www.OnTheCloud.co
Terms Of Service
These terms of service (TOS) are entered into
between Unlimited Net, LLC (provider of OnTheCloud.co) (OnTheCloud.co,
we, us, or our) and the entity purchasing or using services provided by or through
OnTheCloud.co (Customer, you, or your). We agree to be bound by this TOS when
we process your payment information and when any services are provided to you by OnTheCloud.co. You agree to be bound by this TOS when you
utilize services provided by us in any way, which includes, but it not limited to hosting, domain registration, SSL certificates, backup services, etc. If you are an affiliate or a reseller, this TOS contains provisions that
you are required to apply to your customers (End Users). It is your
responsibility to ensure that these provisions are included in contracts and
other agreements with your End Users. You are responsible for your End Users
under this TOS. If you intend to resell the Services, you must also agree to be
bound by our Reseller Agreement.
1. Our other agreements are incorporated into the
TOS
This TOS incorporates our Acceptable Use Policy
(AUP) and Privacy Policy by reference. To the extent that these agreements
conflict, this TOS shall prevail, followed by the AUP and Privacy Policy. In
certain cases, you may purchase services from us using another agreement which
is also incorporated into this TOS. If that agreement conflicts with this TOS,
the terms of that agreement will prevail over the TOS, but only to the extent
that the agreements conflict. After that, the agreements will have the
precedence set out above.
2. Services we provide to you.
The features and details of the Services governed
by this TOS are described on the schedule set out at "OnTheCloud.co"
for the category of Services you selected ("Product Description
Page"). Throughout this TOS, the aspects of the category of Services
provided to you by OnTheCloud.co, as set out on the Product Description Page,
are referred to together as the "Service."
OnTheCloud.co provides the Service to you based on
the description of it on the Product Description Page as of the Effective Date.
Should the Product Description Page change subsequent to the Effective Date,
OnTheCloud.co has no obligation to modify the Service to reflect such a change.
Certain aspects of the Service may be provided by
third parties. These third parties may have reserved the right to make changes,
including material changes, to the products provided by them and incorporated
into the Service. If a third party makes a change to its products, you may not
terminate this TOS based on such a change, even if it materially affects the
Service.
3. Contact Information
You are required to provide us with accurate information
when setting up your account, during the course of our relationship, and when
corresponding with us. On occasion, we may need to communicate with you by
e-mail about the Service. You agree to maintain a working e-mail address that
is monitored daily. We have no responsibility, or liability, for interruptions
in the Service, or damages of any sort, based on communications that are
misdirected as a result of your failure to provide us with updated contact
information.
The entity set out in our records is considered by
us to be our customer. If you are reselling the Service, or are an End User of
a reseller, it is your obligation to ensure that our records accurately reflect
ownership and control of the Service.
4. Term
The "Effective Date" of this TOS will be
the day on which you initially provide the contact information set out above.
This TOS will begin on the Effective Date and
continue for the term set out on the Product Description Page (Initial Term).
After the expiration of the Initial Term, this TOS will renew for successive
periods of equal length (Renewal Term). If the Product Description Page does
not contain an Initial Term, the Initial Term shall be one month.
5. Payment
You are responsible for the fees and charges set
out on the Product Description Page (Fees). You may be charged 7 days prior to
the date set out on the Product Description Page (Due Date).
Our obligation to provide the Service is contingent
on your payment of the Fees by the Due Date. You must pay the Fees without set
off or deduction. It is your responsibility to ensure that we receive payment
of the Fees. Should the Service be suspended, for any reason, Fees will
continue to accrue. Set up and domain name registration charges are not
refundable for any reason.
If the Fees are not paid by your financial
institution on the Due Date, your account will be considered delinquent. To
reinstate your account, you will be required to pay, depending on the reason
for the delinquency: (i) a returned check fee in the amount of $50; (ii)
interest in the amount of 2.0% per month, or the maximum amount allowed by law;
(iii) collection charges; (iv) any fees levied on us by our financial
institution; and/or (v) an investigation fee of $200.
You may choose to purchase products and services that
are not included in the Service but which are offered for sale by other parties
through OnTheCloud.co (Third Party Services). Third Party Services may be
billed separately from the Service. Fees for the Third Party Services may not
be billed on the month on which they are delivered. You agree to pay for these
Third Party Services regardless of the length of time elapsed between their
delivery date and the date on which you are charged.
6. Bill disputes
If you believe there is an error on your bill you must
contact us in writing. We each agree to work together in good faith to resolve
any billing disputes. Your dispute must include sufficient facts for us to
investigate your claims and be received by us at least 5 days prior to the Due
Date (Dispute Deadline). You waive your right to dispute any charges or Fees if
you fail to meet Dispute Deadline. If we find that your claim is valid, we
agree to credit the account that is the subject of the dispute on your next
bill. If you contact your credit card company, prior to notifying us of the
dispute, and initiate a "charge back" based on this dispute, and your
charge back claim is past the Dispute Deadline, you will be charged a $200
investigation fee. This fee compensates us for the investigation your credit card
issuer requires us to conduct in order to demonstrate our right to payment.
7. Termination
7.1. Money Back Guarantee.
The Service carries an unconditional 30 day
satisfaction guarantee (Guarantee). To cancel the qualifying Service and
receive a refund, contact us within the first 30 days of the Effective Date for
the particular Service. If you wish to retain your domain name, the cost of
your domain name will be deducted from your refund at our regular,
non-discounted, domain name price. If you paid us by credit card we will credit
the card on file, otherwise we will send you a check.
The Guarantee only applies to an individual Service
for 30 calendar days following the Effective Date. If you purchase more than
one Service from us, the Guarantee only applies to the Service that falls
within this 30 day period.
7.2. Termination for convenience
Either party may terminate the Service by providing
written notice to the other no less than 10 days before the expiration of the
initial term or renewal term for that particular Service.
7.3. Termination for material breach
One party may terminate this TOS upon the
occurrence of a material breach, if this breach has not been cured by the other
party within 30 days of their receipt of written notice of the breach. A
material breach shall be determined from the perspective of a reasonable
business person with significant experience conducting business on the
Internet. Notices of material breach must contain sufficient detail for the
party against whom the assertion of material breach is directed to identify the
breach and attempt to take corrective action. Third Party Services may be part
of the Service. A decision to cease offering Third Party Services will not be a
material breach.
7.4. Termination for breach of contract or delinquent payments
Unlimited Net, LLC, provider of
OnTheCloud.co, reserves the right to terminate, suspend, or cancel any Services
provided through OnTheCloud.co if the Client is in breach of contract or has delinquent payments with
Unlimited Net, LLC or any of its affiliates. Cancellation, termination, or suspension
can occur without prior notice. By
the use of Services with OnTheCloud.co, the Client waives their right of
recovery against Unlimited Net, LLC for any losses that may occur in
this regard.
7.5. Termination for your violation of our policies
We reserve the right to immediately suspend the
Service and/or terminate this TOS: (i) for a violation of any of our policies,
including those incorporated by reference; and/or (ii) your failure to pay any
amounts due. This right of termination is without prejudice to any other rights
we may have. You are not entitled to any type of notice or protest should we
exercise these rights, nor will you receive a refund of any Fees.
8. Use of the Services
Your use of the Services must be reasonable. You
may not place excessive burdens on our CPUs, servers or other resources. You
agree that we may place restrictions on your use of the Service, and charge you
excess bandwidth fees, to the extent that they exceed the use of the Service of
similarly situated customers. You understand that bandwidth, connection speeds
and other similar indices of capacity are maximum numbers. Consistently
reaching these capacity numbers may result our need to place restrictions on
your use of the Service.
You agree to cooperate with us to facilitate your
use of the Service. This cooperation includes, but is not limited to, providing
us with correct contact and billing information, designing material that is
"server ready" and ensuring that you, your employees and/or agents
have sufficient technical expertise to understand how to implement the Service.
Upon termination or expiration, your account will
be closed. We have no responsibility to forward e-mail, or other
communications, for you once your account is closed. You are encouraged to keep
the Service active during a transition period should you seek to forward your
e-mail or other communications.
9. Licenses and Intellectual Property
9.1. License from OnTheCloud.co to you
OnTheCloud.co grants to you a non-exclusive,
non-transferable, worldwide, royalty free license to use technology provided by
OnTheCloud.co solely to access and use the Service. This license terminates on
the expiration or termination of this TOS. Except for the license rights set
out above, this license does not grant any additional rights to you. All right,
title and interest in OnTheCloud.co's technology shall remain with
OnTheCloud.co or OnTheCloud.co's licensors. You are not permitted to circumvent
any devices designed to protect OnTheCloud.co's, or its licensor's, ownership
interests in the technology provided to you. In addition, you may not reverse
engineer this technology.
Any license provided to you, is provided with
"RESTRICTED RIGHTS" applicable to private and public licensees. These
rights include, but are not limited to, restrictions on use, duplication, or
disclosure by the United States Government as set forth in this TOS and as
provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2)
of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as
applicable.
9.2. Licenses from you to OnTheCloud.co
We may use information you provide to us for
technical support, implementation, operation or administration of the Service
(Operational Information). Operational Information, as well as aggregate
information gleaned from the operation of our business in general, will be used
to improve, or create new products and services. We shall be the exclusive
owners of the resulting intellectual property. You waive any rights you may
have in this intellectual property, and assign all right, title and interest in
it to us and agree to cooperate with us to secure our rights.
You grant OnTheCloud.co, and any third parties used
by OnTheCloud.co to provide the Service, a non-exclusive, non-transferable,
worldwide, royalty free license to use, disseminate, transmit and cache
content, technology and information provided by you and, if applicable, End
Users, in conjunction with the Service. This license terminates on the
expiration or termination of this TOS. All right, title and interest in your
technology shall remain with you, your End Users, or your licensors.
10. Representations and Warranties
10.1. Reciprocal
We each warrant to the other that: (i) we have the
power, authority and legal right to enter into this TOS; and (ii) we have the
power, authority and legal right to perform our obligations under this TOS and
all incorporated provisions.
10.2. Your Representations and Warranty
You represent and warrant to OnTheCloud.co that:
(i) you have the experience and knowledge necessary to use the Service; (ii)
you understand and appreciate the risks inherent to you, your business and your
person, that come from accessing the Internet; (iii) you will provide us with
material that may be implemented by us to provide the Service without extra
effort on our part; (iv) you have sufficient knowledge about administering,
designing and operating the functions facilitated by the Service to take
advantage of the Service; (v) that you understand that you may not be able to
access location based services, such as "911" emergency calls, using
the Service; (vi) that in entering into this TOS, and performing the obligations
set out in it, you will not violate any applicable laws and regulations; (vii)
that you will make back up copies of your data even if you purchase "back
up" services from OnTheCloud.co; and/or (viii) that you will pass through
the terms of our Acceptable Use Policy to End Users.
You expressly warrant that you own the entire
right, title and interest to, or have an appropriate license to use, all
materials provided to OnTheCloud.co, or which may be accessed or transmitted
using the Service. You also warrant that to the extent you do business with
other parties using the Service, that they have the same ownership interests in
the materials provided to you, or accessed via you, that are set out in this
paragraph.
11. Disclaimers
THE SERVICE IS PROVIDED ON AN AS-IS AND
AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 10.1,
ONTHECLOUD.CO HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR
IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF
NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF
MERCHANTABILITY AND TITLE. ONTHECLOUD.CO DOES NOT WARRANT THAT THE SERVICE WILL
BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL
COMPONENTS. ONTHECLOUD.CO IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY,
FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY
YOU OR AN END USER VIA THE SERVICE PROVIDED BY US. ONTHECLOUD.CO SPECIFICALLY
DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES,
REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY ONTHECLOUD.CO. NO
WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO ONTHECLOUD.CO SHALL BE PASSED
THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH
WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR
WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM ONTHECLOUD.CO, ITS EMPLOYEES,
THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH
INFORMATION.
SOME STATES DO NOT ALLOW ONTHECLOUD.CO TO EXCLUDE
CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS
FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
12. Limitation of Liability
You agree that OnTheCloud.co has no liability,
whatsoever, for (i) content that you or an End User access from the Internet;
(ii) for unauthorized access to, or any corruption, erasure, theft,
destruction, alteration or inadvertent disclosure of, data, information or
content, transmitted, received, or stored on our system; and/or (iii) for your
inability to access the publicly switched telephone network.
IN NO EVENT WILL OnTheCloud.co's LIABILITY
HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY ONTHECLOUD.CO FROM YOU
FOR THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM ONTHECLOUD.CO
SHALL BE INTERPRETED TO INCLUDE ONTHECLOUD.CO'S EMPLOYEES, AGENTS, OWNERS,
DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO YOU
THROUGH ONTHECLOUD.CO.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED
TO, NEGLIGENCE, HOLD ONTHECLOUD.CO OR ITS LICENSORS, AGENTS, EMPLOYEES,
OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA
OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS 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
ONTHECLOUD.CO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS
ONTHECLOUD.CO'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
13. Indemnification
You agree to indemnify, defend and hold harmless
OnTheCloud.co and its parent, subsidiary and affiliated companies, third party
service providers and each of their respective officers, directors, employees,
shareholders and agents (each an "indemnified party" and,
collectively, "indemnified parties") from and against any and all
claims, damages, losses, liabilities, suits, actions, demands, proceedings
(whether legal or administrative), and expenses (including, but not limited to,
reasonable attorney's fees) threatened, asserted, or filed by a third party
against any of the indemnified parties arising out of or relating to (i) your
use of the Service; (ii) any violation by you of any of OnTheCloud.co's
policies; (iii) any breach of any of your representations, warranties or
covenants contained in this TOS; and/or (iv) any acts or omissions by you. The
terms of this section shall survive any termination of this Agreement. For the
purpose of this paragraph only, the term "you" as set out in
subparagraphs (i) through (iv) include you, End User, visitors to your website,
and users of your products or services, the use of which is facilitated by us.
OnTheCloud.co shall indemnify and hold you harmless
from, and at its own expense agrees to defend, or at its option to settle, any
claim, suit or proceeding brought or threatened against you so far as it is
based on a claim that the Service infringes any issued U.S. patent. This
indemnification provision is expressly limited to the Service which is fully
owned by OnTheCloud.co. It does not extend to products or services provided by
third parties even if incorporated into the Service. If set out in its
agreements with third-party suppliers, OnTheCloud.co shall flow down similar
intellectual property indemnification provisions to you. This paragraph will be
conditioned on your notifying OnTheCloud.co promptly in writing of the claim
and giving OnTheCloud.co full authority, information, and assistance for the
defense and settlement of that claim. You shall have the right to participate
in the defense of the claim at your expense. If such claim has occurred, or in
OnTheCloud.co's opinion is likely to occur, you agree to permit OnTheCloud.co,
at its option and expense, either to: (i) procure for you the right to continue
using the Service; (ii) replace an individual component of the Service with a product
or service, regardless of manufacturer, performing the same or similar function
as the infringing aspect of the Service, or modify the same so that it becomes
non-infringing; or (iii) if neither of the foregoing alternatives is reasonably
available, immediately terminate OnTheCloud.co's obligations (and your rights)
under this TOS with regard to such Service and refund to you the price
originally paid by you to OnTheCloud.co for the Service, or the Fee actually
received by OnTheCloud.co from you for the 3 month period immediately preceding
the occurrence of the event on which the indemnification claim is based.
14. General Provisions
14.1. Notices
Notices will be sent to you at the address you
provide to us. It is your obligation to ensure that we have the most current
address for you in our records
Please refer to our website, OnTheCloud.co, for
contact information for most issues, including technical support and billing.
Notices regarding this TOS and other OnTheCloud.co policies should be directed to:
Unlimited Net, LLC
Attention: Legal Notices for OnTheCloud.co
3129 25th St, Suite 135
Columbus, IN 47203-2436
14.2. Force Majure
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
the such an occurrence shall notify the other party as soon as possible, but in
no event less than ten days from the beginning of the event.
14.3. Choice of Law, Jurisdiction and Venue.
The parties agree that all disputes shall be
brought before U.S. District Court for the District of Delaware located in
Wilmington Delaware (District Court). If the District Court may not consider
the dispute, all disputes shall be brought before the Delaware Superior Court,
or the Delaware Court of Common Pleas, each located in Wilmington Delaware. The
parties agree that these courts shall have exclusive jurisdiction over all
disputes and other matters relating to the interpretation and enforcement of
this TOS or any other document entered into by the parties. Further, the
parties agree that venue shall be proper in the appropriate court set out
above, and agree that they shall not contest notice from that court. State law
issues concerning construction, interpretation and performance of this
Agreement shall be governed by the substantive law of the State of Delaware,
excluding its choice of law rules. The United Nations Convention on Contracts
for International Sale of Goods shall not apply.
14.4. No Waiver.
No waiver of rights under this TOS, or any
OnTheCloud.co policy, or agreement between you and OnTheCloud.co shall
constitute a subsequent waiver of this or any other right under this TOS.
14.5. Assignment
This TOS may be assigned by OnTheCloud.co. It may
not be assigned by you. This TOS shall bind and inure to the benefit of the
corporate successors and permitted assigns of the parties.
14.6. Severability
In the event that any of the terms of this TOS
become or are declared to be illegal or otherwise unenforceable by any court of
competent jurisdiction, such term(s) shall be null and void and shall be deemed
deleted from this TOS. All remaining terms of this TOS shall remain in full
force and effect.
14.7. No Agency
This TOS does not create any agency, partnership,
joint venture, or franchise relationship. Neither party has the right or
authority to, and shall not, assume or create any obligation of any nature
whatsoever on behalf of the other party or bind the other party in any respect
whatsoever.
14.8. Survival
The following paragraphs shall survive the
expiration or termination of this TOS: 1, 6, 11, 12, 13, 14.1, 14.3.
This Privacy Policy may be updated at any time without notice. The content in this document was last updated/modified on 04/01/2013.