MagicWorks reserves the right to add, delete or modify any provision of this policy at any time without notice. You agree to be bound by any changed MagicWorks may reasonably make to this agreement when such changes are made. If you have purchased services or software from MagicWorks, the term of this agreement shall continue in full force and effect as long as you take advantage of and use the software or services that we provide. We will not modify this TOS arbitrarily. However, because the ways in which the internet is used, and abused, evolve over time, we reserve the right to modify it at any time without any notification.
All new web hosting accounts purchased on our order page are set up within 24 hours by our account administrators. You will receive two (2) emails including login details after your purchase. Due to unforeseen complications with various mail servers and any connection problems between your ISP and MagicWorks, this process may sometimes be delayed.
30 Day Guarantee Statement
Shared and Reseller Accounts
If for any reason you are unhappy with the services you receive from MagicWorks during the first 30 days of service, you may request in writing via email or by our cancellation form (as mentioned below) that your services be discontinued at which time you will receive a full refund. You must also state a detailed reason as to why you are canceling (as we request for any cancellation, no matter the time frame). We are the sole arbiter as to if your reason is a valid reason and if all possible steps were taken on your side and on ours to correct the situation causing the interest to cancel. Please note that all domain registration & SSL Certificates are NON-refundable.
MagicWorks, makes no endorsement, claims, or promises regarding the services offered by our customers and will not be held liable for any disputes or claims against said customers. In no event shall MagicWorks be liable for any direct, indirect, incidental, consequential, special and exemplary damages, or any damages whatsoever, arising from the use or performance of a customer web site or from any information, services or products provided through a customer web site. If there is questionable content on any server in our network, we will not take any action against any material or action until the website is brought to our attention by contacting our abuse department.
It is your obligation to back up your data. If the Services include backup services, these are provided as a supplement to your own backup efforts. Because no backup method is failsafe, we make no warranties regarding the thoroughness of our backup solution. If your data is restored from backup, it will be restored in the manner it is stored by us. This may not include formatting and other elements necessary to make the restored data available on the internet, or in the form originally transmitted to us. We are not obligated to restore the data in that format.
Hosting Package Modifications
We are always evolving to stay competitive in our market so, in the future, if modifications are made to your respective plan’s specifications and/or price, the change will not automatically take effect on your plan. It is the sole responsibility of the client to request any updates or modifications to a plan.
Registrant Rights & Responsibilities
By registering your domain with Magicworks you agree to the Registrant Rights & Responsibilities as outlined by ICANN here.
Bandwidth Usage Policy
All dedicated and collocated servers are given access to bandwidth graphs which are updated in five minute intervals. These graphs are located in the client access area referred to as. All bandwidth billing is exclusively calculated based on the graphs provided in client area.
All leased and co-located server plans include a specific continuous allocated data transfer rate. Depending on the plan that you have the bandwidth usage included may vary. For example purposes, a plan with an allocated bandwidth of 1,500 GB of data transfer monthly is equivalent to a transfer rate of 4.5 Mbps in a 30-day calendar month. If your monthly usage exceeds the bandwidth transfer rate of 4.5 Mbps within your monthly billing cycle, you will be billed for overages exceeding 4.5 Mbps based on 95th percentile metering. In accordance to these terms of service, you are liable and agree to pay such overages at the rate of INR 4000 per 1 Mbps of bandwidth.
Bandwidth Allocation 4.5 mbps
Bandwidth used for x month = 5.0 mbps (based 95th percentile metering)
Bandwidth overages = 5.0 mbps – 4.5 mbps = 0.5 mbps
0.5 mbps x INR 4000/mbps = INR 2000
If you anticipate high bandwidth usage, please contact our sales department via our helpdesk for further information on the availability of other plans with higher bandwidth allocations for lower rates.
Note: For calculation purposes, our accounting system defines one month as 30 days. Based on this definition the rate of 1 Mbps of continuous data transfer in a one month period is approximately 333.33 GB of bandwidth a month.
Further in-depth information on 95th percentile metering may be found on the following site: https://en.wikipedia.org/wiki/Burstable_billing
1. The Services
1.1. The following provisions apply to all Services:
1.1.1. Descriptions of the features, characteristics and limitations of the products and services we offer are set out on our website. We agree to provide the Services to you, as they are described on our website, as of the Effective Date, during the Term. Should these characteristics change after the Effective Date, we are not obligated to modify your Services to reflect these changes. If we do so, and you agree to purchase them, the Fee may change. We may make changes to these Services if a supplier makes components unavailable, cost prohibitive, if a beta period ends, or at any time effective on the end of the term of a particular Service.
1.1.2. We provide two ways for you to purchase our Services: (i) through our website; or (ii) by opening a ticket to purchase additional Services (Ordering Process). When you place an order for the Services using either of these methods, you agree to purchase the Services selected by you during the Term.
1.1.3. We may decline to accept a request for Service if we determine that we require the facilities for other needs. Should operational needs require us to restrict or allocate Services among customers because of a shortage of facilities or causes beyond our control, we may do so without breaching this TOS.
1.1.4. Unless expressly set out during the Ordering Process, the Services may be provided from any of our facilities. You will have no ownership right in the facilities, or in components of the Services. You will only have the right to use the Services.
1.1.5. The individual or entity set out in our records is the only entity authorized to access the Services. It is your responsibility to secure passwords and other access methods used to access the Services. If you administer an account on behalf of another party, you warrant that you will administer that account in good faith, and indemnify us against all losses and liabilities incurred by us should you administer the account in ways that are adverse to your customer and which result in a claim against us.
1.1.6. If you resell the Service, or incorporate the Service into your own services, you are responsible for determining whether the Service will be appropriate for your customers (End Users) and for ensuring that they do not engage in any activity which would cause you to breach this TOS. Your End Users are not a third party beneficiary to this TOS, and you agree to indemnify us for any claims made against us by your End Users of any nature. Unless expressly set out during the Ordering Process, we have no obligation to provide support to End Users. If we cease providing the Service to you, for any reason, you are solely responsible for securing replacement services for your End Users.
1.1.7. We agree to use commercially reasonable efforts to provide Client with the Services according and subject to the terms of this TOS and all agreements incorporated by reference.
1.1.8. You must provide Magicworks with all information, access, and full good faith cooperation, including, if required, with your third party vendors, reasonably necessary to enable Magicworks to deliver the Services. We will rely on the information you provide to us. It is your obligation to keep this information up-to-date. We have no liability if communications are delayed, or not delivered, because of your failure to keep this information up-to-date. You agree that we may provide you with information that may negatively affect you by email. Please ensure that the email address you provide to us is configured in a way so that information from us is not rejected or marked as SPAM.
1.1.9. All software, hardware and some systems have a defined support lifetime (End of Life). Client may only use software, hardware and systems that are currently supported by their owners, including those that may have initially been provided by Magicworks in conjunction with the Services (for example, an operating system on a purchased server). When these items reach their End of Life, it is your responsibility to upgrade to a supported version. Magicworks has no responsibility to support End of Life items.
1.1.10. We will provide, at no cost to you, one primary IP address by default, which will be subject to change at any time. Magicworks shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by us and we reserve, in our sole discretion, the right to change or remove any and all such IP numbers and addresses; provided, however, that (i) we will provide you with at least thirty days prior written notice of any such change or removal; and (ii) you agree to provide Magicworks with all reasonably requested assistance to effect any such change or removal. Magicworks is required by IRINN (Indian Registry for Internet Names and Numbers) & ARIN (American Registry for Internet Numbers) to document on a “whois” server which entity is using the IP space. If you are assigned a static IP address, you consent to Magicworks‘s inclusion of your name, company name if a business, postal address, e-mail address, IP address, and telephone number in such “whois” server.
1.1.11. It is your obligation to back up your data. If the Services include backup services, these are provided as a supplement to your own backup efforts. Because no backup method is failsafe, we make no warranties regarding the thoroughness of our backup solution. If your data is restored from backup, it will be restored in the manner it is stored by us. This may not include formatting and other elements necessary to make the restored data available on the internet, or in the form originally transmitted to us. We are not obligated to restore the data in that format.
1.1.12. By submitting the online order form, Customer hereby agrees to the following:
In consideration for hosting services to be delivered, Customer agrees to be bound to the following terms:
– Customer agrees to pay for hosting services rendered in advance of each service term.
– Customer agrees to be bound by the service term selected on the online order form or via applicable promotional codes.
– Customer understands that all domain purchases are non-refundable.
– Non-Payment of services shall result in a 10-day notice of disconnection. All payment failures must be cured within 10 days of notice. Customers failing to secure payment within 10 days of notice will incur service interruption.
– MagicWorks reserves the right to suspend / terminate service immediately to any subscriber it deems without prior warning, in its sole discretion, violates any condition of service including this Terms of Service.
1.1.13. Cancellation of Services – Refund Policy
Cancellations and Refunds – MagicWorks does not provides any money back guarantee for purchases.
Nonrefundable Fees: Fees paid by Subscriber in connection with the purchase of SSL certificates, domain names are nonrefundable.
1.2. The following provisions apply to shared, Semi dedicated, Virtual private server (VPS) and dedicated hosting servers:
1.2.1. You have the right to use the Services covered by this paragraph 1.2 to connect to our network, on a 24 x 7 basis, limited by this TOS. You will have no physical access to the equipment used to provide the Services.
1.2.2. The Services covered by this paragraph 1.2 are provided to you on a standard basis. They are not customized for your use. In some cases, they may have the manufacturer’s default settings. This means that aspects of your website, or use of them, may not function without additional configuration by you. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your site, and any other items you deem necessary to use the Services, must be compatible with them. Unless set out during the Ordering Process, we are not obligated to modify the Services to accommodate your use.
1.2.3. You will ensure that neither you nor any of your End Users make excessive or wasteful use of our network by agreeing to the following:
126.96.36.199. A “Reasonable Use” policy will apply to maintain stable data traffic on shared hosting Services. For the shared hosting Services, this means that if your use of the shared hosting Services regularly generates more traffic than is customary for similarly situated customers, we may require you to modify your use of the shared hosting Services so that they no longer exceed this standard. If you do not modify your use, we reserve the right to terminate this TOS and assess an Early Termination Fee. Shared hosting Services may not be used for instant messaging, chat rooms, or similar activities, nor may they be used for software distribution.
188.8.131.52. Semi Dedicated Hosting Services, virtual private server Services (VPS Services) and Dedicated hosting Services have a set bandwidth allocation applicable to each Service as set out during the Ordering Process. If in any calendar month you obtain any bandwidth or disk space usage over that basic allocation, then we will charge you its standard overage fee.
184.108.40.206. A “Reasonable Use” policy will also apply to data traffic on Semi dedicated and Virtual private sever services. For Semi dedicated services and Virtual private sever services, this means that if your use of the Web Hosting Services regularly generates more traffic than is customary for similarly situated customers, we may require you to modify your use of the Semi dedicated services and or Virtual private sever services so that they no longer exceed this standard. If you do not modify your use, we reserve the right to terminate your use of the Semi dedicated services and or Virtual private sever services and assess an Early Termination Fee.
220.127.116.11. Our Semi dedicated services and or Virtual private sever services allow you to connect with our network using a portion of a server partitioned in a manner that allows you to have virtual control over all features and aspects of that server, other than certain preset characteristics. While it will appear that you are the only entity using the server, some resources will be shared. You will take no actions to limit the use of the equipment by our other customers or other entities in general. You will not alter, or attempt to alter, mechanisms, including software, implemented by us to facilitate the sharing of a server. You understand that our implementation of certain aspects of the Semi dedicated services and or Virtual private sever services designed to facilitate use by multiple parties may affect your use and administration of the equipment. You may not terminate this TOS based on our implementation of these features.
18.104.22.168. For dedicated hosting Services, your site will be the only site operating on our equipment. This equipment is leased, and not sold to you. You will have no ownership interest in this equipment.
22.214.171.124. Unused bandwidth may not be carried over from month-to-month.
126.96.36.199. On termination or expiration of the Services, we shall be entitled immediately to block your access to the Services and to remove all data located on our equipment. It is your responsibility to download, or otherwise secure possession of, the data prior to the date of termination. If we terminate the Services without providing you with prior notice, we agree to preserve the data for a period of fourteen days, and allow you to download, or otherwise secure possession of, the data. If, after this period, you do not collect it, it may be deleted by us.
188.8.131.52. We resell Linux Shared Hosting Services through HostDime.com, Inc, If Your Linux Shared Hosting Service/s provided through HostDime.com, Inc the following agreement also applies to you: http://www.hostdime.com/support/legal/terms-of-service.php
1.3. The following provisions apply to domain name registration Services.
1.3.1. We resell domain name registration Services through India ResellerClub.
1.3.2. If your domain name is registered through India ResellerClub, the following agreement applies to you: http://manage.india.resellerclub.com/servlet/ViewAgreementServletrequestfor=registraragreement&pgaction=back
1.3.3. You agree, and understand, that the agreements linked above may contain further linked documents. It is your obligation to read, understand and agree to be bound by those agreements which are incorporated into this TOS by reference.
1.3.4. In addition, the consensus policies of ICANN apply to you:http://www.icann.org/en/resources/registrars/consensus-policies
1.3.5. Right to Disconnect and Remove
If you fail to pay any amounts due and such failure continues for more than ten days, included in our right to terminate your use of the Space is the right to disconnect and remove any or all of the Client-Provided Equipment from the Space (including any data and/or software thereon), store such Client-Provided Equipment for a period not to exceed three months, and assess reasonable charges for such storage. Upon conclusion of the applicable storage period, we may, at your expense, dispose of the stored Client-Provided Equipment in any manner we determine, with any proceeds applied to any unpaid amounts owed to us. Exercise of any of the foregoing rights by Magicworks shall not relieve you of any of your payment obligations under the agreement.
Unless otherwise set forth in detail in the Service Order, the physical protection measures we provide shall consist solely of certain physical locks, security checks and monitoring at the Space. Client’s use of the Services shall constitute acknowledgment of the sufficiency of such protection measures. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SECURITY SOLUTIONS PROVIDED AS PART OF THE SERVICES DO NOT GUARANTEE NETWORK SECURITY OR PREVENT SECURITY INCIDENTS, ARE NOT INTENDED TO BE A COMPREHENSIVE SECURITY SOLUTION AND ARE CONSIDERED TO BE SERVICES FOR WHICH MAGICWORKS LIMITS ITS LIABLITY AND DISCLAIMS WARRANTY AS PROVIDED IN THIS TOS.
Violations of system or network security are strictly prohibited, and may result in criminal and civil liability. MagicWorks investigates all incidents involving such violations and will cooperate with law enforcement if a criminal violation is suspected.
Examples of system or network security violations include, without limitation, the following:
a. Introduction of malicious programs into the network or server (example: viruses, worms, Trojan Horses, key loggers, and other executables intended to inflict harm).
b. Effecting security breaches or disruptions of Internet communication and/or connectivity. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorized to access. For purposes of this section, “disruption” includes, but is not limited to port scans, flood pings, email-bombing, packet spoofing, IP spoofing and forged routing information.
c. Executing any form of network activity that will intercept data not intended for the Customer’s server.
d. Circumventing user authentication or security of any host, network or account, including “cracking.”
e. Interfering with or denying service to any user, host, or network other than the Customer’s host (example: denial of service attack or distributed denial of service attack).
f. Conduct designed to avoid restrictions or access limits to specific services, hosts, or networks, including but not limited to the forging of packet headers (“spoofing”) or other identification information.
g. Using any program script/command, or sending messages of any kind, designed to interfere with or to disable, a user’s terminal session, via any means, locally or via the Internet.
Failing to comply with the MagicWorks’s procedure relating to the activities of Customers on the MagicWorks’s premises. Violators of the policy are responsible, without limitations, for the cost of labor to correct all damage done to the operation of the network and business operations supported by the network. Such labor is categorized as emergency security breach recovery and is currently charged at Rs. 5000 per hour required. Network interference by any Customers that may cause or is currently causing network interference with another Customer will be disconnected immediately. No service credits will be issued to Customers disconnected for network violations.
1.3.7. Compliance with Underlying Agreements.
Upon receiving notice from us, you shall take all actions reasonably necessary to comply with requirements of any lease, mortgage or other similar underlying agreement or instrument related to or encumbering the Facility.
1.4. CPanel Transfers
We provide free cPanel account transfers for all new accounts (less than 30 days from sign-up date). Transfer requests submitted after this 30-day period are subject to transfer fees based on source account size. Please contact a member of our sales team for more information. All transfers from remote networks (servers hosted outside of the DimeNOC data centers) are not guaranteed. There are many factors that can affect remote transfers that may be out of our control (poor network connections, firewalls, missing/incorrect account credentials, corrupted source account data, etc.). We will use best efforts to transfer your data to our servers. If we are unable to complete the transfer, we will let you know so that you can handle the transfer yourself. We also cannot be held responsible for the integrity of your transferred data.
Source Server Requirements:
2.1. This TOS will begin on the Effective Date and continue in effect as long as we are providing a Service to you (TOS Term).
2.2. The Effective Date of an individual Service, is the date we begin the Ordering Process (Service Term). We use fraud detection programs. If during the Ordering Process your order is flagged as potentially fraudulent, it may not be processed. Until we notify you that the Service is available, you should not assume that your order has been processed.
2.3. Upon the expiration of an initial Service Term, that Service shall renew for a period of equal length unless one party has provided the other with a notice of termination as set out in paragraph 4.
3.1. Fees for individual Services are set out on the page describing the Service (Fees). We will begin to charge you for those Fees on the Effective Date of that Service. Certain Fees are based on usage rate of the Services. These will be calculated as set out on the website describing the Fees, and added to the Fees. Other than usage based Fees, all Fees are billed in advance. Special promotions applied to Fees do not reoccur, nor will promotions offered to other customers necessarily be offered to you. Fees paid to third parties and set up fees are not refundable.
3.2. Fees do not include taxes. Any taxes imposed by a governmental entity on the Services will be added to the Fees unless you provide Magicworks with a valid tax exemption certificate. Magicworks will not add any taxes that are based on its corporate income.
3.3. The date Fees are due is set out on the webpage describing the particular Services (Due Date).
3.4. If you provide us with a credit card to pay the Fees, we may attempt to charge your card no sooner than five days prior to the Due Date. It is your obligation to ensure that your credit card may be charged. We have no responsibility to provide the Services, or preserve data, if your credit card is declined for any reason.
3.5. If you fail to pay Fees by the Due Date, a late fee will be assessed to the invoice due. For Shared /Reseller Accounts 10 days past due, a late fee calculated at 30% of the balance or the maximum amount allowed by law will be due to re-activate service. For Dedicated Server & Semi dedicated server Accounts 4 days past due, a Rs 1000/- INR late fee or the maximum amount allowed by law will be due to re-activate service. For VPS Accounts 4 days past due, a Rs 500/- INR late fee or the maximum amount allowed by law will be due to re-activate service. Late fees will be compounded. If your overdue balance includes multiple services (for example shared/reseller, dedicated server, etc.), each associated late fee may be added to the late fees and compounded.
3.5.1. If an account holder submits a bank assisted dispute for services rendered, their hosting account will be de-activated within 48 hours if the payment issue has not been recovered. Rs 2500.00 INR charge back fee will be added to the amount disputed by the customer.
3.5.2. Any debt not paid 90 days after the due date will be forwarded to an outside collections agency for proper collection. At that time, the account holder will incur a Rs 2500.00 INR collection fee added to the balance previously due. or the maximum amount allowed by law, and if it pursues collection efforts, you agree to pay all of our expenses, including, but not limited to, reasonable attorneys’ fees.
3.6. If you dispute any Fees, you agree to provide Magicworks with written notice and evidence supporting your arguments prior to the Due Date. Magicworks will review your dispute in good faith, and respond within thirty days of receiving notice of the dispute. If you disagree with our response, we both agree to negotiate in good faith for an additional thirty days. If after this period of time the dispute is not resolved, then we both may pursue the matter pursuant to the terms of paragraph 7. As consideration for providing you with a Fee dispute resolution provision, you agree to pay all Fees not in dispute and only use this procedure for bona fide, good faith, bill disputes.
3.7. If you terminate a Service in any manner other than as set out in this TOS, or fail to cure a material breach, then you agree to pay, within five days of giving notice of termination, all Fees that would have been payable to us had the early termination not occurred (Early Termination Fee). You agree to the Early Termination Fee as consideration to Magicworks for foregone business opportunities associated with limited network resources, and agree that this is a material inducement to Magicworks entering into this TOS .
3.8. If the Service Order includes a third party service, Magicworks cannot guarantee that the fee charged by this vendor will remain the same during the Term. If the vendor changes its fee, this increase will be passed on to you.
4. Termination and Suspension
4.1. Either party may terminate a particular Service by providing the other with five days written notice prior to the expiration of a Term. **Your termination request must be received by us five days prior to your next billing cycle. If you fail to do so, you will not receive a refund of any Fees paid to renew the service.** In order for you to effectively terminate this Agreement, you must email to email@example.com. The cancellation request must include verification of ownership of the hosting account and/or domain(s), as determined by MagicWorks Subscriber must also confirm to MagicWorks that all emails, files, and databases are preserved and backed up somewhere other than MagicWorks server space. Other forms of termination will not be accepted as termination of this Agreement. In addition, either party may terminate a particular Service if the other breaches a material term of the TOS and such a breach is not cured within thirty days of the non-breaching party’s presentation of written notice to the breach party, or immediately if the breach is incapable of cure. In the case of our AUP, you will be provided a time period to cure any breach. Either party may also terminate this TOS, or an individual Service, if the other party becomes the subject of any type of bankruptcy or insolvency.
4.2. Magicworks may suspend the Services if you fail to pay the Fees by the Due Date, if providing them is prohibited by law or regulation, if you use End of Life software, hardware or systems on or in conjunction with the Services, or if you fail to cure a violation of our AUP or RAP within the amount of time set out in the notice, which the parties agree to be a material breach for which Magicworks’s original notice was your opportunity to cure. In the latter case, Fees will continue to accrue until the violation is cured.
4.3. If you terminate a services as set out in paragraph 4.1, we will process your termination request within 72 hours. Once we process your request, you have 24 hours from the time of our notification to you to withdraw your request. If the request is not withdrawn, your account will not remain on line.
4.4. The following provisions survive the termination of this TOS: 1.4.2, 1.4.3, 1.4.5, 1.4.8, 4.3, 5, 6, 7.2 through 7.5, and 7.8 through 7.13.
5. Warranties, Limitation of Liability and Indemnification
5.1. You warrant and represent that you own, or have the right to use, any and all data, software and hardware the transmission or use of which is facilitated by the Services.
5.2. We warrant that we own, or have been given a license by a third party to provide, the Services. OTHER THAN THE WARRANTIES SET OUT IN THIS TOS, WE PROVIDE NO OTHER EXPRESS OR IMPLIED WARRANTIES. EXCEPT AS SET OUT IN THIS TOS, THE SERVICES ARE PROVIDED AS-IS AND AS AVAILABLE. IN ADDITION, WE DISCLAIM ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. EACH OF THESE DISCLAIMERS APPLIES UNLESS PROHIBITED BY LAW.
5.3. Magicworks’s liability, that of its contractors, and any third party vendors, to you arising out of this TOS is limited to direct damages up to the amount of Fees paid by you for the three months prior to the event giving rise to the liability, except as prohibited by law. This limitation of liability does not apply to Magicworks’s obligation to indemnify you set out in paragraph 5.5, or for a breach of its obligations of confidentiality set out in paragraph 6.
5.4. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF THE BASIS FOR A CLAIM, NEITHER PARTY, ITS AFFILIATES, OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) WHICH ARISE IN CONNECTION WITH THIS TOS AND/OR ANY AGREEMENTS INCORPORATED BY REFERENCE. THIS PARAGRAPH APPLIES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR THAT SUCH DAMAGES WERE FORESEEABLE. THIS LIMITATION DOES NOT APPLY TO A VIOLATION OF THE AUP, RAP OR A PARTY’S INDEMNIFICATION OBLIGATION.
5.5. Each of us shall indemnify and hold the other harmless from, and at our own expense agree to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against the other so far as it is based on: (i) a material breach of this TOS including the AUP and RAP; (ii) personal injury, death or physical damage to, or loss or theft of, tangible personal property caused by the gross negligence or willful misconduct of the other party; (iii) in the case of Client, a claim against Magicworks in the India, U.S., Canada, or the European Union that the Services have been used, or such use facilitated, by, Client in a way that violates copyright, patent, trademark or trade secret law, or a violation of the Magicworks Policies; or (iv) in the case of Magicworks, a claim against Client in the INDIA. that the Services owned by Magicworks violate copyright, patent, trademark or trade secret law. This paragraph will be conditioned on the indemnitee’s notifying the indemnitor promptly in writing of the claim and giving the indemnitor full authority, information, and assistance for the defense and settlement thereof; and that in the case of a claim for indemnification under this paragraph, the claim arises from an unauthorized modification of the Services by you, combination with other intellectual property not owned by you, or your failure to update software or hardware. The indemnitee shall have the right to participate in the defense of the claim at its own expense. The indemnitor shall not settle a claim without indemnitee’s approval if such a settlement contains an admission of liability or fault that could reasonably be attributed to indemnitee.
6.2. The following items are outside the definition of Confidential Information: information that is, or is made, publicly available without a breach of this paragraph; was known by a party without a legal obligation to keep it confidential; is independently developed by a party without reference to the Confidential Information; is a comment or suggestion Client volunteers to improve Magicworks’s products or services.
6.3. Subject to this paragraph, the parties agree not to disclose the Confidential Information to third parties, other than as necessary to provide the Services, and then only for the purposes set out in this TOS. The parties agree to take reasonable steps to ensure the security and confidentiality of the Confidential Information, steps at least as protective as those used to protect their own Confidential Information. One party shall notify the other in writing within twenty four hours of its discovery of disclosure of the Confidential Information, and cooperate with the other to regain control and prevent further dissemination of the Confidential Information.
6.4. Either party may disclose the other’s Confidential Information to affiliates, or if required to comply with a court order or other government demand that has the force of law. However, the party subject to the court order agrees to give the other party notice within a reasonable period of time to allow the owner of the Confidential Information to protest it, unless notice is prohibited.
6.5. The obligations of this Section shall remain in effect for three years after termination of this agreement.
7. General Provisions
7.1. If Magicworks or you are unable to perform our respective obligations due to circumstances outside our reasonable control (Force Majeure Event), performance shall be excused for the period of time that these circumstances persist, contingent on our taking steps to remedy those circumstances. The following circumstances are outside the scope of a Force Majeure Event: lack or unavailability of funds. If Magicworks is unable to provide the Services for a period of thirty days or more, notwithstanding attempts to remedy the Force Majeure Event, you may terminate the affected Services without application of the Early Termination Charge.
7.2. From time-to-time we may receive warrants and subpoenas from law enforcement entities for information you provide to us (Law Enforcement Request). Unless the Law Enforcement Request prohibits, or requests, that it not be disclosed, we will inform you of our intent to disclose your information.
7.3. If you are involved in civil litigation we have no obligation to provide assistance to you to comply with civil litigation demands such as subpoenas. Should we be compelled to comply with a subpoena for the Services we provide to you, we will charge you Rs 15000/- INR per hour, plus reasonable expenses, to comply.
7.4. This TOS is the final, and full, expression of our agreement, and supersedes all prior oral and written communications between the parties about its subject matter.
7.5. This TOS and all agreements incorporated by reference shall be governed by the laws of the Pune Jurisdiction, Maharashtra, India, without regard to its choice of laws or conflicts of laws principals. All disputes between you and Magicworks of any nature shall be brought before, and venue shall be proper in, the Indian courts located in Pune. Neither party shall contest notice from such a court. THE PARTIES EACH WAIVE TRIAL BY JURY IN ANY DISPUTE. The U.N. Convention on Contracts for the International Sale of Goods shall not apply. Client acknowledges and agrees that pricing is based in large measure on the parties’ respective rights, obligations and limitations set out in this agreement.
7.6. This TOS and the Addenda may not be amended except upon the written consent of an authorized officer of Magicworks and Client.
7.7. No failure to exercise, nor delay in exercising, any right, remedy or power shall be a waiver of it.
7.8. This TOS, and all contracts incorporated by reference, shall be binding on the parties and their successors and assigns. Either party may assign this TOS and all contracts incorporated by reference except in the following circumstances: to a competitor of the other; or to an entity having no assets and/or operations.
7.9. If any provision in this TOS, or a contract incorporated by reference, is found illegal or unenforceable, that provision shall be deemed restated in such a way as to be legal, enforceable and reflective of the parties intent and this TOS or other contract will remain in effect. Under no circumstances shall such a finding cause the contract to be void or unenforceable.
7.10. All notices shall be made in writing and effective upon: (i) the date of actual receipt; or (ii) five business days after recorded first class mailing. Notices to Magicworks shall be sent to the address listed in the “about us” or similar page on the Magicworks website to the attention of “General Counsel.” Notices to you shall be sent to the address set out in Magicworks’s customer record to the attention of “Legal Notices.”
7.12. No person or entity, other than you and us and our respective successors and assigns, shall be entitled to bring any action to enforce any provision of this TOS or contracts incorporated by reference, against either of us. For the purposes of this agreement, we shall both be considered independent contractors, and cannot make representations, claims or warranties on behalf of the other. Each party agrees to indemnify the other pursuant to paragraph 5.5 if a claim is brought that is within the scope of this paragraph.
7.13. You are is advised that, to initiate a complaint about the Service, you may contact Magicworks using your Magicworks’s portal, or as provided in the applicable Service Level Agreements. If you are dissatisfied with the manner in which Magicworks responds to a complaint regarding the Services, you may contact Magicworks at the address set out in Paragraph 7.10,. The charges for the Services are set out in the applicable Service Order.
7.14. We offer a 30 day guarantee (Guarantee). The Guarantee applies to new shared, reseller, and VPS services only. This means that if you have previously purchased services and add services, the Guarantee only applies to the new services for the 30 day period after their purchase.
To qualify for the Guarantee, you must follow the termination process set out in this TOS. In addition, your termination request must include a detailed statement discussing the reasons for your termination. If your termination request falls within the requirements set out in this paragraph, we will refund any payments made to the payment method used to purchase them. If you do not qualify for the Guarantee, we will reply by email. Domain registration, and third party vendor fees, do not qualify for the Guarantee and are not refundable.
This Agreement shall be governed by and construed in accordance with the laws within Pune, Maharashtra (INDIA), without regard to choice of law provisions that would cause the application of the law of another jurisdiction.
8 Unlimited Hosting
8.1 Unlimited” Usage Policy:
MagicWorks offers some of it’s hosting packages with “Unlimited” amount of resources for specific options (disk drive space, bandwidth, domains per account, and others listed in the features page). This means that MagicWorks will not set a specific cap for these resources and client will be able to use these resources as needed, however MagicWorks does use a fair usage policy which applies to all accounts. MagicWorks Fair Usage Policy implies that if the client uses the resources of the shared server to the extent where he is negatively affecting other users hosted on the same server, the resources may be capped or in some cases, but not necessarily, respectable account may be disabled before client upgrades his account to a package more suitable for his needs or fixes the issues so the resource usage on his account stops to negatively affect other users on the same shared server.
By the term “Unlimited Space” MagicWorks means that it will not set a cap on the amount of file size (GB) the user may host on his account, however the space on the hosting account cannot be used for: Backup storage, Online storage, File sharing services, Movie storage, Photo storage, Software storage, Copyrighted content storage, Illegal, Abusive or Offending file storage, Document Archives or any other type of Archive, File Backups (with the exception of a single cPanel backup generated from your cPanel), log files, etc. MagicWorks reserves the right to remove such files from the user account with or without notice to the client. MagicWorks also reserves the right to remove any single files larger than 1GB from the user account regardless of the content of the file with or without notice to the client. MagicWorks also reserves the right the clean up a user account by removing files which fall under the criteria of files that may not be hosted on MagicWorks accounts, if there are more than 200.000 files on a single account, with or without notice to the client. MagicWorks also reserves the right to disable the account which holds more than 200.000 files until the relevant shared hosting account is upgraded by the client to a Semi dedicated, vps service where such limitation is not applied.
8.2 Banned Scripts or website types:
The following scripts are banned from use on our servers and may not be uploaded or run. Reasons for banning them include adverse effects on server load, invitations to hackers/spammers/criminal activity, etc. Hosting any type of these sites will result in instant account suspension until the content is removed. On the case that the content was uploaded willingly by the client, MagicWorks reserves the right to terminate the account without the possibility of a refund. If the content was uploaded by a 3rd party (hackers, abusers which intend to take the client site down), then MagicWorks will inform the client about the abusive content. MagicWorks also reserves the right to remove such content from user account without prior notification. Banned scripts and website types listed below:
Any kind of abusive content found on our servers should be reported to firstname.lastname@example.org. MagicWorks will handle any abuse report with the highest priority and interest. MagicWorks will not be held liable for any damage or loss that may have arisen from content uploaded to client accounts or actions performed by scripts on such accounts on our shared, vps, semi dedicated and dedicated servers. Client who is the account owner takes full responsibility of the whole account content and all actions that are performed on the respectable account, also takes full responsibility for any and all of damages or losses that may arise from his account content or actions performed by scripts on his account.
8.3 Unlimited Hosting Explained
Unlimited disk space? How is that possible?
A logical question you might ask, where do you get your unlimited hard drives from? The answer is – we don’t. We use 3TB (3000GB) hard drives in RAID arrays, and this is a massive amount of space for web hosting users.
We are able to provide unlimited space as not all clients require huge amounts of space on the server. For example, there might be 10 clients who need 1GB of space and then 1 client who needs 200GB. That’s no problem for us.
Can I store anything I want on the account?
This might be one of the important things to be noted, that while we do not limit the space your account takes up on our server, we still require that the uploaded contents comply with our TOS.
Of course, you should never host Copyrighted content like movies or music. Same applies to abusive or illegal content (like child pornography) on our servers. Any of such content found on the account is removed, account may be disabled and we may even take legal actions and report to legal instances on rare cases of extreme abuse.
8.4 Unlimited hosting services Backups
We do not take backups of Unlimited Hosting accounts.
8.5 It will take up to 48 Hrs to setup Unlimited Hosting Plan Once Payment Process Completed.
If you purchase a third party product or service from the Company, you agree to this Agreements AND the following terms and conditions of the third party product or service, which are incorporated herein and made a part of this Agreement by reference:
Comodo SSL: https://ssl.comodo.com/terms.php
Google Apps Core Services: http://www.google.com/apps/intl/en/terms/userfeatures.html