Terms of Service (TOS)
The individual or entity listed in our records as the “Customer/Primary Contact” is considered by us to be the owner of your account.
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 Services. You agree to maintain a working e-mail address that is monitored daily. We have no responsibility, or liability, for interruptions in the Services, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information. All notices from ACS will be deemed received by Customer when sent by ACS to Customer’s current email contact(s).
The “Effective Date” of this TOS will be the day on which you place an order for Services and accept this TOS as part of that process.
The “Initial Term” will begin on the Effective Date, and is for the period you selected in your order. Following the Initial Term, this TOS will renew for the same amount of time as the Initial Term unless the parties agree otherwise. This is the “Renewal Term.” These are collectively referred to as the “Term.”
Either party may terminate a Service by providing written notice to the other no later than 30 days before the expiration of the Initial Term or Renewal Term for that particular Service. Your termination notice must be provided to us by using our cancellation form. Once we have received your cancellation request and have confirmed all necessary information, typically via email, we will inform you in writing (typically via email) that your account has been cancelled. Should you not receive this response your termination request may have not been received and you should contact our company via telephone. Your cancellation request will not be processed until we have verified all information with you.
We reserve the right to suspend, cancel, transfer, modify or terminate any account for a violation of this TOS, including any agreements incorporated by reference. We may also terminate this TOS upon your failure to pay the Fees.
One party may also terminate this TOS upon the occurrence of a material breach, which has not been cured by the other party within ten days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in 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.
If set out on your Order Form, this TOS may be terminated by you within a defined period of time for any reason, or no reason at all (“Guarantee”). Any time provisions of this Guarantee begin to elapse on the Effective Date and are calculated on a calendar day basis. A Guarantee only applies during the Term and does not apply to any Renewal Terms. Should you purchase additional Services, the Guarantee only applies to the new Services. Non-recurring charges, as defined below, are never subject to the Guarantee.
Upon termination or expiration, your account will be closed, information on your server deleted, and unrestorable. 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.
All information on features and terms can be found on our website: www.awesomecloud.com. You are responsible for the fees and charges set out on the Order Form and on our website on Effective Date (Fees). 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 www.awesomecloud.com (“Third Party Services”). Third Party Services may be billed separately from the Services. You are responsible for all taxes and fees associated with the Services which we are legally required or permitted to collect from you. You are not responsible for taxes based on our income.
If you provide us with a credit card, we will bill all charges authorized by this TOS to that credit card. We reserve the right to bill you for fees charged to us by our credit card processor.
Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date, as defined below. 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.
Your initial order will be subject to our fraud screen. We are not obligated to provide Services to you should this screen identify your order as potentially fraudulent. During the Term, we may periodically review your credit history. This review may consist of a review of your payment history with us, your broader credit history as reported elsewhere, and the amount of fraud reported to us as originating with your account. You consent to this review, and the disclosure of your credit history, at our option, to recognized credit agencies.
Unless otherwise set out on your Order Form, you agree to pay all charges by the due date indicated on an invoice (“Due Date”). If you find an error on an invoice, we must receive written notification of this error prior to the Due Date. Your notice must contain enough information for us to investigate your claim. We will have forty five days from the Due Date to investigate your claim. If we find that your claim is valid, we will remove the disputed amount from the Fees on your next invoice. If we find that the dispute is invalid, we will provide you with a written explanation of our decision. If you disagree with this decision, you may pursue your remedies as set out in this TOS. You must pay any Fees not in dispute when they are due. If you initiate a chargeback rather than following these provisions, your account will be suspended.
You will pay us interest on payments made following the Due Date at the rate of 1% per month or the maximum rate allowable by law. You may be assessed a processing fee on late payments, at our sole discretion, if we incur administrative and/or legal costs associated with your late payment. This fee is: $25 per invoice for service. A $250 reinstatement fee may apply to some Services should the Services be disrupted because of your failure to pay or Customer requests to re-provision Services after termination in accordance with the terms hereof.
Should you fail to pay the Fees when due, and the Services terminated, you may also be billed for the costs of the removal and storage of equipment you have placed in our facility and any costs associated with restoring our equipment for use for a new customer. If that amount, plus any amounts past due, exceed the value of your equipment, we may sell your equipment to satisfy your outstanding balance due.
- Additional Services
ACS offers a number of services designed to assist you in the use and operation of your hardware and software. These services are provided at an additional cost, and pursuant to various contract addenda. We may terminate this TOS, at our sole and exclusive option, should your requests for support exceed those typically experienced by us for similarly situated customers.
ACS may use third-parties to provide products and services to you. A portion of related Services may be terminated or modified upon the termination of the underlying agreement between ACS and the vendor providing third-party provided services or if ACS determines that the Services no longer meet ACS’s specifications or standards. ACS may, at its sole discretion, replace these related Services with other Services that provide a comparable value or cease providing them to you. Your Fees will be adjusted should ACS make such a change.
- Backup and Restore
You must backup your data.
In the event of a server failure, we will restore your server to the operating condition in which it was provided to you on the Effective Date. This is our sole and exclusive obligation. It is your obligation to restore your website and any configuration of services on your server.
- Domain Names
During the sign up process you are offered various options to administer your domain name. Domain name registration is completed by a third party. We are not responsible for any acts of the registrar. If you chose to have us named as your administrative contact, we will re-register your domain name prior to its expiration, at our then current registration fee. It is your sole responsibility to notify ACS no less than thirty days prior to expiration of your Domain name if you do not wish to renew the registration. ACS reserves the right to renew Domain names up to thirty days prior to their expiration. You will be responsible for all registration and renewal fees at the time of registration or renewal. Registration and renewal services cannot be canceled or refunded once processed by ACS. In order to register your domain name, you must provide us with a credit card, or the credit card we have on file for your account must be active, and capable of being charged for the registration fee. Should your credit card be declined, for any reason, we have no responsibility to contact you regarding the expiration, and possible loss, of your domain name.
During the Term, we may provide certain consulting services to you. These consulting services are set out on your Order Form (Consulting). Consulting is provided on a best efforts basis, and to assist you in using the Services. It is not a substitute for understanding operation of the Services. It is your obligation to ensure that your employees and/or agents have sufficient technical expertise to understand how to implement the Service. Any Consulting is governed by the terms of this TOS.
Information you provide to us, and our responses, related to the Consulting is not confidential. We may use this information, as well as aggregate information gleaned from the operation of our business in general, to improve, or create new products and services. We shall be the exclusive owners of this intellectual property. You waive any rights you may have in this intellectual property, and assign all right, title and interest in it to us.
- IP Addresses
We may provide you with an IP address or addresses. We retain ownership of these IP addresses and may change them at any time. Upon termination of this Agreement, you will not have the ability to transfer these addresses. These addresses may not be assigned or transferred, and are recycled by us on termination of your use of the Service. ACS may, in our sole discretion, change these addresses.
- Reasonable Use
We have determined what constitutes reasonable use of the Services. These standards are based on typical customer use of our network, for similar services and products. It is your obligation to monitor the use of the Services to ensure that there are not unusual spikes and peaks in your bandwidth or disk usage. Should your use of our network and/or products exceed the limits described above, you will incur additional charges for that use. These charges will apply regardless of whether you initiated the additional use, or it was caused by a third party.
Customer and those using Services through Customer (End User) will at all times comply with the then-current version of the AUP as posted on www.awesomecloud.com. ACS may amend the AUP from time-to-time. These amendments are effective upon posting.
ACS reserves the right to suspend access to Customer’s Service should ACS believe Customer’s Service is the cause of interruptions in ACS’s ability to provide services to other customers. This suspension or termination will not relieve Customer of its obligation to pay Fees for the Services. To the extent possible, given the circumstances, ACS agrees to provide Customer with advance notice and the opportunity to correct the cause of the interruptions. Customer acknowledges and agrees that in an effort to control SPAM ACS may use certain technologies to block incoming and outgoing email which ACS determines, in its sole discretion, may be SPAM. ACS may also, in its sole discretion, limit the number of outbound emails Customer may send in a given period of time.
- Contact Information
The Customer/Primary Contact has full authority to administer and operate your account. This authority includes, but is not limited to: changes to the account, billing, and adding or removing Services. On some accounts ACS also allows you to define a “Technical Contact.” The Technical Contract is intended for anyone assisting you with your service including designers or programmers. ACS will assist the Technical Contact with issues related to the operation of your account but will not allow this individual to make any changes to the account that affect billing of your account, types of Services provided by ACS, or how much your contracted Fees are. It is your sole responsibility to update your records should either individual change, or should you need to have our records reflect a different individual or entity as the Customer/Primary Contact or, if available on your account, the Technical Contact. Any changes or requests made via your Control Panel using your Customer/Primary Contact username and password will be honored as if requested by you. It is your sole responsibility to control access to these credentials and regularly change your password to keep your account secured. Further, you must notify ACS immediately if you suspect your username and password have been used for unauthorized purposes.
- Licenses, Warranties, Limitation of Warranties, and Limitation of Liability
We grant to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by us solely to access and use the Services. 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 our technology shall remain with us or our licensors. You are not permitted to circumvent any devices designed to protect our, or our 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 Agreement 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.
You are required to have licenses necessary for you to use the Services. You agree to indemnify and hold us harmless for claims made against us based on your failure to have these licenses.
You, as a reseller partner of AwesomeCloud, and/or your customers or end users, may have the ability to install software on your server(s)s. If you and/or your customers/end users install software on your server(s) that is not directly provided by AwesomeCloud, then you are solely responsible for (i) obtaining all required licenses and (ii) complying with all applicable licensing requirements, including without limitation all Microsoft licensing requirements if applicable. Further, if you and/or your customers/end users install Microsoft software on your server(s), you and/or your customers/end users, as applicable, must have accepted Microsoft’s End User License Agreement (Microsoft EULA), and by using Microsoft Software on your AwesomeCloud-provided server, you and/or your customers/end users agree to the Microsoft EULA. You agree that you have determined that use of the AwesomeCloud services by you and/or your customers/end users will comply with the applicable Microsoft licensing requirements. Usage of the Services in violation of your agreement(s), and those of your customers/end users, with Microsoft is not authorized or permitted. AwesomeCloud recommends that you consult with your own advisors to understand and comply with the applicable Microsoft licensing requirements. You agree to indemnify AwesomeCloud and hold it harmless from and against any claims based on your failure, or the failure of your customers/end users, to observe the requirements in this paragraph.
We each warrant to the other that: (i) we have the power, authority and legal right to enter into this Agreement; (ii) we have the power, authority and legal right to perform our obligations under this Agreement and all incorporated provisions; and (iii) we will perform the Services in a competent manner.
You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
- Disclaimers and Limitations of Liability
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 13, ACS 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. ACS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. ACS 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. ACS SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY ACS. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO ACS 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 ACS, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW ACS TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL ACS’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY ACS FROM CUSTOMER FOR THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM ACS SHALL BE INTERPRETED TO INCLUDE ACS’S EMPLOYEE’S, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH ACS.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD ACS 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 ACS 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 ACS’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless ACS and its parent, subsidiary and affiliated companies, 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 Services or that of End Users through you; (ii) any violation by you of the AUP; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.
ACS 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 ACS. 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, ACS shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying ACS promptly in writing of the claim and giving ACS 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 ACS’s opinion is likely to occur, you agree to permit ACS, 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 ACS’s obligations (and your rights) under this TOS with regard to such Service and refund to you the price originally paid by you to ACS for the Service, or the Fee actually received by ACS from you for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
Termination notices must be sent to us in the manner set out above. All other notices must be sent by a recognized express carrier using delivery confirmation. We reserve the right to contact you by e-mail regarding issues related to your account and this contract, other than material breaches and our termination of this Agreement.
All notices to us shall be sent as follows:
Copies of all legal notices:
Awesome Cloud Services, LLC
Attention: ACS Legal Notices
1001 Yamato Road, Suite 300w
Boca Raton, FL 33431
- Backup And Restore
17.1. Choice of law, jurisdiction and forum
This Agreement shall be governed by the laws of the State of Florida without regard to its choice of law rules. The parties specifically disclaim the application of the United Nations Convention for the International Sale of Goods. Federal courts located in the City of West Palm Beach, County of Palm Beach, State of Florida shall have sole and exclusive jurisdiction over this Agreement. All actions relating to this Agreement shall be brought in the appropriate federal court sitting in the district for the city set out above. The parties expressly agree that jurisdiction is proper in the court set out in this paragraph. 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.
During the Term of this TOS and for a period of two years after Termination, you may neither on your own behalf, or on behalf of another, solicit or encourage any of our other customers or their customers, to become your customers, or the customers of any other entity.
17.3. Force majeure
Other than obligations regarding payments or confidentiality, neither party shall be in default or otherwise liable for any delay in or failure to perform under this Agreement if such a delay or failure is caused by an event beyond its reasonable control. Events beyond a party’s reasonable control include, but are not limited to, any act of God, any act of a common enemy, the elements, earthquakes, floods, fires, epidemics, inability to secure products or services from other persons, entities or transportation facilities, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party’s employees, agents or contractors. Such a delay or failure shall not constitute a breach of this TOS. Lack of funds shall not constitute a reason beyond a party’s 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 ten days from the beginning of the event.
17.4. Transfer and Assignment
You may not sell, assign or transfer any of your rights or obligations under this TOS without our prior written consent. We reserve the right to transfer services we provide to you, or assign this Agreement, at any time, without your consent or knowledge. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
Any failure or delay on our part in exercising any of the rights or powers given to us in this TOS shall not operate as a waiver of such a right or power, or affect our right to exercise the same or any other right or power at a later date.
Should any paragraph or aspect of this TOS be determined to be contrary to law, the remainder of the TOS shall be interpreted in such a manner as if the omitted portions had not been included.
17.7. 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.
The following paragraphs shall survive the termination or expiration of this Agreement: 14, 15, 16, 17.1, 17.4, 17.6, 17.8.