Terms of Service (TOS)
and Service Level Agreement (SLA)

Powered By Fish and our hosting partner provides web hosting to a number of clients. We have a responsibility to protect each client and provide the best services available. The following guidelines have been established to ensure this intent is met.

Use of services from Powered by Fish and our hosting partners, hereafter referred to as “Powered By Fish” constitutes acceptance and agreement to these terms. From herewith in this terms of service (“TOS”), the usage of “us”, “we”, “our”, “ours” shall constitute reference to Powered By Fish.com, the usage of “you”, “your”, “they”, “them” shall refer to the client / customer of PoweredByFish.com. All clients, servers, traffic, and equipment of Powered By Fish are subject to terms herein.

Contact and Billing Information:

You must provide us with, and keep current, accurate contact information for you. This includes but is not limited to E-mail addresses not based on the main domain of your account and telephone contacts. Maintaining accurate and updated information with us is required. It is your responsibility to ensure the email address on file is current or up to date at all times. We are not responsible for any claim, damages, fees, or otherwise as a result of accounts terminated or suspended due to inaccurate or unusable contact information. Providing false contact information of any kind may result in the termination of your account. You can update this information at any time in your Client Portal, email, or by telephone.

Account Setup:

While we maintain the highest standards and try for near instant account activations this is not always possible. Certain account types such as dedicated servers, virtual private servers, windows operating systems may often require a great deal of extra time to provision. At times additional fraud checks or information may be needed, and the client agrees to provide said information in a timely manner. We make no guarantees in regards to the speed in which an order is completed. Accounts will only enter the setup queue once we have received payment and screened the order for fraud. Accounts are then setup in the order they are paid, received, and screened. In certain cases such as dedicated or virtual private servers purchases and other high risk transactions, it may be necessary to provide government issued identification and a scan of the credit card used. If you fail to meet any requirements, the order may be canceled without notice.

Account Transfers:

In certain cases where requested by the client we will transfer your data from the previous provider to our servers. This will be done with our best efforts, however, we do not guarantee the transfer process. This courtesy service is done on an as requested and as available on a case-by-case basis. Each provider may use different software, configurations, and/or other variables which complicate or in some cases prevent a smooth transfer. We will provide free transfers when possible as long as the new environment and control panel are the same as the old host/server. We will advise you if your free move is not possible and what the rate will be if you wish us to proceed at that point. We do not guarantee the transfers will be successful, complete, or done in a certain period of time.

IP Ownership:

If we assign a Customer an Internet Protocol address for Customer’s use, the right to use that Internet Protocol address shall belong only to us, and Customer shall have no right to use that Internet Protocol address except as permitted by us at our sole discretion in connection with the Services, during the term of this Agreement. We shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by us, and we reserve 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 ARIN’s new policies.

Service Plans:

Shared accounts/account holders may not resell hosting. All accounts that include unlimited disk space will start with no less than 50 GB of disk space quota. You may request more space via a simple button click in your cpanel when you have used 80% of your current allowance. Our system will automatically increase your quota and you can continue to request more every time you reach 80% usage. Clients may not use this space for anything other than active hosting files, i.e., files needed for their actual website. It is not to be used to store other data, backups, or archive files of any kind. Files must be publicly accessible and linked on your site.

Powered By Fish reserves the right to reset the password if the password on file does not work if we are being direct to by law enforcement or to perform security audits. Clients must ensure the email, phone number, and passwords on file are current at all times. Powered By Fish reserves the right to audit servers to ensure a secure and safe network. Dedicated servers are not backed up but we do offer several methods of added service for an additional fee to help clients setup a backup such as our enterprise backup service or adding an extra drive to the server. Please contact us to discuss your options.

Domain Registrations:

You are also requesting us to register your site for you when selecting “new domain” in the order form of our site. Powered By Fish will register such services for you on your behalf but it is your responsibility to ensure the correct name servers are set for your domain. All domain registrations are NON-REFUNDABLE. For free domain offers we will transfer domains only after the money back guarantee period has ended. You, as the registrant of the new domain, are required to ensure correct whois information is maintained at all times.

Pricing:

Powered By Fish reserves the right to change pricing terms on any accounts and services at anytime. We will never increase an existing client’s account plan pricing. However, should a client wish to upgrade from one plan to the next (such as Basic to Pro) this will of course incur additional fees for that new plan costs.

Billing and Payments:

You agree to pay Powered By Fish in advance for the services to be rendered. Subsequent payments are due on the anniversary date of your plans term. You agree that until and unless you notify us using the proper cancellation form for all services received, those services are considered active, billable, and will be billed on a recurring basis. Client agrees to all annual and longer term recurring charges that are not canceled at least 30 days before the next renewal date. It is your responsibility to ensure that your payment information is up to date, and that all invoices are paid on time. Powered By Fish reserves the right to bill your credit card or information on file. We are not responsible for any fees accessed on the client by their bank as a result of the client’s account being invoiced. Powered By Fish provides a 5 day grace period from the time invoices are generated, however invoices not paid by due date are subject to a late fee of $7.50 (seven dollars and fifty cent USD) plus 10% (ten percent) interest of the past due amount. Powered By Fish reserves to the right to suspend and take your account “offline” in the case of nonpayment. Service will be interrupted on accounts that are 5 days past due. Service interrupted for nonpayment will remain disconnected until the account balance or contract term is paid in full.

Invoices that are paid more than once or any other over-payments can only be added as credit towards the account and can not be refunded. Any dispute to a credit card charge aka chargeback, wrongful or intentional, will result in a $50 administrative fee in addition to the disputed charge before service can be restored. We may request payment in cashiers check or money order before restoring service. All billing disputes must be reported within 30 days of the time the dispute occurred. Powered By Fish may temporarily deny service or terminate this Agreement upon the failure of client to pay charges when due. Such termination or denial will not relieve client of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.

Cancellation:

All cancellations must be sent to Powered By Fish by submitting a ticket in the Client Portal. Cancellations are effective the date the form is submitted unless otherwise request. While there are no cancellation fees, you must cancel prior to your next billing cycle. Payments made up to your cancellation date are not refundable unless you’re canceling within the 30 money back guarantee period less any setup provisioning fees. Any due or past-due balance on your account must be paid in full to cancel. This does not include any added support or service fees you have contracted us to provide.

Until an account is officially canceled by you receiving a response from us to your support ticket, you are obligated to pay for your account even if you do not use it. It costs us on an ongoing basis to provision space, power, and bandwidth for services of our clients. We continue to provision those services for your use until you cancel with us therefore we will not know nor care if you are not using the space after we have provisioned it. Because we have provisioned services and provided you with details you have the ability to use your account. An unused account still uses system resources that could be used for other customers.

If our internal collection efforts fail, Powered By Fish reserve the right to turn the account over to a 3rd-party (either collections agency or attorney) for further action at clients expense. We reserve the right to report your unpaid balance to credit reporting agencies. Unpaid invoices may affect your credit rating. We place our highest priority on current clients as such cancellations are the lowest priority and may take up to 30 days to process. Cancellations will however be effective as per the effective date of the cancellation form as entered by the client. Our system will prevent future billings.

Refunds:

Only first-time accounts are eligible for a refund. Refunds only apply to the money back guarantee. There are no refunds on domain name registrations, dedicated servers, VPS, shared hosting accounts (beyond 30 day period), service addons, software licenses, administrative fees, support or install fees. Account renewals and recurring payments after the money back guarantee are non-refundable. We will not refund accounts that do not cancel before their next due date. Meaning, while canceling, your last payment made prior to canceling will not be refunded. Clients may request a cancellation date that matches the service end date.

Content:

Use of any of our “shared” hosting services (Basic, Pro and Unlimited plans) constitues your agreement to keep your site files updated and maintained your site at all times. This includes CMS software (Joomla, WordPress, etc), third-party scripts (forums, galleries, etc), and any other software or applications installed and running on your site. We reserve the right to suspend and/or ask any client to find new hosting that fails to do so.

You are responsible for any and all content in and under your site or account at all times. All services provided by us may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any United States Federal, State or City law is prohibited. Use of our services to infringe upon any copyright or trademark is prohibited.

We do permit legal adult content on Dedicated servers only. All other services not listed here are forbidden to store, serve, or contain any adult materials. We reserve the right to determine the definition of “adult content” as it pertains to our services.

Any material that, in our judgment, is obscene or threatening is prohibited and will be removed from our servers with or without notice. This includes but is not limited to unauthorized copying of movies, music, books, photographs, or any other copyrighted work. We do not allow any content that may be construed as offensive or illegal including, but not limited to pirated software, bit torrents, IRC, Proxies, hacker programs/archives, copyrighted MP3’s, Warez, copyrighted material, trademarks, child pornography or content perceived to be child pornography, or material protected by trade secrets and other statutes. Any site found to host perceived child pornography or linking to child pornography will be suspended immediately without notice and reported to authorities. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet. Links to such materials are prohibited.

Threats and unlawful conduct:

You may not use our service to transmit any material (by e-mail, uploading, posting or otherwise) that threatens or encourages bodily harm or destruction of property. Use of our services to transmit any material (by e-mail, uploading, posting or otherwise) that harasses another company or individual will result in immediate and permanent termination of your account(s).

Staff and Personal Abuse:

Please treat our staff and personnel as you would like to be treated yourself. While we are tolerant and understanding, we too are human – please treat us as such. We understand the frustration that can come from any issues related to your account. Please be assured that are working as hard and quickly as possible at all times. Your satisfaction is our top priority!

You agree to refrain from abusive and profane language on our systems, interfaces, public, phone, email and private communications. Abuse of our staff in any medium or form will result in the suspension or termination of your services without notice or refund.

Fraud:

Use of our service to make fraudulent offers to sell or buy products, items, or services, or to advance any type of financial scam such as “pyramid schemes,” “ponzi schemes,” and “chain letters.” Adding, removing or modifying identifying network header information in an effort to deceive or mislead is prohibited. Attempting to impersonate any person by using forged headers or other identifying information is prohibited. The use of anonymous re-mailers or nicknames does not constitute impersonation. Impersonation involves a knowing misrepresentation or misleading statement, writing or activity made with the intent that the person receiving it will act upon it.

Attacks and Exploits:

Any activity which affects the ability of other people or systems to use any services or other Internet services. This includes “denial of service” (DOS) attacks against another network host or individual user. Interference with or disruption of other network users, services or equipment is prohibited. It is the client’s responsibility to ensure that their server is configured in a secure manner. A client may not, through action or inaction, allow others to use their network for illegal or inappropriate actions. Unauthorized entry and/or use of another company and/or individual’s computer system will result in immediate account termination. We will not tolerate any subscriber attempting to access the accounts of others, or penetrate security measures of other systems.

Commercial Advertising Email aka (SPAM):

Powered By Fish maintains a zero tolerance spam policy and we adhere to it strictly. Spamming, or the sending of unsolicited email, from one of our servers or using an email address that is maintained by us is STRICTLY prohibited and will qualify your site for immediate deactivation with no refund.

Sites advertised via SPAM (Spamvertised) are not permitted on our network. This includes, but is not limited to SPAM sent via fax, email, instant messaging, or usenet/newsgroups. Any account which results in our IP space being blacklisted will be immediately terminated.

We will be the sole arbiter as to what constitutes a violation of this provision. Additionally claims investigated by us about spam from any of our users or users of theirs, will be billed for such work. The clean up fee for such an instance will be determined by Powered By Fish and usually no less than $500 per incident.

Emails From Us:

By using servies by Powered By Fish and our hosting partners (becoming a client of Powered By Fish), you agree to opt-in to specific and relivent email messages that may be sent to you directly by Powered By Fish concerning your account and service. These email messages are NOT spam and are not for marketing/promotional purposes. They will contain important notifications about upcoming service interuptions, service restoration, maintenance related notices, accounting and/or billing messages, etc. Please do not ignore these critical messages. Considering the nature and topic of these emails, there is no method of opting out or unsubscribing other then canceling your Powered By Fish account. Please refer to our complete Privacy Policy for more details.

Privacy Policy:

Please refer to our complete Privacy Policy.

Programs/Daemons:

We do not allow programs to run continually in the background on shared hosting servers. You can run any legal daemons on your own VPS or Dedicated server except for IRC and Proxy services. This is to minimize system resources used and operational maintenance needed. IRC: We DO NOT allow IRC or IRC bots on our network. Proxy: We DO NOT allow proxy services on our network.

Server abuse:

Any attempts to undermine or cause harm to any Company server or customer of ours is strictly prohibited. We hold no responsibility for the use of our clients’ accounts. Any account the abuses resources and actions are not taken to desist, calls for immediate deactivation without any refund of payments made thus far. Any site using what we deem to be using excessive cpu cycles or any resources that cause strain to other sites may also be offered new terms. Use of our service to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of our or another entity’s computer software or hardware, electronic communications system, or telecommunications system.

Security:

You are responsible for any misuse of your account, even if the inappropriate activity was committed by a friend, family member, guest or employee. Therefore, you must take steps to ensure that others do not gain unauthorized access to your account. In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Sharing your password and account access with unauthorized users is prohibited and you will be held responsible for such use. Attempting to obtain another user’s account password is strictly prohibited, and may result in termination of service. You may not attempt to circumvent user authentication or security of any host, network or account. Users who violate systems or network security may incur criminal or civil liability. We will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.

Resource Usage:

If our system administrators determine that a customer’s account is utilizing an unacceptable amount of system resources, we may temporarily deactivate the account in question to preserve server integrity for other users. We may contact the client to offer alternative solutions for their accounts and make our best attempt to keep their account active without degradation to other client’s services. Powered By Fish is the sole arbiter as to what constitutes a violation of this provision. Clients will not use more than 30% of a systems resource for longer than 1 minute or more than 150,000 inodes on any single account. Every file on a server is 1 inode. Clients reaching or exceeding this limit will be contacted so we can evaluate their needs and if necessary make other arrangements.

You may not use your shared accounts for file storage of other accounts, backups, storing backups of dvd’s, mp3’s, or any files larger than 150MB. Large and plentiful files used in this manner on an active system can cause file system corruption and lead to not just your own data loss but that of others.

You may not send more than 1000 emails per hour on your shared accounts. Any emails over that limit will be discarded. You may batch the emails to stay within limits. Other accounts types such as VPS and Dedicated servers are exempt from this limit.

Bandwidth Usage:

Your account is provisioned with a monthly bandwidth allowance that varies depending on the hosting plan you order. If your account exceeds the allocated amount we reserve the right to suspend the account until the start of the next month, until you upgrade to a higher plan, or until you purchase more bandwidth. If you terminate the account you are still responsible and liable for any current usage and associated fees for the overages. Bandwidth limits on shared are divided into daily equal limits that reset each night. I.e., 300 GB month / 30 days = 10 GB a day. Data transfer usage for dedicated servers is calculated using 95th percentile, also known as burstable billing, in order to assist clients from heavy overage penalties should they experience unanticipated spikes in traffic.

Back-ups and Data Loss:

Clients use our services at their own risk. Our server software does create daily backups for users sites that you may download on your own. We do not store this file and it is for your own use should you choose to use it. We perform daily backups on all of our servers to ensure critical files are never lost. We provide this costly service free with no warranty and only as a courtesy. Any site using more than 25GB space will be removed from the backup service. You may opt to purchase backup service for an additional fee. We will not restore a file any user has accidentally deleted or modified. The back-up restoration is for emergency procedures only. You are advised to backup all of your own files to your local drive or additional backup service. If we do have backups available for your files that you need restored, and if we have the ability and time to restore the file(s), there will be a $50 per hour fee for restoring the files (usually only requires a 1 hour/$50 charge). We are not responsible for lost data, time, income or any other resource due to faulty backups or non-existent back-ups. Backup restoration is NOT a fast process. Due to the volume of data being stored, compression, and network file transfers, decompression, restoration, integrity checks, and other variables, the restoration process of large nodes can sometimes take several days. We highly encourage everyone to purchase their own separate managed backups from one of our backup plans if your site or data is critical to your business or livelihood.

Money Back Guarantee:

All shared clients (Basic, Pro and Unlimited Plan) are entitled to an unconditional 30 day money back guarantee. This guarantee begins the day we send out your accounts login details. If you wish to cancel your account and receive a full refund within 30 days of the date you signed up, you must contact us via the Client Portal prior to your 30th day of service. This guarantee includes the hosting plan only and does not include extra services or setup fees such as add-ons, name servers, programming work, administrative fees, software licenses, or web designing.

VPS and Dedicated servers are not entitled to this guarantee due to time and expenses we incur on each order. Unfortunately we have found the potential for fraud, abuse, and work loss with some account types requires a nonrefundable fee. Some accounts such as, but not limited to, VPS take considerable time and efforts to setup and maintain therefore accounts terminated under this guarantee are subject to a nonrefundable $50.00 (fifty dollar USD) setup and provisioning fee.

Network Guarantee:

We guarantee that the network will be available 100% of the time in a given month (this does not include functionality of software/services on a server), excluding scheduled maintenance. Network uptime includes functioning of all network infrastructure including routers, switches and cabling, but does not include services, daemons, software running on your server, or hardware failure on a server. Network uptime means the network itself will be up and available. In situations where a client runs a cluster or redundant server they can take advantage of the 100% uptime guarantee by eliminating a single point of failure in their hardware.

We are not responsible for outages or circumstances beyond our control that hinder access to your site or server. The following are excluded from the monthly calculation of Service Availability:

• Scheduled Maintenance: occasionally upgrades, updates, and hardware replacements are required. We will take every precaution to avoid downtime but it may not always be unavoidable. Downtime during scheduled maintenance is not covered and not refundable.
• Hardware Maintenance: server hardware is not related to the network. We maintain thousands of servers and at some point all hardware can and will fail. We will work quickly to restore the server and use our backups, if available, to restore service.
• Software Maintenance: while managing servers we must keep systems, OS, kernels, and other various software updated and current to avoid exploits and prolonged downtime or issues. At times this means rebooting systems and rarely unexpected problems arise that extend the maintenance window.
• Traffic conditions or outage on the Internet outside our network, issues from upstream providers, clients ISP, or local problems such as Browser or DNS caching.
• DDoS, Attacks, Exploits or hacked servers.
• Failure of individual services on a server while the network is up.
• Interruptions or failure of individual service caused by client, their employees, client’s customers, friends, or family to their service.
• Inaccurate installation or configuration of software by the client or non-staff, 3rd party software, client abuse or over utilization of resources.

We guarantee that the critical systems, including power and HVAC, will be available 100% of the time in a given month, excluding scheduled maintenance and clients server power supply.

Critical systems includes functioning of all power and HVAC infrastructure including UPSs, PDUs and cabling, but does not include the power supplies on customers’ servers. NOC downtime exists when a particular server is shut down due to power or heat problems and we record such a failure in the support ticket system.

To be eligible for this guarantee, your account must be in good standing. All requests for credit or refunds should must fulfill these requirements:

• Request must be submitted using the Client Portal ticket system
• Request must be submitted within 7 days of the issue in question
• Your request must include a ticket number to reference that shows the issue being reported and acknowledged.

If network downtime occurs the customer will be credited 10x (1000%) of the downtime as recorded by the support ticket and confirmed problem to the resolution, up to 100% of the customer’s monthly fee. If the network is out for 1 hour, we will credit you 10 hours of downtime. In this instance we divide your monthly payment by days of the month, divided by 24hrs a day to find an hour rate. That amount will be credited to your account towards your next invoice.

Hardware Guarantee :

We guarantee the functioning of dedicated servers and their components. We will replace any failed component at no cost to the customer while the account is in good standing. Hardware replacement will begin once we identify the cause of the problem. Hardware replacement is guaranteed to be complete within 4 hours of problem identification. This guarantee of 4 hours does not include additional actions such as software installations, OS reinstalling, or other data or backup services. In the event that it takes us more than 4 hours to replace faulty hardware, we will refund the customer 10x (1000%) of the downtime up to their monthly fee for every 1hour of downtime (up to 100% of customer’s monthly fee). This means if we couldn’t replace the hardware for 6 hours for some odd reason, and then began the OS and software install which could take hours longer, we went 2 hours past the hardware replacement time. We will credit you 2 hours x 10, 20 hours of service. We would not credit the time it takes to reinstall software as everyone’s system has unique requirements and this is a hardware guarantee not a software guarantee. In this instance we divide your monthly payment by days of the month, divided by 24 hrs a day to find an hour rate. That amount will be credited to your account towards your next invoice.

Hardware is defined as the Processor(s), RAM, hard disk(s), motherboard, NIC card and other related hardware included under the server lease.

Occasionally servers and systems must be brought down for routine maintenance and upgrades to ensure that your site will perform optimally. However, we strive to keep such service interruptions to a minimum, and, when possible, give you advance notice of scheduled any maintenance. Scheduled service outages do not qualify for this guarantee!

Additionally, this guarantee is your remedy for any unscheduled downtime of more than limits outlined above. Downtime must be confirmed by a staff member in our support system. Maximum credit given will not exceed the amount of the charge for the customer service with us. The credit will be applied to your invoice on your next due date. Downtime is measured from the time the customer records such failure in the Client Portal and until a resolution is provided in that ticket.

To be eligible for this guarantee, your account must be in good standing. All requests for credit or refunds should must fulfill these requirements:

• Request must be submitted using the Client Portal ticket system
• Request must be submitted within 7 days of the issue in question
• Your request must include a ticket number to reference that shows the issue being reported and acknowledged.

Please note our Hardware Guarantee only applies to Dedicated Server clients. Basic, Pro and Unlimited Shared as well as VPS accounts do not apply.

Refusal/Cancelation of Service:

We reserve the right to refuse, cancel, or suspend service at our sole discretion. We reserve the right to do so with no advance notice and no refund will be issued.

Indemnification :

Client agrees to defend, indemnify, and hold Powered By Fish harmless from any and all demands, liabilities, losses, injury, costs and claims, including reasonable attorney’s fees asserted against us, our agents, our customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold or supplied, infringing on proprietary rights of a third party, , copyright infringement, or defective products by customer, our agents, employees or assigns.

Governing Law:

By using any Powered By Fish services, you agree to submit to binding arbitration. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. Each party agrees that any action arising out of or in connection with this Agreement shall be handled by an arbitrator of Powered By Fish’s choice. The arbitrator’s award is final and binding on all parties. You, the client, are also responsible for any and all costs related to such arbitration. The language of this Agreement shall be deemed to be the result of negotiation among the parties and their respective counsel and shall not be construed strictly for or against any party. Each party agrees that, whenever a party is requested to execute one or more documents evidencing such consent, it shall do so immediately.

Disclosure:

Powered By Fish will cooperate with law enforcement agencies. We will only disclose subscriber information including assigned IP numbers, account history, account use, etc. to a law enforcement agent or official that provides an authentic subpoena or lawful request.

Disclaimer:

We are not responsible for any claims resulting from the use of our service. We are not responsible for any damages your business may suffer. We make no warranties of any kind, expressed or implied for any services. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions regardless of cause. The client acknowledges that the service provided is of such a nature that service can be interrupted for many reasons. Therefore, client agrees that the company shall not be liable for any damages, loss, or injury.

Modifications:

We reserve the right to revise, amend, or modify these terms and our other policies at any time and in any manner without notice. If any terms or conditions are failed to be followed the account in question will be automatically deactivated. All users are always subject to the newest terms posted here at all times. It is the end users responsibility to be aware of the latest terms of service and other policies at all time. All clients understand that a change these terms by the Powered By Fish shall not be grounds for early contract termination or non-payment.

Updated 12/10/2011