Terms of Service Agreement
Web Hosting Services Agreement
The Terms and Conditions set forth herein constitute the full and complete agreement between you and CloudServer (doing business as and hereinafter referred to as “CloudServer”) Your agreement to be bound by these terms is acknowledged by your use of the CloudServer Web Site, Hosting Services, Support Services and any CloudServer software made available to you. The terms contained herein supersede and replace any other agreement or negotiation between you and CloudServer whether oral, written or otherwise including any statements made by any representative of CloudServer at any time.
1. Fees; Payment of Fee’s
1.1 Fees – CloudServer charges the following fees where applicable. All such fees are subject to change with 30 days notice. Not all fees are applicable to all accounts.
1.1.1 Set-Up Fee – This is any one-time fee that may be charged in connection with the establishment of a new account.
1.1.2 Service Fee – This is the fee for your monthly, annual, bi-annual, or greater web hosting services.
1.1.3 Domain Registration Fee – This is the fee for the registration of a domain name and is nonrefundable.
1.1.4 Other Service Related Fees – These are fees for additional services that you may choose to add to your account.
1.2 CloudServer also reserves the right to alter, change, amend or delete fees at its sole discretion. CloudServer further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.
1.3 CloudServer reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not affect the then existing rights and responsibilities of each party. CloudServer also reserves the right to change the rate charged for any such fee under this agreement with 30 days notice.
1.4 Payment of Fees – CloudServer accepts payment by Credit Card (Visa, MasterCard,Discover, American Express), and by personal check, cashier’s check, Paypal, electronic check, or money order. In addition, CloudServer may from time to time allow additional forms of payment; however, the offering of a particular form of payment does not obligate CloudServer to continue to offer that form of payment in the future. The current list of payment options will be displayed during the order process. If you have any questions concerning the current available payment options contact us.
1.5 Payment by Credit Card and Electronic Check
1.5.1 Prior to activation of your user account and at any applicable time thereafter you agree to allow CloudServer to charge your provided credit card or bank account. You also agree at stated regular intervals the agreed service fee amount for the stated period (together with any CloudServer set-up charges, registration fees, or any other charges outlined herein) may be applicable. You further authorize CloudServer to charge your credit card or bank account for all subsequent period fees at (or a reasonable period in advance of) the commencement of any such subsequent period. You agree to maintain current valid existing credit card or bank account information with CloudServer for the purpose of satisfying the CloudServer charges as they become due. Refusal or rejection of any such charge or any portion thereof is grounds for account suspension and termination at the sole option of CloudServer under Paragraph 8 herein. An administrative fee of $25.00 may be charged for the refusal, rejection or return of any such charge for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such charge for any reason whatsoever or any portion thereof is grounds for account suspension and termination at the sole option of CloudServer under Paragraph 8 herein.
1.6 Payment by Check, Money Order
1.6.1 Prior to activation of your user account you agree to submit a check payable in U.S. dollars against a bank located within the United States. CloudServer is under no obligation to initiate service until the proceeds of such check have been cleared by such financial institution and have been received by CloudServer. Invoices will be submitted to the email address on file for you as a courtesy only and you agree to receive such invoices via email. Payments for subsequent fees are due and payable immediately upon invoice and in no instance later than the expiration of the last day of the previous period without regard to any invoice. It is your responsibility when paying by check to make sure that your payment is received by CloudServer. An administrative fee of $25.00 may be charged for the refusal, rejection or return of any such check for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such check for any reason whatsoever or any portion thereof is grounds for account suspension and termination at the sole option of CloudServer under Paragraph 8 herein.
1.6.2 It is recommended that in order to avoid any service interruption that you submit your payment to CloudServer a sufficient time before the expiration of the current service period so that it reaches CloudServer in advance of the renewal date.
1.7 Refunds
1.7.1 Refunds are subject to approval by CloudServer on a case by case basis. If a refund is deemed appropriate, then CloudServer will credit your account or refund through PayPal.
1.7.2 Refunds on Credit Card’s are subject to a $25 administrative fee for processing.
2. Web Hosting Services
For the term of the agreement as set forth herein CloudServer agrees to provide Web Hosting Services according the plan selected by you upon activation of your account. CloudServer reserves the right to change, amend and otherwise alter the services provided with equivalent or otherwise equal services without prior notice to you. The specifics of any particular offer are contained within the offer itself as published on the CloudServer website at the time you create your account and remain in effect throughout the term of your agreement. The specifics of all current offers are located within the CloudServer Website located at www.CloudServer.net. Web Hosting Services shall be defined as server space and data transfer allowances for the purposes of displaying a business or personal website.
3. Acceptable Use
CloudServer strictly enforces compliance with its Acceptable Use Policy which may be found on the CloudServer Website located at www.CloudServer.net. The terms of the Acceptable Use Policy are incorporated into this agreement as though they were fully set forth at length herein. You agree to maintain your website in full compliance with the terms of the Acceptable Use Policy. Failure to so comply is cause for immediate suspension and termination under paragraph (8) herein. CloudServer reserves the right to refuse to provide service to anyone at their sole option.
4. License
CloudServer, subject to the terms and conditions set forth herein, hereby grants you a nonexclusive, limited, personal, license to use the CloudServer Web Hosting Service for the term of the agreement as set forth herein. Your rights under this agreement may be assigned only upon prior notice and express approval by CloudServer. Any other assignment is null and void.
5 Ownership of Intellectual Property; Confidentiality
5.1 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of CloudServer including but not limited to the CloudServer customer service and maintenance tools. You acknowledge that all right and title to any such CloudServer intellectual property shall remain the sole property of CloudServer and that you have no right, title or interest therein. You further agree not to provide access to the CloudServer services to any third party. You agree that you are not to assist any third party or to instigate yourself in any way to use, translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the CloudServer Services. Any and all right or title to any engineering, coding, programming or customer service work-around or other modification of the CloudServer service shall also remain the sole property of CloudServer.
5.2 During the term of this agreement you may have access to certain information and materials relating to the CloudServer business, customers, software technology and marketing which CloudServer treats as confidential (hereinafter “Confidential Information”). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any “Confidential Information” without the express prior written consent of CloudServer; and (ii) not use or disclose any of the “Confidential Information” for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information isa trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
5.3 You are the sole owner of any information that you post within your account area. CloudServer does not normally review or edit the information posted within your account. Notwithstanding the above CloudServer specifically reserves all right to edit, change, remove or delete any information posted in violation of this policy, the CloudServer Acceptable Use Policy or any applicable law, order or public policy. CloudServer is not your partner, associate, joint venturer or agent with respect to any information placed by you on the CloudServer servers.
6. Term
The initial term of this agreement shall be the period selected by you at the commencement of your account. Periodic accounts (monthly, annual, biannual) are automatically renewed and are charged in the same manner you selected at the commencement of your account. Any Additional services are renewed for the same period as the corresponding hosting service. A listing of all the presently available plans is available on the CloudServer website located at www.CloudServer.net.
7. Suspension and Termination
7.1 Suspension – At the sole option of CloudServer for any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Payment of Fees) or any violation of the CloudServer Acceptable Use Policy, CloudServer may suspend your account by deactivating any access by you and by web users to any information contained on the CloudServer servers related to your account while maintaining the information and data related to your account upon the CloudServer servers. Suspension shall specifically include the disabling of your hosted domain and any access to information or data related to your account. In the event of any such suspension you will be notified. At the option of CloudServer you may be given an opportunity to correct such breach or violation. Upon being notified of an opportunity to correct such breach or violation, if such breach or violation is not corrected the account may be terminated under paragraph 7.3.
7.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
7.3 Termination – This agreement and all of its terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the CloudServer servers. Such information or data may or may not be made available to you by CloudServer after any such termination. This agreement may be terminated either (a) after a period of suspension as set forth in paragraph 7.1 or (b) except as otherwise stated herein by either party upon 7 days notice in advance of a renewal period for any reason.
8. Information Usage and Communication
8.1 You hereby consent and agree that as to any information which CloudServer may collect from you and maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from CloudServer concerning you or your account, or other information which in CloudServer sole judgment is reasonable, CloudServer may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of CloudServer and may include but shall not be limited to (1) compliance with court order, subpoena or other request of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the CloudServer Terms of Service or other policies.
8.2 During the term of this agreement you agree to receive periodic emails, telephone calls, or SMS messages concerning your account, system conditions, changes, updates and schedules.
8.3 You agree to provide and at all times during the term of this agreement maintain true and accurate account information on file with CloudServer specifically including your Name, Address, email address, telephone number, billing information and any other account information requested at any time during the sign up process. You further agree that the failure to provide or maintain such accurate information is a material breach of this agreement and subjects your account to suspension and termination as set forth in paragraph seven (7) herein.
8.4 You agree to the terms of the CloudServer Privacy Policy located at www.CloudServer.net.
9. Notice
9.1 Any notice under this agreement shall be given by CloudServer to you via email at the address provided by you to CloudServer at the commencement of this agreement or as CloudServer is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so by contacting customer service via the CloudServer website located at www.CloudServer.net.
9.2 Any notice by you to CloudServer shall be made by submitting a request to notice@CloudServer.net and is effective only upon receipt by CloudServer of any such notice. Such notice may also be sent via United States Mail to the following Address: New Wave NetConnect, LLC, 9697 Garden Walk, Clarence Ctr., NY, 14032
10. Survival
Sections 1, 3 through 6, 8, 9, 10, 12, 13, and 15 through 21, inclusive, of this agreement shall survive the termination of this agreement and shall remain in full force and effect after any such termination.
11 Warrantees and limitations
11.1 CloudServer reserves the right to take up to 48 hours to provision a VPS and seven full business days to provision a dedicated server in the event that there is a lack of available resources. CloudServer makes every reasonable effort to maintain operation of the CloudServer service; however, because many events and circumstances are beyond the control of CloudServer, CloudServer does not in any way warrant or otherwise guarantee the availability of the CloudServer system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of CloudServer.
11.2 THE CloudServer SERVICE IS PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
11.3 In general, CloudServer has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. CloudServer accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. CloudServer provides no warranty for any goods or services which you obtain over the Internet nor the compatibility of any such services with the CloudServer system.
11.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
11.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO CloudServer IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL CloudServer BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES
12 Indemnity
12.1 You agree to fully defend and indemnify and hold harmless CloudServer of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of CloudServer in any way related to your use of the CloudServer service or any portion thereof.
12.2 You agree to fully defend and indemnify and hold harmless CloudServer of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the CloudServer service or any portion thereof. Choice of counsel remains exclusively that of CloudServer
12.3 You agree that upon the assignment of your user ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your user ID. You further agree to defend and indemnify and hold harmless CloudServer of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of CloudServer.
13 Force Majeure
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
14. U.S. Export Controls
Software available in connection with the CloudServer services is subject to United States export controls. No Software may be downloaded from CloudServer or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using any downloaded Software or software component is at your sole risk.
15. Assignment
Your rights under this agreement may be assigned only upon prior notice and express approval by CloudServer. CloudServer may assign its rights hereunder to any person or entity who shall become a principal owner, or shareholder of CloudServer. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
16. Severability
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
17. Choice of Law
This Agreement shall be interpreted under the laws of the State of New York without regard to any conflict of laws or provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be enforced in the Superior Court of the State of New York, County of Erie. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue.
18. No Agency
Notwithstanding any other provision of this agreement, CloudServer is not your agent, partner or joint venturer in any respect.
19. Amendment
CloudServer may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the CloudServer web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts.
20. Required Notices
20.1 Copyright Infringement Claims – Any notice concerning any claim of copyright infringement should be addressed to CloudSeerver, COPYRIGHT INFRINGEMENT CLAIM, abuse@cloudserver.net
Privacy Policy
CloudServer reserves the right to change this Privacy Policy at any time. Such changes, modifications, additions or deletions shall be effective immediately upon posting on-line at this location. You acknowledge and agree that it is your responsibility to review this site and this Policy periodically and to be aware of any modifications. You may identify whether CloudServer has revised this Privacy Policy by noting the “Effective Date” above. Your continued use of the site after such modifications will constitute your: (a) acknowledgment of the modified Policy; and (b) agreement to abide and be bound by the modified Policy. If you do not agree to these terms, please do not access or use this site.
Types of Information Collected
In order to better provide you with our numerous services, we collect two types of information about our users: Personal Information and Non-Personal Information.
Personal Information
When you order services through CloudServer, we request certain personally identifiable information from you on our order form to us to allow us to process your order, provide you with the services you order from us, and to provide ongoing technical support for your account. You must provide contact information (such as name, email, phone number, and address) and financial information (such as credit card number, expiration date). By purchasing our services, you agree to provide and maintain accurate, complete and updated information. After you have ordered our services, we may be in communication with you about your account. These communications are essential to our relationship with you and to our ability to provide you with quality services that are responsive to your needs. As a result, we may maintain information about our communications with you for future use.
Disclosure of Personal Information
We use the information you provide about yourself when placing an order only to provide service to that order. We do not share this information with outside parties except to the extent necessary to provide service. In the event that this policy changes, we will provide you with an opportunity to opt out or otherwise prohibit the disclosure of your information to third parties for any purpose other than your ordering and ongoing use of our services. We do not sell, trade, or rent your Personal Information to others. We do provide some of our services through contractual arrangements with affiliates, services providers, partners and other third parties. We and our service partners use your Personal Information to operate our sites and to deliver our services. For example, we must release your credit card information to the card issuing bank to confirm payment for products and services purchased on this site or release your address information to the delivery service to deliver products that you ordered. Occasionally, CloudServer may be required by law enforcement or judicial authorities to provide Personal Information to the appropriate governmental authorities. We will disclose Personal Information upon receipt of a court order or subpoena or to cooperate with a law enforcement investigation. We fully cooperate with law enforcement agencies in identifying those who use CloudServer services for illegal activities. We reserve the right to report to law enforcement agencies any activities that CloudServer in good faith believe to be unlawful. CloudServer may also use the Personal Information collected to contact customers regarding important changes to our site, new services and special offers we think you will find valuable. You will be given the opportunity to notify us of your desire not to receive these offers through our client portal or by sending an email request at operations@CloudServer.net.
Non-Personal Information
CloudServer collects tracking data when users visit our websites. Whenever you request a page through your browser, navigation data such as your IP address, browser and version, operating system, date and time and the site from which you came are stored in a log file. We use this data to analyze visitors’ use of our site in order to make improvements to our site.
Disclosure of Non-Personal Information
CloudServer may share this anonymous traffic and demographic information in aggregate form with other business partners. We do not share any information with anyone that can identify an individual user.
Cookies
A cookie is a small text file that is stored on a user’s computer for record-keeping purposes. CloudServer may use both session ID cookies and/or persistent cookies. We use session cookies to make it easier for you to navigate our site. A session ID cookie expires when you close your browser. A persistent cookie remains on your hard drive for an extended period. You can remove persistent cookies by following directions provided in your Internet browsers help file.
Our Commitment to Data Security
To prevent unauthorized access, maintain data accuracy, and ensure the correct use of information, we have put in place appropriate physical, electronic, and managerial procedures to safeguard and secure the information we collect online. The CloudServer website uses industry standard Secure Sockets Layer (SSL) encryption on all web pages where personal information is required. When entering Personal Information, we strongly recommend an SSL-enabled web browser.
Our Commitment to Children’s Privacy
Protecting the privacy of the very young is especially important. For that reason, we never collect or maintain information at our website from those we know are under 13, and no part of our website is structured to attract anyone under 13. Access to Your Personal Information You always have access to the information we have about you. To review and update your personal contact information, simply log into our client portal. You may also email billing@CloudServer.net to have the information changed.
Questions
If you have any questions about this Privacy Policy, the practices of this site, or your dealings with this site, please contact us by sending an email to: operations@CloudServer.net
1. Fees; Payment of Fee’s
1.1 Fees – CloudServer charges the following fees where applicable. All such fees are subject to change with 30 days notice. Not all fees are applicable to all accounts.
1.1.1 Set-Up Fee – This is any one-time fee that may be charged in connection with the establishment of a new account.
1.1.2 Service Fee – This is the fee for your monthly, annual, bi-annual, or greater web hosting services.
1.1.3 Domain Registration Fee – This is the fee for the registration of a domain name and is nonrefundable.
1.1.4 Other Service Related Fees – These are fees for additional services that you may choose to add to your account.
1.2 CloudServer also reserves the right to alter, change, amend or delete fees at its sole discretion. CloudServer further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.
1.3 CloudServer reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not affect the then existing rights and responsibilities of each party. CloudServer also reserves the right to change the rate charged for any such fee under this agreement with 30 days notice.
1.4 Payment of Fees – CloudServer accepts payment by Credit Card (Visa, MasterCard,Discover, American Express), and by personal check, cashier’s check, Paypal, electronic check, or money order. In addition, CloudServer may from time to time allow additional forms of payment; however, the offering of a particular form of payment does not obligate CloudServer to continue to offer that form of payment in the future. The current list of payment options will be displayed during the order process. If you have any questions concerning the current available payment options contact us.
1.5 Payment by Credit Card and Electronic Check
1.5.1 Prior to activation of your user account and at any applicable time thereafter you agree to allow CloudServer to charge your provided credit card or bank account. You also agree at stated regular intervals the agreed service fee amount for the stated period (together with any CloudServer set-up charges, registration fees, or any other charges outlined herein) may be applicable. You further authorize CloudServer to charge your credit card or bank account for all subsequent period fees at (or a reasonable period in advance of) the commencement of any such subsequent period. You agree to maintain current valid existing credit card or bank account information with CloudServer for the purpose of satisfying the CloudServer charges as they become due. Refusal or rejection of any such charge or any portion thereof is grounds for account suspension and termination at the sole option of CloudServer under Paragraph 8 herein. An administrative fee of $25.00 may be charged for the refusal, rejection or return of any such charge for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such charge for any reason whatsoever or any portion thereof is grounds for account suspension and termination at the sole option of CloudServer under Paragraph 8 herein.
1.6 Payment by Check, Money Order
1.6.1 Prior to activation of your user account you agree to submit a check payable in U.S. dollars against a bank located within the United States. CloudServer is under no obligation to initiate service until the proceeds of such check have been cleared by such financial institution and have been received by CloudServer. Invoices will be submitted to the email address on file for you as a courtesy only and you agree to receive such invoices via email. Payments for subsequent fees are due and payable immediately upon invoice and in no instance later than the expiration of the last day of the previous period without regard to any invoice. It is your responsibility when paying by check to make sure that your payment is received by CloudServer. An administrative fee of $25.00 may be charged for the refusal, rejection or return of any such check for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such check for any reason whatsoever or any portion thereof is grounds for account suspension and termination at the sole option of CloudServer under Paragraph 8 herein.
1.6.2 It is recommended that in order to avoid any service interruption that you submit your payment to CloudServer a sufficient time before the expiration of the current service period so that it reaches CloudServer in advance of the renewal date.
1.7 Refunds
1.7.1 Refunds are subject to approval by CloudServer on a case by case basis. If a refund is deemed appropriate, then CloudServer will credit your account or refund through PayPal.
1.7.2 Refunds on Credit Card’s are subject to a $25 administrative fee for processing.
2. Web Hosting Services
For the term of the agreement as set forth herein CloudServer agrees to provide Web Hosting Services according the plan selected by you upon activation of your account. CloudServer reserves the right to change, amend and otherwise alter the services provided with equivalent or otherwise equal services without prior notice to you. The specifics of any particular offer are contained within the offer itself as published on the CloudServer website at the time you create your account and remain in effect throughout the term of your agreement. The specifics of all current offers are located within the CloudServer Website located at www.CloudServer.net. Web Hosting Services shall be defined as server space and data transfer allowances for the purposes of displaying a business or personal website.
3. Acceptable Use
CloudServer strictly enforces compliance with its Acceptable Use Policy which may be found on the CloudServer Website located at www.CloudServer.net. The terms of the Acceptable Use Policy are incorporated into this agreement as though they were fully set forth at length herein. You agree to maintain your website in full compliance with the terms of the Acceptable Use Policy. Failure to so comply is cause for immediate suspension and termination under paragraph (8) herein. CloudServer reserves the right to refuse to provide service to anyone at their sole option.
4. License
CloudServer, subject to the terms and conditions set forth herein, hereby grants you a nonexclusive, limited, personal, license to use the CloudServer Web Hosting Service for the term of the agreement as set forth herein. Your rights under this agreement may be assigned only upon prior notice and express approval by CloudServer. Any other assignment is null and void.
5 Ownership of Intellectual Property; Confidentiality
5.1 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of CloudServer including but not limited to the CloudServer customer service and maintenance tools. You acknowledge that all right and title to any such CloudServer intellectual property shall remain the sole property of CloudServer and that you have no right, title or interest therein. You further agree not to provide access to the CloudServer services to any third party. You agree that you are not to assist any third party or to instigate yourself in any way to use, translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the CloudServer Services. Any and all right or title to any engineering, coding, programming or customer service work-around or other modification of the CloudServer service shall also remain the sole property of CloudServer.
5.2 During the term of this agreement you may have access to certain information and materials relating to the CloudServer business, customers, software technology and marketing which CloudServer treats as confidential (hereinafter “Confidential Information”). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any “Confidential Information” without the express prior written consent of CloudServer; and (ii) not use or disclose any of the “Confidential Information” for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information isa trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
5.3 You are the sole owner of any information that you post within your account area. CloudServer does not normally review or edit the information posted within your account. Notwithstanding the above CloudServer specifically reserves all right to edit, change, remove or delete any information posted in violation of this policy, the CloudServer Acceptable Use Policy or any applicable law, order or public policy. CloudServer is not your partner, associate, joint venturer or agent with respect to any information placed by you on the CloudServer servers.
6. Term
The initial term of this agreement shall be the period selected by you at the commencement of your account. Periodic accounts (monthly, annual, biannual) are automatically renewed and are charged in the same manner you selected at the commencement of your account. Any Additional services are renewed for the same period as the corresponding hosting service. A listing of all the presently available plans is available on the CloudServer website located at www.CloudServer.net.
7. Suspension and Termination
7.1 Suspension – At the sole option of CloudServer for any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Payment of Fees) or any violation of the CloudServer Acceptable Use Policy, CloudServer may suspend your account by deactivating any access by you and by web users to any information contained on the CloudServer servers related to your account while maintaining the information and data related to your account upon the CloudServer servers. Suspension shall specifically include the disabling of your hosted domain and any access to information or data related to your account. In the event of any such suspension you will be notified. At the option of CloudServer you may be given an opportunity to correct such breach or violation. Upon being notified of an opportunity to correct such breach or violation, if such breach or violation is not corrected the account may be terminated under paragraph 7.3.
7.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
7.3 Termination – This agreement and all of its terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the CloudServer servers. Such information or data may or may not be made available to you by CloudServer after any such termination. This agreement may be terminated either (a) after a period of suspension as set forth in paragraph 7.1 or (b) except as otherwise stated herein by either party upon 7 days notice in advance of a renewal period for any reason.
8. Information Usage and Communication
8.1 You hereby consent and agree that as to any information which CloudServer may collect from you and maintain with respect to you, including but not limited to your account information, dates of service, billing address, billing records, usage statistics, site statistics, services purchased, domain name purchases, correspondence to or from CloudServer concerning you or your account, or other information which in CloudServer sole judgment is reasonable, CloudServer may disclose such information to public or private third parties as applicable law may require or permit. The decision as to whether to disclose such information as may be required, permitted or otherwise reasonable shall be within the sole discretion of CloudServer and may include but shall not be limited to (1) compliance with court order, subpoena or other request of any State or Federal government, (2) compliance with the Electronic Communications Decency Act, (3) compliance with the Digital Millennium Copyright Act (3) compliance with the CloudServer Terms of Service or other policies.
8.2 During the term of this agreement you agree to receive periodic emails, telephone calls, or SMS messages concerning your account, system conditions, changes, updates and schedules.
8.3 You agree to provide and at all times during the term of this agreement maintain true and accurate account information on file with CloudServer specifically including your Name, Address, email address, telephone number, billing information and any other account information requested at any time during the sign up process. You further agree that the failure to provide or maintain such accurate information is a material breach of this agreement and subjects your account to suspension and termination as set forth in paragraph seven (7) herein.
8.4 You agree to the terms of the CloudServer Privacy Policy located at www.CloudServer.net.
9. Notice
9.1 Any notice under this agreement shall be given by CloudServer to you via email at the address provided by you to CloudServer at the commencement of this agreement or as CloudServer is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so by contacting customer service via the CloudServer website located at www.CloudServer.net.
9.2 Any notice by you to CloudServer shall be made by submitting a request to notice@CloudServer.net and is effective only upon receipt by CloudServer of any such notice. Such notice may also be sent via United States Mail to the following Address: New Wave NetConnect, LLC, 9697 Garden Walk, Clarence Ctr., NY, 14032
10. Survival
Sections 1, 3 through 6, 8, 9, 10, 12, 13, and 15 through 21, inclusive, of this agreement shall survive the termination of this agreement and shall remain in full force and effect after any such termination.
11 Warrantees and limitations
11.1 CloudServer reserves the right to take up to 48 hours to provision a VPS and seven full business days to provision a dedicated server in the event that there is a lack of available resources. CloudServer makes every reasonable effort to maintain operation of the CloudServer service; however, because many events and circumstances are beyond the control of CloudServer, CloudServer does not in any way warrant or otherwise guarantee the availability of the CloudServer system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of CloudServer.
11.2 THE CloudServer SERVICE IS PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
11.3 In general, CloudServer has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. CloudServer accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. CloudServer provides no warranty for any goods or services which you obtain over the Internet nor the compatibility of any such services with the CloudServer system.
11.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
11.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO CloudServer IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL CloudServer BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES
12 Indemnity
12.1 You agree to fully defend and indemnify and hold harmless CloudServer of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of CloudServer in any way related to your use of the CloudServer service or any portion thereof.
12.2 You agree to fully defend and indemnify and hold harmless CloudServer of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the CloudServer service or any portion thereof. Choice of counsel remains exclusively that of CloudServer
12.3 You agree that upon the assignment of your user ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your user ID. You further agree to defend and indemnify and hold harmless CloudServer of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of CloudServer.
13 Force Majeure
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
14. U.S. Export Controls
Software available in connection with the CloudServer services is subject to United States export controls. No Software may be downloaded from CloudServer or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using any downloaded Software or software component is at your sole risk.
15. Assignment
Your rights under this agreement may be assigned only upon prior notice and express approval by CloudServer. CloudServer may assign its rights hereunder to any person or entity who shall become a principal owner, or shareholder of CloudServer. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
16. Severability
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
17. Choice of Law
This Agreement shall be interpreted under the laws of the State of New York without regard to any conflict of laws or provisions. Any action between the parties to this agreement for the breach of this agreement or any action or claim in any way relating thereto shall be enforced in the Superior Court of the State of New York, County of Erie. The parties to this agreement hereby consent to jurisdiction in that court and agree to accept service by mail and hereby waive any defense of any kind related to jurisdiction or venue.
18. No Agency
Notwithstanding any other provision of this agreement, CloudServer is not your agent, partner or joint venturer in any respect.
19. Amendment
CloudServer may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the CloudServer web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts.
20. Required Notices
20.1 Copyright Infringement Claims – Any notice concerning any claim of copyright infringement should be addressed to CloudSeerver, COPYRIGHT INFRINGEMENT CLAIM, abuse@cloudserver.net