Last Modified: January 27, 2020
Cloudisma.com is a product of Lakecart Ltd. Lakecart Ltd is a company registered in England & Wales under company number 12095844 and have our registered office at International House, 12 Constance St, London, United Kingdom E16 2DQ.
The use of services provided by Lakecart Ltd under the brand name Cloudisma (hereafter referred to as “Cloudisma” or “Cloudisma.com”) is subject to the following Terms and Conditions.
Party Definitions and Introductory Terms – The operative parties referred to in this Agreement are defined as follows:
- Cloudisma is the publisher and operator of cloudisma.com(the “Site”) whereby Cloudisma makes certain web hosting services (the “Services”) available. For purposes of this Agreement, when “Site” or “Services” are referenced, such reference includes all hardware, software, and network resources necessary to provide said Site and/or Service.When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Cloudisma. Additionally, when the terms “the Site” or “Site” are used, these terms refer to any site published by Us, unless a site is specifically exempt from this policy.
- You, the Client -As Our Client and the user of the Site or Services, this Agreement will refer to You through any second-person pronouns, such as “Your,” “Yours,” etc.
PLEASE READ THE FOLLOWING HOSTING SERVICES TERMS AND CONDITIONS. BY SUBSCRIBING TO CLOUDISMA’S SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (the “AGREEMENT”). IF YOU AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I ACCEPT,” (OR SIMILAR SYNTAX) OR CHECK THE APPROPRIATE BOX MANIFESTING YOUR INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE ACCOUNT SET-UP PROCESS. YOU SHOULD PRINT-OUT OR OTHERWISE SAVE A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE.
CLOUDISMA AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. YOUR ELECTRONIC ACCEPTANCE OF THIS AGREEMENT IS PERMITTED BY THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (E-SIGN ACT) AND SIMILAR FEDERAL AND STATE LAWS. ANY USE OF CLOUDISMA’S SERVICES SHALL CONSTITUTE AN ACT OF ACCEPTANCE OF THE CURRENT HOSTING SERVICES TERMS AND CONDITIONS.
At the time of initial registration, You will select from the list of available Services the service plan(s) to which You wish to subscribe. All subscriptions to Services are subject to formal acceptance by Cloudisma. Your subscription to the Services will be deemed accepted by Cloudisma when Cloudisma delivers a confirmation of the subscription to You. Cloudisma reserves the right to refuse to provide You with any Service for any reason. Cloudisma reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional Services at any time, if You agree to pay the then-current fees for such additional Services. All additional Services shall be considered “Services” hereunder. All Services provided are subject to availability and to all the terms and conditions of this Agreement.
2. REVISIONS TO USER AGREEMENT
This Agreement contains the complete and entire terms and conditions that apply to Your use of Cloudisma’s Services (as defined below). Cloudisma may modify the terms of this Agreement, including the Fees at any time.
2.1 From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be fully considered valid and enforceable.
2.2 We agree that if We change anything in this Agreement, We will change the “last modified date” at the top of this Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed.
2.3 Should You wish to terminate this Agreement due to any revisions made by Us, You must do so in writing via the cancellation form within thirty (30) days of the “last modified” date described above. Your continued use of the Services after the effective date of any such notice constitutes Your acceptance of such changes.
2.4 Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
3. DURATION OF AGREEMENT AND CANCELLATION POLICY
3.1 The Initial Term shall begin upon confirmation of Your order or commencement of the Services to You and receipt of lawful funds. The term’s length is chosen by You and shall be indicated when You order Our Services. This Agreement may not be terminated by You during the Initial Term (and any renewals thereof) except in the event of a breach by Cloudisma. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or cancelled by either party as provided herein.
3.2 Cloudisma may also terminate this Agreement in its sole discretion at any time for any reason or no reason. (“Termination without Cause”). In such case, Cloudisma will provide You with fifteen (15) days written notice before the discontinuation of Services.
3.3 If Cloudisma cancels this Agreement pursuant to any of the terms outlined in this Agreement, with the exception of Termination without Cause pursuant to paragraph 3.2, Cloudisma shall not refund to You any fees paid or prepaid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. If Cloudisma terminates the Agreement for cause, all prepaid hosting fees will be forfeited and are not refundable. The termination of this Agreement does not relieve You of Your obligation to pay any Fees accrued or payable to Cloudisma.com prior to the effective date of termination of this Agreement.
3.4 In addition to Cloudisma’s right to terminate this Agreement provided elsewhere in this Agreement, Cloudisma may terminate this Agreement effective immediately if, based on Cloudisma’s sole judgment, it determines that You or any of Your end-users: (a) have breached the Acceptable Use Policy (“AUP”) as described in Section 6 of this Agreement, (b) have infringed or violated any intellectual property right or privacy or publicity right of a third party, (c) have not complied with any applicable law, statute or regulation, or (d) have uploaded, published or disseminated any images, text, graphics, code or video which Cloudisma considers illegal or high risk, in its discretion. Nothing contained in this Agreement is intended to, or shall, impose any duty or obligation upon Cloudisma to monitor or review Your Content or the content of Your end-users at any time. You remain solely responsible for Your Content, and any liability generated therefrom.
3.5 The termination of this Agreement will terminate Your access to the Services and Your license to the Host Materials (as defined in Section 5.2 of this Agreement). Cloudisma shall not be liable to You or to any third party for termination of the Services permitted under this agreement. Upon termination of this Agreement, Cloudisma reserves the right to maintain copies of Your data files and records for archival purposes but does not undertake any obligation to do so. Cloudisma reserves the right to impose an early termination charge for all Services terminated prior to the last day of the billing cycle.
3.6 If either party cancels or terminates this Agreement for any reason, You shall be solely responsible for making all necessary arrangements for securing a replacement host and moving all electronic data, graphics, images, video or text to the new service provider. Upon termination of this Agreement, provisions that by their nature would be expected to survive termination shall survive and remain in full force and effect in accordance with their terms.
4. ACCOUNT SET UP
4.1 When You register for the Services, You will choose a login (email) and password. You may use the Services or modify Your data and content only through such user ID and password. You are entirely responsible for maintaining the confidentiality of Your user ID and password and for any and all activities which occur using those credentials. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of security known to You.
4.2 You must provide Us with a primary email address that is checked regularly and frequently. All notices and communications between Us will be sent to the email address You provide, and You are therefore required to keep this address current or notify Us if Your address changes. You should notify Us if any of Your contact and/or billing information changes so that We may update Your account. It is also Your responsibility to make sure that Our domain(s), Cloudisma.com, are not included in any spam block list used by You or Your mail provider.
4.3 Providing false or inaccurate contact information of any kind may result in the Termination for Cause of Your account per Section 3 of this Agreement.
4.4 You are responsible for all activity transpiring under Your account. We therefore highly recommend that You secure file, directory, and script permissions to the most restrictive settings possible. You agree that You have the technical ability to properly operate a web site and that You are responsible for any actions performed under Your account, including but not limited to, damage caused to Your site, Cloudisma’s site and/or equipment, and any other site.
12. INTELLECTUAL PROPERTY RIGHTS
All Services provided by Cloudisma may only be used for lawful purposes.
5.1 As between You and Cloudisma, Cloudisma acknowledges that it claims no proprietary rights in or to the content (including without limitation, text, software, music, sound, audio visual works, motion pictures, photographs, animation, video and graphics) supplied by You for use on Your web site (“Your Content”). You hereby grant to Cloudisma a non-exclusive, worldwide and royalty-free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Your Content, solely for the benefit of You and to enable Cloudisma to perform its obligations hereunder.
5.2 In connection with performance of the Services and at the sole discretion of Cloudisma, Cloudisma may (but is not obligated to) provide You with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by Cloudisma or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to You, and other know-how, methodologies, equipment, and processes used by Cloudisma to provide You with the Services (“Host Materials”). Subject to the terms and conditions of this Agreement, Cloudisma hereby grants You a limited, revocable, non-transferable, non-exclusive license to use the Host Materials solely in connection with the Services. This license terminates when this Agreement terminates. As between You and Cloudisma, You acknowledge and agree that Cloudisma owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any use of the Host Materials after termination of this Agreement is not licensed and strictly prohibited. You agree that You will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express written permission to do so from Cloudisma.
5.3 This Agreement does not constitute a license to use Cloudisma’s trade names, service marks or any other trade insignia. Any use of any of Cloudisma’s trade names, service marks or any other trade insignia is strictly prohibited, absent Cloudisma’s prior written consent.
5.4 If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, or if We are required to file an ICANN complaint against You in order to bring about the transfer of an offending URL to Us from You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages, or in order to seek injunctive relief from You, or in order to file and prosecute an ICANN complaint.
5.5 You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all these fees and costs.
6. CONTENT AND ACCEPTABLE USE POLICY
By using Cloudisma.com’s Posting services (‘Services’), you agree to comply with this Acceptable Use Policy (‘AUP’). You also agree to require your end users to comply with this AUP. Cloudisma.com reserves the right to amend this AUP at any time, with or without notice to you. You agree to periodically review this AUP as modified from time to time. You agree to be bound to this AUP, as modified from time to time, every time you use or access the Services.
Pursuant to your Posting Services Agreement, Cloudisma.com may, at its sole discretion, immediately terminate your access to the Services if your conduct violates (or appears to violate) the AUP. In addition, Cloudisma.com may, at its sole discretion, immediately terminate your access to the Services, if any of your end users violate the AUP.
6.1 As a condition of your use of the Services, you will not use the Services (nor will you permit an end user to use the Services) for any purpose that is unlawful or otherwise prohibited by this AUP. You may not use the Services (nor will you permit an end user to use the Services) in any manner that could damage, disable, overburden, or otherwise impair any of the Services offered by Cloudisma.com, or any services offered by a third party, or interfere with any other party’s use and enjoyment of any of our Services. You may not (nor will you permit your end users to) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
6.2 The Services are designed to enable you and your end users to communicate with others via the Internet. You agree to use the Services (and to require your users to use the Services) only to post, send and receive messages and material that is proper. By way of example, and not as a limitation, you agree that when you (or your end users) are using a Service, you (and your end users) will not:
- Use the Service in connection with unlawful contests, lotteries, or gambling; pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Publish, post, upload, distribute, traffic or disseminate any defamatory, obscene, or otherwise unlawful content, such as child pornography or virtual child pornography.
- Publish, post, upload, distribute or disseminate any topic, name, material or information that incites discrimination, hate or violence towards one person or a group because of their belonging to a race, a religion or a nation.
- Upload, or otherwise make available files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents to do the same.
- Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s property.
- Restrict or inhibit any other user from using and enjoying the Services.
- Violate any code of conduct or other guidelines which may be applicable for any Service.
- Create a false identity for the purpose of misleading others.
- Host TOR exit nodes.
- Use, download or otherwise copy, or provide (whether for a fee or not) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof.
- Network probing or port scanning tools are only permitted if explicitly authorized by the destination host and/or network. Unauthorized port scanning, for any reason, is strictly prohibited.
- Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
- Download any file posted by another user of a Service that you know, or reasonably should know, cannot be legally distributed in such manner.
- Utilizing bots for the purpose of repeatedly and/or automatically acquiring merchandise and anything similar that violates 3rd party Terms of Service that could result in the blocking of Cloudisma IP space or ASN.
- Violate any applicable laws or regulations.
Cloudisma.com reserves the right at all times to disclose any information as Cloudisma.com deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Cloudisma.com’s sole discretion.
Cloudisma.com does not control or endorse the content, messages or information found in any Service and, therefore, Cloudisma.com specifically disclaims any liability regarding the Services and any actions resulting from your participation in any Service.
In the event any instance uses excessive CPU from activities such as cryptocurrency CPU mining, Cloudisma.com reserves the right to limit the CPU available to your instances in order to maintain a consistent level of performance on all our nodes.
6.3 Cloudisma.com has no obligation to monitor the Services. However, Cloudisma.com reserves the right to review materials posted to a Service and to remove any materials in its sole discretion. Cloudisma.com reserves the right, in its sole discretion, to terminate your access to any or all Services and the related services or any portion thereof at any time, with or without notice, for violating this AUP. Your rights and obligations upon termination of any Service are governed by the Posting Terms of Service. Upon termination of the Service, your right to use the Service immediately ceases. Cloudisma.com shall have no obligation to maintain any content termination of the Services.
6.4 Cloudisma will not actively monitor the content of the web sites being hosted by Cloudisma.com, although Cloudisma.com, at its sole discretion, may elect to electronically monitor its network and may disclose any content or records concerning Your account as necessary to satisfy any law, regulation, or other governmental request or to properly operate Our network and protect any of Our customers. Cloudisma will investigate complaints of a violation of a third party right or of this AUP. Cloudisma will cooperate with those attempting to minimize Internet abuse and reserves the right to institute “filters” or other mechanisms for that purpose. Cloudisma will cooperate with law enforcement authorities and reserves the right to notify such authorities if it suspects that You or any of Your end users are engaged in illegal activities. Nothing contained in this Section, or anywhere in this Agreement, is intended to bestow any rights on any third party, and no third parties shall be entitled to enforce any terms of this Agreement between the Parties.
6.5 You acknowledge and expressly agree that Cloudisma will not be liable to You or any of Your end users for any action Cloudisma takes to remove or restrict access to the Services for any alleged violation of the AUP, or exercising its rights as a Good Samaritan under the Telecommunications Act of 1996 (47 U.S.C. § 230(d)) or under the Digital Millennium Copyright Act of 1998.
6.6 Cloudisma.com will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email.
6.7 Cloudisma may, at its sole discretion, immediately terminate Your access to the Services, and terminate this Agreement for cause, if Your conduct violates the acceptable uses outlined below, or if any of Your end users’ or downstream customers’ conduct violate such acceptable uses.
6.8 Cloudisma takes the issue of child pornography very seriously, and any potential harm to minors using our services is strictly prohibited. Content that is or may be perceived to be child pornography will be immediately removed from public access upon notification or detection by Us. Additionally, Cloudisma reserves the right to terminate any account whose website(s) hosts or links to child pornography immediately and without notice to You. You agree to cooperate in any such efforts. Content or communications seeking to solicit, lure or entice minors into sexual activity or lewd behaviour is also strictly prohibited, and will be treated the same as, or like, child pornography, consistent with applicable law. You agree to cooperate with Cloudisma in any effort to investigate, disable or remove such content originating with Your end-users. Cloudisma will cooperate with law enforcement authorities and will notify such authorities if it suspects that You or any of Your downstream customers or end users are engaged in any such illegal activities.
6.9 Section 230 Notice: You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material on Your site. You agree not to allow minors to view any such site and agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), you are hereby informed that you can research such services at websites, such as www.asacp.org. Please note that this Site makes no representation or warranty regarding any of the products or services referenced on such sites and recommend that the user conduct appropriate due diligence before purchasing or installing any online filter. You agree to take steps to prevent minors from viewing this site if Your computer can be accessed by a minor. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age-restricted content on Our Site from being displayed or accessed by Your children or wards.
Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that Cloudisma operates as the provider of an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication of Your content (including third-party content published on Your website(s)). We do not create such content, and We are not responsible for the publication of remarks or communications of You or third-parties that may arguably rise to the level of being actionable under the law, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that the laws of England & Wales allow Cloudisma to remove any content found to be offensive, defamatory, obscene or otherwise violative of Our policies, without impacting Our immunity status as an interactive computer service. Nothing contained in this paragraph is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act. In the event that any court finds that any third party communication or third party content hosted by us falls outside of the realm of the immunity provided by the CDA, this shall not be deemed to be a waiver of any legal protections provided by Section 230 for any and all other content posted on our Website or hosted via our Services.
6.10 Specific Requirements for Service Provider and User-Generated Content Subscribers
If You use Our Services for any site, sub-domain, page or business model that allows Your end users or customers to control or upload material to Internet space assigned to You by Us, You shall be deemed to be acting as a “Service Provider” with respect to such services and/or customers. Service Providers include but are not limited to Clients which; a) resell bandwidth as hosts to third parties; b) operate user-generated content sites such as forums, “tube” sites, review sites, and online classified advertising sites; c) operate search engines; or d) operate peer-to-peer file sharing networks. Clients acting as a Service Provider for third party users shall comply with the following provisions:
- You shall notify Us of all domains, web pages or IP addresses for which You are acting as Service Provider.
- You shall comply with 17 U.S.C. §512 of the DMCA by properly designating an agent for receipt of copyright infringement notices, and You shall publish a link on the home page of any website for which You are a Service Provider to a DMCA Notice and Takedown Policy, identifying the website’s designated agent and associated contact information.
- You shall provide Us with a current link to Your DMCA Notice and Takedown Policy and further advise Us of any changes to Your Designated Agent contact information. This shall be a continuing obligation for as long as You use Our Services.
It is the policy of Cloudisma to provide any infringement notices it receives relating to Service Provider Subscribers, directly to the Subscriber’s Designated DMCA Agent, and to further notify any copyright claimants of the identity and contact information for the Service Provider Subscriber’s Designated DMCA Agent. Failure to maintain compliance with this section shall constitute a material breach of this Agreement. Nothing contained herein should be interpreted as legal advice, and You are encouraged to consult your personal attorney regarding DMCA safe harbor compliance, or any other legal matter.
6.11 Cloudisma.com respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Cloudisma the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Services;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
You may send your Notice of Claimed Infringement to: [email protected]
6.11 Cloudisma reserves the right at any time to implement a ‘notice and takedown’ procedure upon receipt of any notification of claimed infringement. Cloudisma reserves the right at any time to disable access to or remove any material or activity accessible on or from any site or any materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent.
6.12 Nothing contained in this Section, or any part of this Agreement, shall constitute legal or professional advice regarding any matter referenced therein. You are responsible for obtaining your own legal advice regarding compliance with any and all applicable laws or regulations.
7.1 Payment for Services is due in advance of the time period for which such payment covers. Services are billed on an automatic and recurring basis unless and until you follow Cloudisma’s cancellation procedure set forth in this Agreement.
7.2 Unless separately negotiated by You and Us, and confirmed by separate written agreement, the initial and recurring Fees for the Services selected by You shall be as provided in the initial on-line order form. All set-up fees and special programming fees are non-refundable. Fees for Services are payable in advance. Failure to make payment of Fees for Services when due may result in the suspension or termination of Services.
7.3 At the time of registration, You must select a payment method. Cloudisma reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. If You do not pay all Fees when due, Your account will be deemed past due. For any past due Fees, Cloudisma will charge You interest at one and one-half percent (2%) or the highest rate allowed by applicable law, whichever is lower, per month of the unpaid amount, until paid.
7.4 You agree to pay any and all taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. Cloudisma is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. If Cloudisma should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, Cloudisma will invoice You for the difference between payment received and the Fees due.
7.5 You also agree to pay all attorney and collection fees arising from Cloudisma’s efforts to collect any past due Fees. If you cancel any Service prior to the expiration of the pre-paid Fees, You understand and agree that Cloudisma will not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees.
7.6 Coupons and Discount Codes – From time to time, Cloudisma may offer coupons or other discount codes which may be used when signing up for hosting with Us. Coupons and discount codes are for first-time customers of Cloudisma and must be used at the time of Your initial purchase with Us – they may not be applied after Your service with Us has already been initiated. Unless expressly provided, such coupons and discount codes may not be used toward upgrades to Your account. Any account We deem to be attempting unauthorized coupon or discount code use may be subject to Termination for Cause.
8. BACKUPS & LOSS OF DATA
8.1 You agree that Your use of Cloudisma’s Services is at Your own risk, and that Cloudisma is not liable for any data loss in connection with its Services. You are solely responsible for creating backups of Your Content. If, during Our own routine maintenance, We do create a backup of Your Content which You later request Us to restore to Your account, We cannot guarantee that we will be able to do so, or that Your Content will be unharmed as a result of the initial data loss or the subsequent restore procedure. To that end, We highly recommend that You establish Your own routine backup procedure and that You periodically test restoring files from Your backup media to ensure that You are making viable backups.
8.2 Some of our Services come with a backup solution, if you have purchased a service that doesn’t come with a backup solution, and you wish for Cloudisma to provide you with routine backup service, in addition to the Services provided under this Agreement, please contact Us. We offer many different backup solutions as an add-on service to Our regular Services, and all such services are provided through a separate, written agreement.
- RESOURCE USAGE & SECURITY
9.1 With Our Infrastructure VPS Cloud Service, We do not impose hard set limits on each account’s system resources. We do not actively disable accounts until they greatly exceed an acceptable level of usage. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc. Cloudisma will advise You of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.
9.2 Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from the Site and/or Materials. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage Our Services and Site or any communications on it. If You do not adhere to this provision of this Agreement, in addition to monetary damages and other remedies available to Cloudisma, You hereby agree to pay liquidated damages of $10000.00 plus any and all fees associated with recovery of these damages, including attorneys’ fees and costs.
9.3 SECURITY Any violation of the security to the Site and/or Services is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers used to provide the Site, Services, and/or Materials (the “Servers”) is strictly prohibited and is a violation of this Agreement and the AUP per Section 6 of this Agreement. You agree not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware and software, compromising the Servers, or for any other unauthorized use commonly known as “hacking.” In addition, You are prohibited from the following:
- Any form of unauthorized access to or use of data, systems or networks, including the Site and/or Services;
- Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network;
- Unauthorized interference with service to any user, host or network;
- Introducing a malicious program into the network or server (e.g. viruses and worms), including the Site and/or Services;
- Circumventing user authentication or security of any host, network or account;
- Using an account with another provider to promote Your site with Us in an abusive manner.
- Utilizing Our Services for the purpose of compromising the security or tampering with system resources or accounts on computers at Our site or any other site.
In the event You are involved in any violation of system security, We reserve the right to release information about You to system administrators at other sites in order to assist in resolving security incidents, and We shall also cooperate with any law enforcement agency investigating a criminal violation of system or network security. Additionally, any violation of these security provisions may, at Our sole discretion, be grounds for Termination for Cause of Your account per Section 3 of this Agreement.
9.4 BANDWIDTH USAGE Your monthly bandwidth allowance is determined by the specific package for which You sign up. If Your account exceeds Your monthly allowance, You will be charged an overage fee. For our Infrastructure VPS Cloud, Bandwidth utilization in excess of instance allocation is charged at $0.01 per GB in North American and Western European locations. Due to higher regional costs, Singapore and Tokyo (Japan) overage is priced at $0.025 per GB and Sydney (Australia) overage is priced at $0.05 per GB. For Our Bare Metal Cloud, overage is priced at $0.05 per GB.
9.5 FAIR USE POLICY We provide specific Services to our Clients and define normal, fair, and reasonable use in terms of our Servers as use that is consistent throughout any given billing period. We expect regular usage patterns from individual component machines and the client solution. Should we at our sole discretion determine a Client is not using this Service as defined under this Fair Use Policy, we may take actions to mitigate negative impact to Service delivery systems including but not limited to the following:
- Rate-limit the data the Client may send and/or receive from the individual machine to the entire solution level
- Adjust pricing to a standard bandwidth rate (market-dependent)
- Suspend or terminate Service to any or all Client machines
10. PRICE CHANGE
The amount You pay for hosting will never increase during a specific term or time period for which you have signed up for Our Services. We reserve the right to change prices listed on cloudisma.com at any time, without notice, and the right to modify the amount of resources given to plans at any time. Additionally, if we terminate this agreement without cause pursuant to Section 3 of the Agreement, You understand that if We agree to provide Services to You in the future, the amount You paid under any prior term or time period is not determinative of the amount You pay should We provide Services to You again. It is Your responsibility to check Our website for plan or price changes should You wish to take advantage of plan or price changes which may have occurred. Cloudisma does not automatically update Your plan. All upgrades or downgrades will be performed at Your request and may include modification fees or require reinitiating service with Us.
11. DOMAIN NAME SERVICES
11.1 We resell domain names. When you apply to register a domain name, your request is transmitted to eNom (www.eNom.com). By using our Domain Name Services, you agree to be bound by eNom’s domain name registration policies and procedures, so please read them. These policies and procedures are available at: www.eNom.com/terms. Because of the mechanics of domain name registration, we cannot guarantee that your domain name will be registered. After registration, it is your responsibility to ensure your domain name does not lapse, for whatever reason, and we are not responsible for any lapse or any damages caused by any lapse.
11.2 It is your sole responsibility to fully investigate and ensure that the domain name you register does not infringe on the legal rights of others. We do not check to see whether a domain name you register, or use infringes on the legal rights of any third party and we suggest you seek advice of legal counsel before registering any domain.
11.3 Cloudisma will use commercially reasonable efforts to comply with any legal order to cancel, modify, or transfer your domain name. ICANN’s Transfer Policy requires a 60-day transfer lock to apply to your domain name(s) in the event of any “Change of Registrant.” Cloudisma currently locks your domain name for any change involving your WhoIs information. This feature is designed to protect your domain from any unauthorized attempt to transfer your domain. We do not offer an option to opt out of the 60-day transfer lock. Any “Change of Registrant” as defined by ICANN’s Transfer Policy will subject the domain to a 60-day transfer lock. Please note that the parameters that trigger the 60-day transfer lock are subject to change. The current parameters which trigger the 60-day lock include: (A) change of registrant First Name, (B) change of registrant Last Name, (C) change of registrant Organization Name, (D) change of registrant Email. You also agree and understand ICANN’s policies for Domain Verification and any other current or future policies they might enact. More information can be found here: https://www.enom.com/raa/, http://www.icann.org/en/resources/registrars/registrant-rights/educational, and http://www.icann.org/en/resources/registrars/registrant-rights/benefits
You agree to defend, indemnify, and hold Cloudisma and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach of Your covenants under this Agreement; (b) Your use of the Services; (c) any defamatory, libellous or illegal material contained within Your Content or Your information and data; (d) any claim or contention that Your Content or Your information and data infringes any third party’s patent, copyright or other intellectual property rights or violates any third party’s rights of privacy or publicity; (e) any third party’s access or use of Your Content or Your information and data; (f) any violation of the applicable Acceptable Use Policy. In the event of a claim under this section, Cloudisma shall be permitted to select legal counsel to provide a defence to such claim. Cloudisma reserves the right, at its own expense, to participate in the defence of any matter otherwise subject to indemnification from You but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Cloudisma, which shall not be unreasonably withheld.
13. NO WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. CLOUDISMA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CLOUDISMA MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES CLOUDISMA MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ANY STATEMENTS MADE REGARDING SUCH MATTERS IN PROMOTIONAL MATERIALS SHALL BE CONSIDERED ADVERTISING REFERENCES, AND NOT WARRANTIES. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
CLOUDISMA MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO YOU THAT ARE NOT PART OF THE SERVICES (“THIRD-PARTY SERVICES”). CLOUDISMA HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE THIRD-PARTY.
CLOUDISMA MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CLOUDISMA OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON CLOUDISMA’S WEBSITE.
WE ENCOURAGE YOU TO MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS. CLOUDISMA WILL NOT BE HELD ACCOUNTABLE FOR ANY LOSS OF DATA REGARDLESS OF WHETHER OR NOT YOU ARE SUBSCRIBED TO ANY BACKUP SERVICE OFFERED BY US.
14. LIMITATION ON LIABILITY
YOU ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEB-SITE AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL CLOUDISMA BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB-SITE AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB-SITE AND/OR BUSINESS.
THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT WILL CLOUDISMA, OUR AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY, OR CONTENT AVAILABLE ON THE SERVICES (“AFFILIATES”), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION OR SIMILAR ACTION, EVEN IF CLOUDISMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL AGGREGATE AND MAXIMUM LIABILITY OF CLOUDISMA AND THE AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS YOU HAVE PAID TO CLOUDISMA DURING THE THREE (3) MONTHS PRIOR TO THE ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.
15. GENERAL PROVISIONS
15.1. Jurisdiction. This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws of England & Wales.
15.2. Severability. If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
15.3. No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
15.5. Complete Agreement. This Agreement (including all other policies incorporated herein) constitutes the entire agreement between the parties with respect to the Services and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
15.6. Relationship Between the Parties. Cloudisma is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
15.7. Force Majeure. Cloudisma shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fibre cuts; strikes, or shortages in transportation, facilities, fuel, energy, labour or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay Cloudisma’s performance.
15.8. Any questions, complaints, enquiries about any part of this Agreement should be sent to Our legal team at [email protected].