Terms of Services

01. Welcome

Vaghasia Group, Inc. d/b/a AccuWeb.Cloud (AccuWeb.Cloud, we, us or our) is pleased to have the individual or entity (you or your) agreeing to these Terms of Service (ToS) as our Customer. It is our hope that we will meet your expectations, and deliver the products and services set out on your Order Form (together, the “Services” and each, individually, a “Service”) as set out in this Agreement. The date that we accept an Order Form for a particular Service is the Effective Date. The initial term that we agree to provide the Services is also set out in your Order Form.

AccuWeb.Cloud and Customer agree that there are multiple components to their contract.

This ToS;

The Order Form;

Our Acceptable Use Policy (AUP) located here: Acceptable Use Policy

Acceptable Use Policy

The Internet is a shared resource. Our Services are designed to be used by multiple individuals and entities. You and your End Users may only use the Services for a lawful purpose, further limited by our Agreement. You may not use the Services to transmit or disseminate material, data or information that violates the laws of any country, or U.S. federal, state or local regulation. You may not use the Services to facilitate or encourage a violation of these laws. The dissemination of child pornography, child erotica or bestiality is strictly prohibited, regardless of whether this data is allowed in your jurisdiction.

The Services Must Be Used in a Positive Manner

You may only distribute email to individuals who have notified you that they wish to receive your communications, or those of your customers. You must be in possession of that notice. Distribution of mail in any other manner is considered by us to be SPAM

The Services may only be used to promote positive interaction with the Internet. Instruction on hacking, or engaging in other malicious behavior, is not allowed

In many cases your use of the Services has impact on other users of our network. You may not use the Services in a manner that would affect their ability to use the Services.

Collecting, or using, email addresses, screen names, or other personal identifiers without the consent of the person identified, is prohibited.

The Services may only be used to identify you or your End Users. They may not be used to impersonate another person or entity. This includes spoofing email or network packet headers for any reason.

Your conduct must be generally acceptable in the Internet community. Any conduct that is likely to result in retaliation against our business, including behavior that makes us or our network the subject of DDoS attacks, is prohibited.

Certain Uses of the Services Are Expressly Prohibited

You may not use the Services for the following:

To distribute pornography;

obscene speech;

promoting violence or injury;

using defamatory or abusive language;

gambling, or similar activities such as pyramid or ponzi schemes;

instructing others in prohibited activities;

forging, misrepresenting, omitting or deleting message headers, return mailing information, or internet protocol addresses to conceal or misidentify the origin of a message;

creating or sending Internet viruses, worms or Trojan horses, flood or mail bombs, or engaging in denial of service attacks;

hacking, and/or subverting, or assisting others in subverting, the security or integrity of our services or systems;

soliciting the performance of any illegal activity, even if the activity itself is not performed;

Also prohibited are sites that promote any illegal activity, indulge in offering services like online lottery, or present content that may be damaging to AccuWeb.Cloud servers or any other server on the internet. Links to such materials are also prohibited;

Pirated software, Hacker programs or archives, Chat rooms, Warez sites, Any Site running background processes for fetching the data from internet websites, Any Site that consumes more than 10% of system resources, IRC Bots, imaging and file dump, mirror, Proxy Scripts, top sites (Warez), High-Yield Interest Programs (HYIP) or related sites, Escrow, Investment sites (egold exchange, FOREX), sale of any controlled substance without prior proof of appropriate permit(s), Bank Debentures, AutoSurf sites, Bank Debenture Trading Programs, Prime Banks Programs, muds (multi-player computer game and chat rooms) / rpg's (Role-playing game), Brute Force Programs, hate sites, sites promoting illegal activities, IP Scanners, Mail Bombers and Spam Scripts. Forums and or websites that distribute or link to warez content are prohibited. You can not use your space for backup/storage device with the exception of your own web site;

You and your End Users may not engage in activity that infringes or misappropriates the intellectual property rights of others. This includes but is not limited to, copyrights, trademarks, service marks, trade secrets, software piracy and patents; and/or

Acting in any manner that might subject us to unfavorable regulatory action, subject us to any liability for any reason, or adversely affect our public image, reputation or goodwill, as determined by us in our sole and exclusive discretion.

Spamming, or sending of unsolicited emails from an AccuWeb.Cloud server or using an email address or domain that is maintained on an AccuWeb.Cloud machine as reference is STRICTLY prohibited. This means that clients of AccuWeb.Cloud will not use or permit others to use our network to transact in UCE (Unsolicited Commercial Emails). Violation of AccuWeb.Cloud's SPAM policy or anyone causing any of our IP space to be listed in any of the various Spam Databases will result in severe penalties.

Any kind of News Bombing activities through emails that obstructs another people's use of e-mail services or news;

Any activity that is involved in forging any message header, in part or whole of any electronic transmission origination or passing through the AccuWeb.Cloud service;

The use of the AccuWeb.Cloud service to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of AccuWeb.Cloud's or another entity's computer software or hardware, electronic communication system, or telecommunication system, whether or not the intrusion results in the corruption or loss of data, is expressly prohibited offending.

Opt-Out mailing lists are strictly prohibited. This includes any lists or databases purchased or otherwise obtained from third parties, as the persons on such lists did not specifically solicit mail from you. Any mailing lists you maintain must be true confirmed opt-in in nature. (Information regarding confirmed opt-in lists and responsible e-mail marketing can be found here) This requires a user to specifically request to be added to your mailing list. Having to unsubscribe from mailing lists during product registration and similar sign up forms is not classified as opt-in, but rather opt-out, which is in violation of this UCE policy. In addition, any opt-in mailing lists must include an automated unsubscribe facility where clicking on a link within the e-mail will automatically and immediately unsubscribe users from lists. Reply-to e-mail addresses to unsubscribe are known to be ignored and are unreliable, therefore not permitted within our UCE policy.

Upon notification of an alleged violation of our SPAM and other email policies listed as above, AccuWeb.Cloud will initiate an immediate investigation (within 48 hours of notification). During the investigation, AccuWeb.Cloud may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, AccuWeb.Cloud may, at its sole discretion, restrict, suspend or terminate customer's account. Further, AccuWeb.Cloud reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. AccuWeb.Cloud will notify law enforcement officials if the violation is believed to be a criminal offense. First violations of this policy will result in an "Administrative Fee" of $200 and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $400 and immediate termination of your account. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $180 per hour that AccuWeb.Cloud personnel must spend to investigate the matter. AccuWeb.Cloud will be the sole arbiter as to what constitutes a violation of this provision.

Though we do not allow any form of SPAMMING from our servers and make sure that no such activities are done from our server, we DO NOT support email forwarding facility through Gmail, AOL, comcast.net, att.net, sbcglobal.net, msn.com, hotmail.com, live.com, msn.net because it has been our experience that instead of tracing the origination of the SPAMING they blacklist and block the immediate source of email thus jeopardizing the entire email activities en-routed through them. We may add more ISPs if we notice a similar issue and we reserve the right to block ISPs without any advance notification.

We Comply with the Digital Millennium Copyright Act

In accordance with the Digital Millennium Copyright Act (DMCA), we have adopted a policy to suspend or terminate the accounts of website owners found to be in violation of copyright law. We respect the intellectual property of others. You must do the same. We may, in appropriate circumstances and at our sole discretion, disable and/or terminate the accounts of users who infringe. If we terminate this Agreement for your violation of the DMCA, you will not receive a refund of the Fees. 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 our Copyright Agent (identified below) with 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 site;

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;

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.

Our agent for notice of claims of copyright infringement can be reached as follows: [email protected]

Other intellectual property claims

obscene speech;

Our Privacy Policy (Privacy Policy) located here: Privacy Policy

Our Service Level Agreement (SLA) located here: Service Level Agreement

Collectively these documents are referred to as the Agreement. They are referred to by their individual names if necessary.

We agree to provide the Services to you as set out in the Agreement during the Term, as defined in this Agreement, provided that you comply with the terms of this Agreement. As long as you are in compliance, we grant you a nonexclusive, nontransferable, nonsublicensable, revocable right to: (i) use and access the Services; and use the Services to provide your offerings to your customers. We agree to provide the Services as they are set out on the Product Page (as defined in this Agreement) as of the Effective Date, subject to the Agreement. We may make non-material changes to the Services from time-to-time, and may substitute Third Party Products with other products having the same, or similar functionality.

02. Payment Terms

You agree to pay us the fees set out on the Order Form during the Term (Fees).

The Fees are your sole and exclusive responsibility. They are non-refundable.

If taxes are assessed on your use of the Services, you agree that we may add them to the Fees, and you agree to pay them. We will not add taxes based on our income.

If we are including products and services from third party providers in the Services, you agree to pay any Fees charged by these providers to us. These Fees are not refundable and are not subject to the Guarantee below. If the fees charged to us by third party providers increase, you agree to pay the proportionate amount of any such increase attributable to the Service.

You understand and agree that your failure to pay the Fees when due, for whatever reason, except for fees that you dispute (which shall be paid promptly upon a determination by us that such Fees are valid) may lead to the suspension and termination of the Services. In some cases, suspension of a Service will lead to the loss of a particular Service permanently. For example, if you fail to pay us, and your domain name registration lapses, you may lose your domain name. We have no liability to you for such a loss based on your failure to pay the Fees. If your account is suspended for non-payment, you will be charged a reinstatement fee of $50.00. In the alternative, if you fail to pay the Fees when they are due, and have not disputed them as provided in this ToS, we will charge you interest in the amount of 1.5% per month, or the highest amount we are allowed to charge by the laws of the state governing this Agreement. You also agree to pay our reasonable costs of collection, including, but not limited to, our reasonable actual attorney’s fees. If you initiate a charge-back/chargeback, your Services will be suspended or terminated.

We are confident that our Services will meet your needs. To underscore this confidence, we have a satisfaction guarantee (Guarantee).

For our Cloud Hosting Services, if you are unhappy with any Service, you may terminate that Service without penalty or charge within thirty days from that Service’s Effective Date.

Our Guarantee only applies to the Services set out above. In addition, Third Party Products are not within our Guarantee. For example, domain name registrations, Plesk/cPanel licenses are not refundable.

Your Order Form may contain a set-up Fee. Set-up Fees are non-refundable for any reason and are not subject to our Guarantee.

We may offer you a discount on the Fee if you agree to pre-payment, or to an extended Term. If you terminate this Agreement for any reason, other than our material breach, or if we terminate it based on your breach or violation of our AUP, you will not receive a refund of pre-paid amounts. If the Fee has been discounted based on your agreement to an extended Term, you agree to pay the balance of the Fee (Early Termination Fee) at the time of termination, as if the full extended Term had been completed. If you have provided us with a credit card, or other form of payment to which we may charge Fees, you agree that we may charge that method of payment for the Early Termination Fee.

Discounts apply only during the initial Term of the Services, and do not renew. Unless expressly stated otherwise, they apply only to new customers.

Promotional codes only apply to the Services set out in their description, and we reserve the right to remove promotional codes if we determine that they have been misapplied.

Some Services may be changed based on your usage of those Services, or based upon third-party usage of such Services through you. The way we calculate these Fees is set out on our Product Pages. You agree to pay these Fees unless we have made an error calculating them, in which case you agree to comply with the Fee dispute provisions of this ToS.

Opening multiple accounts, or Services, to bypass restrictions or overage charges set by us, or to obtain additional discounts reserved for new customers, is a violation of this Agreement.

We must receive payment of the Fees within thirty days of the date set out on our invoice, or the date set out on our Order Form (Due Date). If there is no Due Date, the Due Date will be on the twenty-eighth day of the month in which the Services are rendered. Fees must be paid without abatement or set-off. You authorize us to automatically charge Fees to the payment method we have on file on or no more than five days prior to the Due Date.

Your order will be subject to fraud screening. As a result, your order may be rejected after you submit it. We have no obligation to provide the Services to you until your order is confirmed by us in writing. Note, that some Services, for example domain name registrations, may not be immediately processed. It is possible that between the time you place an order, the time the order is screened, and the time it is implemented by us, a particular Service or component of the Service may not be available.

We have no control in the pricing provided by the third party software provider/licenses. We may need to change such pricing if there is any change by the Software/License provider.

03. Our Commitment to Service (SLA)

We will use commercially reasonable efforts to make the Services fully controlled by us available 100% of the time during each monthly billing cycle. If we are unable to meet this service level, we agree to credit your account based on the following SLA standards:

97% to 99% uptime = 3% of charges during that billing cycle.

95% to 96.99% uptime = 5% of charges during that billing cycle.

90% to 94.99 uptime = 10% of charges during that billing cycle.

Our SLA does not apply to downtime caused by you, our upstream bandwidth providers, or third parties whose products are included in our Services.

If we provide SLA credits to you, they will be provided to offset future Fees. SLA credits may not exceed the total Fees owed by you in a given month for the Service to which the SLA credit applies. SLA credits may not be aggregated, carried over from month-to-month, bartered, transferred or sold.

Our SLA is your sole and exclusive remedy for defects in the Service.

04. How we will provide the Services to you

As a token of our appreciation, we are pleased to extend a special offer to you – 10 GB of complimentary storage space from AccuWeb.Cloud. With 10 GB of storage, you can store and manage your valuable data, files, and applications more easily than ever before. You can count on AccuWeb.Cloud for reliable solutions and exceptional support if you have any questions, concerns, or need any further clarifications. AccuWeb.Cloud retains the right to discontinue the complimentary storage offer with 30 days prior notice. We are always here to make sure you make the most of our services.

When you completed the Order Form, you selected the Services for us to provide to you. The description of the Services is set out on our product description pages on our website www.AccuWeb.Cloud (Product Pages). We agree to provide the Services as set out on our Product Pages (as of the date of our written confirmation of the Order Form) during the Term. However, we reserve the right to make minor, non-material changes to the Product Pages, and the Services, during the Term, provided that any such change does not materially impact your ability to use the Services. Material changes to the Product Pages will only apply to the Services we provide you when your Term renews.

The Services are designed to be used by individuals and entities who have experience using internet infrastructure services. You agree that you have the necessary knowledge to use the Services without our support. Any support we provide you is based on the Service’s inability to function as set out in the Product Description. The information and data you place on our Services, or which you transmit using our Services, must be server ready. This means that we are not required to manipulate or validate this information and data. If we do agree to assist you in making your information or data server ready, you agree that we may add our hourly charges to the Fees, and you will pay them. However, we may also reject this material at any time, even if it was previously placed on the Services. You may not terminate this Agreement based on this rejection.

If we, or our data center operator, are obligated to engage in any “hands on” labor to make the Services available due to your error, you agree that our hourly fee, or any charges assessed by our data center provider, will be added to the Fee, and you agree to pay those charges.

You agree that we may investigate your use of our Services, and that of those who use the Services through you, to ensure compliance with this Agreement and the law. You agree to cooperate with us in this investigation at your cost. If we determine, based on our investigation, that you or your customer(s) (End User(s)) have violated this Agreement, or the law, you will be responsible for all costs of the investigation, and agree that we may debit the method of payment we have on file for you for these charges.

If a third party audits our Services, you agree to provide reasonable cooperation with this audit, including, but not limited to, providing us with copies of applicable licenses.

You will not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.

In the Order Form, and in all interactions with us, you agree to provide us with accurate information. You understand and agree that we will rely on this information in providing the Services to you. We have no liability for interruptions of the Service based on your failure to provide us with accurate information, or to update information that has become inaccurate. The individual or entity set out in our records as the customer shall be the owner of the account. We may take action based on the instructions of this individual. Neither the account, nor our Services, may be used by individuals who are under the age of eighteen, or who are residents of Iran, Syria, North Korea, Sudan or Cuba.

We believe that the descriptions of the Services set out on our Product Pages (the Product Descriptions) are accurate. However, you may not terminate the Services without penalty unless the Product Descriptions are materially inaccurate.

The Services may have limits or caps on their use. Our Product Descriptions set out these limits. Your use of the Services may be restricted, or you may be charged supplemental Fees, if you exceed these limits. You expressly agree that you are bound by these limits.

You are responsible for providing equipment necessary for you to access the Services. Unless expressly set out in an Order Form, we do not warrant that your equipment will be compatible with the Services, or that the public Internet will be available when you seek to access and use the Services.

If you’ve selected “back-up services” on your Order Form, they are provided on a commercially-reasonable-efforts basis, and as a supplement to your own back-up plans. You expressly acknowledge and agree that back-up services will not capture all data. If you ask us to restore material from back-up, it will be a bare metal restore. This means that all functionality that may have been available from the deployment of that information or data on our servers may need to be re-created. Creating this functionality will be at your expense. You agree that we will have no liability to you or any other person for loss, damage, integrity, usability accessibility or destruction of any data, other than in the case or our gross negligence or willful misconduct.

The IP addresses assigned to you are our property. You have no ownership interest in them. We reserve the right to assign you new IP addresses from time-to-time and at any time.

Following are a list of sites that will often require more than 10% of our systems resources: Multiple domains residing at a single IP address, domains with archives or galleries, (i.e. .gif, .jpg, .exe, .zip, .tar, etc.), and domain accounts offering download files. We are not saying that your web site cannot contain such files, however if at any time they consume 10% or more of our systems resources you will be contacted to resolve the problem.

All our plans are offered with monthly bandwidth limit therefore if your bandwidth usage exceeds the allocated limit, it will attract additional charges.

We may allow programs to run continually in the background. These are considered on a case-by-case basis and an extra charge will be incurred based on system resources used and operational maintenance needed.

CAUTION: AccuWeb.Cloud will allow the Cron jobs or schedulers to run for maximum thrice a day to avoid undue load on the server. If in case, there is some special requirement to run the Cron jobs/schedulers more than three times a day then we should be contacted at [email protected] with justifiable reasons.

05. Term and Termination

The initial Term during which we agree to provide the Services to you is set out in the Order Form. If the Order Form or Product Page does not contain a Term, the term shall be one year. On the anniversary of the initial Term, and for every anniversary thereafter, the Term shall renew for additional periods equal to the length of the initial Term (the initial term and each subsequent term each referred to herein as a Term).

You may terminate the Services at any time prior to the expiration of the Term by providing us with written notice of this termination. We will acknowledge your notice of termination within five business days.

Either party may terminate Services for material breach by providing the other party with written notice of their material breach, sufficient information for the other party to attempt to cure the breach, and two calendar days to begin to cure the breach. If the other party fails to initiate a cure within the two day period, the Services set out in the notice of breach will terminate. Services not affected by the alleged material breach will continue to be subject to this Agreement.

If we notify you that you have violated our AUP (an AUP Notice), and you do not cure this violation within the period set out in such AUP Notice, we may terminate the affected Services, or this Agreement. You remain liable for any Fees owed to-date, along with the balance of any Fees that would have been due for the remainder of the Term. If we suspend the Services while you are complying with our AUP Notice, you may be charged a reinstatement Fee as provided in Section 2(e).

Upon termination, all licenses granted to you in the Agreement will terminate. It is your obligation to ensure that you transition to another provider, including , but not limited to changing email and re-pointing DNS, prior to the date of termination. Upon termination, we are not required to maintain any of your data that remains on our network.

You may not use the Services in a way that jeopardizes (i) our ability to provide them to other customers or (ii) the stability of our network. Should we determine that you have used the Services in this manner, we reserve the right to limit your use of the Services to minimize these effects. Following our limitation of this use, we will notify you in writing of the steps you may take to mitigate these effects. If you do not accept these steps, we reserve the right to impose permanent restrictions or limitations on your use of the Services.

06. Security is a Shared Responsibility

No Internet infrastructure service is 100% secure. You agree to this statement. We agree to implement industry standard measures to secure the network used to provide the Services to you. We agree to patch any software and hardware administered by us within seven business days of our determination that any such patch will not adversely affect our network.

You agree to apply patches, updates and upgrades to the software and services administered by you and to observe appropriate security precautions in connection with passwords and other login credentials. This includes, but is not limited to, patching any announced security hole within seven calendar days of the licensor’s deployment of a patch.

If you fail to apply a patch, or remedy a security hole, within the time period set out in this section, we may do so at your expense, and add our cost to the Fee.

We agree to provide you with written notice within one day of our determination that our network has been accessed in a manner unauthorized by us (a “Security Breach”). Our Security Breach notice will contain the information we have learned up to that time. We agree to provide you with periodic updates, but no less than once per twenty-four hour period, until we determine that the Security Breach has been remediated. You agree that the information contained in our Security Breach notification is preliminary, unconfirmed, and may contain information that is later determined to be untrue. We have no liability to your or any third parties should you rely on this information. Providing you with this notice is our only responsibility in the event of a Security Breach.

07. We Each Support The Use of the Services

We have designed the Services to operate in the manner consumed by most of our customers. We do not provide professional services to configure the Services to your specific needs. However we do provide a knowledge-base, forums, chat and limited telephone assistance (Support). Our Support is in addition to your own knowledge. If your use of Support demonstrates that you do not have the necessary knowledge to use the Services we may limit your use of it. You may need to purchase additional equipment in order for the Services to operate. In addition, your equipment must be configured properly to connect to or receive the services.

Some aspects of the Services may be provided by third parties. Support for these items may be provided by these third parties. We have no liability for their support, or your inability to use the Services based on deficiencies in that support.

You will cooperate with our investigation of outages, security problems, breaches of this Agreement or disputes between you, or an entity using the Services through you, and a third party.

08. We Have Obligations to Each Other

Our warranties to you. We represent and warrant to you that (i) we have the power, authority and legal right to enter into this Agreement; and (ii) we have the power and authority to perform our obligations under this Agreement and all incorporated provisions.

Your warranties to us. You represent and warrant to us that: (i) you have the power, authority and legal right to enter into this Agreement; and (ii) you have the power, authority and legal right to perform your obligations under this Agreement and all incorporated provisions; (iii) that in entering into this Agreement, and performing the obligations set out in it, you will not violate any applicable laws and regulations, in particular, that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or those which may be accessed or transmitted using the Services, and that any entities who use the Services through you have these rights; (iv) that you will make backup copies of your data even if you purchase “back up” services from us; (v) and/or that you will pass through the terms of our AUP and Privacy Policy to End Users in your agreements with them.

You will not copy, transfer, reverse engineer, disassemble, decompile, create derivative works of, or, other than as expressly set out in the Agreement, allow third parties to access the Services, nor will you remove any proprietary notices or labels that set out an ownership interest or contain prohibitions on use, or attempt or facilitate interference with the Services.

09. Our Liability is Limited

Other than as set out in the paragraph entitled “Our Warranties to You” we make no warranties, and any implied warranties are expressly disclaimed. In particular, we make no warranties whatsoever about the materials posted on our FAQ, support, or other self-help websites. Your use of this information is at your own risk.

Except as required by law, customer’s use of the website and services is entirely at customer’s own discretion and risk. The services are provided “As-is” and “With all faults”, and except as expressly provided herein. We do not make, and hereby disclaim, any and all other express, and/or implied warranties, including without limitation, warranties of merchantability, fitness for a particular purpose, noninfringment, title, and any warranties arising from a course of dealing, usage, or trade practice. Without limiting the generality of the foregoing, we do not warrant that the service(s) and/or equipment, will meet any or all of your expectations; will operate in all of the combinations which may be selected for use by you; or that the operation of the services will be uninterrupted, error-free or completely secure. No employee, or agent is authorized to make any warranty on our behalf.

You agree that, to the maximum extent permitted by applicable law, you will not under any circumstances including, but not limited to, negligence, hold us or our licensors, agents, employees, officers and/or third party vendors, liable for any indirect, incidental, special, consequential, exemplary or punitive damages whatsoever including, but not limited to, damages for lost profits, cost savings, revenue, business, data or use, or any other pecuniary loss by you or any other third party. You agree that the foregoing limitations apply whether in an action in contract or tort or any other legal theory and apply even if we have been advised of the possibility of such damages.

Except as required by applicable law, in no event will we be liable to you in the aggregate with respect to any and all breaches, defaults, or claims of liability under this agreement for an amount greater than the fees actually paid by you to us during the 3 month period preceding a claim giving rise to such liability. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. If that is the case, you agree that in those jurisdictions our liability will be limited to the extent permitted by law.

The parties acknowledge that the disclaimer of warranties, disclaimer of consequential damages and limitations of liability in this agreement and in the other provisions of this agreement and the allocation of risk set out in this agreement are an essential element of the bargain between the parties, without which we would not have entered into this agreement. Our pricing reflects this allocation of risk and these limitations.

10. We Each Agree to Indemnify Each Other

As set out below, a party agrees that it shall defend, indemnify, save and hold the other party harmless from any and all demands, liabilities, losses, costs and claims, including reasonable actually attorneys’ fees (Liabilities) asserted against the other party, its agents, officers and employees, that may arise or result from (i) any Service provided or performed or agreed to be performed or (ii) any product or service sold by you, your agents, employees, assigns or customers.

You agree to indemnify us, pursuant to this section against Liabilities arising from:

any injury to a person or property caused by any products or services sold or otherwise distributed in connection with the Service;

any materials supplied by you, or your customer, or entity accessing the Services through you, that are infringing, or allegedly infringing the intellectual property rights of a third party;

any Security Breach attributable to your failure to apply security patches as set out in this Agreement, or use of the Services in such a way as to proximately cause a Security Breach.

We agree to indemnify you, pursuant to this section, against Liabilities arising from claim that the Services, as wholly designed and operated by us, violate a valid, issued, U.S. copyright or patent.

11. We Each Agree to Keep Confidential Information Confidential

We each agree that information of one party that is known by the other party to be confidential or proprietary, or which the disclosing party, or any third party, has marked as confidential, will be held in confidence and will not be disclosed or used except to the extent that such disclosure or use is necessary for the performance or use of the Services. This paragraph shall not apply to information that is independently developed by either party, which becomes a part of the public domain through lawful means, or which is learned by a party independent of its confidentiality obligations set out in this ToS, without reference to the confidential information.

The Services are not designed to be compliant with laws mandating certain confidential treatment of data (for example the Health Insurance Portability and Accountability Act or “HIPAA”). Our obligation to keep your information, and that of your users, confidential, is strictly limited to the prior paragraph.

12. Miscellaneous Provisions

You agree to enter into a written agreement with your customers, which shall contain provisions that are no less protective of our interests as those set out in this Agreement.

Each of our rights and obligations set out in this Agreement are undertaken as independent contractors. Neither of the parties shall have the right to create an obligation on behalf of the other, unless expressly set out on the Service Order.

If any provision of this Agreement is found to be unenforceable or contrary to law, it will be modified to the extent necessary to make it enforceable. The remaining provisions shall remain in full force and effect. The waiver by a party of any breach or condition of this Agreement, will not be construed to be a waiver of any other breach or condition.

The only beneficiaries to this Agreement are the parties. Nothing expressed or implied in this Agreement is intended, nor shall it, confer on any person, other than the Parties and their permitted successors and assigns (as set out in Paragraph 6(k), below), any rights, remedies, obligations or liabilities.

We are not required to provide information to you in conjunction with any civil litigation. If we choose to provide this information to you, it will be subject to a separate agreement, and you will be charged for our expenses in providing this information, including legal fees.

Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than 10 days from the beginning of the event.

Your use of the Services is governed by U.S. export and use restrictions. You agree that you will not directly or indirectly export any data, information, software programs, or materials that violate U.S. export laws. You also agree, that you will not do business with individuals or entities with whom U.S. businesses may not transact. More information about U.S. export laws can be found here http://www.state.gov/strategictrade/overview/

This Agreement shall be governed by the internal laws of the State of New Jersey, excluding its choice of laws. All disputes concerning this Agreement shall be brought before the U.S. District Court for the New Jersey District of New Jersey located in Newark, New Jersey, (District Court). If the District Court does not have jurisdiction over a matter, the dispute shall be brought before The appropriate state court located in Bergen County, New Jersey The parties agree that venue and jurisdiction are proper before these courts, and agree not to contest notice from them. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.

The parties waive their right to trial by jury.

No waiver of rights under this Agreement, or any of our policies, or other agreement between the parties shall constitute a subsequent waiver of this or any other right under this Agreement.

This Agreement may not be assigned by you. It may be assigned by us.

Notices to you will be sent to the email address set out in our records. Notices to us shall be sent to the address located on our website. Notices shall be effective upon the date of delivery, or, if no delivery date is provided, five days from the date of sending, provided that an additional copy is sent by alternate means.

This Agreement, the Order Form, SLA, AUP, Privacy Policy and/or attachments shall be construed as one document. To the extent that there is a conflict between the terms of these documents and they shall have the following precedence: Privacy Policy, SLA, AUP, Order Form, and then ToS.

This Agreement may be executed in one or more counterparts, transmitted by facsimile and acknowledged electronically each of which shall be deemed an original, but which together shall constitute one and the same document.

13. VPS Customers

Your use of the equipment provided by us is not exclusive. You will take no actions to limit the use of the equipment by our other customers or other entities in general. You will not alter, or attempt to alter mechanisms, including software, implemented by us to facilitate the sharing of the equipment. You understand that certain aspects of the VPS Services are designed to facilitate use by multiple parties and may affect your use and administration of the equipment. You may not terminate this Agreement based on the implementation of these feature. You understand that you will not have physical access to the equipment we use to provide the VPS Services.

14. Managed Services Customers

We agree to monitor the network, physical infrastructure, servers and applications on a 24x7x365 basis. You agree that the Managed Services are subject to the technical limitations of the devices being managed and the equipment and our infrastructure.

Managed Services may not be available at certain times as a result of technical difficulties or equipment malfunctions; during scheduled maintenance; or as a result of circumstances beyond our reasonable control.

When you select Managed Services, you authorize us to log in and access the Services as necessary to configure the Services, for general server maintenance, and for other purposes reasonably required by us to provide the Managed Services to you.

15. Backup Services Customers

If you purchase Back-up Services, we have designed those Services in a general manner. It is your responsibility to configure them to serve your unique needs. We will rely on your instructions when we configure the Backup Services.

You agree and understand that (i) Back-up Services are not fool-proof; (ii) they will not back up all data; and that you will use a second source of back ups. Under no circumstance will we have any liability or responsibility for the loss of back-up data, content or other information, unless caused by our gross negligence or willful misconduct.

Back-up Services are provided on an as-is and as-available basis, as a supplement to, and not in lieu of, your own back-up efforts. While we will use commercially reasonable efforts to ensure the effective operation of the back-up Services, you expressly agree that no back-up program or service is error-free or fail-safe. Our only obligation is to restore your server to operating condition. It is your responsibility to restore the functionality of your website. You may wish to maintain an operating copy of your website for this purpose.

16. Domain Name Customers

The Domain Services will be provided to you through our third-party vendors, (I) Directi (reselleclub) and (II) eNom, Inc. (Domain Name Vendors). By purchasing Domain Services through us, you are bound by the Domain Name Vendor terms and conditions, which can be found at (I) http://www.resellerclub.com/privacy-policy (II) http://www.enom.com/terms/default.aspx and are incorporated into this Agreement. We strongly encourage you to review the Domain Name Vendor terms and conditions prior to your purchase of the Domain Services.

You understand and agree that your domain name is not actually registered until you receive a registration confirmation from us. We have no liability for the failure of a domain name to register during the registration process.

You must provide certain current, complete and accurate account and WHOIS information for your domain name(s). You must maintain and update this information as needed to keep it current, complete and accurate. You agree and understand that WHOIS information will be made public and that WHOIS information is not subject to our Privacy Policy.

The Domain Name Vendor may reject your domain name application, or discontinue providing Domain Services to you, for any reason within thirty calendar days of a Domain Service initiation or renewal. Outside of this period, Domain Name Vendor may terminate or suspend the domain name at any time for cause, which without limitation, includes: (i) registration of prohibited domain name(s); (ii) abuse of the domain name; (iii) payment irregularities; (iv) allegations of illegal conduct; (v) failure to keep your account or WHOIS information accurate and up-to-date; (vi) failure to respond to inquiries from Domain Name Vendor for over ten calendar days; or (vii) if your use of the Domain Services involves us in a violation of any third party’s rights or acceptable use policies, including, but not limited to, the transmission of unsolicited email or the violation of any copyright. No refund will be made when there is a suspension or termination of Domain Services for cause.

Either the Domain Name Vendor or we will notify you when renewal fees are due. It is your responsibility to keep current payment details on file with us. We have no liability should your domain name registration lapse because either we, or our partners, are unable to process your payment information.

The Domain Name Vendor owns all database, compilation, collective and similar rights, title and interests worldwide in its domain name database, and all information and derivative works generated from the domain name database.

You agree to be bound by the domain name transfer agreement located here: https://archive.icann.org/en/transfers/policy-12jul04.htm

Only the owner may transfer a domain name or respond to a transfer request. You must unlock your domain prior to requesting a transfer. You must secure an EPP Authorization Code in order to transfer domains to an EPP registry.

17. PCI DSS Compliance Disclaimer

The provisions set forth in this section apply to you that either itself, or through a processor or other agent, stores, processes, handles, or transmits cardholder data or PII in any manner.

1. You shall at all times comply with the Cardholder Data and Personally Identifiable Information requirements for cardholder data that are prescribed by the PCI Security Standards Council. Requirements documentation are available on the PCI Security Standards Council web site at https://www.pcisecuritystandards.org/.

2. You acknowledge and agree that cardholder data may be used only for assisting in completing a card transaction, for fraud control services, or as specifically agreed to by PCI Security Standards Council or as required by applicable law.

3. In the event of a breach or intrusion of or otherwise unauthorized access to cardholder data stored at or for you, you shall immediately notify the card issuer in the manner required in the PCI Security Standards Council requirements.

4. You shall maintain appropriate business continuity procedures and systems to ensure security of cardholder data in the event of a disruption, disaster, or failure of your primary data systems

5. You and your successors and assigns shall comply with the PCI Security Standards Council requirements after termination of this Agreement.

6. You acknowledge and agree that PII may be used only for assisting in completing an e-commerce transaction, including fraud control services associated with said e-commerce transaction, subject to applicable law.

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