Cloudmini LLC™ SERVICE AGREEMENT – REVISED JULY 1 2016
THIS AGREEMENT FOR Cloudmini LLC™ (hereinafter referred to as the “Cloudmini”) services (hereinafter referred to as the “Agreement”) is made and effective as of the date of acceptance, by and between you, (here-in-after referred to as “Client”) and Cloudmini, LLC, a Delaware Limited Liability Company (LLC).
WHEREAS, Cloudmini LLC owns, distributes, and/or provides various products and services that enable entities to utilize, conduct business on, connect to, and publish to the Internet, including the us, member, and portal! family of services.
WHEREAS, client desires to utilize the Cloudmini LLC services to develop client’s presence on the World Wide Web, connect to, and/or utilize the Internet.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. Cloudmini Services. Cloudmini agrees to provide to client services as set forth in Exhibit A (General Agreement).
2. Payment and Invoicing.
2.1 In consideration of the performance of the Cloudmini services, Client shall pay Cloudmini in advance the amount set forth in Exhibit E (“Contract Specifications”). Exhibit E is amended from time to time for the “Cloudmini Services” provided during the term of this Agreement. Exhibit E may be populated on this document at the time of contract agreement, but is also inclusive of any service ordered/requested by the Client via the Cloudmini billing/ordering system (also referred to as the “client interface”) at the time of contract agreement or at a later date.
2.2 Client shall receive a confirmation letter/invoice via e-mail and/or mail at the time Client contracts for the Cloudmini services, which shall confirm the fees payable to Cloudmini. Thereafter, Client shall receive a monthly billing invoice/statement for the upcoming month, which shall indicate any changes in fees, which shall become effective upon thirty (30) days’ notice as set forth in Section 2.4 herein. All services are invoiced 7 days in advance, and must be paid in full by the first day of new the service period. Client’s with automated payment in place, may be debited at time of invoice generation. Cloudmini systems may bypass, or automatically update, credit card expiration dates, fraud checking, and/or AVS/CVV verification. Cloudmini is not liable for any overdraft fees on Client accounts, as a result of any Cloudmini transaction.
2.3 Client is responsible for all activities and charges resulting from Client’s use of the Cloudmini services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. Client acknowledges that no refunds will be given by Cloudmini in the event that Client’s account is terminated by Cloudmini or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the Cloudmini Services until Client notifies Cloudmini via telephone, e-mail, or support ticket (with account identifying information) and receiving a ticket tracking number as proof of contact.
2.4 Current rates for using Cloudmini services may be obtained by telephone, email, support ticket, or by visiting the Cloudmini website and/or billing/ordering system. Cloudmini reserves the right to change fees, surcharges, monthly membership fees, and/or to institute new fees, at any time upon thirty (30) days’ (of end of current contract/service term) prior notice to Client. In addition, Cloudmini may institute special trial offers, from time to time, which shall be reflected in the confirmation letter sent to Client upon sign up.
2.5 Late Fees. If Cloudmini does not receive the full amount of Client’s Cloudmini service account balance by the first day of a new service period, an additional 1.5% (or highest amount allowed by law per month) late charge will be added to Client’s bill and shall be due and payable. Client shall also be liable for all attorney and collection fees arising from Cloudmini’s efforts to collect any unpaid balance of Client’s account(s). Account suspension may occur if payment is not received by 5th day of a new service period. Account termination may occur if payment is not received by 7th day of a new service period.
2.6 Penalties and Extra Fees. Client agrees to pay Cloudmini US$35.00, per occurrence, for bounced checks. Client agrees to pay Cloudmini US$35.00, per occurrence, for each chargeback issued against a transaction. Client agrees to pay Cloudmini US$35.00, per occurrence, for each credit reporting/collection agency filing that may be necessary to expedite receipt of payment, collect on overdue funds, or other related issues. Client agrees to re-imburse Cloudmini for all legal/court fees optained while attempting to collect client’s debt. Client agrees to pay Cloudmini US$50.00 for each re-activation of a suspended account. The US$50.00 re-activation fee is per account, with an account potentially containing multiple websites, servers, or other services. Client agrees to pay Cloudmini US$25.00 for violations of the “Abusive Clientele” policy. Client agrees to pay Cloudmini US$100.00 for each blacklisting occurrence due to Client activities. Client agrees to pay Cloudmini US$50.00 for each DMCA violation occurrence that is not properly and successfully defended. Client agrees to pay Cloudmini US$9.95 for recreation of a VPS or US$25.00 to rebuild a dedicated server after cancellation, as a service restoration fee. Cloudmini reserves the right to charge a US$25.00 expedite fee for any support issue that client insists be taken care of “on the spot” immediately. Charges may be incurred for Abnormal Support requests serviced on your account.
2.7 Reseller / End-User Relationship. All Cloudmini clientele, regardless of Authorized Reseller status, are responsible for all debts incurred on their account, regardless if service was resold and/or utilized by another party (end-user), and regardless of whether such a party paid the Cloudmini direct client for said service. Any contract is with the Cloudmini direct client, and not with the end-user of the Cloudmini service, unless they are one and the same. In the event that an Authorized Cloudmini Reseller defaults on payment on their account, or an end-user of resold service brings a justifiable claim that an Authorized Cloudmini Reseller is not providing a reasonable level of service or acting in a manner unbecoming of an Authorized Cloudmini Reseller, Cloudmini shall have the right to permit the end-user(s) to contract/transfer service directly with Cloudmini, and no satisfaction or payment will be due to the Authorized Cloudmini Reseller if such occurs.
3. Responsibilities, Rights and Status of Cloudmini.
3.1 Means of Performance. Cloudmini shall provide Client with the Cloudmini services, as set forth on Exhibit A hereto. Cloudmini has the right to control and direct the means, manner, and method by which the services are performed. Cloudmini shall perform the services in a professional manner.
3.2 Support. Cloudmini shall provide a reasonable level of technical support to Client via email, fax, instant messenging, real-time chat, forums, and/or online manuals/FAQ for the term of this Agreement. Some methods of contact may only be available to certain service levels contracted for, such as Fully Managed support.
3.3 Other Work. Cloudmini has the right to perform and license products to others during the term of this Agreement. Cloudmini may elect to electronically monitor the services and may disclose any content or records to satisfy any law, regulation, or other governmental request, or to properly operate services and protect its Clients. Cloudmini reserves the right to block any site/account hosted by Cloudmini that contains/transfers any content that it deems in its sole discretion to be unacceptable or undesirable.
4. Responsibilities and Rights of Client.
4.1. Client Liaison. Client shall designate a contact person who shall act as a liaison between Client and Cloudmini. Client certifies to Cloudmini that he/she is not a minor. A minor’s parent or legal guardian may authorize a minor to use his/her account(s) under supervision. Client agrees to provide Cloudmini with accurate, complete and updated information required by the registration/initiation of the Cloudmini service (Client Registration Data), including Client’s legal name, address, telephone number(s), and applicable payment data ( e.g., credit card number and expiration date ). Client agrees to notify Cloudmini within thirty (30) days of any changes in Client Registration Data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use Cloudmini Services. Cloudmini is authorized by Client to add Client’s email addresses to Cloudmini internal mailing lists, both service and marketing related, and desires to receive such contact from Cloudmini, unless notifying Cloudmini otherwise, or by unsubscribing to such.
4.2 Fees and Expenses. Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided Cloudmini services. Such costs include, but are not limited to, the fees required to register a domain name at an external Registrar, which is governed by a separate agreement between Client and the Registrar.
4.3 Third-Party Software. Third-Party software available through the Cloudmini service may be governed by separate end user licenses. By using Cloudmini services and the thirdparty software, you agree to be bound by the terms of such end user licenses regarding the applicable third-party software.
4.4 Management of Content. Client shall be solely responsible for all content available/stored on or through their service, and shall at all times be subject to the terms of this Agreement, Cloudmini’s then-standard Acceptable Usage Policy (AUP), Cloudmini Terms of Service (TOS), and any generally applicable guidelines and service standards published by Cloudmini. Client warrants that its content hosted on the Cloudmini network (I) will conform to the Cloudmini Terms of Service (TOS) attached hereto as Exhibit B; (II) will conform to the Cloudmini Acceptable Usage Policy (AUP) attached hereto as Exhibit D; (III) will not infringe and will not contain any content that infringes on or violates any copyright, U.S. patent or any other third-party right; and (IV) will not contain any content which violates any applicable law, rule or regulation. Cloudmini shall have no obligations with respect to the content available/stored on or through any service on the Cloudmini network, including, but not limited to, any duty to review or monitor any such content. Cloudmini reserves the right to block any site that violates any of the above-stated terms, or which in Cloudmini’s sole discretion, Cloudmini deems objectionable or offensive, or otherwise violates a law and/or Cloudmini policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.
4.5 Service Level Agreement (SLA). Cloudmini is required maintain a Service Level Agreement (SLA) to guarantee network/equipment reliability and performance. The Cloudmini Service Level Agreement (SLA) is set forth in Exhibit C. Cloudmini reserves the right to change or modify this SLA to benefit the Client, and will post changes to online location currently housing this SLA at time of modification, which will be made available to Client. Except as set forth in this SLA, Cloudmini makes no claims regarding the availability or performance of the Cloudmini network or servers. Specific terms/points of this SLA may be adjusted on a case by case basis by the specific details of the “Contract Specification” section of this agreement. In case of difference terms/points in SLA and “Contract Specification”, the “Contract Specification” terms/points prevail over this general SLA policy. The “Contract Specification” signed/agreed by client, is above and beyond this SLA, and Service Agreement terms are in affect, including, but not limited to, limitations of liability.
4.6 Co-Location Equipment. Client is responsible for providing insurance coverage for all co-located equipment in Cloudmini facilities and/or all customer property not supplied and maintained by Cloudmini in a Cloudmini facility or at the customer’s premise. Cloudmini is not responsible for such equipment, but is required to provide a reasonable amount of protection for equipment, including, but not limited to; alarm systems, surge protection, security cameras, video recordings, monitoring, theft prevention, racking equipment, and weather control. In the event of non-payment of Cloudmini services, Cloudmini has the right to withhold Client equipment, and not be required to release it to Client until Client debt is fully satisfied. In the event of non-payment of Cloudmini services resulting in service termination, Client will have a period of 60 days to rectify payment issues, after which time, if not fully rectified, Client forfeits ownership rights to all related equipment on the service, and said equipment will be deemed abandoned. Upon forfeit/abandonment of property, Cloudmini will dispose of the equipment, and no payment/credit will be due Client.
5. Confidentiality and Proprietary Rights.
5.1 Confidentiality. Both parties acknowledge that: (I) the other party is the owner of valuable trade secrets, and other proprietary information and license same from others; (II) in the performance of the Cloudmini services, both parties shall receive or become aware of such information as well as other confidential and proprietary information concerning the other party’s business affairs, finances, properties, methods of operation and other data (here-in-after collectively referred to as (“Confidential Information”), and; (IV) unauthorized disclosure of any Confidential Information would irreparably damage the owner or supplier of such Confidential Information.
5.2 Non-Disclosure. Both parties agree that, except as directed by the other party or as provided in this paragraph, neither party will at any time during or after the term of this Agreement and for a period of three (3) years after any such termination disclose any Confidential Information to any person or entity, or permit any person or entity to examine and/or make copies of any reports or any documents prepared by the other party, or that come into the party’s possession or under the party’s control that relates to Confidential Information; and that upon termination of this Agreement, both parties will turn over to the other party all documents, papers, and other matter in such party’s possession or under such party’s control that contain or relates to such Confidential Information. Both parties shall notify the other party, prior to disclosure of the information to the other party, that it considers the information to be confidential. Confidential Information shall not include information that: (I) is already lawfully known to or independently developed by the receiving party; (II) is in the public domain through no fault of the receiving party; (III) is lawfully obtained from a third party without restrictions; or (IV) is required to be disclosed by law, regulation or governmental order.
5.3 Injunctive Relief. Both parties acknowledge that disclosure of any Confidential Information by the other party will give rise to irreparable injury to the owner of such information, inadequately compensable in damages. Accordingly, either party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
5.4 Proprietary Rights. Unless otherwise specified, all work performed hereunder, is the property of Cloudmini and all title and interest therein shall vest in Cloudmini; provided however, that any content or materials supplied by Client shall remain the property of Client and its suppliers. To the extent that title to any such works may not, by operation of law, vest in Cloudmini, all rights, title and interest therein are hereby irrevocably assigned to Cloudmini. All such materials shall belong exclusively to Cloudmini, and Cloudmini shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give Cloudmini and any person designated by Cloudmini such reasonable assistance, at Cloudmini’s expense, as is required to perfect the rights defined in this paragraph.
5.5 Non-Compete. Neither Client, nor Cloudmini, may at any time during contract term, and one year following termination of this contract, knowingly provide similar service to current customers of the other party. “Current customers” is defined in this case as; any party having been a client within the past 12 months of the current date, regardless of whether client is currently still utilizing such services. A signed waiver on a case by case basis is required, should both parties agree to make an exception. Both parties are required to notify each other should a customer attempt to switch service to the other party. In event of a breach of this clause, the parties agree that damages in the amount of 24 months (2x revenue) should be paid. If Client fails to pay Cloudmini for services rendered, or Client’s services are suspended/cancelled according to appropriate policy, Cloudmini retains the right to accept Client’s customers directly as Cloudmini clientele. Cloudmini will take reasonable action to re-activate/re-instate Client’s service prior to such measures being taken, but such action may be necessary to protect the best interest’s of the end-user of the Cloudmini services, as well as the reputation of Cloudmini itself.
5.6 Non-Solicitation. Neither party should knowingly solicit for employment, offer employment to, or employ any of the other party’s employees/staff during contract term, and one year following termination of this contract. In event of a breach of this clause, the parties agree that damages in the amount of 12 months (1x annual salary) current salary for the individual (s) should be paid.
5.7 Marketing Rights. Client agrees that Cloudmini may refer to Client, and/or Client’s business/company, in Cloudmini marketing materials, the Cloudmini website, and communication to Cloudmini current/potential clientele. Client grants Cloudmini a limited license and permission to use any Client trade name and/or trademark for such, and only for such purposes, unless Client notifies Cloudmini otherwise. Cloudmini clientele, including Cloudmini Authorized Resellers, are granted permission to utilize/copy any Cloudmini advertising/promotional material, and any content from Cloudmini websites, in order to promote the usage/resale of the Cloudmini service specifically, as long as the client remains a Cloudmini client with atleast one active Cloudmini service on their account.
6.1 Warranty. Client understands that except for information, products, or services clearly identified as being supplied by Cloudmini, neither Cloudmini, nor any of its affiliates, operates or controls any information, products, or services on the Internet in any way, and that, except for such Cloudmini identified information, services or products, all merchandise, information, and services offered or made available or accessible on the Internet generally are offered or made available or accessible by third parties who are not affiliated with Cloudmini or its affiliates. The terms and conditions for the use of 3rd party software/services provided by Cloudmini, are governed by the terms of each product’s end-user license. ALL SOFTWARE MADE AVAILABLE IN CONJUNCTION WITH THE Cloudmini SERVICES ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, Cloudmini DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE Cloudmini SERVICES; INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU UNDERSTAND THAT PORTIONS OF THE INTERNET CONTAIN MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT AND MAY BE OFFENSIVE TO YOU AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK. Cloudmini HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH MATERIALS. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY Cloudmini, ITS EMPLOYEES, LICENSERS, OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL Cloudmini OR ANYONE ELSE INVOLVED IN ADMINISTERING OR DISTRIBUTING THE Cloudmini SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE Cloudmini SERVICES AND/OR Cloudmini SOFTWARE, INCLUDING BUT NOT LIMITED TO reliance on any information obtained, or stored, on the Cloudmini network; or that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to acts of god, communications failure, theft, destruction, or unauthorized access to Cloudmini records, programs, or services. Cloudmini is not liable for damage caused by lightning strikes and/or power surges to customer premise equipment, co-located equipment, or customer property connected to such. Client should take proper precations to protect their property from damage by such. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, IN SUCH STATES, Cloudmini’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6.2 Indemnity. Each party will indemnify the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees resulting from the indemnifying party’s material breach of any duty, representation or warranty under this Agreement, except those resulting from the gross negligence or knowing or willful misconduct of the other party. Such indemnity shall be conditional upon (I) prompt notification to the other party of any indemnifiable claim; (II) the indemnifying party’s control of all settlement and other negotiations; and (III) the indemnified party’s full cooperation with respect to such claim.
6.3 Limitation of Liability. Cloudmini shall not be liable to Client for more than the aggregate amounts paid to Cloudmini under this Agreement, for the current service term.
6.4 Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS.
7. Terms and Termination .
7.1 Term. This Agreement will become effective on the date indicated in the “Contract Specification” section of this Agreement, or the date of initial service order placed, whichever earliest, and will remain in effect for the term indicated in same. This agreement is automatically renewed for same originating term as indicated in the “Contract Specification” section of this agreement, or term selected thru online ordering system, at the end of current term, unless Client terminates this Agreement (via fax, mail, or online cancellation form) to Cloudmini within twenty-four (24) hours prior or following end of current service term, or Cloudmini terminates this Agreement upon fifteen (15) days written notice (via fax, mail, or email) to Client, prior to end of current service term.
7.2 Termination. In the event of any material breach of this Agreement by either party, the other party may terminate this Agreement, by giving ten (10) days prior notice thereof (in writing by fax or mail); provided, however, that this Agreement shall not terminate at the end of said ten (10) days notice period if the party in breach has cured the breach of which it has been notified prior to the expiration of said ten (10) days.
7.3 Client may terminate this Agreement at any time for any or no reason upon written notice (via fax, mail, or online cancellation form) to Cloudmini, within twenty-four (24) hours prior or following end of current service term. Cloudmini may terminate this Agreement at any time for any or no reason upon fifteen (15) days written notice (via fax, mail, or email) to Client, prior to end of current service term. Notwithstanding the foregoing, Cloudmini may immediately block Client’s site or immediately terminate Client’s access to and use of Cloudmini services and software; if at Cloudmini’s sole discretion, it deems any information contained in Client’s site to violate Cloudmini’s Terms of Service (TOS), Cloudmini’s Acceptable Usage Policy (AUP), or to be otherwise objectionable or offensive or to violate the law, in accordance with Section 4.5 herein. Client’s only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of Cloudmini in operating the Cloudmini service, any change in the content of the Cloudmini service, or any change in the amount or type of fees charged in connection with the Cloudmini service, is to terminate this Agreement by delivering notice to Cloudmini, effective the day Cloudmini receives notification of termination or any future date specified which is acceptable to Cloudmini. Cloudmini may terminate immediately any Client who misuses or fails to abide by this Agreement, Cloudmini’s Terms of Service (TOS), or Cloudmini’s Acceptable Usage Policy (AUP) Cloudmini may terminate without notice Client’s access to and use of the Cloudmini service and software upon a breach of this Agreement. If Cloudmini denies you access to the Cloudmini services, you shall have no right to obtain any credit(s) otherwise due to you. Cloudmini shall have no responsibility to notify third-party providers/users of services, merchandise, or information, associated with your Cloudmini service, nor shall Cloudmini have any responsibility for any damages that result from the lack of such notification.
7.4 In the event that Cloudmini offers a money back guarantee, or 30 day refund policy, as specified in the “Contract Specifications” section of this agreement, violation of the Cloudmini Terms of Service (TOS) or Cloudmini Acceptable Usage Policy (AUP) makes such an offer null and void. Client agrees to waive such rights to a refund if such a violation occurs. Cloudmini does not offer a money back guarantee, or 30 day refund policy, by default on it’s service, unless specifically stated otherwise for a specific service.
7.5 Surviving Sections. The following paragraphs shall survive the termination of the Agreement: 5 (“Confidentiality and Proprietary Rights”), 6 (“Warranties/Indemnity”) and 8 (“General”).
8.1 Assignment. Only Cloudmini, at its option, and not the Client, may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment by the Client shall be void. This Agreement shall be binding upon the parties’ respective successors, purchasers, and permitted assigns.
8.2 Notices. Any notices or legal communication under this Agreement shall be in writing (via fax or mail) and shall be deemed delivered to the party receiving such communication at the address specified below (I) on the delivery date if delivered personally to the party, or a representative of the party; (II) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (III) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; (IV) on the delivery date if transmitted by confirmed facsimile.
If to Cloudmini:
Cloudmini, LLC – 710/23 Lũy Bán Bích, phường Tân Thành, quận Tân Phú
If to Client:
Contact information provided in “Contract Specification” section of this Agreement, on provided to Cloudmini in the Cloudmini client interface.
8.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, United States, except with regard to it’s conflict of law rules.
8.4 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
8.5 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
8.6 Severability. In the event any one or more of the provisions of the Agreement or any of any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
8.7 Force Majeure. Neither party hereto shall be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure of transport, accident, war, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for forty-eight (48) hours, the other party may terminate this Agreement without penalty and without further notice.
8.8 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
8.9 Entire Agreement. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which is different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
General Terms of Service (TOS)
1. Cloudmini services, as operated by Cloudmini, is a collection of various products and services that enable entities to utilize, conduct business on, connect to, and publish to the Internet. Cloudmini services are available for a fee to any client who wishes to utilize the service for such means.
2. CAREFULLY READ the terms of this agreement which governs your use of Cloudmini services and software. Cloudmini may modify this agreement at any time and in any manner. Any modification is effective immediately upon either a facsimile, electronic mail, or conventional mail notification. Any modification is effective at the start of the next service term (renewal period) if notified via Cloudmini online forums and/or publication to the Cloudmini website(s). Your continued use of Cloudmini service following notice of any modification to this agreement shall be conclusively deemed as acceptance of all such modification(s).
3. Cloudmini grants to you a non-exclusive, non-transferable license to use and display the Cloudmini service and software on the servers and equipment with which you utilize the Cloudmini service. The Cloudmini service and software are owned by Cloudmini and their structure and organization constitute valuable trade secrets of Cloudmini.
4. Advertising, Solicitation and Name Harvesting. You may not use Cloudmini service to send unsolicited advertising, promotional material, or other forms of solicitation to other Clients unless you receive the expressed written permission of the Client. You may not use the Cloudmini service to collect or “harvest” screen names of other Clients without the expressed prior permission of the Client. Cloudmini reserves the right to block or filter mass email solicitations on or through the Cloudmini service. The vast majority of newsgroups and mailing lists on the Internet are not commercial in nature, and participants in such groups may object strongly to commercial postings, solicitations, or advertisements.
5. Internet Conduct. Generally, the Internet consists of the following areas available through Cloudmini; Email, Newsgroups, Instant Messaging, Video, and the World Wide Web). The Internet is not owned or operated by, or in any way affiliated with Cloudmini or any of its affiliates; it is a separate, independent network of computers and is not part of Cloudmini. Your use of the Internet is solely at your own risk. When using the Internet and all of its components, Clients must conduct themselves responsibly according to the Internet’s own particular code of conduct. Participating successfully on the Internet is really a matter of common sense. Although Cloudmini does not control the Internet, your conduct on the Internet when using your Cloudmini account is subject to Cloudmini rules. Because Cloudmini wants to be a good Internet citizen, it prohibits Clients from engaging in certain conduct on the Internet through or by means of Cloudmini including the following: (1) Chain Letters. Chain letters are prohibited on the Cloudmini network and are inappropriate on the Internet. Posting a chain letter to an Internet newsgroup (or via email on the Internet) from your site may result in your Cloudmini services site being terminated.
6. Other Inappropriate Posts. Each newsgroup and mailing list on the Internet focuses on a particular set of topics and posts not related to these topics are not welcomed by the participants. We suggest that all Clients become familiar with the guidelines, themes, and culture of the specific newsgroups and mailing lists in which they wish to participate. Posting or distributing inappropriate material on or from your site (i.e. spamming or mail bombing) may result in suspension or termination of your Cloudmini account.
7. Copyright and Proprietary Materials. You should be aware that much of the Content available on the Internet is protected by copyright, trademarks, trade secrets and other rights of the independent third parties or their licensers who make such content available on the Internet. Clients use of such Content will be subject to the specific restrictions place on such Content by the owners or licensors of the Rights in such Content and all applicable laws and regulations. Transmitting to the Internet or posting on your site copyright or other material of any kind which is subject to rights of any person or entity without the express permission of the right’s holder is prohibited and will result in termination of your Cloudmini Service and possible civil and /or criminal liability.
8. Offensive or Objectionable Material. Cloudmini reserves the right to request you remove any material which Cloudmini deems offensive, hurtful, or otherwise objectionable. Failure to do so may result in blocking your Cloudmini service(s) or termination of the Agreement by Cloudmini. You understand that except for content, products or services expressly available at Cloudmini’s Web site, neither Cloudmini, nor any of its affiliates, controls, provides, operates, or is responsible for any content, goods, or services available on the Internet. All such content, goods, and services are made accessible on the Internet by independent third parties and are not part of Cloudmini or controlled by Cloudmini. Cloudmini neither endorses nor is responsible for the accuracy or reliability of such content, goods, or services available on the Internet, which are the sole responsibility of such independent third parties, and your use thereof is solely at your own risk. Neither Cloudmini nor its affiliates shall be held responsible or liable, directly, or indirectly, for any loss or damage caused or alleged to have been caused by your use of or reliance on any content, goods or services available on the Internet or your inability to access the Internet or any site on the Internet. The foregoing provisions o this paragraph shall apply with equal force even where Cloudmini features or displays a link with any particular Web site. You should be aware that the Internet contains content, goods, and services that you may find obscene, improper, hurtful, or otherwise offensive and that may not be suitable for certain individuals or for minors who are accessing the Internet. Cloudmini does not have the capability or right to monitor, or review, or restrict any content, goods, or services made available by third parties on the Internet, nor to edit or remove any such questionable content after posting on the Internet. In addition, you should be aware that the Internet provides access to users who are not part of Cloudmini and whose conduct and communication may also be found harmful or offensive to clients or which would otherwise breach the Cloudmini rules if they were subject to it. Cloudmini and its affiliates specifically disclaim any responsibility for (and under no circumstances be liable for) any conduct, content, goods , and services available on or through the Internet (including without limitation any part of the Web). Your use of the Internet is subject to all applicable local, state, national, and international laws and regulations, Without limiting the other rights available to Cloudmini, Cloudmini retains the right but not the obligation, in its sole discretion and without prior notice or liability, to restrict and/or terminate your access to the Internet and Cloudmini services, if your use of the Internet violates any such laws or regulations, any prohibitions upon your conduct in connection with the Internet raised in this paragraph or otherwise restricts or inhibits any other user from enjoying the Internet or their Cloudmini services.
Service Level Agreement (SLA)
Cloudmini is proud to offer an exceptional level of performance, reliability, and service. That is why we are making commitments to our customers in the form of a Service Level Agreement (SLA) which provides certain rights and remedies regarding the performance of the Cloudmini network. The Cloudmini Service Level Agreement (SLA) guarantees our network/equipment reliability and performance. This Service Level Agreement (SLA) applies to customers of Cloudmini’s web hosting, reseller, dedicated server, co-location, ecommerce, and Internet access services. Uptime Guarantee: Cloudmini strives to maintain a 99.999% network and service uptime level, and guarantees atleast 99.9%. This uptime percentage is a monthly figure, and is is calculated solely by Cloudmini monitoring systems or Cloudmini authorized/contracted outside monitoring services. If Cloudmini fails to meet it’s 99.8% uptime guarantee, and it is not due to one of the exceptions below, credits will be made available to each client, upon request, on a case by case basis. Cloudmini does not credit a full month’s service for minor downtime. This would not be financially healthy for Cloudmini, and in turn would only negatively affect the service level Cloudmini provides to you. “Partial refunds for partial downtime” is our standard policy. In extreme circumstances, Cloudmini may distribute full month credits, but this is dealt with on a case by case basis. Details on how credit amounts are calculated can be found below. Exceptions: Customer shall not receive any credits under this SLA in connection with any failure or deficiency of the Cloudmini network caused by or associated with:
– Circumstances beyond reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, “Acts of God” (ie…fire, flood, earthquake, tornado, etc…), strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service Level Agreement.
– Telco Failure (ie…a backhoe cutting a fiber line somewhere).
– Backbone peering point issues (ie…Level3™ having a router go down in Virginia that wipes out Internet service a portion of the entire East Coast).
– Scheduled maintenance for hardware/software upgrades.
– Hardware failure (faulty hardware is rare, but cannot be predicted nor avoided). Cloudmini utilizes only name brand hardware of the highest quality and performance.
– Software bugs/flaws (Exploits and bugs may develop that cause security issues or downtime).
– DNS issues not within the direct control of Cloudmini.
– Network floods, hacks, attacks from outside parties or individuals.
– Failure or error of any Cloudmini monitoring or measurement system.
– Weather which may affect perfomance of wireless access equipment performance.
– Client’s acts or omissions, including without limitation, any negligence, willful misconduct, or use of Cloudmini service(s) in breach of the Cloudmini Acceptable Usage Policy (AUP), by Client or others authorized by Client.
Connectivity: Cloudmini’s goal is to make the Cloudmini network available to Clients, free of outages, as best possible. An “outage” is defined as an instance in which Client is unable to transmit and receive IP packets due to a Cloudmini service failure for more than 15 consecutive minutes, excluding service failures relating to Cloudmini’s scheduled maintenance and upgrades. The Cloudmini network does not include client premises equipment or any Telco access facilities connecting Client’s premises to such infrastructure. Cloudmini’s goal is to keep Average Round-Trip Latency on the Cloudmini network to 85 milliseconds or less. Cloudmini defines “Average Round-Trip Latency”, with respect to a given month, as the average time required for round-trip packet transfers between the Cloudmini network and major US backbone peering points during such month, as measured by Cloudmini. Cloudmini’s goal is to keep Average Packet Loss on the Cloudmini network to 1% or less. Cloudmini defines “Average Packet Loss”, with respect to a given month, as the average percentage of IP packets transmitted on the Cloudmini network during such month that are not successfully delivered, as measured by Cloudmini.
Measurement: Cloudmini will periodically (on average every 5 minutes) monitor Cloudmini network and server availability using software and hardware components capable of measuring application traffic and responses. Client acknowledges that that such measurements may not measure the exact path traversed by Client’s Internet connection, and that such measurements constitute measurements across the Cloudmini network but not other networks to which Client may connect. Cloudmini reserves the right to periodically change the measurement points and methodologies it uses without notice to Client. Full network and server reporting will be posted to a location designated by Cloudmini and made available to Client.
Hardware Failure: Cloudmini stands behind all equipment on our network. Faulty hardware is rare, but cannot be predicted nor avoided. Cloudmini utilizes only name brand hardware of the highest quality and perfomance. Cloudmini will replace all faulty hardware affecting performance levels of equipment within 48 hours, which includes hardware issues that cause server crashes or speed issues. Hardware failure resulting in complete network/server outage/downtime will be corrected within two hours of problem identification. Router failure is an exception to this SLA guarantee, and may require on-site Cisco™ engineers or backbone provider emergency personnel to correct the problem. Router failure is governed by current Cloudmini contracts with Cisco™ and backbone providers in regard to the emergency repair service in case of such an issue. Software re-installation and data replacement after server failure, will be completed with 10 hours of of problem identification. Cloudmini will replace all faulty hardware on dedicated servers (rented or leased servers), at no charge to the Client, with an unlimited free replacement policy. This includes parts ordered as upgrades. Cloudmini will replace all faulty hardware on all non-purchased dedicated and premise equipment, at no charge to the Client, unless equipment has been tampered with, or damage is caused by direct neglect/action(s) of Client.
Credits: Credit requests must be made on the Cloudmini web site, by filling out the “Service Level Agreement (SLA) Request” form. Each request in connection with network/server outages/downtime must be received by Cloudmini within five days of the occurrence. Each request in connection with Average Round-Trip Latency or Average Packet Loss in a calendar month must be received by Cloudmini within five days after the end of such month. The total amount credited to a Client for Cloudmini not meeting SLA service levels will not exceed the service fees paid by Client Cloudmini for such services for the period in question. Each validly requested credit will be applied to a Client invoice within 30 days after Cloudmini’s receipt of such request. Credits are exclusive of any applicable taxes charged to Client or collected by Cloudmini. Upon Client’s request (in accordance with the procedure set forth below), Cloudmini will issue a credit to Client for network/server outages/downtime occurring during any calendar month that are reported by Client to Cloudmini and confirmed by Cloudmini’s measurement reporting. Such credit will be equal to one day’s worth (1/30th) of the monthly fees paid by Client, (for all service fees paid if network outage, or specific affected service fees paid if individual server downtime) multiplied by each hour (or portion thereof rounded to nearest next hour) of the cumulative duration of such outage/downtime. If Average Round-Trip Latency on the Cloudmini network for a calendar month exceeds 85 milliseconds, then upon Client’s request, Cloudmini will issue a credit to Client equal to six day’s worth (1/5th) of the monthly service fees paid by Client for such month. If Average Packet Loss exceeds 1% during a calendar month, then upon Client’s request, Cloudmini will issue a credit to Client equal to five day’s worth (1/5th) of the monthly service fees paid by Client for such month.
General: Cloudmini reserves the right to change or modify this SLA to benefit the Client, and will post changes to location currently housing this SLA at time of modification, which will be made available to Client. Except as set forth in this SLA, Cloudmini makes no claims regarding the availability or performance of the Cloudmini network or servers. Specific terms/points of this SLA may be adjusted on a case by case basis by the specific Service Agreement signed/agreed by client. In case of difference terms/points in SLA and Service Agreement, the Service Agreement terms/points prevail over this general SLA policy. The Service Agreement signed/agree client, is above and beyond this SLA, and Service Agreement terms are in affect, including, but not limited to, limitations of liability.
Cloudmini BASIC POLICY & SERVICE GUIDELINES (AUP)
EXHIBIT E – CONTRACT SPECIFICATIONS
As selected during online ordering process, unless stated otherwise manually here within.
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