Terms of Service
We may modify these Terms and Conditions and/or increase the charges for Service (even if you have paid for Service is advance) at any time, upon notice to you. You may, upon receipt of such notice, terminate Service without incurring the cancellation fee (if any) by following the termination instructions set forth in the notice. Failure to terminate Service according to such instructions within fourteen (14) days after the notice shall mean you agreed to such modifications and/or increase, and you must pay us any additional charges even if you paid for Service in advance. You acknowledge that no CH3 Data employee or agent is authorized to make any representation or warranty with respect to this agreement, the Service or the equipment or to waive or alter any provisions of this Agreement.
2. Term: Termination of Service
This agreement begins on the date Service is activated (or otherwise deemed to have been accepted as provided in this Agreement) and will continue until terminated by you or us in the manner provided in this agreement. Notwithstanding termination you will still be liable for payment of any amounts due or other obligations incurred before or upon termination, whether the Agreement is ended by you or CH3 Data. If you select a plan with a fixed term longer than one month (such as an annual plan or promotional plan), the term of Service shall continue for the number of full months applicable to the term selected (the 'Fixed Term'). Service for plans without a Fixed Term may be terminated by you providing thirty (30) days notice to us. At the expiration of a Fixed Term, this Agreement will continue unless we terminate Service for any reason upon three (3) days notice other than breach, in which case, we may terminate without prior notice, or you terminate Service for any reason by providing thirty (30) days notice to us. If you breach this Agreement or attempt to terminate Service prior to the end of the Fixed Term, you agree to pay us, as a reasonable estimate of our damages and in addition to other amounts owed, a cancellation fee equal to half of the remaining amount (which you agree may be deducted from your deposit, or automatically billed to your account). In addition, we may keep any amounts prepaid by you sufficient to cover any accrued charges and fees related to the Service you have used. In the event payment in full cannot be paid at the time of termination, CH3 Data will confiscate any and all equipment, virtual machine images and intellectual property listed on the account and will hold for 60 days pending full payment of fees and services. If, after the 60-day period the account is still in collections, all equipment under the account will become property of CH3 Data. CH3 Data may terminate a Service without cause upon at least ninety (90) days prior written notice to the other party.
3. Default: Termination
You will be in default of this Agreement if you: do not pay any sum when due, breach this Agreement, fail to perform your obligations under this Agreement or in any other agreement between you and us, become the subject of any proceeding under the Bankruptcy Code or become insolvent. In any such case, you shall remain responsible for payment of all charges and fees (including any early termination fee) due us under this Agreement (including any charges after a Bankruptcy filing), which charges will be immediately due and payable. We have the right to discontinue Service and/or terminate this Agreement without prior notice to you upon your default under this agreement. If we agree to renew Service to you after discounting Service, you agree to pay reactivation charges. Our remedies hereunder are not exclusive but are in addition to all other remedies provided by the law.
4. Modifying Your Account
Unless you have selected a special promotional plan or accepted promotional pricing, you may, upon written notice to us and payment of a transfer fee (if any) addressed by us, change to another plan beginning with the next billing cycle. Any Fixed Term will remain unchanged by any modification to your account. If, in our sole discretion, we allow you to temporarily suspend your account, the Fixed Term will be extended by the length of the temporary suspension.
5. Billing and Payment Charges
You agree to pay in full each month all charges for Service under this Agreement, including regular monthly Service and Usage (if any) charges. You will be charged for Service and other features on a monthly billing cycle basis, unless the Service is delivered to you using special promotional plans completely at our discretion. We may change your billing cycle at any time. Any taxes, fees, costs or charges imposed on us as a result of providing the Service or equipment will be added to your charges as provided in Paragraph 2. If we have agreed that you may pay for charges with a credit card, we will charge the credit card, when we bill for the charges, for all amounts or other obligations incurred before termination. You also authorize us to charge your credit card at or after termination of Service to pay what you owe (including, but not limited to, payment of any cancellation fee). If you have not authorized charges to be made to a credit card, or if you revoke such authorization, or for any reason your credit card issuer does not pay us, we must receive payment from you on or before the due date, or we may suspend or terminate your Service without prior notice. Charges, including disputed amounts, must be paid by the date shown on the monthly invoice. You agree that (a) time is of the essence (b) it would be impractical to fix the exact amount of our damages if you fail to pay promptly; and (c) in the event we do not receive you payments by the due date shown on your monthly invoice, your payment is past due and you shall pay us default interest of the lower of 1.5% per month (or any portion thereof) of any past due amount until paid, or the highest amount permitted by law. If you believe your bill contains any incorrect charges, you must notify us of such disputed charges within sixty (60) days (except as provided in Paragraph 5) from the date of the first bill that contains the disputed charges or you waive your right to dispute those charges. We may require you to describe your dispute in writing. Any written communications concerning disputed amounts owed must be sent to CH3 Data, 1905 E 6th St, Suite 110, Austin, Texas 78702. If we accept late or partial payments or payments marked 'Paid in Full' or similar notations, it will not waive any of our rights hereunder to collect all amounts that you owe us nor will it constitute an accord and satisfaction. We may charge you a returned check fee of $40 or such lesser amount as may be required by law for any check returned for insufficient funds. We will discontinue Service without prior notice to you if we suspect any unlawful or fraudulent use of the Service. You agree to reasonably cooperate with us in investigating suspected unlawful or fraudulent use.
6. Investigations of criminal or terrorist activities
CH3 Data will cooperate fully with city, county, state, federal, or other law enforcement agencies investigating any complaints of criminal or terrorist activities by our customers when proper documentation is supplied and verified.
7. Investigations of civil lawsuits
CH3 Data will cooperate fully with city, county, state, federal, or other agencies investigating in relation to civil suits when proper documentation is supplied and verified.
Any applicable sales, use, excise, public utility or other taxes, fees or regulatory costs, including without limitation fees, costs or charges imposed on you or us as a result of providing the Service will be added to your charges as permitted by law. If you are exempt from payment of any such taxes you may provide us with an original Tax Exempt Document. Tax exemption will only apply to charges incurred after the date we receive the Tax Exempt Document (you cannot receive credit for any taxes already paid by you). The address you have provided to us is used to bill federal, state and local taxes and fees that we are required to collect from you. In some cases this address may indicate that you live in one local jurisdiction (for example city or county) when you actually live in another. This could result in an incorrect charge for certain taxes and fees. If you have been incorrectly billed for any tax or fee, please contact by writing or phone so that any incorrect charges may be removed from your account. You must notify us within ninety (90) days from the date of the first bill that contained the incorrectly billed taxes or fees or you waive your right to dispute those charges.
9. Limitation of Liability
Unless stated in a separate Service Level Agreement (SLA), we shall not be liable for any deficiency in performance caused in whole or in part by act or omission of an underlying carrier" or service provider, equipment or facility failure. Unit failure, network problems, or network capacity, equipment or facility upgrade or modification, acts of God, strikes, fire, war, riot, government actions, equipment or facility shortage or relocation or causes beyond our reasonable control. SERVICES ARE PROVIDED ON AN 'AS-IS' BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WHATSOEVER, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EVEN IF CH3 DATA OR ANY OF CH3 DATA AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, THEY WILL NOT BE LIABLE TO YOU OR ANY OF YOUR EMPLOYEES, AGENTS, CUSTOMERS, OR ANY THIRD PARTIES FOR ANY DAMAGES ARISING FROM THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR LOSS OF PRIVACY DAMAGES; PERSONAL INJURY OR PROPERTY DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM INTERRUPTION OR FAILURE OF SERVICE, LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, COST OF REPLACEMENT PRODUCTS AND SERVICES, THE INABILITY TO USE THE SERVICE, THE CONTENT OF ANY DATA TRANSMISSION, COMMUNICATION OR MESSAGE TRANSMITTED TO OR RECEIVED BY YOU, OR LOSSES RESULTING FROM ANY GOODS OR SERVICE PURCHASED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. THE MAXIMUM AGGREGATE LIABILITY OF CH3 DATA AND ANY OF CH3 DATA AFFILIATES TO YOU AND THE EXCLUSIVE REMEDY AVAILABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY AND ALL DAMAGES, INJURY, OR LOSSES ARISING FROM ANY AND ALL CLAIMS AND/OR CAUSES OF ACTION RELATED TO THE SERVICE SHALL BE TO RECOVER THE PRORATED MONTHLY OR OTHER CHARGES TO YOU FOR THE APPLICABLE SERVICE OR EQUIPMENT. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES YOU AGREE THAT OTHER PARTS OF THIS AGREEMENT RELY UPON THE INCLUSION OF THIS PARAGRAPH. THE LIMITATIONS SET FORTH IN THE PRECEDING TWO PARAGRAPHS ARE INDEPENDENT OF EACH OTHER AND BOTH THE LIMITATION OF DAMAGES AND LIMITATION OF REMEDY SET FORTH ABOVE WILL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY OR ALL PARTS OF THE LIMITED REMEDY SET FORTH IN THE PARAGRAPH IMMEDIATELY ABOVE.
You agree to defend, indemnify and hold us, any underlying carrier, and any CH3 Data affiliates harmless from and against any and all claims, demands, actions, liabilities, costs or damages arising out of your use of the Service or your violation of this Agreement. You further agree to pay our reasonable attorney's and expert witness fees and costs arising from any actions or claims hereunder and those incurred in establishing the applicability of this paragraph.
We may assign in whole or in part our rights or duties under this Agreement without prior notice to you and upon such assignment we shall be released from all liability hereunder. You may assign this Agreement only with our prior written consent. Subject to this restriction, this Agreement shall inure to the benefit of and be binding upon the heirs, successors, subcontractors, and assigns of the respective parties.
Written notices to you shall be considered given on the date deposited in the U.S. Mail addressed to you at the billing address shown in our billing records or immediately upon delivery using electronic means such as email. Written notice to us shall be considered given when received by our registered agent or us.
If any provision of these Terms and Conditions is held to be contrary to law, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, and the balance of the provisions shall remain unaffected and in full force and effect, unless our obligations hereunder are materially impaired, in which event we reserve the right to terminate this Agreement.
14. Governing Law; Venue and Statue of Limitations
This Agreement, its validity, construction and performance, shall be governed by the laws of the state of Texas. Arbitration proceedings or any actions to enforce an arbitral award shall be in the state where your Service is principally provided. Except as otherwise provided in this Agreement, and unless prohibited by law, any controversy, claim or dispute must be brought by you within one (1) year of the date you are entitled to assert such claim.
Data Center support telephone number: 1-512-420-8099
Support staff email: firstname.lastname@example.org
Accounting and Billing email: email@example.com
Support via email is available 24/7
Phone support is available Monday-Friday, 9:00am – 5:00pm (CST)
16. Port Monitoring
At the Customer's request, CH3 Data can monitor common server ports. The port monitoring form must be filled out and given to our staff for this service to be activated. Any changes made after your installation is complete must be directed to the technical support staff in writing or email. Additional charges may apply.
17. On-site Access
CH3 Data staff is available on-site during normal business hours. For on-site visits, we ask that you notify us in advance. For access outside of normal business hours, please contact us via email at firstname.lastname@example.org, we will make arrangements to have someone onsite to assist you. For non-business hours emergency situations, please call: 512-577-1000. Members needing physical access should be listed as authorized access personnel and will need to present a valid government-issued photo identification to gain access. Please see the attached form to list authorized access personnel.
18. Excessive Bandwidth Use Policy
Excessive bandwidth is Internet usage that exceeds the level for the services purchased. In order to maintain a high quality of service through its network, if CH3 Data determines, in its sole discretion, that customer is using an excessive amount of Internet bandwidth, CH3 Data may at any time and without notice, take one or more of the following remedial measures: 1) suspend excessive bandwidth capability, 2) suspend Customer’s access to the service, 3) require customer to pay additional fees starting at $9.95/Megabit (95% Percentile Billing), 4) suspend or terminate customer’s account.
19. Entire Agreement.
This Agreement represents the final and entire Agreement between the Customer and CH3 Data regarding the Service and any equipment. Except as otherwise provided in this Agreement, no prior or subsequent handwritten, typed, or oral change to this Agreement will be valid unless we accept it in writing. Our failure at any time to require strict performance by you or any other subscribers of any of the provisions herein shall not waive or reduce our right thereafter require strict compliance with any provisions of this Agreement. CH3 Data makes no warranties, expressed or implied, regarding the service or equipment, and our liability is limited in accordance to the Agreement and as permitted by applicable law.
The following provisions shall survive any termination of this Agreement for any reason: paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10.
We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained. CH3 Data agrees to maintain reasonable and appropriate measures related to physical security to protect Customer content. Other than responsibility for physical security, Customer shall be solely responsible for data maintenance, integrity, retention, security, and backup (unless Customer has purchased CH3 Data's data backup services) of the Customer content.
CH3 Data will take commercially reasonable steps to maintain the confidentiality of the Customer content in performing data backup services. If Customer transfers or is otherwise involved in the transfer of any Customer content (whether in connection with its business or otherwise) over the Public Network or Private Networks, then Customer is solely responsible for compliance with any applicable laws, rules and regulations in any and all applicable regions or countries regarding the security, privacy, legality and/or safe handling of such Customer content.
New Customers are automatically registered for access at our website, https://manage.ch3data.com. The online account management tools allow Customers the ability to create, add, edit and delete account users and privileges as well as opt in (or out) of Services and mailing lists. Please note that some email communications are not subject to general opt-out. These include communications about sales, service updates, maintenance, network upgrades and disclosures to comply with legal requirements.
Service Level Agreement
The Service Level Agreement ("SLA") is applicable to all Services delivered to Customers. This SLA does not apply to the availability of third party services. The issuance of SLA Credit is the sole and exclusive remedy of Customer and CH3 Data's sole and exclusive obligation.
CH3 Data strives to maintain the highest level of availability. Periodically, we will need to perform maintenance on power, networking and environmental systems. We will notify all customers of any scheduled downtime at least 7 days in advance.
Power and network will be provided 100% of the time. "Network" means the portion of the network extending from the outbound port on your edge device to the outbound port on the border router and includes CH3 Data managed switches, routers, and cabling. Network availability is defined as the ability to pass TCP/IP traffic across network infrastructure.
Support requests are accepted 24 hours per day, 7 days a week via email. You may open a support ticket via https://manage.ch3data.com/submitticket.php
If CH3 Data fails to meet any of these commitments, the customer may apply for a service credit proportional to the base monthly recurring charge as follows:
Availability Service Credit:
Acceptable Use Policy
1. Use of Service
You agree not to modify any equipment or use the Service or equipment for any unlawful, harassing, or abusive purposes, or in such a way as to create damage to our business, reputation, employees, subscribers, facilities, third parties, or to the public generally. You agree not to send unsolicited commercial text or email messages or any harassing, threatening, or obscene text or email messages. Any domain names you have previously registered or domain names that are registered by CH3 Data on your behalf remain the sole property of you, and CH3 Data will not be held responsible for your actions with regard to your service. You agree that we may contact you using an email account of your designation to notify you of changes to or information about your account, the Service or this agreement.
Any spam complaints, (via any means, including but not limited to email, usenet posting, instant messaging, advertising a site hosted or colocated, IRC channel, SMB/NetBIOS messaging), that after investigation are confirmed to have originated from a server or device attached to CH3 Data's networks may result in investigative charges of $175.00 per complaint. If, during the investigation, the spam was found to have been relayed through misconfiguration, trojaned, or other exploit, the customer will be responsible for reconfiguring or repairing the system or device. If they are unable to repair or reconfigure the system or device within 24 hours of verbal, email, or written notification, CH3 Data reserves the right to physically disconnect the network interface(s) on the server or device, stop the virtual machine, or take the web site offline. Customers who knowingly send or transmit messages resulting in spam or abuse complaints will have service terminated immediately and must pay all investigative charges and the full balance owed for the remaining term of the contract. In the event payment in full cannot be paid at the time of termination, CH3 Data will confiscate any and all equipment listed on the account and will hold for 60 days pending full payment of fees and services. If, after the 60-day period the account is still in collections, all equipment under the account will become property of CH3 Data.
3. Copyright infringement
Customer bears all responsibility for material hosted on their sites, servers or devices. Complaints regarding copyright infringement under DMCA or other copyright law will forwarded to the customer for resolution with the copyright holder. CH3 Data may choose to investigate the complaint for our own records, but is not responsible for removal of materials from customer sites, servers, or devices.
4. Other network abuse, virus, trojan, worm, etc.
CH3 Data reserves the right to disconnect customer network connections, servers, devices, virtual machines, or web sites without notification if they are deemed to be infected or exploited and are causing service disruptions or presenting other hazards to CH3 Data other customers or the Internet community at large. CH3 Data will notify the emergency contacts for disconnected customers as soon as possible, and will assist customers in cleanup when staff time is available.
5. Network Use
You are responsible for the security and appropriate use of CH3 Data network resources under your control. Using CH3 Data resources for the following is strictly prohibited:
6. ARIN Compliance
When a customer with dedicated contiguous IP addresses meets the requirements addressed in the ARIN NRPM (https://www.arin.net/policy/nrpm.html), we will publish SWIP information as required by our contract(s) with ARIN.
By accepting the Agreement, accessing or using services, the customer agrees that the customer has accepted the Agreement in its entirety. This Agreement supersedes any earlier issued versions and among other provisions, imposes an early cancellation fee and may require arbitration of disputes. If you do not agree to the terms of this Agreement do not accept service. You acknowledge that you are of legal age, have received a copy of this Agreement and have read and clearly understand the terms of this Agreement and if subscribing on behalf of a corporation or other entity, are fully authorized to legally bind such entity. You acknowledge that you are responsible for all charges incurred by any person you authorize to access you account, or to use the Service.