T E R M S   A N D   C O N D I T I O N S


IMPORTANT NOTE FOR SHARED CLIENTS! By signing up with HostingRails.com you agree to operate your Ruby on Rails applications on shared servers (including reseller plans) IN PRODUCTION MODE ONLY (please develop on your local machine). Breaking this condition is grounds for immediate termination of your services without warning. Any questions? contact us

Contents:


Introduction - [Back to Top]
HostingRails.com. ("HostingRails") is a web hosting provider specializing in the deployment of Ruby on Rails applications. This Services Agreement ("Agreement") governs your purchase and/or use, in any manner, of all services provided by HostingRails and any of its affiliates (the "Services").

You must accept the terms of this Agreement in order to use the Services.

NOTWITHSTANDING, BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HERE AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE.

HostingRails reserves the right to change or modify any of the terms and conditions contained in this Agreement, any Addendums and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Any changes or modification will be effective upon posting of the revisions on the HostingRails.com Web site (the "Site"). Your continued use of Services following HostingRails' posting of any changes or modifications will constitute your acceptance of such changes or modifications.


1. Term and Payment for Services - [Back to Top]


1.1. Term

This Agreement shall be for an "Initial Term" as chosen by you in the Order Form located on this Site at the time you register for the Services. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term. Once customer makes purchase they are entitled to the service. HostingRails Network will deliver its services at the fullest extent possible.

1.2. 30-day Money-Back Guarantee


Funds paid for Custom Rails Application Installations, as outlined on The Site, are non-refundable.

If you sign up for a shared hosting package (Beginner, Basic, Professional, Business, or Platinum plan) you are entitled to a 30-day period in which you can terminate your plan and receive the total amount paid at the beginning of the Initial Term minus any custom install fees refunded, unless you have broken one or more of the Terms or Acceptable Usage Policies within this Agreement, as determined by HostingRails at their sole discretion. The 30-day period ends precisely 43,200 minutes from when the account is activated, as recorded by HostingRails. No other invoices are subject to a Money-Back Guarantee, including invoices paid at any time to upgrade services.

If you sign up for a reseller plan, virtual private server ("VPS"), or dedicated server then there is no money-back guarantee. The only exception to this rule is for VPS plans with 365-day or 730-day billing cycles. These plans are entitled to a refund of the inital invoice paid minus the first month's fee for the hosting plan and optional services (support, IPs, custom installs, etc...).

1.3. Termination Policy

If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) HostingRails will not refund to you any fees paid in advance of such termination, with exception of the 30-day Money-Back Guarantee for shared and VPS hosting plans mentioned in Section 1.2. HostingRails reserves the right to cancel a customers service at any time, however, without a refund if one or more of the Terms or Acceptable Usage Policies within this Agreement is broken, as determined by HostingRails at their sole discretion.

Termination of dedicated hosting plans requires at least a 15-day notification before the end of the Initial Term or the Renewal Term, whichever is then applicable, or else payment for the subsequent term will be required.

1.4. Default and Cure

In the event that you hereto default in the performance of any duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given by HostingRails specifying the default, then HostingRails, after given written notice thereof to you, may terminate this Agreement.

1.5. Charges

You agree to pay for all charges attributable to your use of the Services at the then current HostingRails prices, which shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on HostingRails' net income.

1.6. Payment

All accounts are paid first. Once payment is received account is activated. Customer will be notified via email prior to the due date of subsequent payments. Failure to pay will cause termination of the account. All charges for Services must be paid in advance according to the then current prices applicable to the Services. Upon entering this Agreement, you must choose to pay either by direct charge to a credit or debit card, or via PayPal (www.paypal.com). If you choose to pay by credit or debit card upon registering for the Services, you thereby authorize HostingRails to charge your credit or debit card to pay for any charges that may apply to your account. You must notify HostingRails of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit HostingRails from charging your account.

1.7. Refund Policy

After exceeding the 30-day money-back period mentioned in Section 1.2 for shared hosting and VPS plans only, the customer will not be entitled to a refund for any invoice paid and they will be billed until a cancellation is incited by contacting billing.department _at_ hostingrails _dot_ com.


2. Use of Services - [Back to Top]

2.1. Applicable Use Policy

The HostingRails Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services. The Usage Policy is posted on HostingRails' Web site (or such other location as HostingRails may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. HOSTINGRAILS RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.

2.2. Material and Product Requirements

Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on HostingRails' equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by HostingRails. HostingRails will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", HostingRails has the option at any time to reject this material. That is, if you?re operating a Ruby on Rails application, it must be in production mode only at all times. HostingRails may or may not, at its sole discretion, notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of HostingRails. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not HostingRails' responsibility to provide this knowledge or customer support outside of the Services agreed to by you and HostingRails.

2.3. Bandwidth and Storage Usage

You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to pay the associated additional charges. However, HostingRails will, to the best of its ability, place limits on your account so you will not be allowed to exceed the bandwidth or disk space quota, in order to avoid such charges.


3. Enforcement - [Back to Top]

3.1. Investigation of Violations

HostingRails may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. HostingRails will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.

3.2. Actions

HostingRails reserves the right and has absolute discretion to restrict or remove from its servers or modify any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, HostingRails may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on HostingRails' systems, and/or (d) disabling or removing any hypertext links to third party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by HostingRails which, in HostingRails' sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes HostingRails to civil or criminal liability or public ridicule. It is HostingRails? policy to terminate repeat infringers. HostingRails' right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If HostingRails takes corrective action due to such possible violation, HostingRails shall not be obligated to refund to you any fees paid in advance of such corrective action.

3.3. Disclosure Rights

To comply with applicable laws and lawful governmental requests, to protect HostingRails' systems and customers, or to ensure the integrity and operation of HostingRails' business and systems, HostingRails may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on HostingRails's servers and systems. HostingRails also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.



4. Intellectual Property Rights - [Back to Top]

4.1. Your License Grant to HostingRails

You hereby grant to HostingRails a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to HostingRails a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

4.2. HostingRails Materials and Intellectual Property

All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by HostingRails or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by HostingRails to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of HostingRails or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by HostingRails during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.

4.3. Trademarks

You hereby grant to HostingRails a limited right to use your trademarks, if any, for the limited purpose of permitting HostingRails to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.


5. Warranty and Warranty Disclaimer - [Back to Top]

5.1. Customer and/or Third Party Acts

HostingRails is not responsible in any manner for any nonconforming Services to the extent caused by you or your customers. In addition, HostingRails is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond HostingRails' reasonable control.

5.2. No Express or Implied Warranty

ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY HOSTINGRAILS UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY FACT OR LAW, WITH THE SOLE EXCEPTION OF THE 99.9% UPTIME GUARANTEE DESCRIBED IN SECTION 5.4. YOU ACKNOWLEDGE AND AGREE THAT HOSTINGRAILS EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH HOSTINGRAILS' COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. HOSTINGRAILS DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, WITH THE SOLE EXCEPTION OF THE 99.9% UPTIME GUARANTEE DESCRIBED IN SECTION 5.4, OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED THIS AGREEMENT, HOSTINGRAILS DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT.

5.3 Your Warranties and Representations to HostingRails

You warrant, represent, and covenant to HostingRails that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content where necessary; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content and/or any software that you install or provide does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.


5.4. 99.9% Uptime Guarantee

This guarantee applies to shared hosting plans only (Beginner, Basic, Professional, Business, and Platinum).

If the shared server is not available via http for more than 43.2 minutes, unless it in unavailable due to scheduled downtime (which can be issued at any time in advance within your HostingRails Account Center 'Status' website), in any given month (Jan - Dec), then you are entitled to a full 36 days of hosting added to the end of your current billing cycle. You must contact the HostingRails Billing Department in order to claim this guarantee. This 99.9% uptime guarantee does not apply if you break one or more of the Terms or Acceptable Usage Policies within this Agreement, as determined by HostingRails at their sole discretion. This 99.9% uptime guarantee can only be applied once in a given month (Jan - Dec), and cannot be retroactively applied to previous months.

6. Limitation and Exclusion of Liability - [Back to Top]


6.1. Limitations

HOSTINGRAILS SHALL HAVE NO LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO HOSTINGRAILS, DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. HOSTINGRAILS SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOSTINGRAILS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY EVENT, THE LIABILITY OF HOSTINGRAILS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOSTINGRAILS BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY HOSTINGRAILS UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE HOSTINGRAILS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

6.2. Interruption of Service

You hereby acknowledge and agree that HostingRails will not be liable for any temporary delay, outages or interruptions of the Services. Further, HostingRails shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, packet loss, server crashes, communications or third-party supplier failure).

6.3. Maintenance

You hereby acknowledge and agree that HostingRails reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. HostingRails will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.


7. Indemnification - [Back to Top]

You will defend, indemnify and hold harmless HostingRails and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnities") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnities by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your use of the Services, including any improper or illegal uses; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by HostingRails; or (v) any claim relating to your services or products, or your installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).


8. Miscellaneous - [Back to Top]

8.1 Confidentiality

The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.

8.2. Notices

All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.

8.3. Choice of Law and Forum

THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF WASHINGTON, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT THE FEDERAL OR STATE COURTS LOCATED IN WASHINGTON, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION SUCH COURTS.

8.4. Entire Agreement

This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.

8.5. No Fiduciary Relationship; No Third-Party Beneficiaries

HostingRails is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.

8.6. Assignments

You may not transfer or assign your rights, duties, or obligations under this Agreement without HostingRails' prior written consent. HostingRails may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.

8.7. No Waiver

HostingRails' failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of HostingRails? right to subsequently enforce such provision or any other provisions under this Agreement.

8.8. Severability

If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.

8.9. Survival

All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.

8.10. Modification

HostingRails reserves the right to add, delete, or modify any provision of its Terms and Condition, Acceptable Usage Policy at any time without notice.

8.11. Termination of Inactive Accounts

HostingRails reserves the right to terminate accounts that contain no data and/or remain inactive (defined as zero bandwidth usage and/or no account SSH or cPanel logins) for 10 days.

10. Affiliate program - [Back to Top]

By signing up for a HostingRails hosting account you are also signing up for their affiliate program, where you may earn commissions based on client referrals as outlined on The Site. HostingRails reserves the right to terminate a user from the affiliate program at any time if these terms and conditions are broken. You may not spam your affiliate link in any form, as determined by HostingRails at their sole discretion. Any use of the affiliate link or referral credit system that HostingRails deems unacceptable will be grounds for immediate account suspension which will void all unpaid commissions.

US citizens earning more than $600.00 USD from HostingRails in any tax year are required by law to give HostingRails their Social Security Number (or Employer Identification Number) so that HostingRails may report the earnings to the Internal Revenue Service.


HostingRails reserves the right to add, delete, or modify any provision of its Terms and Condition | Acceptable Usage Policy at any time without notice.