VPS Terms of Service

Data102 Virtual Private Server Terms of Service ("VPS.TOS")

Effective Date:

This Virtual Private Server Terms of Service was last updated on April 14th, 2009.

Data102 agrees to furnish services to the subscriber of services ("Client"), subject to the following VPS.TOS ("Virtual Private Server Terms of Service").

Data102 reserves the right to change this VPS.TOS at any time. Such changes, modifications, additions or deletions shall be effective immediately upon posting on-line at this location. You acknowledge and agree that it is your responsibility to review this site and this VPS.TOS periodically and to be aware of any modifications. You may identify whether Data102 has revised this VPS.TOS by noting the "Effective Date" above. Your continued use of the services after such modifications will constitute your: (a) acknowledgment of the modified VPS.TOS; and (b) agreement to abide and be bound by the modified VPS.TOS. If you do not agree to these terms, please contact us to cancel your services.

Contact Information

You agree to provide Data102 with accurate and complete contact information. Contact information means any data relating to your identity, electronic mail, street address, telephone, fax number, and/or any other information that you provide to Data102 in order to receive or to continue receiving services. Further, you agree to provide Data102 with updated contact information within a reasonable period of time following the change in circumstance that creates the need for updated information.

Payments and Fees

Establishment of this service is dependent upon receipt by Data102 of payment of stated charges. Subsequent payments are due on a recurring date that coincides with the date of sign up. The accepted methods of payment are credit card (Visa, MasterCard, American Express, and Discover). Clients are responsible for any additional transaction fees that coincide with any payment methods.

Data102 reserves the right to deny Client the use of any payment method for, but not limited to, abuse or misuse of a payment method. Abuse of a payment method may also be grounds for further disciplinary action up to and including the immediate and permanent cancellation of the Client's services or their entire account with Data102. Credit cards that are declined for any reason are subject to a $2.00 declination fee.

Service will be interrupted on accounts that reach 7 days past due. Service interrupted for nonpayment is subject to a $20 reconnect charge. Accounts not paid by due date are subject to a $10 late fee. Accounts that are not collectible by Data102 may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay Data102 a Processing and Collection Fee of not less than $75 nor more than $200. If you desire to cancel your account, please follow the proper procedure as outlined in this VPS.TOS.

If a service is deactivated due to non-payment the service in question will only be reactivated once payment for the outstanding balance has been received in full. If all services on an active account are deactivated all outstanding invoices must be paid in full before any one service will be reactivated. Data102 reserves the right to keep a service deactivated until funds paid have cleared.

Account Cancellation

Client must submit service cancellations by opening a ticket through our client portal at least 7 days but not more than 30 days before the end of the service's billing cycle. Cancellation requests are not accepted through phone, email, fax, or any other method besides through opening a ticket through our client portal. You must have all account information to cancel an account. Only the authorized account holder may cancel the account.

In the event of cancellation, customer will automatically be billed for any excess bandwidth usage during the then-current monthly billing cycle.

Bandwidth

Client agrees that bandwidth usage shall not exceed the number of gigabytes per month for the services ordered by Client. Data102 will monitor Client's bandwidth usage and will provide RTG graphs of bandwidth usage for Client to review in the Data102 client portal. Data102 shall have the right to take corrective action if Client's bandwidth usage exceeds the amount allocated by Client's service plan ("Allocation"). 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 Data102's sole and absolute discretion.

Bandwidth usage is measured on a monthly basis coinciding with Client's billing cycle. Both incoming and outgoing traffic are counted.

In the event that a customer exceeds the included allocation, Data102 may, at its sole discretion, collect a deposit in the amount of $0.75 per GB for the projected overage for the month, immediately against customer's credit card on file with Data102.

Client agrees to pay Data102 any additional fees for bandwidth overages within 3 days of the invoicing period at a rate of $0.75 per GB of bandwidth used over the Allocation. Any bandwidth overage bill not paid within three (3) days of invoicing will subject the server and services to suspension.

Unused bandwidth allocations cannot be carried over to future months, or applied to other servers.
IP Allocations

All IP addresses which are assigned to Client must be justified per ARIN Guidelines at http://www.arin.net/policy/nrpm.html. If it is determined that IP addresses which have been assigned to Client are not being used in accordance with these guidelines, they may be revoked.

SPAM and Unsolicited Commercial Email (UCE)

Data102 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 Data102 may not use or permit others to use our network to transact in UCE. Additionally, Clients of Data102 may not send bulk email messages of any kind that result in (i) complaints from any anti-spam company, legitimate or note or (ii) the addition of any Data102 IP address to a Realtime Blackhole List or "RBL". Clients of Data102 may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. In addition, it is not acceptable to transmit bulk email through remote SOCKS, HTTP or other similar proxies who in turn make a SMTP connection to the destination mail servers. This technique may result in account suspension or termination. Violations of this policy carry severe penalties, including termination of service. In order to prevent unnecessary blacklisting due to spam we reserve the right to occasionally sample bulk email being sent from servers.

a. Violation of Data102's email policy, as outlined in the Acceptable Use Policy ("AUP") will result in severe penalties. Upon notification of an alleged violation of our AUP, Data102 will initiate an immediate investigation (within 48 hours of notification). During the investigation, Data102 may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our AUP, Data102 may, at its sole discretion, restrict, suspend or terminate customer's account. Further, Data102 reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Data102 will notify law enforcement officials if the violation is believed to be a criminal offense.

b. 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 $165 per hour that Data102 personnel must spend to investigate the matter.

c. As our Clients are ultimately responsible for the actions of their clients over the Data102 network, it is advisable that Clients develop a similar, or stricter, policy for their clients.

Refund and Disputes

All payments to Data102 are nonrefundable. This includes one time setup fees, prepayment fees, and subsequent charges regardless of usage. Client shall not be entitled to any refunds, pro-rated or otherwise, in the event of early termination of this agreement by Data102 according to the terms herein. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer or payment provider (chargeback) that, in Data102's sole discretion is a valid charge under the provisions of the VPS.TOS and/or AUP, you agree to pay Data102 an "Administrative Fee" of not less than $75 and not more than $200.

Courtesy Transfer Service

Data102 performs all account transfers, account moves, cPanel transfers, server transfers and any other service which involves Data102 copying files of yours from a third party service to your Data102 service, hereafter known as a "transfer" as a courtesy service only. By requesting Data102 to perform a transfer, you agree, indemnify and hold harmless Data102 from any and all liability arising from the transfer and/or copying of your accounts. You also, agree Data102 is not responsible for any issues relating to the transfer of your accounts both on your Data102 service and at any other third party service from which, Data102 may be transferring your accounts including but not limited to: missing or corrupted files, improperly transferred accounts, all fees you may incur from third party services such as bandwidth fees or charges from delays in transferring account, settings or files from third party providers which may not transfer, any downtime or outages, DNS problems, accounts set up on incorrect IP addresses and any issues at third party services which delay or prevent Data102 from performing the service, or any other issues. Data102 makes no guarantees regarding the availability of our transfer service or the amount of time it takes to perform transfers.

VPS Nightly Backups

Data102 performs nightly backups of VPS accounts as a courtesy service only. Data102 is not responsible for how current, how accurate, or how complete your VPS backup is. Data102 recommends you have your own backup system in place. VPS backups are intended for disaster recovery purposes only. Data102 reserves the right to charge fees for restores which are requested that are not for disaster recovery purposes.

Damages

Client acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of Data102 and that damages resulting from any interruption of service are difficult to ascertain. Therefore, Client agrees that Data102 shall not be liable for any damages arising from such causes beyond the direct and exclusive control of Data102. Client further acknowledges that Data102's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by Client for services during the period damages occurred. In no event shall Data102 be liable for any special or consequential damages, loss or injury.

Data102 is not responsible for any damages your business may suffer. Data102 does not make implied or written warranties for any of our services. Data102 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 Data102.

Non-Waiver

Client agrees that Data102's failure at any time to enforce any of the provisions of this VPS.TOS or any right or remedy available hereunder, or at law or equity, or to exercise any option herein provided, shall in no way be construed to be a waiver of such provisions, rights, remedies, or options or in any way to affect the validity of this VPS.TOS. The exercise by Data102 of any rights, remedies, or options provided hereunder, or at law or equity, shall not preclude or prejudice Data102 from exercising thereafter the same or other rights, remedies, or options.

Force Majeure

You agree that Data102 is not responsible for any damages, delays, or other failures to fulfill its obligations hereunder as a result of including but not limited to war, fire, strike, riot or insurrection, natural disaster or any event related Gaia’s vengeance , delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of materials or equipment from suppliers, failures or blackouts, labor disputes, small monster attacks, giant monster attacks, rogue mercenary groups, ninja’s, time pirates, alien invasions, meteorite or asteroid collisions, black holes, dark matter explosions, The Apocalypse or general fulfillment of prophecy, shifting of the time space continuum, accidental or intentional destruction of the galaxy and/or other occurrences beyond its control whether or not similar to those listed above.

Assignment

Neither this VPS.TOS nor any of the rights, interests or obligations hereunder may be assigned by the Client (whether by operation of law or otherwise) without the prior written consent of Data102. Data102 may assign this VPS.TOS without the consent of Client. Subject to the foregoing, this VPS.TOS shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

Misc.

We reserve the right to refuse service to anyone at any time for any reason.

Data102 is not responsible for data integrity on equipment reclaimed for non-payment.

Illinois residents agree to pay all taxes applicable to your account.

Anything not explicitly stated in this VPS.TOS is subject to interpretation at Data102's sole and absolute discretion.

You, as Data102's client, are solely responsible for the content stored on and served by your Data102 service.

Contact

Please direct all questions regarding this TOS to legal@data102.com