This AGREEMENT (the “Agreement”) is made and entered into between Bitstop Network Services, Inc. (“our”, “BNSHosting.net” or “Host”) and subscriber (“you”, “your”, “user”, “users” or “Client”) (each being referred to individually as a “Party” and collectively as the “Parties”). By registering for an account with Bitstop Network Services, Inc. you agree to all of the terms and conditions contained in this agreement.
1) Services
(a) Hosting Services
Host agrees to provide Client with services for hosting of a site on the World Wide Web portion of the Internet (the “Web Site”) as set forth or described in the Pricing Schedule or the Subscription Form. Host shall provide the Hosting Services so that the Web Site is accessible to third parties via the World Wide Web portion of the Internet as specified herein. Except as expressly provided herein, Client agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any services or performing any tasks not specifically set forth in the Pricing Schedule or in the Subscription Form. At the time of execution of this Agreement, to the extent that Client wishes to receive from Host Additional Services the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the “Services Addendum”), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the “Services”).
(b) Content
Client shall be responsible for maintaining its own content via FTP (file transfer protocol) or other means to maintain such content.
(c) Performance and Uptime Guarantee
All shared, reseller, dedicated, and co-location hosting plans (“hosting plans”) are guaranteed that the network will be available 99% of the time in a given calendar month, excluding scheduled maintenance and circumstances beyond our control (i.e. down routers, faulty hardware, denial-of-service [DoS] attacks, web site configuration issues, mis-configured customer scripts and applications, etc.) or a downtime of 437.76 minutes calculated as follows:
- 365 days per year divided by 12 months in a year = 30.4 days per month
- 60 minutes in an hour, 24 hours in a day or 1440 minutes in one day
- 30.4 days per month times 1440 minutes is 43776 minutes
- 0.1% of 43776 minutes is 437.76 minutes or 7.3 hours a month
This guarantee applies to the network connectivity and server uptime, but does not apply to Section 15 below. This SLA does not cover any load issues caused by illegal or mis-configured customer software running on the server. Connectivity is measured as the ability of the server to transmit and receive data, that means if MySQL is down but your website is still working and/or your email is working there is no downtime. Downtime is complete website inaccessibility.
To be eligible for this SLA, your account must be in good standing. To have your account credited under the SLA a trouble ticket must be submitted and verified, you must provide third party documentation verifying the downtime. All requests for credit should be made to the billing department with a trouble ticket number referenced by the 3rd of the following month. All shared and reseller hosting customers of Host automatically qualifies to participate in this SLA.
(d) Domain Name Registration
As part of the initial Hosting Services, Client shall provide Host with a registered domain name, or Host shall register domain name(s) selected by Client provided that such domain name is available for registration and does not violate any ICANN or other registration services’ policies, or any law or regulation. All new web hosting accounts involving new domains will be set up and entered into our DNS servers within 3 to 5 business days. Due to unforeseen complications, however, this process may sometimes require up to 7 business days. If the new domain is registered by the account holder, there will be no handling fee. If the domain is registered by Host on behalf of the Client, a handling fee will be incurred.
(e) Domain Name Disputes
Host shall not be liable for any domain-name disputes which Client may enter into or otherwise encounter. Such disputes shall be governed by the relevant ICANN dispute procedures adopted by the domain-name registrar with whom Client’s domain-name has been registered.
(f) Additional Storage and Transfer
In the event that the Web Site requires storage and transfer on the Host Server which exceeds the amount of storage included in the Hosting Services, Client may, upon two (2) days written e-mail notice to Host, request that Host (a) upgrade the level of Hosting Services, or (b) acquire additional incremental storage to be included in the Hosting Services, on a time and materials basis and in accordance with the Pricing Schedule hereto. Host shall review all such requests and determine, in consultation with Client, whether it can reasonably comply with such requests and, if so, Host shall propose a procedure and budget for complying with such request.
(g) Client Content
Client assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party web sites, (b) the accuracy of materials on the Web Site, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Host reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Client Content on the Web Site, or other content not supplied by Host which, in Host’s sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Host to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Host to monitor or exert editorial control over the Web Site.
(h) Limitations on Client Content
Client shall place only content that does not contain any materials which are obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes Host to civil or criminal liability. Any such materials placed on the Web Site which do not satisfy the foregoing requirements shall be deemed to be a material breach of this Agreement.
2) Support Boundaries
Host does not provide 24×7 technical support. Support is available during office hours (8:00am — 5:00pm GMT+8) excluding Sundays. We limit our technical support to our area of expertise. The following is our guidelines when providing support: Host provides support related to your server or virtual site physical functioning. Host does not offer tech support for application specific issues such as CGI programming, HTML, SQL programming or any other such issue. Host does not provide technical support for your customers. If you can email, we encourage you to email hosting(at)bitstop.ph for assistance. If you are able to get online and have other questions, the answers may be on our support site (http://support.bitstop.ph) — we encourage you to check there first. Lastly, the Help files in the program you are using may have the answer to your question so please do investigate these resources before calling tech support.
3) Backup Copy
Client agrees to maintain a current copy of all content hosted by Host notwithstanding any agreement by Host to provide backup services. It is the sole responsibility of the subscriber to maintain the subscriber’s own backup of any data. BNS Hosting is not responsible for lost data or for lost data due to third party software.
4) Fees
(a) Hosting Services Fees
Client shall pay Host all fees for the Hosting Services in accordance with the applicable fee and payment schedule set forth in the Pricing Schedule hereto. Host expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein). All payments to Host are non-refundable. 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.
(b) Late Payment
Host may terminate service when any payment is late and shall not be responsible for maintaining any data Client may have uploaded to Host’s server. Service will be interrupted on accounts that reach 15 days past due. Service interrupted for non-payment is subject to five hundred fifty pesos (Php550.00 or US$10.00) reconnect charge. Past due accounts will accrue a monthly charge of two percent (2%) of the past due balance or two hundred fifty pesos (Php250.00 or US$5.00), whichever is greater. Accounts that are not collectable by Host 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 two thousand seven hundred fifty pesos (Php2,750.00 or US$50.00) nor more than thirteen thousand seven hundred fifty pesos (Php13,750.00 or US$250.00). If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS.
(c) Setup Fees
Client shall pay Host all setup/startup fees for the Hosting Services in accordance with the applicable monthly fee. The setup fee is a NON REFUNDABLE payment.
5) Spam and Unsolicited Commercial Email (UCE)
Host takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that customers of Host may not use or permit others to use our network to transact in UCE. Customers of Host 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.
- Violation of Host’s SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Host will initiate an immediate investigation (within 48 hours of notification). During the investigation, Host may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Host may, at its sole discretion, restrict, suspend or terminate customer’s account. Further, Host reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Host 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 Bitstop Network Services personnel must spend to investigate the matter. PLEASE, DO NOT SPAM from your account.
As you are ultimately responsible for the actions of your clients over our network, it is advisable that you develop a similar, or stricter, policy for your clients.
6) Network
(a) IP Address Ownership
If Host assigns Client an Internet Protocol address for Client’s use, the right to use that Internet Protocol address shall belong only to Host, and Client shall have no right to use that Internet Protocol address except as permitted by Host in its sole discretion in connection with the Services, during the term of this Agreement. Host shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Client by Host, and Host 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 APNIC’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.
(b) Bandwidth and Disk Usage
Client agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Client on the Order Form (the “Agreed Usage”). Host will monitor Client’s bandwidth and disk usage. Host shall have the right to take corrective action if Client’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken is in Host’s sole and absolute discretion. If Host takes any corrective action under this section, Client shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that a Client exceeds the included allocation, Host may, at its sole discretion, collect a deposit, in an amount determined by Host, against Client’s credit card on file with Host.
(c) System and Network Security
Users are prohibited from violating or attempting to violate the security of the Host Network. Violations of system or network security may result in civil or criminal liability. Host 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 to which such User is not entitled.
7) Notification of Violation
Host 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 Host 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 Host’s discretion to a temporary suspension pending a User’s agreement in writing, to refrain from any further violations.
Second Violation: Users that Host 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.
8) Suspension of Service or Cancellation
Host reserves the right to suspend network access to any customer if in the judgment of the Host 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 Host chooses. If inappropriate activity is detected, all accounts of the Client in question will be deactivated until an investigation is complete. Prior notification to the Client is not assured. In extreme cases, law enforcement will be contacted regarding the activity. You will not be credited for the time your machines were suspended.
9) Windows Servers
(a) Requirements for Using Microsoft Software
Subscribers are prohibited from allowing more than five (5) authenticated users of the Microsoft Windows Server Operating Systems under Microsoft licensing terms and could create liability issues with Microsoft if violated. This applies to subscribers of dedicated servers with Microsoft’s operating system installed under the Service Provider Licensing Agreement (“SPLA”).
(b) Copyright, Trademark or Other Proprietary Rights Notices
Client agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on Software Products or that appear during the use of Software Products. Client further agrees not to reverse engineer, decompile, or disassemble the Software Products.
(c) Limitation of Liability and Warranty
Host may provide you access to other third party software and/or services (“Third Party Products”) through reseller relationships Host has established with certain commercial vendors, including without limitation, Microsoft Corporation (“Third Party Vendors”). UNLESS OTHERWISE NOTIFIED, CLIENT UNDERSTANDS THAT PRODUCT SUPPORT FOR THIRD PARTY PRODUCTS IS PROVIDED BY THIRD PARTY VENDOR AND NOT BY HOST. NEITHER HOST NOR ANY THIRD PARTY VENDOR MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY THIRD PARTY PRODUCTS. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER’S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM HOST OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER HOST NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CLIENT AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND HOST WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
10) Disclaimer of Warranty
HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11) Indemnification
(a) Client
Client agrees to indemnify, defend, and hold harmless Host, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Web Site infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
(b) Host
Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action arises out of the gross negligence or willful misconduct of Host.
(c) Notice
In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party’s written consent, which shall not be unreasonably withheld.
12) Limitation of Liability
HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEB SITE OR CLIENT’S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. HOST SHALL HAVE NO LIABILITY WITH RESPECT TO HOST’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HOST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CLIENT UNDER THIS AGREEMENT DURING THE MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
13) Termination and Renewal
(a) Term
This Agreement shall remain in effect unless earlier terminated as otherwise provided in this Agreement (the “Initial Term”). This Agreement shall automatically be renewed beyond the Initial Term for additional one (1) year terms (each, a “Renewal Term”) unless Client provides Host with a written notice of termination at least fifteen (15) days prior to the expiration of the Initial Term or the then-current Renewal Term.
(b) Termination
Host may terminate this Agreement at any time and for any reason by providing written notice of termination to Client.
(c) Account Cancellation
Requests for canceling accounts may be made in writing with at least 30 days notice but not more than 60 days prior written notice and sent to:
BNS Hosting Attn: Cancellations
2/F New Sim Too Building
29 A.B. Fernandez Avenue
Dagupan City, Pangasinan
Or you may call +63-75-5220092 to 93 to fax the cancellation request. You must have all account information to cancel.
(d) Termination and Payment
Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus
interest and any collection fees.
14) Entire Agreement
This Agreement and Schedules referenced herein constitute the entire agreement between Client and Host with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement.
15) Force Majeure
Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
16) Philippine Laws
This Agreement shall be governed in all respects by the laws of the Republic of the Philippines without regard to its conflict of laws provisions, and Client and Host agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate province or provincial court located in the City of Dagupan, and Client and Host hereby submit to the jurisdiction of such courts.
17) Assignment
Client shall not assign, without the prior written consent of Host, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
18) Modification and Notice
Host has the right to modify this Agreement. Any modification is effective immediately upon either a posting on the Bitstop Network Services’ Home Page (http://www.bitstop.ph or https://www.bnshosting.net), or upon notice by electronic mail, or postal mail. Client’s continued use of the Host’s Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). Client’s only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Host in providing the Services, including, without limitation, (i) any change in the content of the Services, or (ii) any change in the amount or type of Service Fees, is to terminate this agreement by delivering notice to Host. Such notice will be effective upon receipt by Host.
19) Waiver
The waiver of failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
20) Severability
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
21) Counterparts
This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the Parties hereto.
22) Headings
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
23) Approvals and Similar Actions
Where agreement, approval, acceptance, consent or similar action by either Party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
24) Survival
All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
25) Denial of Service
We reserve the right to refuse service to anyone at any time for any reason.
This document was last edited on July 18, 2005