This legally binding contract (the "Agreement") is by and between Big Brain Host, a Virginia Company ("Big Brain Host"), and you and your assigns, employees, agents or contractors ("You", "Your", the "Client") and is effective as of the date you purchase hosting services from Big Brain Host. This Agreement sets forth the terms and conditions of Your use of Big Brain Host's r services (collectively, the "Services") and represents the entire agreement between You and Big Brain Host relating to the Services. This Agreement contains provisions that set forth Big Brain Host's Acceptable Use Policy, Privacy Policy and guarantees of a certain service level (found in the "Uptime Guarantee" and "Service Level" sections below).

By purchasing the Services, You acknowledge and agree that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies that Big Brain Host may establish and post on its website from time to time.

Big Brain Host provides the Services to its customers for a monthly fee. Big Brain Host will provide You an account on one or more of its dedicated servers, provided, however, You abide by the terms and conditions set forth in this Agreement and in any other agreement pertaining to other services you may purchase. Big Brain Host reserves the right to modify its network and facilities used to provide the Services for purposes including, but not limited to, accommodating evolving technology and increased network demand, and providing enhanced services. Big Brain Host shall use reasonable efforts to notify You in advance of any planned changes to Big Brain Host's network or facilities that may adversely affect the Services provided under this Agreement.

Fees for Services ordered by You shall be charged beginning on the date of the initial order and that date shall serve as the monthly anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits. Fees are due in advance of the monthly service cycle and will be billed on the anniversary date of each month.

From time to time it may be necessary to make adjustments in the fees and surcharges charged for the Services in order to cover certain changing costs (e.g., power) incurred by Big Brain Host in providing the services. Such adjustments will be reflected on the statement or invoice provided to you for the Services, and you agree to pay for the fees and surcharges for the Services, as adjusted.

Big Brain Host provides several options for payment:

- Credit Card on File. When you place a credit card on file with Big Brain Host, we will, typically, bill the card a few days before your invoice is due. If the credit card charge is expired, not authorized or declined by our processing company, we will notify you via E-mail. We request that you update your card promptly. If your invoice becomes more than 3-days past due (from the invoice Due Date) then Big Brain Host reserves the right to suspend service or terminate service after 7 days past due until payment is received.

-PayPal. When you place an order with Big Brain Host, you have the option of selecting PayPal as your payment preference. PayPal allows you to process credit card payments securely and conveniently. You can also elect to create a PayPal subscription, which will automatically process your payment on the recurring date that you set up the subscription. It is your responsibility to ensure that your credit card information, or PayPal balance is up to date. If your invoice becomes more than 3-days past due (from the invoice Due Date) then Big Brain Host reserves the right to suspend service or terminate service after 7 days past due until payment is received.

Big Brain Host reserves the right to charge a late fee of $10 per invoice per month on late payments. Invoices will be automatically considered late 1 day after the invoice is marked as overdue.

In the event you fail to pay your invoice within 7 days of the due date, we reserve the right to suspend your service.

If you are still past due 14 days after the initial due date, we reserve the right to terminate your service entirely and reformat your server.

If you are terminated for non-payment, we also reserve the right to refer your account to a third party collection agency and you agree to pay any collection fees or legal fees we may be charged to collect on your debt.

"Overage" is defined as usage of the Services provided by Big Brain Host to You in excess of the allocated limitation. Overages are charged for Bandwidth and Professional Services (administrative time) used in excess of the amount allocated to Your account.

You agree to pay the then-current Overage fees and charges for the Big Brain Host services, including Administrative actions and bandwidth Overage fees, upon receipt of an invoice. Overage rates are 35.00/hour for administrative fees with a 2-hour minimum, and $0.35/GB Bandwidth, Billed in 100GB Blocks

Overage fees can be avoided by subscribing to a higher service plan.

Big Brain Host is not able to schedule cancellation for a specific time or date. To submit a cancellation request, please log in to your Client Portal, and request a cancellation under "My Services." When you request cancellation, we will follow this process: We will first contact you to confirm the cancellation and verify that you are authorized under your account to cancel it. Then, we will immediately suspend billing and cancel the account. We are not able to provide scheduled cancellations and all cancellations are effective either immediately or at the end of your billing cycle. Regarding mid-month or mid-period cancellations, Big Brain Host will not issue pro-rated refunds for cancellations received in the middle of a payment cycle.

Refunds will not be given on a pro-rated basis for Services provided in a given billing period. Receipt by you of any Services in a given period will obligate you to pay for the Services during that entire billing period. Our fully managed cPanel plans (those with cPanel pre-installed) will receive a complete refund minus $15 for the cPanel license.

Big Brain Host agrees to furnish services, which are paid for in advance by the client, to the client, subject to complete compliance with the AUP and these Terms of Service. Big Brain Host reserves the right to refuse Services to any potential client and/or to deny renewal of Services to any existing client, at the sole discretion of Big Brain Host.

You agree to a month to month term for the Services unless otherwise agreed to in writing. The month-to-month term for services is automatically renewed each month unless either party notifies the other in writing of its desire that the Agreement not be renewed, no later than three (3) days before the next upcoming anniversary date for billing. You may cancel Your account by terminating this Agreement in this manner by contacting the Big Brain Host billing department.

Big Brain Host may terminate this Agreement effective immediately and without notice upon any breach by You of any of the terms of this Agreement. In such event, Big Brain Host shall have no obligation to refund any fees paid in advance by You.

At this time, Big Brain Host offers a 7 day Money Back Guarantee. This guarantee applies to shared and reseller hosting only. VPS services are subject to a 7-day Money Back guarantee. Requests for refunds under these provisions must be made at least 3 days prior to the end of these terms.

Refunds apply to the above services only, and do not apply to the following:

* Domain Name Registration/Transfers
* 3rd Party Scrpt Licenses (incuding control panel licenses and billing software licenses)
* Script install fees*
* Account clean up* (removing malicious content)
* cPanel / WHM licenses
* Any other charges not listed above

*In the event of script installs and account cleanup, you will not be billed until the work is completed.

Under this Terms of Service agreement you must first contact Big Brain Host to attempt to resolve any billing disputes before contacting your bank or credit card company to dispute the charges. You further agree that any billing disputes must be submitted in writing to our billing department within one month of the invoice payment in question.

By using our services You agree to the above policy and to contact Big Brain Host before contacting your financial institution to seek a resolution.

In the event you dispute charges contrary to this agreement, we reserve the right to terminate your account, and add a $150 collection chargeback fee to your total amount due. Big Brain Host also reservse the right to refer your account or sell your debt to a third party collection agency. We also reserve the right to take further legal action against you.

From time to time, Big Brain Host may offer promotional or special offers as sales incentives. These offers may be comprised of discounts, free time, free services, discounted services, trial offer periods and other types of offers. Such offers cannot be combined with other offers unless otherwise stated and are one-time use offers. One offer per client only. Offers are valid only where they are permitted by law. Offers are void where prohibited. Some offers (example: "Three Months Free Load Balancing Service") require You, the Client, to contact Big Brain Host prior to the expiration of the trial period in order to avoid being re-billed. Offers which provide a discounted monthly rate for a specified period of time will reset automatically to the full monthly rate once the promotional period has passed and You, the Client, agree to pay, in full, the full monthly rate, unless You cancel in advance.

Any abuse towards any Big Brain Host employee will not be tolerated. You are expected to request and respond to support and other issues in a professional manner, when emailing, calling or submitting online tickets to Big Brain Host. Any cursing, yelling, or further intentional disruptive behavior aimed at Big Brain Host or its employees shall be considered a violation of this Terms of Service agreement.

Any threat; whether orally, verbally, in written, via E-mail, via Live Chat, delivered by second parties or delivered in any other way, and directed towards Big Brain Host or any of Big Brain Host's employees, partners, staff, contractors, sub-contractors, facilities, offices, etc. shall be construed as a violation of this Terms of Service agreement. Threats of physical violence will be directed to the proper authorities.

No refunds shall be given when the above Tortuous Conduct clause is violation and necessitates the termination of an account or services.

You hereby grant to Big Brain Host a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement to do the following to the extent necessary to provide the Services under this Agreement: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink any content uploaded by You; and (b) make archival or backup copies of content uploaded by You to the Big Brain Host servers. Big Brain Host shall have the right, but not the obligation, to make backup copies of the data uploaded by You to the Big Brain Host servers. You are responsible for any of your content residing on Big Brain Host's servers and for the backup thereof.

At all times, You bear full risk of loss of any content and software you place on the Big Brain Host servers. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of the content displayed, linked, transmitted through or stored on the server.

Big Brain Host does not undertake any obligation to provide management or security services unless you specifically request it to do so. If any technology specifically associated with your account requires updating, You must make a request for such update through Big Brain Host's ticketing system located at my.bigbrainhost.com

You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your content; (ii) maintain independent archival and backup copies of Your content; and (iii) ensure the security, confidentiality and integrity of Your content transmitted through or stored on Big Brain Host servers. Big Brain Host shall have no liability to You or any other person for loss, damage or destruction of any of Your content.

"Uptime" refers to the amount of time the Services are available, as measured solely and only by Big Brain Host's internal monitoring systems. "Downtime" refers to the amount of time the Services are unavailable, as measured solely and only by Big Brain Host's internal monitoring systems. Big Brain Host guarantees that it's Networking and Connectivity services will be available 99.999% of the time. In the event such level of service is not provided, Big Brain Host will credit your account in an amount as determined in the chart below, reflecting credit percentages of the monthly fees paid by You to Big Brain Host for the Services, but not payments made for any of the following products and services: domain name registration, software licenses, IP address charges, set up fees, shipping and handling, SSL certificate fees, labor charges, and other services which are unrelated to Uptime.

1. 100%-99.999% will result in a credit of: 0%
2. 99.998% to 98% will result in a credit of: 5%
3. 95% to 98% will result in a credit of: 10%
4. 90% to 94.9% will result in a credit of: 25%
5. 89% or below will result in a credit of: 50%

To receive a credit, You must make a request by sending an email message to billing@bigbrainhost.com. Each request in connection with this Agreement must include the dates and times of the Downtime, the name and IP address of the server or servers, which experienced the Downtime. Big Brain Host must receive the request within ten (10) business days after the incident of Downtime. If Big Brain Host confirms the unavailability, credit will be applied to Your Big Brain Host account within thirty (30) days of receipt of Your credit request.

The total amount credited to You in a particular month under this Agreement shall not exceed the total amount of fees paid by You for such month for the affected Services. Credits are exclusive of any applicable taxes charged to You or collected by Big Brain Host and are Your sole and exclusive remedy with respect to any Downtime.

The provisions of the Agreement pertaining to Force Majeure are unaffected by these terms referring to Uptime Guarantee. Moreover, downtime caused by any of the following shall not result in any obligation by Big Brain Host to provide credit to You:

1. emergency maintenance
2. scheduled maintenance
3. system upgrades
4. domain name system (DNS) problems outside of Big Brain Host's control
5. issues with FTP, POP, IMAP, or SMTP customer access
6. Acts or omissions by You or any of Your employees or agents, resulting in downtime
7. Any negligence, willful misconduct, or use of the services in breach of Big Brain Host's Acceptable Use Policy
8. Problems with users' web browsers, DNS, or other caching that might make it appear the Services are unavailable even though others can still access the Big Brain Host servers.

Big Brain Host strives to maintain the integrity of the hardware used to provide its services, and any Downtime caused by hardware failure shall be credited pursuant to this Agreement. Big Brain Host maintains a stock of all essential hardware necessary to provide the Services. Big Brain Host shall replace any and all substantially malfunctioning hardware within 2 hours of Big Brain Host becoming aware of such substantial malfunction.

The amount of time for replacement of hardware shall be measured from the moment that Big Brain Host determines that the hardware must be replaced, and does not include time spent diagnosing the problem, researching other solutions, investigating the cause of the failure or time spent installing software, restoring backups or other, similar situations.

In the event that Big Brain Host fails to meet this hardware replacement guarantee, Big Brain Host will issue, to You, account credits in the amount of 10% of the base monthly fees for each hour after the second hour of the monthly service fee for the server in question to a maximum of 50% of the cost of the service (excluding any management, upgrades or additional services associated with the service in question.)

 

Our fully maanged plans are with cPanel installed, ONLY. Failure to have cPanel installed will result in the equal unmanaged Xen plan;