This Hosting Agreement (this “Agreement”) is entered into by and between Niagahoster group entity, the details of which are indicated in the Niagahoster’s Terms of Service, ("Niagahoster") and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Niagahoster’s Hosting services (the “Services”), and represents the entire agreement between you and Niagahoster concerning the subject matter hereof.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Universal Terms Of Service Agreement, which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.
The terms “we”, “us” or “our” shall refer to Niagahoster. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
2. DESCRIPTION OF SERVICES
We offer varying plans of Hosting Services:
Web Hosting. If you purchase Web Hosting, your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique address (DNS).
Virtual Private Server (“VPS”). If you purchase VPS, you will share a server with other customers, but you will have full control over your server space and the complete configuration of your virtual instance on the server. You will have administrator (root) access and a dedicated IP address.
3. LIMITATIONS; ACCOUNT TERMINATION
Migration of Servers. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, even if you have a dedicated IP, you may be assigned a different IP number. We do not warrant that you will be able to consistently maintain your given IP numbers.
Termination of Services. You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and we will not be able to provide a copy of such content.
Free Products Credits. Upon termination of the Services, all free products provided as part of the Services will be cancelled or revoked.
4. YOUR OBLIGATIONS
Abusive Activities. You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your hosting account may be removed if one website is in violation of this Agreement. In addition to the General Rules of Conduct listed in our Universal Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious; (2) attempt to mislead any person as to the identity, source or origin of any communication; (3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies; or (5) use your server as an “open relay” or for similar purposes.
We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.
Storage and Security. You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; and (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
Niagahoster's backup service runs once a week and overwrites any of our previous backups. Only two weeks of backups are stored in the remote server. If daily backups are provided in User’s hosting plan, last week’s daily backups will be additionally stored. This service is provided to shared, VPS and reseller accounts as a courtesy and may be modified at any time at Niagahoster's sole discretion. Niagahoster is not responsible for files and/or data residing on your account. You agree to take full responsibility for all files and data transferred and to maintain all appropriate backup of files and data stored on Niagahoster's servers. Any cPanel shared hosting account using more than 30 gigs of disk space or Inode limit of 500 000 will be removed from our off site weekly backup. To ensure continuous backup generation, User must ensure that his disk space consumption / Inode limit do not exceed indicated numbers..
Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. The Services are not intended to provide a PCI (Payment Card Industry) or HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one. You shall not use Niagahoster Services in any way that shall impair the functioning or operation of it or any equipment used to operate it. Included, but not limited to, you shall not use the Services as: (1) a repository or storage for files; and/or (2) a place to store material that can be downloaded through other websites. If we detect an infringement of aforementioned restrictions, you may be issued a disk space violation warning at 10GB, and will be required to reduce the number of used gigabytes in your account. We reserve the right to temporarily suspend disk write functionality, in our sole discretion, when account size reaches 10GB. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
Data Protection and Security. You shall be solely responsible and liable for compliance with applicable privacy and personal data protection requirements (including, but not limited to requirements laid down by General Data Protection Regulation (EU) 2016/679) (GDPR), which may be applicable to any personal information, data or content collect through, stored or otherwise processed in relation to Hosting Services on your website or server content.
You shall at all times remain data controller of any such personal data without any liability of whatsoever nature to Niagahoster.
You will not provide us any personal information with respect to Your clients, visitors, end-users. You acknowledge that Niagahoster may in certain limited cases have access to information and communications systems for the purposes set forth in this Agreement. However, in cases of such limited access Niagahoster will not become controller, processor, sub-processor or receiver of any such data.
Without limitations to the generality of the foregoing, you shall be solely responsible for installation of organizational and technical security measures sufficiently protecting personal data stored or processed on your website or server. Consequently, you will be solely responsible for all and any data breaches, incidents and similar violations pertaining to such data, unless such data breach has occurred solely due to technical failures, malfunction or errors of the servers and resources, which Niagahoster has expressly warranted to secure to You and assume liability for such failures, malfunction or errors.
In case, disregarding our understanding that Niagahoster does not act as processor of any data or information hosted, stored or housed in the servers, User Content or in relation to Hosting Services, certain limited personal data processing activities are found to be carried out by Niagahoster, the following data processing clauses shall apply: (1) Niagahoster shall process personal data only according to your documented written instructions or only as mandatorily required by law; (2) make best efforts to implement reasonably available technical and organisational measures in order to ensure that personal data processing carried out complies with the requirements of GDPR and personal data protection legislation as regards security of processed personal data; you understand that the fact that available technical and organisational measures will be implemented in itself does not guarantee full and complete security, safety and integrity of personal data; (3) upon your request, Niagahoster will take reasonable measures to discontinue data processing after expiry of the Agreement and, if required by you and unless otherwise provided in applicable legislation, take reasonable measures to erase or in any other way make inaccessible and unusable or return to you all available personal data; (4) you shall undertake to ensure that personal data are collected and processed lawfully, are accurate, relevant and adequate, and that your instructions to Niagahoster are lawful, accurate, relevant, comply with the GDPR and personal data protection legislation; you shall notify data subjects of their data processing and transfer to Niagahoster in accordance with the requirements of GDPR and personal data protection legislation; (5) you grant Niagahoster with a general authorisation to engage sub-processors and service providers in the processing of personal data controlled by the you; (6) overall responsibility of Niagahoster hereunder shall be limited to the amount of remuneration for the last 6 (six) months paid to Niagahoster for the services under the Agreement.
Website/Server Content. You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.
Transfer Hosting. Transfer Hosting is a data migration / transfer service. We do not provide migration / data transfer assistance:
(1) from our services to another service provider. If a customer wants to transfer from our services to another service, the customer is required to transfer data independently; and/or
(2) among our services, unless otherwise indicated (e.g. in certain cases website migration from our cPanel to hPanel is possible).
In certain cases we will only be able to:
(1) provide assistance to transfer data as a whole (e.g. if a customer has a cPanel account and purchases cPanel products from us (data here means cPanel’s full backup));
(2) assist in file migration (e.g. if a customer wants to migrate from cPanel products to our hPanel, we will only be able to migrate website files (this applies to data transfers in the File Manager and MySQL Database)).
5. PROVISIONS SPECIFIC TO WEB HOSTING
Storage and Plan Limits. All Hosting plans, including the unlimited plans, are subject to the following (but not limited) limitations: Inode count, Database size, CPU power, amount of RAM, Entry Processes, Active Processes. In the event plan limitations are exceeded, you may need to reduce the number of files or database size, your site may slow down or not be served until resources are released or more resources are added, and your site may be temporarily or permanently suspended, in our sole discretion. More resources may be added at any time by upgrading the plan. Niagahoster reserves the right to change the plan limits at any time and such changes shall be posted online at Niagahoster web sites.
You acknowledge and agree that inbound UDP is not supported in shared hosting environments.
Website/Server Content. Your website may not include any of the following content: (1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (2) banner ad services for display on other websites or devices (commercial banner ad rotation); (3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (4) commercial audio streaming (more than one or two streams); (5) push button mail scripts that allow the user to specify recipient email addresses; (6) anonymous or bulk SMS gateways; (7) backups of content from another computer or website; (8) Bittorrent trackers; or (9) any script that causes a degradation in the performance of our server or network environment.
Unlimited Disk Space/Bandwidth/Website Plans. This means that we do not charge according to the amount of disk space or bandwidth you use, but we do require all customers to be fully compliant with our Terms and Conditions and to only utilize disk space and bandwidth in the normal operation of a personal or small business website. However, in the event your service usage or content presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to reduce usage, upgrade your current Plan or we may take action to restrict the resources your website is utilizing.
6. PROVISIONS SPECIFIC TO VPS
cPanel. In the event you add cPanel to your server, you agree to be bound by the cPanel EULA, which is hereby incorporated by reference
7. SERVICE UPTIME GUARANTEE
We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 5% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable, including, but not limited to, DDOS attacks and IP blacklists; and (5) outages related to the reliability of certain programming environments; (6) interference with internet connectivity at the customer's ISP; (7) interference with internet connectivity that occurs on one of the routes which is the connectivity path from the customer to our server; (8) browser caching or DNS issues; (9) your fault or negligence; (10) interference caused by other parties; (11) violation of our Terms and Conditions.
Claims for the failure of the guarantee above can be claimed within a maximum of 30 days after the interruption occurred.
8. MONEY BACK GUARANTEE
Products and Services available for refunds are described here (“Refund Policy”).
9. THIRD PARTY SOFTWARE
Definition. “Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.
We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).
10. TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
11. DEFINITIONS; CONFLICTS
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control