from Customer, plus payment in full for Services to be rendered during the Initial Term and any setup charges.

GPowerHost reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by GPowerHost.

Upon expiration of the Initial Term, this Agreement shall automatically renew for successive terms of the same length as the Initial Term (“Renewal Term”) unless GPowerHost or Customer provides the other with written notice of non-renewal at least twenty-one (21) 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.”

3. Payment

Fees

All fees for Services rendered or provided to Customer shall be in accordance with GPowerHost’s prices.

Customer’s billing cycle shall be monthly, quarterly, annually or biennially as indicated on the Order, beginning on the Service Commencement Date. GPowerHost may require payment for the first billing cycle before beginning service. Fees for the Renewal Term are payable seven (7) days in advance of each billing cycle.

If the Order provides for credit / debit card billing, Customer authorizes GPowerHost to bill subsequent fees to the credit / debit card before, on or after the first day of each successive billing cycle during the Term of this Agreement otherwise GPowerHost will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order.

Payments must be made in US Dollars or Peruvian Nuevo Soles. Customer is responsible for providing GPowerHost with changes to billing information (such as credit card expiration, change in billing address).

Fees not disputed within thirty (30) days of due date are conclusively deemed accurate. Customer agrees to pay GPowerHost’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay GPowerHost’s reasonable costs of collection of overdue amounts, including collection agency fees, legal fees and court costs.

Fee Increases

GPowerHost may amend the Services and / or the fees it charges for Services by giving at least fourteen (14) days notice to Customer, 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 and for any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).

Taxes

At GPowerHost’s request Customer shall remit to GPowerHost all sales, IGV or similar tax imposed on the provision of the services (but not in the nature of an income tax on GPowerHost) regardless of whether GPowerHost fails to collect the tax at the time the related services are provided.

Early Termination

Customer acknowledges that the amount of the fee for Services is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event GPowerHost 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 GPowerHost’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due seven (7) business days following termination of the Agreement.

4. Law / AUP

Customer agrees to use the services in compliance with applicable law and GPowerHost’s Acceptable Use Policy located at: http://GPowerHost.com/aup (the “AUP”), which is hereby incorporated by reference in this Agreement.

Customer agrees that GPowerHost 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 GPowerHost’s notice to Customer that an amendment has been made, the first day of any Renewal Term that begins subsequent to the amendment, or 30 days after posting an amendment on our website.

Customer agrees to cooperate with GPowerHost’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between GPowerHost and Customer regarding the interpretation of the AUP, GPowerHost’s commercially reasonable interpretation of the AUP shall govern.

5. Customer Information

Customer represents and warrants to GPowerHost that the information he, she or it has provided and will provide to GPowerHost for purposes of establishing and maintaining the service is accurate.

If Customer is an individual, Customer represents and warrants to GPowerHost that he or she is at least 18 years of age, and GPowerHost reserves the right to ask for proof of age (in the form of a valid passport or government issued photo identification card, as determined by us) and to carry out checks to verify the information provided.

GPowerHost 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, and any sub-customers, must be the owner of any domain or DNS hosted on our network and must have valid, current and complete information on file with their domain name registrar for any domain or DNS hosted on the GPowerHost network. In no way may a customer hide or otherwise obfuscate their identity from a registrar’s WHOIS system.

All customer or sub-customers, including resellers or otherwise shared accounts, must have an email address of the domain owner listed as the Control Panel Contact Email. GPowerHost may contact the customer and the domain owner and require proof that they are the same or to periodically query if their email address is functioning and that it is regularly monitored and responded to. Customers may change their email address of record and may provide an alternate email address, as well as setup notification preferences, via their control panel in the section “Contact Information & Preferences”. All queries must be answered within 72 hours or the account is in violation of these terms.

There shall be separate Control Panel Accounts for each distinct Individual Customer and all “Addon Domains”, “Parked Domains”, “Sub-Domains” and any “Redirects” shall be for domains that match the customer listed in the Control Panel Account (i.e. no control panel account sharing). Resellers must abide by this structure as well, giving each sub-customer their own non-shared control panel account. Further, all “DNS Entries” shall be to IP’s, hosts, and domains that are owned by the customer or to entities that the customer has a valid agreement to link to.

6. Indemnification

Customer agrees to indemnify and hold harmless GPowerHost, GPowerHost’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-in information, regardless of whether such person has been authorized to use the services by Customer.

7. Disclaimer of Warranties

CUSTOMER AGREES TO USE ALL GPOWERHOST’S SERVICES AND ANY INFORMATION OBTAINED THROUGH OR FROM GPOWERHOST AT CUSTOMER’S OWN RISK.

GPOWERHOST DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW GPOWERHOST DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.

8. 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 GPOWERHOST AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

9. Suspension / Termination

Suspension of Service

Customer agrees that GPowerHost may suspend services to Customer without notice and without liability if:

GPowerHost reasonably believes that the services are being used in violation of any Terms and Conditions or the AUP;
Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP;
GPowerHost reasonably believes that the suspension of service is necessary to protect its network or its other customers, or
as requested by a law enforcement or regulatory agency. Customer shall pay GPowerHost’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.

GPowerHost operates a Denied Service Policy in the instance of a chargeback, AUP violation, serious spam complaint, or the misuse of a GPowerHost product or service.

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 GPowerHost 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 GPowerHost prior to the expiration of the Initial Term or any Renewal Term without liability as follows:

without notice if Customer is overdue on the payment of any amount due under the Agreement;
if 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 GPowerHost describing the violation in reasonable detail;
without notice if Customer’s service is used in violation of a material term of the AUP more than once, or
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.

If a domain name is transferred or cancelled within the first 2 years of registration, an administration fee of twelve dollars ninety-nine cents ($12.99) excluding IGV will be charged. The transfer or change of handle / tags will not take place until payment has been received in full.

Accounts suspended for non-payment of any amount shall be automatically terminated and all files, accounts, backups and customer data may be automatically deleted within 30 days of suspension.

10. Requests for Customer Information

Customer agrees that GPowerHost 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 GPowerHost 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.

11. Back Up Copy

Customer agrees to maintain a current copy of all content hosted by GPowerHost notwithstanding any agreement by GPowerHost to provide back up services.

12. Changes to GPowerHost.com’s Network

Upgrades and other changes in GPowerHost’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. GPowerHost reserves the right to change its network in its commercially reasonable discretion, and GPowerHost shall not be liable for any resulting harm to Customer.

13. Notices

Notices to GPowerHost under the Agreement shall be given via electronic mail to the email address posted for customer support on GPowerHost.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.

14. Force Majeure

GPowerHost shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond GPowerHost’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, theft, destruction, terrorist activity, acts of God or other events of a magnitude or type for which precautions are not generally taken in the industry.

15. Governing Law

Except for disputes governed by the Uniform Domain Name Dispute Resolution Policy, this Agreement shall be governed by the laws of the state of New York and all claims concerning this Agreement shall be brought exclusively in New York City, Brooklyn courts located in the state of New York. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defenses concerning said forum. The Customer is deemed to have agreed to this Agreement, when commencing use of any of GPowerHost’s services. The Customer agrees to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of these Terms of Use.

16. 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 parties name or trade mark without the other parties 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.

GPowerHost reserves the right to amend this Agreement and the AUP and Customer shall be bound by any such amendments. Customer shall have the obligation to periodically visits GPowerHost’s website http://GPowerHost.com/important-information to review the AUP and make certain Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern.

The terms on Customer’s purchase order or other business forms are not binding on GPowerHost unless they are expressly incorporated into a formal written agreement signed by both parties. A parties failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that parties rights with respect to that provision or any other provision of the Agreement. A parties 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 GPowerHost’s prior written consent. GPowerHost’s approval for assignment is contingent on the assignee meeting GPowerHost’s credit approval criteria. GPowerHost may assign the Agreement in whole or in part.

You must be the copyright holder or have signed agreements for any images or copy used. Just because content can be found on the internet does not mean that you have permission to use it.

We reserve the right to limit any offers contained elsewhere and enforce these rates instead at any time.

All clients are responsible for proofing any emails/websites/content prior to sending/going live. Errors can be introduced during the content crafting process and all clients are sent test/proofs prior to billing. We are happy to make corrections until you are satisfied. In the case of email crafting, pre-paying for your email blast constitutes acceptance of the email and we cannot be held responsible for your failure to proof the final content that has been laid out for you. No credits or resending of blasts will be allowed even if the mistake was made by us.

17. Miscellaneous Fees, Late Fees & Interest

Payment in full of such invoiced amount is due upon receipt of the invoice. Should payment in full of any invoice not be received, GPowerHost may charge interest on overdue amounts at the higher of 1.5% per month or the maximum non-usurious rate under applicable law. In addition GPowerHost may terminate their services and / or suspend Services without notice if payment for Services is overdue.

Five days after a payment is due an invoice will be marked as late and will be charged with a 5% late fee or the maximum non-usurious rate under applicable law. Late fees apply each month on a per invoice basis.

A Fee of $75.00 shall apply for all returned payments. A Fee of $150.00 shall apply for all denied, cancelled, stopped or otherwise reversed payments (see: Denied Service Policy).

18. Entire Agreement

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.

The Customer is deemed to have agreed to this Agreement when commencing use of any of GPowerHost’s Services.