Terms of service


TERMS AND CONDITIONS FOR VIRTUAL PRIVATE SERVER HOSTING SERVICES
By ordering virtual private server services from NetUSE bvba. ("ITXS"), you ("you" or "Customer") agree to the terms and conditions set forth herein. The provisions contained in these Terms and Conditions for Virtual Private Server Hosting Services (the "Agreement") incorporate and are supplemental to ITXS's ITXS General Terms and Conditions (the "ITXS GT&C"), by which you are also bound, to the extent they are not modified by this Agreement.

1. SUBJECT OF THE AGREEMENT

The Agreement governs the provision of virtual private server services (the "Services") to the Customer by ITXS and certain administration and servicing thereof. The Services comprise making available for use by the Customer a partition on a commonly used server with certain, limited server functions granted to the customer via software control (hereafter, a "Virtual Server"). The Virtual Server is not a dedicated server, and access to certain functions of the system hardware and software are limited.

2. SERVICES PROVIDED

ITXS agrees to provide the use of a Virtual Server to Customer, for the exclusive use of Customer at the price agreed upon before the initiation of service, for the term as defined below. Customer represents and warrants that Customer has or has access to the knowledge and expertise necessary to configure, maintain, monitor, and secure the Virtual Server. ITXS further agrees to maintain the hardware on which the Virtual Server is located. Except with respect to the use or configuration of Plesk or the Virtuozzo Power Panel, ITXS does not provide phone or e-mail support or other technical assistance for the administration of the Virtual Server or otherwise related to the Services.

3. FEES

Fees for the Services shall be charged in accordance with the schedule of fees set and adjusted by ITXS from time to time and posted at the ITXS web site at http://www.itxs.eu. Published fees include initial setup and installation services as set by ITXS, and are non-refundable.

4. TERM

Subject to termination in conformity with Section 10 of this Agreement, the initial term of this Agreement shall be one (1) month with automatic renewal for one subsequent additional month after the expiration of the initial term and each such renewal term (each such month a "Contract Term"). ITXS reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The Contract Term, however, shall remain one (1) month. Notwithstanding the provisions of this Section to the contrary, ITXS may offer certain packages for which the initial term of this Agreement shall be longer than one month (the "Extended Term Package"), at the end of which this Agreement shall renew automatically on a month-to-month basis pursuant to the terms of this Section. Any and all service fees for the Extended Term Package are due and payable for the entire initial term thereof, and should you terminate, attempt to terminate, or otherwise default on this Agreement prior to the end of the initial term you authorize ITXS to charge your credit card for all such fees and charges for the remainder of such initial term. For the purposes of this Section, any modification of the Extended Term Package shall be deemed a termination and shall entitle ITXS to the fees owing on the Extended Term Package. Fees paid for the Extended Term Package are not refundable unless this Agreement is terminated by ITXS without cause pursuant to Section 10. or as otherwise agreed to in writing by ITXS in its sole discretion.

5. ADMINISTRATIVE ACCESS

Access to the Virtual Server is limited to you and your authorized agents. ITXS has limited access to the contents of your Virtual Server. ITXS reserves the right to require, at its discretion, software upgrades for the purposes of maintaining security and stability of the services provided and may require the installation of such upgrades. Standard fees for such upgrades shall be set by ITXS from time to time.

6. NETWORK DATA TRANSFER CHARGES

There shall be no charge for monthly aggregate or daily average network transfer within the allowance of the Virtual Server package purchased, depending on the terms agreed upon at purchase, as measured during any 30-day period. Monthly aggregate or daily average network traffic in excess of the pre-arranged allowance shall incur an additional fee as set by ITXS. Payment of this fee will be required in order to maintain service. Network traffic shall be measured by ITXS and may include all forms of traffic to and from the Virtual Server. All fees shall be set and adjusted by ITXS from time to time and posted at the ITXS web site at http://www.itxs.eu/.

7. HARDWARE AND SOFTWARE CONFIGURATION

All Virtual Servers must use software configurations that conform with ITXS requirements. Use of any particular software configuration may be declined at the sole discretion of ITXS. Customers have no right or expectation to receive a hardware or software configuration on their Virtual Server that is more capable than that which was initially ordered from ITXS, nor can a Customer expect to receive support from ITXS with respect to the correction of errors caused by mistakes, faulty settings, and installation errors caused by the Customer.

8. CUSTOMER CONDUCT

8.1.

ITXS services and Virtual Servers may only be used for lawful purposes. Any use which violates any local, state, federal, or international laws which may apply to ITXS, Customer's local jurisdiction, or any jurisdiction that Customer or Customer's site may be subject to is strictly prohibited.

8.2.

While using a ITXS supplied Virtual Server, Customer will not:

8.2.1.

Restrict or inhibit any other user from using and enjoying the Internet;

8.2.2.

Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;

8.2.3.

Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;

8.2.4.

Operate an open mail relay;

8.2.5.

Transmit any unsolicited commercial or bulk e-mail or engage in any activity known or considered to be "spamming" or "Mail Bombing";

8.2.6.

Use any ITXS Virtual Server or service to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.

9. INDEMNIFICATION

9.1.

You agree to fully defend and indemnify and hold harmless ITXS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of ITXS in any way related to your use of the ITXS Services or any portion thereof.

9.2.

You agree to fully defend and indemnify and hold harmless ITXS of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney’s fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the ITXS Services or any portion thereof. Choice of counsel remains exclusively that of ITXS.

9.3.

For purposes of this Section 9, ITXS includes NetUSE bvba., as well as its parent company or companies, its subsidiaries and affiliated companies.

10. TERMINATION

Either party can terminate this Agreement upon 30 days' written notice prior to the end of the then-current Contract Term. ITXS can terminate this contract for any reason upon thirty (30) days' prior notice. Any such termination shall take effect at the end of the month after the end of the thirty-day notice period. ITXS reserves the right to terminate this contract without notice in the event that ITXS believes, in its sole discretion, that you have breached any provision(s) of Section 8 of this Agreement, or any provisions of the GT&C, and ITXS may without any liability to you, and in addition to any other remedies, erase or purge any related content or information from ITXS's Equipment without prior notice to you. ITXS may deny Customer access to a Virtual Server without notice if Customer engages in any conduct or activities that ITXS in its sole discretion believes to be in violation of any of the terms and conditions of this Agreement or the GT&C. ITXS shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Customer agrees that ITXS has the right, but not the obligation, to monitor the Virtual Servers electronically from time to time and to disclose any information as necessary under the law, or to protect itself from claims by a third party or parties. ITXS reserves the right to remove or remove access to any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, offensive, or in violation of this Agreement.

11. OWNERSHIP OF SERVER

All servers and other Equipment shall at all times remain the property of ITXS and are not subject to customer demands.

12. LIMITED WARRANTIES

12.1.

ITXS makes every reasonable effort to maintain the uninterrupted operation of the ITXS Services, subject to regularly scheduled server and network maintenance cycles. However because many events and circumstances are beyond the control of ITXS, ITXS does not in any way warrant or otherwise guarantee the availability of the ITXS system or servers, including but not limited to Virtual Servers, and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of ITXS. ITXS may, at its sole discretion, limit or deny access to its servers, including but not limited to Virtual Servers, if, in the judgment of ITXS, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the ITXS system.

12.2.

ALL ITXS SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

12.3.

THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO ITXS IN THE SIX (6) MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY, BUT IN NO EVENT TO EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000). IN NO EVENT SHALL ITXS BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.

12.4.

Customer understands that by placing information on a Virtual Server, depending on the configuration of the Virtual Server, such information may be accessible to all Internet users. ITXS does not limit or restrict access to such information, nor protect any such information from copyright infringement or other wrongful activity. Customer assumes full responsibility and risk for their use of the Virtual Server. It is the Customer's sole responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, and other information, and the quality and merchantability of all merchandise, provided through ITXS or on the Internet generally.

13. IDENTIFICATION INFORMATION

Customers must be at least 18 years of age or require the approval of the minor's legal guardian. Customer agrees to supply ITXS with a current and truthful full name, e-mail address, postal address, and telephone number and, in case the Customer is a minor, with the current and truthful full name, e-mail address, postal address, and telephone number of at least one legal guardian. Customer agrees to keep this information current and to inform ITXS whenever any of this information changes.

14. NO INTERFERENCE WITH OPERATION OF SYSTEM

14.1.

Customer agrees not to maliciously or intentionally interfere with the proper operation of the server and network, including but not limited to defeating identification procedures, obtaining access beyond that which Customer is authorized for, and impairing the availability, reliability, or quality of service for other customers. Customer further agrees not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. Customer agrees to follow the Acceptable Use Policy of any network or service to which Customer connects.

14.2.

Customer agrees to adhere to all system policies of ITXS, as such may be published by ITXS online from time to time, including restrictions on services available, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of the services of ITXS. Customer agrees to abide by any and all future policy decisions by ITXS.

15. SECURITY

15.1.

Except with respect to issues concerning the physical security of ITXS's data center facilities, Customer agrees that the security of the Virtual Server and all Services is solely Customer's responsibility. It is the sole responsibility of the Customer to maintain and update security software on the Virtual Server. Under no circumstance will ITXS be held liable for security breaches and damage caused by the Customer's failure to maintain or update the security software or to maintain adequate security protocols in the administration of the Virtual Server.

15.2.

To secure Virtual Servers from external misuse, Customers are encouraged to utilize packet filtering technology.

15.3.

Customer agrees that if the security of Customer's Virtual Server has been compromised in any way, Customer will notify ITXS immediately in writing as set forth in Section 22 herein. Customer shall be held fully responsible for any misuse or compromise of Customer's Virtual Server. Customer agrees that if any security violations are believed to have occurred in association with Customer's Virtual Server, ITXS has the right to suspend access to the Virtual Server pending an investigation and resolution. Customer also agrees that ITXS has the right to cooperate in any government or legal investigation regarding any aspect of its services, including any servers or Virtual Servers used by Customer. Any use of ITXS's system to engage in software piracy or other violations of law will result in service suspension and be immediately reported to the appropriate authorities.

16. TRANSMITTAL OF MATERIALS

Customer agrees not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. The use of ITXS or any other service with reference to services obtained through ITXS, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as "spamming", is strictly prohibited and may cause Customer's services to be terminated immediately and without warning, and Customer will be held fully responsible for any damages to Customer, ITXS, or any other party or parties resulting from any such conduct.

17. PAYMENT

17.1.

Payment of fees must be made by Paypal or Bank. Payment for the Services is due in advance, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the Services.

17.2.

Prior to activation of your user account and at any applicable time thereafter you authorize ITXS to charge the credit card provided by you for the amount of the fees due for Services, together with any applicable set-up charges or any other charges outlined herein as may be applicable. You further authorize ITXS to charge your credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. Should you fail to provide credit card authorization to pay for the Services, ITXS, at its sole discretion will have the right to suspend or terminate the Services. Refusal or rejection of any charge or any portion thereof is grounds for termination or suspension of the Services, at the sole option of ITXS.

17.3.

Refunds of Service fees will be made only for pre-payment of Service fees beyond the renewal date following the effective notice and termination of this Agreement as provided for herein. All refunds shall be pro-rated based upon the number of days for which Services remain unused as of that renewal date. ITXS may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder.

18. PRIOR AGREEMENTS

Except for the ITXS GT&C, which apply to all transactions between ITXS and any of its customers, this Agreement supersedes any written, electronic, or oral communication Customer may have had with ITXS or any agent or representative thereof, and constitutes the complete and total agreement between the parties. If any of the provisions contained herein are in conflict with the ITXS GT&C, the provisions in this Agreement shall prevail.

19. SEVERABILITY

If any provision of this Agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable.

20. JURISDICTION

This Agreement shall be interpreted under the Belgian laws, without regard to any conflict of laws provisions.

21. DISPUTE RESOLUTION

Any claim, dispute or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the City of Brussels, Belgium, pursuant to the provisions of Section 21.

22. NOTICE

Any notice under this Agreement shall be given by ITXS to you via e-mail at the address provided by you to ITXS at the commencement of this Agreement or as ITXS is subsequently advised pursuant to the requirements of Section 14 hereof. Notice to you at this address is deemed sufficient regardless of your receipt of such e-mail.

 

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