Terms of Service

Switzerland

All services provided to you (“you”, “your”, “user”) by CloudSigma (“we”, “us”, “our”) apply to and are governed by these Terms of Service, the Acceptable Use Policy, the Privacy Policy, the Copyright Notice, the Service Level Agreement and the terms of your Purchase including any services provided through the Website and to any email, written or other correspondence relating to such services.

We retain the right and entitlement to revise or vary the Agreement and such revisions and variations will become binding on you as referred to below. The Agreement forms a legally binding agreement between us and you. Continued use of the Website or accepting Services offered by us by ticking the box ‘Please confirm you have read and agree to our Terms of Service.’ constitutes acceptance of the Agreement and formation of a legally binding agreement.

Any individual submitting a Purchase on behalf of a company or other legal entity represents and warrants that he or she has the legal authority and entitlement to bind that entity into the Agreement in which case “you”, “your” and “user” shall mean the company or legal entity. The Agreement is the complete and exclusive agreement between you and us regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral. If you do not accept any element of the Agreement you must not take up any of the Services offered by the Website. The Agreement imposes significant legal obligations on you and also places limits on your legal rights. Please seek independent legal advice before entering into the Agreement.

Any Purchase or commencement of supply of Services is done so on the basis that you have agreed to be legally bound to the terms of the Agreement and that you represent and warrant that you have the legal authority to enter into said Agreement.

The Services and Website are provided and offered for adults over the age of 18 only. If you are under 18 and/or you are not able to form legally binding contracts you should not use the Services and/or Website. You must check with the owner and/or providers of your internet access you are using in relation to the Services and/or Website that such access is lawful and allowed by any policy and/or terms of service governing the use of any equipment or internet connection.

By continuing to use the Website and any of the services offered by it, you are confirming that you are 18 or over and are accessing and using the Website and the services offered via the Website lawfully.

Variation to the Agreement

We reserve the right and entitlement to alter the Agreement at any time. We will notify you in accordance with the Agreement at least thirty (30) days prior to any alterations becoming valid and binding. Upon receipt of such notice, you will have the option either to terminate your account under the provisions of clause 10 and receive a refund for any positive account balance or to continue to use our Services and be bound by the altered Agreement. After the altered Agreement has come into force, purchase of additional Services or continued use of the Website including API usage constitutes your agreement to be legally bound to the altered Agreement’s terms and conditions in full.

1.Definitions

In this Terms of Service:

  • “Acceptable Use Policy” or “AUP” means the CloudSigma Acceptable Use Policy as of the date you make each Purchase or exchange of Credits for Services, as it may be amended in accordance with the Agreement.
  • “Agreement” refers collectively to the Purchase, these Terms of Service, the Privacy Policy, the Copyright Notice, the Service Level Agreement and the Acceptable Use Policy.
  • “Agreement Date” means the earlier of: (i) the date on which you accept these Terms of Service via the Website and/or (ii) the date you first use the Services including the purchase of Credits.
  • “API” means CloudSigma’s proprietary application programming interface.
  • “Beta Testing” refers to a situation when you choose to participate in any beta test of a Service that is pre-release.
  • “CloudSigma” means CLOUDSIGMA AG a Swiss company incorporated in the Canton of Zürich, Switzerland with incorporation number CH-020.3.034.422-0 and with registered address Sägereistrasse 35, CH-8152 Glattbrugg, Switzerland.
  • “Confidential Information” means all non-public information disclosed by one party to the other at any time irrespective of the date of the Agreement, that the receiving party should reasonably understand to be confidential, including: (i) for you, all information stored or transmitted to or from the CloudSigma network, (ii) for us, any data centre or server designs, unpublished prices, unpublished terms of service, internal reports (including for auditing and security purposes), future company development plans, and any other proprietary information, and (iii) for both of us, any information marked as confidential. Confidential Information excludes any information or technology that is developed by one of us without reference to the other’s Confidential Information or becomes available without violation of an applicable law or this Agreement.
  • “Copyright Notice” means the CloudSigma Copyright Notice as of the date you make each Purchase or exchange of Credits for Services, as it may be amended in accordance with the Agreement.
  • “Credits” means the non-refundable credits you Purchased via the Web Console which can be used in exchange for Services only. The credits are expressed in Swiss Francs (CHF), British Pounds (GBP), Euros (EUR) or United States Dollars (USD) on a one credit equals one currency unit basis. Credits are only expressed in relation to one currency equivalent in accordance with your currency selection upon opening an account with CloudSigma.
  • “Credit Balance” means the number of Credits you have purchased less the number of credits exchanged in respect of Services provided in accordance with the Agreement.
  • “Junk Mail” means email that is designated by our email systems as such as well as email reported by other users of CloudSigma and by you as unsolicited.
  • “Purchase” means the purchase of Credit that you submit to us via the Website or any other written purchase provided to you by ourselves for signature which describes the Services you are purchasing and that is signed by you whether that be manually or electronically.
  • “Privacy Policy” means the CloudSigma Privacy Policy as of the date you make each Purchase or exchange of Credits for Services, as it may be amended in accordance the Agreement.
  • “Service Level Agreement” means the CloudSigma Service Level Agreement as of the date you make each Purchase or exchange of Credits for Services, as it may be amended in accordance with the Agreement.
  • “Services” means services provided in exchange for Credit balance or provided free by CloudSigma as described on the pages of the Website relevant to that service. Services include only those services which are offered via the Website including but not limited to the provision of virtual servers, core-CPU power, disk data storage, RAM, network data transfer, IP addresses and VLANs. Services are provided in accordance with the Agreement.
  • “Web Console” means the web console available at https://cs.cloudsigma.com which forms part of the Website and which you use to purchase Credits and to manage the provision of Services.
  • “Website” means any website with a domain name ending “cloudsigma.com”.
  • “Working Day” means 9:00 a.m. – 5:00 p.m. Monday to Friday, Central European Time excluding Swiss national holidays.

2.Purchase of Credits

  • 2.1 You acknowledge and agree that any Purchase made via the Website is for Credits that can be exchanged only in relation to Services. No amounts received by CloudSigma or Credits granted to you in relation to any Purchase (except under the terms of termination as set out in clause 10 of these Terms of Service) are:
    • 2.1.1 refundable;
    • 2.1.2 exchangeable for cash or any other form of payment; or
    • 2.1.3 useable in any manner other than in exchange for Services.
  • 2.2 All Purchases must be made via:
    • 2.2.1 credit or debit card made via the Web Console; and
    • 2.2.2 bank transfer to the correct bank account matching the currency used for your account and using your unique bank transfer ID as available via the payment section of the Web Console.
  • 2.3 Invoices are issued by us following shortly after any Purchase as we deem appropriate and necessary, and are also made available to you via the Web Console.
  • 2.4 You acknowledge and accept that Services and/or continued access to the Web Console may be suspended or terminated immediately if any payment in relation to a Purchase is declined, delayed or refused by your financial institution and/or credit card or debit card provider.
  • 2.5 We will adjust your Credit Balance in line with Services provided to you from time to time in accordance with the rates for exchange for those Services as advertised on our Website.
  • 2.6 At our reasonable discretion if at any time during the Agreement you fail to meet an appropriate standard of creditworthiness, as determined at our sole discretion, we may either:
    • 2.6.1 require you to make advance Purchase(s) on a regular basis as we deem necessary;
    • 2.6.2 require you to make payments in relation to Purchase(s) by bank transfer that you could otherwise make under these Terms of Service by credit or debit card;
    • 2.6.3 impose a limit on the number of Credits you may Purchase; or
    • 2.6.4 impose restrictions or conditions on your right to use Services as we deem appropriate.
  • 2.7 All Purchases must be made in the default currency of your account as selected by you upon account opening.Currency selection for your account is permanent. Accounts can be opened in Swiss Francs (CHF), British Pounds (GBP), Euros (EUR) or United States Dollars (USD).
  • 2.8 The rates of exchange of Credits for Services will only be available to you in the default currency of your account. You may open multiple accounts with different default currencies.
  • 2.9 In the event that any payment made by you in relation to a Purchase fails to be honoured or accepted by your financial institution and/or our Website’s automated payment gateway then we reserve the right to charge a returned payment fee to cover any additional administration costs and/or any other associated costs which we may incur.
  • 2.10 We reserve the right, at our absolute discretion, to suspend or cancel access to the Web Console, the API or to withhold the provision of any Services until payment in full of such amounts has been received by us including any fees we may have the right to charge you to return an unhonoured payment.
  • 2.11 Upon termination of the Agreement your Credit Balance (unused or otherwise) that you have purchased will not be refunded or returned to you other than as specifically outlined under the terms of termination as set out in clause 10 of these Terms of Service.
  • 2.12 We may charge interest on any overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than twenty (20) Working Days and we bring legal action to collect or engage a collection agency to do so on our behalf, you must also pay our reasonable costs of collection, including but not limited to legal fees and court costs. All fees in relation to this are stated and will be charged in Swiss Francs (CHF).

3.Services

  • 3.1 Contingent on CloudSigma’s acceptance of your Purchase, and subject to these Terms of Service, CloudSigma agrees to provide Services in exchange for Credits at the rates of exchange outlined on the Website and Web Console.
  • 3.2 We reserve the right to vary the rates of exchange of Credits for Services at any time at our sole discretion with immediate effect. Amended rates become applicable upon your next Purchase or exchange of Credits for Services.
  • 3.3 Services offered via the Website may vary in scope and nature over time. You acknowledge, accept and agree that elements of the Services may be varied, updated, replaced, removed, supplemented or added to over time as we so determine appropriate.
  • 3.4 We provide certain Services on a pre-paid subscription basis for the periods of 1 month, 3 months, 6 months and 1 year. Services purchased on a subscription basis are paid for in advance with Credits. Rates of exchange of Credits for Services are as outlined on the Website and Web Console. The number of Credits exchanged for Services is fixed at the time of the exchange for the period of the subscription in relation to the Services exchanged for credits at that time only.
  • 3.5 We provide certain Services on a pay-as-you-go basis based on five minute billing cycles. We provide dynamic rates of exchange of Credits for Services which are updated every five minutes and are available via our Website and the Web Console. The number of Credits exchanged for Services on a pay-as-you-go basis is fixed at the time of the exchange for the period of the next five minute billing cycle.
  • 3.6 Upon expiry of Services purchased on a pre-paid subscription basis you will automatically continue to be charged for the same Services on a pay-as-you-go basis at the on-going rates of exchange of Credits for Services at that time unless you cease to utilise our Services in relation to your expired subscription.
  • 3.7 We shall provide the Service to you subject to the Agreement from the Agreement Date until the Service is fully delivered, its term expires, it is terminated or it is suspended under the terms of the Agreement.
  • 3.8 The provision of Services is strictly subject to you maintaining a sufficient Credit Balance and you acknowledge, accept and agree that we may suspend or terminate Services to you if you have Credit Balance for less than 5 days usage at your latest Service usage level and pay-as-you-go Service rates of exchange of Credits at that time.
  • 3.9 We retain the right to verify your identity at any time. In the event that we are unable to verify your identity using reasonable endeavours, at our sole discretion we may require you to provide further proof of identity including but not limited to:
    • 3.9.1 an original or certified copy of photographic ID in the form of a driving licence or passport; and/or
    • 3.9.2 an original or certified copy of proof of address as deemed acceptable to us.
  • 3.10 If you fail or are unwilling to provide such evidence as reasonably requested by us then we shall be entitled to immediately suspend and/or terminate your use of Services.
  • 3.11 We shall not be responsible for any back up, recovery or other step required to ensure that data and information stored on the CloudSigma network and infrastructure as part of provision of Services to you is recoverable in the case of any data loss, system fault, software failure, hardware failure or other activity which results in any loss of data, information or other item that is being stored as part of our Services.
  • 3.12 We may suspend your Services without liability if:
    • 3.12.1 we have reason to believe that that the Services, have, are being or will be used in violation of the Agreement;
    • 3.12.2 you don’t co-operate with reasonable investigations into suspected violations of the Agreement;
    • 3.12.3 we reasonably believe that your Services are being access or used by third parties without your authorisation;
    • 3.12.4 your Credit Balance is zero and/or insufficient to cover current Services being utilised by you;
    • 3.12.5 we reasonably believe it is necessary in order to protect our network infrastructure and Services to other customers;
    • 3.12.6 we discover that you are affiliated with a person or legal entity that has used our Services in the past and had their account terminated; or
    • 3.12.7 we are required to do so by law.
  • 3.13 We will endeavour to provide you with reasonable notice of any suspension under this clause unless it our reasonable belief that an immediate suspension or shorter notice is required to protect our network infrastructure and services to other customers from significant operational or security risk or because we are compelled to do so by law.
  • 3.14 We may continue to charge you for Services during any suspension resulting from a breach of obligations under the Agreement by you. You may be charged a reinstatement fee of up to CHF 100 to remove a suspension over your account.
  • 3.15 We are not responsible for any unauthorized access to your data or the unauthorized use of Services under your account. You represent and warrant that you are solely responsible for the use of Services whether or not authorised by you, by any employee of yours, any person to whom you have given access to the Services and/or any person who gains access to your data or Services as a result of a failure by you to use reasonable security precautions. You hereby indemnify us and hold us harmless against all costs, claims, expenses and damages whatsoever arising from the use of or access to your data or Services by any third party.
  • 3.16 We do not support any operating systems and/or other software which you run within your virtual servers as part of the Services we offer to you.
  • 3.17 We do not monitor and have no liability for the contents of, any communications transmitted by you by virtue of our provision of the Services.
  • 3.18 We have no obligation to provide security other than as stated in the Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
  • 3.19 Both free Services and Services provided in exchange for Credits are provided to you on an AS IS basis.
  • 3.20 We will be the sole arbiter of any dispute regarding the provision of Services and our decision will be final and binding.

4.Use of Services

  • 4.1 You acknowledge, accept and agree to the following:
    • 4.1.1 only to use the Services in accordance with the Acceptable Use Policy;
    • 4.1.2 to comply with applicable laws at all times;
    • 4.1.3 not to interfere with Services or the provision of Services;
    • 4.1.4 you will at all times act in good faith in relation to the Services;
    • 4.1.5 not to continue to use Services if you have had an account suspended or terminated now or at any time in the past;
    • 4.1.6 that you are solely responsible for the suitability of the service chosen;
    • 4.1.7 to use reasonable security precautions in relation to your use of the Services;
    • 4.1.8 only share your password with a person or persons whom you have authorised to use your account;
    • 4.1.9 that your account is non-transferable and you will be liable for any and all activities undertaken using your user account together with the associated password, whether or not the person undertaking the activities has been authorised by you;
    • 4.1.10 keep up to date your billing, contact and other account information;
    • 4.1.11 that there are inherent risks with Internet connectivity that may result in the loss of your privacy, Confidential Information and/or property;
    • 4.1.12 immediately notify us of any suspected or actual unauthorised use of your account or any security breach; and
    • 4.1.13 to be solely and entirely responsible for maintaining at least one current backup copy outside of CloudSigma’s network of all data (including but not limited to operating systems, content and programs) stored on CloudSigma’s network to ensure that the potential for losses is mitigated.
  • 4.2 You accept, acknowledge and agree that the Services may not be used in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. This includes but is not limited to use of the Services in connection with modes of human mass transportation, nuclear and chemical facilities, critical infrastructure and medical devices whose failure or malfunction could result in harm to persons. Accordingly, without prejudice to any other disclaimer or limitation of liability in these Terms of Service, we specifically disclaim any express or implied warranty of fitness of the Service for use for such activities.
  • 4.3 You accept and agree that you have no right to physical access to the premises from which the Service is provided without our explicit prior permission which will be granted at our sole discretion.
  • 4.4 You may access the Services via our API in addition to via the Web Console. We reserve the right to change the API or suspend provision of the API at any time without notice.
  • 4.5 You acknowledge, accept and agree that the provision of Services and the Website is strictly subject to:
    • 4.5.1 payment of all fees and charges in a prompt and timely manner;
    • 4.5.2 your full compliance with the Agreement including these Terms of Service;
    • 4.5.3 compliance with all relevant laws and regulations at all times; and
    • 4.5.4 maintenance of sufficient Credit Balance to ensure Services remain fully paid up;
    • 4.5.5 your purchasing of additional Credits as required via the Web Console once your Credit Balance becomes insufficient to maintain Services for 5 days based on your Service usage and pay-as-you-go rates of exchange of Credits for Services level at that time.
  • 4.6 You represent and warrant to us that:
    • 4.6.1 you are 18 years of age or over, capable of taking responsibility for your own actions and of sound mind;
    • 4.6.2 you are able to enter into a legally binding agreement with us;
    • 4.6.3 if you are entering into the Agreement on behalf of a company or other legal entity you have the legal authority and entitlement to bind that entity into the Agreement;
    • 4.6.4 you are the person whose details are provided in connection with your user account;
    • 4.6.5 you are not an undischarged bankrupt or in a voluntary arrangement with your creditors; and
    • 4.6.6 you are not a person to whom CloudSigma is legally prohibited to provide Services.
  • 4.7 Notwithstanding the provisions of clause 5 you shall effect and maintain sufficient insurance cover in respect of any case of damage, loss or claim in relation to data loss, system fault, software failure, hardware failure or other activity which results in any loss of data, information or other item that is being stored as part of our Services.
  • 4.8 In the event that Services or access to the Website are suspended and/or terminated in relation to you and you believe that such action has been taken incorrectly, you must immediately contact us to allow a full investigation into the matter thereby limiting and mitigating against damage, loss and claims as a result of the suspension and/or termination.

5.Service Level Agreement

  • 5.1 The Service Level Agreement forms part of the Agreement for Services you Purchase from CloudSigma.
  • 5.2 Any credit resulting from the terms and conditions of the Service Level Agreement shall be credited to the Credit Balance for use against future Services. No credits resulting from the Service Level Agreement will be paid to you as cash or another form of refund.

6.Beta Services

A Service in Beta Testing is subject to the following terms:

  • 6.1 You acknowledge the Beta Testing involves using a pre-release version that may not function properly;
  • 6.2 You acknowledge that by Beta Testing you may expose yourself to higher than normal risks of operational failures;
  • 6.3 The full commercial release version of the Beta Testing service may change substantially from the pre-release version. This may result in programs, networks and operations that ran on the Beta Testing pre-release version not working with the initial full commercial release or subsequent versions;
  • 6.4 You are not entitled to any compensation under the Service Level Agreement for downtime, performance degradation, loss or corruption of data or any other problems that may result from your Beta Testing;
  • 6.5 You agree to provide information and feedback on your Beta Testing in a form reasonably requested by us;
  • 6.6 You agree that we may use your information and feedback for any purposes including but not limited to product development. We may use comments publicly for press and promotional materials with your prior permission;
  • 6.7 You agree that any intellectual property inherent in your feedback or product development of our Services arising from your Beta Testing of any Service shall be owned exclusively by CloudSigma;
  • 6.8 You agree that any information regarding your Beta Testing including your experiences and opinions are Confidential Information of CloudSigma, as defined in these Terms of Service. All information in relation to Beta Testing may only be used for the purpose of providing feedback to CloudSigma;
  • 6.9 You should not use Beta testing for a live production environment. Beta Testing must not be used for critical computing functions including but not limited to any hazardous environments, life support or weapons systems;
  • 6.10 Beta Testing is provided “AS IS” with no warranty whatsoever;
  • 6.11 To the extent permitted by applicable law, CloudSigma disclaims any and all warranties with respect to Beta Testing including the implied warranties of merchantability, fitness for purpose and non-infringement;
  • 6.12 The maximum aggregate liability of CloudSigma and any of its employees, agents, affiliates, or suppliers, under any theory of law for harm to you arising from your Beta Testing shall be a payment of money not to exceed One Hundred Swiss Francs (CHF 100.00); and
  • 6.13 We reserve the exclusive right to terminate Beta Testing of a Service at any time at our sole discretion.

7.Support

  • 7.1 In relation to a fault or disruption with our Services, we will use reasonable endeavours to respond to all requests.
  • 7.2 We will use reasonable endeavours to resolve faults referred to us in accordance with clause 7.1.
  • 7.3 All requests for support should be made to us using the support contact details provided on the Website.
  • 7.4 We will provide you with reasonable notice for all schedule maintenance and/or downtime in advance and shall be entitled to undertake said scheduled maintenance and/or downtime.
  • 7.5 In the event that it is our reasonable commercial believe that emergency maintenance and/or downtime is required, we may do so at any time without the requirement to provide reasonable notice to you.

8.Links to Third Party Web sites

  • 8.1 Links to third party websites on the Website are provided from time to time solely for your convenience. If you use these links, you leave the Website.
  • 8.2 We have not reviewed all of these third party websites and do not control and are not responsible for these websites or their content or availability.
  • 8.3 We do not endorse or make any representations about them, or any material found there, or any results that may be obtained from using them.
  • 8.4 If you decide to access any of the third party websites linked to the Website, you do so entirely at your own risk.
  • 8.5 You acknowledge and agree that we will not be responsible for the availability of such third party websites and will not be responsible or liable for any content or services available from such third party websites. You should check the privacy statements and terms and conditions of use of third party websites accessible from the Website.

9.Links to the Website

  • 9.1 If you would like to link to the Website, you may only do so subject to the following conditions:
    • 9.1.1 you do not remove, distort or otherwise alter the size or appearance of the “CloudSigma” logos or trademarks;
    • 9.1.2 you do not create a frame or any other browser or border environment around the Website;
    • 9.1.3 you do not in any way imply that we are endorsing any products or services other than our own;
    • 9.1.4 you do not misrepresent your relationship with us nor present any other false information about us;
    • 9.1.5 you do not otherwise use any “CloudSigma” trademarks and/or logos displayed on the Website without express written permission from us;
    • 9.1.6 you do not link from a website that is not owned by you; and
    • 9.1.7 your website does not contain content that is distasteful, offensive or controversial, infringes any intellectual property rights or other rights of any other person or otherwise does not comply with all applicable laws and regulations.
  • 9.2 We expressly reserve the right to revoke the above permission to link to our Website where you are in breach of the Terms of Service and take any other action we deem appropriate. You shall indemnify us fully for any loss or damage suffered by us or any of our associate companies where you are in breach of the above permission to link to the Website.

10.Termination

  • 10.1 The Agreement shall commence on the Agreement Date and shall continue until terminated by you or us.
  • 10.2 You or us may terminate the Agreement by giving thirty (30) days written notice (including without limitation email notice).
  • 10.3 We may terminate the Agreement without notice to you and without providing any refund against your Credit Balance if any of the following occurs:
    • 10.3.1 the information you provided about yourself was false, materially inaccurate or incomplete;
    • 10.3.2 you were not 18 years old or did not have the legal capacity to enter into the Agreement at the time of submitting the Purchase for Services either in the capacity as an individual or on behalf of another person or legal entity;
    • 10.3.3 we are precluded from providing the Services to you by law or the decision of a competent legal or governmental authority;
    • 10.3.4 you do not use your account for a continuous period of three (3) months or more;
    • 10.3.5 your Credit Balance is zero (or negative) and you do not purchase any additional Credits within five (5) Working Days. In which case we shall additionally be entitled to immediately delete all data and information previously supplied as part of the Services and in relation to your account;
    • 10.3.6 a credit report indicates you no longer meet our reasonable criteria for creditworthiness;
    • 10.3.7 you are declared bankrupt, become insolvent, cease trading or otherwise are unable to meet debt and payment obligations as they fall due;
    • 10.3.8 you fail to pay any sum due to us as it falls due and do not remedy the overdue amounts within five (5) Working Days or receiving notice from us that you have amounts overdue;
    • 10.3.9 we reasonably decide that your ability to pay has been adversely affected including your credit or debit card being declined or us receiving notice of any disputed charges with your credit or debit card provider or your bank;
    • 10.3.10 you violate the Acceptable Use Policy;
    • 10.3.11 your death or the ceasing to exist of a legal entity where applicable; or
    • 10.3.12 you fail to comply with any provision of the Agreement and do not remedy the failure within twenty (20) Working Days of our notice to you outlining the failure.
  • 10.4 If you do not have overdue funds on termination of the Agreement we will give you a reasonable opportunity to migrate your environment out of our Services in an orderly fashion where possible.
  • 10.5 You may terminate the Agreement with us for breach of the Agreement by written notice if any of the following occurs:
    • 10.5.1 we materially fail to provide the Services as agreed and do not remedy the failure within five (5) Working Days of receiving your written notice outlining the failure; or
    • 10.5.2 we materially fail to meet any obligation under the Agreement and do not remedy the failure within twenty (20) Working Days of receiving your written notice outlining the failure.
  • 10.6 Upon termination of the Agreement you:
    • 10.6.1 will not have access to any data stored on our network and infrastructure using the Services;
    • 10.6.2 must discontinue use of the Services;
    • 10.6.3 shall remain liable for any amounts outstanding including negative Credit Balance at the date of termination; and
    • 10.6.4 must relinquish use of any IP addresses and server names assigned to you by us in relation to the Services and also point any Domain Name Services away from us in relation to you.
  • 10.7 Termination of this Agreement for whatever reason shall not affect:
    • 10.7.1 the accrued rights and liabilities of the parties arising in any way out of this Agreement at the date of termination including without limitation the right to recover damages against the other; and
    • 10.7.2 any provisions expressed to survive this Agreement, which shall remain in full force and effect.

11.Taxes, Duty and Value Added Taxation

  • 11.1 All amounts payable for Services and Credits are stated exclusive of any VAT unless stated otherwise. We reserve the right and shall be entitled to charge VAT and other taxes and duty as appropriate.
  • 11.2 You agree that you are liable for all taxes and duty resulting from your purchase of Credits from us and use of our Services.

12.Privacy Policy, Intellectual Property Rights and Confidential Information

  • 12.1 All collection, storing and use of your data are governed by the Privacy Policy.
  • 12.2 You agree acknowledge, accept and agree to be bound by the terms and conditions of the Copyright Notice.
  • 12.3 Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by CloudSigma during the performance of the Services shall belong to CloudSigma unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
  • 12.4 Additionally each of us agree not to use the other’s Confidential Information except in connection with the delivery or use of Services, the exercise of respective legal rights with regards to the Agreement or as may be required by applicable law.
  • 12.5 Each of us agrees not to disclose Confidential Information of the other to any third parties except:
    • 12.5.1 to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service;
    • 12.5.2 to law enforcement or government agencies when required to do so by law; and
    • 12.5.3 in response to a subpoena or other compulsory legal process provided that at least 5 Working Days notice period is provided prior to the disclosure unless prohibited from provided such notice in law.

13.Notices

  • 13.1 All Services and the Website are operated and managed by CloudSigma. For routine communications regarding the Website or Services please contact us using the details provided on the Website.
  • 13.2 Notices regarding termination of the Agreement or other legal matters should be sent by email and by recorded postal delivery to:
    • By Post:
      CLOUDSIGMA AG
      Sägereistrasse 35
      CH-8152 Glattbrugg
      Switzerland
      By Email: legal@cloudsigma.com
  • 13.3 CloudSigma will give notice of amendments to the Acceptable Use Policy, Terms of Service, Privacy Policy, Copyright Notice and Service Level Agreement by posting them on the Website.
  • 13.4 Notices for amendments to the Acceptable Use Policy, Terms of Service, Privacy Policy, Copyright Notice and Service Level Agreement are deemed received at the time that you next log in to the Web Console or the beginning of the first Working Day following the time delivered.

14.Disclaimer

  • 14.1 We take all reasonable care to ensure that the information contained on the Website is accurate, however, we cannot guarantee its accuracy and we reserve the right to change the information on the Website (including these Terms of Service) at any time. You must therefore check these Terms of Service for any such changes each time you visit the Website or utilise the Services.
  • 14.2 To the best of our knowledge, the information contained within the Website is accurate. Whilst we take reasonable care to ensure its accuracy, we make no representations or warranties of any kind with respect to the Website or the content contained on it, including any text, graphics, advertisements, links or other items. We will not be liable to any customer or member of the public for any information supplied on the Website. Our Website is, provided on an “as is” basis and we do not make any representations or warranties if such information subsequently proves to be inaccurate or out of date. Neither us nor any other contributor to the Website make any representation or gives any warranty, condition, undertaking or term either expressed or implied as to the condition, quality, performance, accuracy, fitness for purpose, completeness or freedom from viruses of the content contained on this website or that such content will be accurate, up to date, uninterrupted or error free.

15.Liability

  • 15.1 All Services, software, content, images, materials and other data or information provided by us are done so ‘AS IS’.
  • 15.2 We make no representations or warranties whether express, implied, statutory or otherwise with respect to the services, software, content, images, materials and other data or information.
  • 15.3 Except to the extent prohibited by applicable law, we disclaim all warranties including, without limitation, any implied warranties of merchantability, fitness for purpose, satisfactory quality, quiet enjoyment, non-infringement and any warranties arising out of the course of dealing or usage of trade.
  • 15.4 We make no representations or warranties that the Services will be uninterrupted, error-free, or completely secure or that data stored using the Services will be secure or otherwise safe from loss or damage.
  • 15.5 We shall not be responsible for any interruptions to the Services including but not limited to power outages, system failures or other interruptions including those that affect the acceptance and completion of payments for Purchases.
  • 15.6 No advice or information obtained from us by you directly, via the Services or any third party shall create any warranty not expressly stated in these Terms of Service.
  • 15.7 Nothing in these Terms of Service shall exclude or limit our liability for death or personal injury caused by negligence, fraud or any liability which cannot be excluded by applicable law.
  • 15.8 We do not warrant and shall not be liable for any damage to, or viruses which may infect, your computer equipment or other property by reason of your access to, browsing or use of the Website.
  • 15.9 We do not warrant that functions contained in the Services will be uninterrupted or error free or that defects will be corrected.

16. Limitation of Liability

  • 16.1 Other than the payment obligations and/or indemnity obligations as set out in these Terms of Service liability of each party to the other arising from any given event or series of connected events shall be strictly limited to the amount paid by you to us during the immediately preceding month in which the event (or first in a series of connected events) occurred.
  • 16.2 You acknowledge, accept and agree that the Service Level Agreement and Credits due under it from time to time are your sole compensation and recourse for damages and/or losses suffered by you and represent our total liability in relation to you in contract or tort (other than fraud) under the Agreement.
  • 16.3 You acknowledge, accept and agree that neither party shall be liable in contract or tort (other than fraud) for:
    • 16.3.1 pre-contract or other representations;
    • 16.3.2 damages or losses as a result of disruption or interruptions of any kind to Services and any associated data loss or lack of availability; and
    • 16.3.3 loss of business, contracts, anticipated savings, loss of profit, loss of revenue, loss of goodwill, loss of reputation, loss or use of data or any indirect or consequential losses under any circumstances.

17.Indemnity

You shall indemnify and defend us, our agents, affiliates, suppliers, directors, officers, employees and partners (the “CloudSigma Indemnitees”) from and against any legal claims, losses, liabilities, expenses, fines, damages and settlement amounts including reasonable legal fees and court costs incurred by CloudSigma Indemnitees arising under any claim as a result of your actual or alleged gross negligence, wilful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the Acceptable Use Policy or the Terms of Service. These indemnification obligations shall be enforceable provided that we promptly communicate to you reasonable details of any claim and cooperate in defending any claim. We will choose legal counsel to defend any claim provided these decisions are reasonable and communicated promptly to you. You must comply with reasonable requests from us for assistance and cooperation in defence of the claim. We may not agree to any settlement in relation to any claim without your prior written consent which may not be unreasonably withheld. Expenses incurred by CloudSigma Indemnitees must be paid by you as they are occurred.

18.Force Majeure

Neither of us will be in violation of the Agreement or liable for any loss or damage that the other may suffer because of any: act of God; power cut; power surge; fire, flood, earthquake, storm, hurricane or other natural disasters, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or other utilities, or any other delay or failure caused by a third party. In such an event, we reserve the right to cancel or suspend the Website and/or our Services without incurring any liability.

19.Changes to the Agreement

  • 19.1 We reserve the right to make changes to the Agreement including our Acceptable Use Policy, these Terms of Service, the Privacy Policy, the Copyright Notice and the Service Level Agreement, provided that changes are consistent with applicable law, industry norms and are reasonable. Any changes we make during the term of the Agreement will become effective to you in reference to all Services past, present and future when the earliest of the following occurs:
    • 19.1.1 you make a new/additional Purchase of credits that incorporates the revised Agreement;
    • 19.1.2 you exchange additional credits for our Services; or
    • 19.1.3 thirty (30) days after our notice to you describing the change.
  • 19.2 If you do not wish to continue to use our Services following any such change you may terminate the Agreement by giving us written notice of termination on such grounds not later than thirty (30) days following the date that you were notified of the change. If you terminate the Agreement following such a change, thirty (30) days from the date of receipt by us of your written notice of termination:
    • 19.2.1 you may continue to use Services already exchanged for Credits until this point. Any Services not fully delivered at that time will be converted back to Credits and added to your Credit Balance based on the original rate of exchange used in relation to said Services; and
    • 19.2.2 you will be entitled to receive your current Credit Balance at that time as a cash refund from us on a one to one basis in the default currency of your account.

20.Further Terms

  • 20.1 The illegality, invalidity or unenforceability of a provision of the Terms of Service under the law of any jurisdiction does not affect: the legality, validity or enforceability of any other provision of the Terms of Service in that jurisdiction; or the legality, validity or enforceability of that or any other provision of the Terms of Service under the law of any other jurisdiction.
  • 20.2 If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Terms of Service, the Acceptable Use Policy, the Service Level Agreement, the Copyright Notice and the Privacy Policy.
  • 20.3 The Agreement constitutes the entire agreement between you and us relating to the provision of the Service, and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between us in relation to this, and all past courses of dealing or industry custom. No oral explanation or information given by any party shall alter the interpretation of the Agreement. In agreeing to these Terms of Service, you have not relied on any representation other than those expressly stated in these Terms of Service.
  • 20.4 You may not assign the Agreement without our prior written permission. We may assign the Agreement in whole or in part as part of a sale or corporate reorganization of our company and we may transfer your Confidential Information as part of any such transaction.
  • 20.5 Any Purchase may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us.
  • 20.6 The relationship between you and us is one of independent contractors and the Agreement is not intended to create any type of partnership, joint venture, employee/employer relationship or franchise. Neither of us is an agent for the other and neither of us has the right to bind the other on any agreement with a third party.
  • 20.7 The captions, section headings and titles in the Agreement are for convenience only and are not part of the Agreement.
  • 20.8 We may use third party service providers to perform all or any part of the Services however we remain responsible to you under the Agreement for services performed by third party service providers to an equal extent as if we performed the third party services ourselves.
  • 20.9 No delay and/or failure by us to enforce our rights or entitlements under the Agreement shall be deemed to be a waiver.
  • 20.10 Other than as stated in these Terms of Service, the Agreement may be modified only by a formal document signed by both you and us.
  • 20.11 Any waiver of any breach of the Agreement can only be made by us to you expressly in writing. No such waiver shall be considered a waiver of any subsequent breaches similar or otherwise.
  • 20.12 Each of us acknowledges, accepts and agrees that we will not bring a claim against the other under the Agreement more than three calendar months after the time that the claim accrued.

21.Governing Law and Jurisdiction

The Agreement and all other legal relationships between you and us will be governed by and construed in accordance with Swiss law. The courts of Zürich, Switzerland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with the Agreement and any proceedings will be brought in the courts of Zürich, Switzerland. We and you irrevocably submit and agree to submit to the jurisdiction of the courts of Zürich, Switzerland. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. We and you irrevocably waive any objection which we or you may at any time have to the courts of Zürich, Switzerland being so nominated and agree not to claim that the courts of Zürich, Switzerland are not a convenient or appropriate forum.

Last Updated: 01 July 2013
Copyright CLOUDSIGMA AG, 2013. All rights reserved.

United States

All services provided to you (“you”, “your”, “user”) by CloudSigma (“we”, “us”, “our”) apply to and are governed by these Terms of Service, the Acceptable Use Policy, the Service Level Agreement and any terms included in your Purchase.

We retain the right and entitlement to revise or vary the Agreement and such revisions and variations will become binding on you as referred to below. The Agreement forms a legally binding agreement between us and you. Accepting Services offered by us by ticking the box ‘Please confirm you have read and agree to our Terms of Service.’ constitutes acceptance of the Agreement and formation of a legally binding agreement.

Any individual submitting a Purchase on behalf of a company or other legal entity represents and warrants that he or she has the legal authority and entitlement to bind that entity into the Agreement in which case “you”, “your” and “user” shall mean the company or legal entity. The Agreement is the complete and exclusive agreement between you and us regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral. If you do not accept any element of the Agreement you must not take up any of the Services. The Agreement imposes significant legal obligations on you and also places limits on your legal rights. Please seek independent legal advice before entering into the Agreement.

Any Purchase or commencement of supply of Services is done so on the basis that you have agreed to be legally bound to the terms of the Agreement and that you represent and warrant that you have the legal authority to enter into said Agreement.

The Services are provided and offered for adults over the age of 18 only. If you are under 18 and/or you are not able to form legally binding contracts you should not use the Services. You must check with the owner and/or providers of the internet access you are using to access the Services and whether such access is lawful and allowed by any policy and/or terms of service governing the use of any equipment or internet connection.

By continuing to use the Services, you are confirming that you are 18 or over and are accessing and Services offered lawfully.

Variation to the Agreement

We reserve the right and entitlement to alter the Agreement at any time. We will notify you in accordance with the Agreement at least thirty (30) days prior to any alterations becoming valid and binding. Upon receipt of such notice, you will have the option either to terminate your account under the provisions of clause 17 below and receive a refund for any positive account balance or to continue to use our Services and be bound by the altered Agreement. After the altered Agreement has come into force, purchase of additional Services including API usage constitutes your agreement to be legally bound to the altered Agreement’s terms and conditions in full.

1.Definitions

In this Terms of Service:

  • “Acceptable Use Policy” or “AUP” means the CloudSigma Acceptable Use Policy in force on the date you make each Purchase or exchange of Credits for Services, as may be amended from time to time in accordance with the Agreement.
  • “Agreement” refers collectively to the Purchase, these Terms of Service, the Service Level Agreement and the Acceptable Use Policy.
  • “Agreement Date” means the earlier of: (i) the date on which you accept these Terms of Service via the Website and/or (ii) the date you first use the Services including the purchase of Credits.
  • “API” means CloudSigma’s proprietary application programming interface.
  • “Beta Testing” refers to a situation when you choose to participate in any beta test of a Service that is pre-release.
  • “CloudSigma” means CLOUDSIGMA INCORPORATED Registered in: State of Delaware Operational office: 2225E. Bayshore Rd.,Suite 200 Palo Alto, CA 94303-3220 United States
  • “Confidential Information” means all non-public information disclosed by one party to the other party (the “Receiving Party”) at any time irrespective of the date of the Agreement, that the Receiving Party should reasonably understand to be confidential, including: (i) for you, all information stored or transmitted to or from the CloudSigma network, (ii) for us, any data centre or server designs, unpublished prices, unpublished terms of service, internal reports (including for auditing and security purposes), future company development plans, and any other proprietary information, and (iii) for both of us, any information marked as confidential. Confidential Information excludes any information or technology that is developed by one of us without reference to the other’s Confidential Information or becomes available without violation of an applicable law or this Agreement.
  • “Credits” means the non-refundable credits you Purchased via the Web Console which can be used in exchange for Services only. The credits are expressed in Swiss Francs (CHF), British Pounds (GBP), Euro (EUR) or United States Dollars (USD) on a one credit equals one currency unit basis. Credits are only expressed in relation to one currency equivalent in accordance with your currency selection upon opening an account with CloudSigma.
  • “Credit Balance” means the number of Credits you have purchased less the number of credits exchanged in respect of Services provided in accordance with the Agreement.
  • “Junk Mail” means email that is designated by our email systems as such as well as email reported by other users of CloudSigma and by you as unsolicited.
  • “Purchase” means the purchase of Credit that you submit to us via the Website or any other written purchase provided to you by ourselves for signature which describes the Services you are purchasing and that is signed by you whether that be manually or electronically.
  • “Service Level Agreement” means the CloudSigma Service Level Agreement in force on the date you make each Purchase or exchange of Credits for Services, as may be amended from time to time in accordance with the Agreement.
  • “Services” means services provided in exchange for Credit balance or provided free by CloudSigma as described on the pages of the Website relevant to that service. Services include only those services which are offered via the Website including but not limited to the provision of virtual servers, core-CPU power, disk data storage, RAM, network data transfer, IP addresses and VLANs. Services are provided in accordance with the Agreement.
  • “Web Console” means the web console available at https://gui.lvs.cloudsigma.com which forms part of the Website and which you use to purchase Credits and to manage the provision of Services.
  • “Website” means any website with a domain name ending “cloudsigma.com”.
  • “Working Day” means 9:00 a.m. – 5:00 p.m. Monday to Friday, PST TIME ZONE excluding US national holidays.

2.Purchase of Credits

  • 2.1 You acknowledge and agree that any Purchase made via the Website is for Credits that can be exchanged only in relation to Services. No amounts received by CloudSigma or Credits granted to you in relation to any Purchase (except under the terms of termination as set out in clause 17 of these Terms of Service) are:
    • 2.1.1 refundable;
    • 2.1.2 exchangeable for cash or any other form of payment; or
    • 2.1.3 useable in any manner other than in exchange for Services.
    • 2.2 All Purchases must be made via:
    • 2.2.1 credit or debit card made via the Web Console; and
    • 2.2.2 bank transfer to the correct bank account matching the currency used for your account and using your unique bank transfer ID as available via the payment section of the Web Console.
  • 2.3 Invoices are issued by us following shortly after any Purchase as we deem appropriate and necessary, and are also made available to you via the Web Console.
  • 2.4 You acknowledge and accept that Services and/or continued access to the Web Console may be suspended or terminated immediately if any payment in relation to a Purchase is declined, delayed or refused by your financial institution and/or credit card or debit card provider.
  • 2.5 We will adjust your Credit Balance in line with Services provided to you from time to time in accordance with the rates for exchange for those Services as advertised on our Website.
  • 2.6 At our reasonable discretion if at any time during the Agreement you fail to meet an appropriate standard of creditworthiness, as determined at our sole discretion, we may either:
    • 2.6.1 require you to make advance Purchase(s) on a regular basis as we deem necessary;
    • 2.6.2 require you to make payments in relation to Purchase(s) by bank transfer that you could otherwise make under these Terms of Service by credit or debit card;
    • 2.6.3 impose a limit on the number of Credits you may Purchase; or
    • 2.6.4 impose restrictions or conditions on your right to use Services as we deem appropriate.
  • 2.7 All Purchases must be made in the default currency of your account as selected by you upon account opening. Currency selection for your account is permanent. Accounts can be opened in Swiss Francs (CHF), British Pounds (GBP), Euro (EUR) or United States Dollars (USD).
  • 2.8 The rates of exchange of Credits for Services will only be available to you in the default currency of your account. You may open multiple accounts with different default currencies.
  • 2.9 In the event that any payment made by you in relation to a Purchase fails to be honoured or accepted by your financial institution and/or our Website’s automated payment gateway then we reserve the right to charge a returned payment fee to cover any additional administration costs and/or any other associated costs which we may incur.
  • 2.10 We reserve the right, at our absolute discretion, to suspend or cancel access to the Web Console, the API or to withhold the provision of any Services until payment in full of such amounts has been received by us including any fees we may have the right to charge you to return an unhonoured payment.
  • 2.11 Upon termination of the Agreement your Credit Balance (unused or otherwise) that you have purchased will not be refunded or returned to you other than as specifically outlined under the terms of termination as set out in clause 8 of these Terms of Service.
  • 2.12 We may charge interest on any overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than twenty (20) Working Days and we bring legal action to collect or engage a collection agency to do so on our behalf, you must also pay our reasonable costs of collection, including but not limited to legal fees and court costs. All fees in relation to this are stated in and will be charged in Swiss Francs (CHF). All interest will be charged in the currency with which you purchased the Credits.

3.Services

  • 3.1 Contingent on CloudSigma’s acceptance of your Purchase, and subject to these Terms of Service, CloudSigma agrees to provide Services in exchange for Credits at the rates of exchange outlined on the Website and Web Console.
  • 3.2 We reserve the right to vary the rates of exchange of Credits for Services at any time at our sole discretion with immediate effect. Amended rates become applicable upon your next Purchase or exchange of Credits for Services.
  • 3.3 Services offered via the Website may vary in scope and nature over time. You acknowledge, accept and agree that elements of the Services may be varied, updated, replaced, removed, supplemented or added to over time as we so determine appropriate.
  • 3.4 We provide certain Services on a pre-paid subscription basis for the periods of 1 month, 3 months, 6 months and 1 year. Services purchased on a subscription basis are paid for in advance with Credits. Rates of exchange of Credits for Services are as outlined on the Website and Web Console. The number of Credits exchanged for Services is fixed at the time of the exchange for the period of the subscription in relation to the Services exchanged for credits at that time only.
  • 3.5 We provide certain Services on a pay-as-you-go basis based on five minute billing cycles. We provide dynamic rates of exchange of Credits for Services which are updated every five minutes and are available via our Website and the Web Console. The number of Credits exchanged for Services on a pay-as-you-go basis is fixed at the time of the exchange for the period of the next five minute billing cycle.
  • 3.6 Upon expiry of Services purchased on a pre-paid subscription basis you will automatically continue to be charged for the same Services on a pay-as-you-go basis at the on-going rates of exchange of Credits for Services at that time unless you cease to utilise our Services in relation to your expired subscription.
  • 3.7 We shall provide the Service to you subject to the Agreement from the Agreement Date until the Service is fully delivered, its term expires, it is terminated or it is suspended under the terms of the Agreement.
  • 3.8 The provision of Services is strictly subject to you maintaining a sufficient Credit Balance and you acknowledge, accept and agree that we may suspend or terminate Services to you if you have Credit Balance for less than 5 days usage at your latest Service usage level and pay-as-you-go Service rates of exchange of Credits at that time.
  • 3.9 We retain the right to verify your identity at any time. In the event that we are unable to verify your identity using reasonable endeavours, at our sole discretion we may require you to provide further proof of identity including but not limited to:
    • 3.9.1 an original or certified copy of photographic ID in the form of a driving licence or passport; and/or
    • 3.9.2 an original or certified copy of proof of address as deemed acceptable to us.
  • 3.10 If you fail or are unwilling to provide such evidence as reasonably requested by us then we shall be entitled to immediately suspend and/or terminate your use of Services.
  • 3.11 We shall not be responsible for any back up, recovery or other step required to ensure that data and information stored on the CloudSigma network and infrastructure as part of provision of Services to you is recoverable in the case of any data loss, system fault, software failure, hardware failure or other activity which results in any loss of data, information or other item that is being stored as part of our Services.
  • 3.12 We may suspend your Services without liability if:
    • 3.12.1 we have reason to believe that that the Services, have, are being or will be used in violation of the Agreement (including the AUP);
    • 3.12.2 you don’t co-operate with reasonable investigations into suspected violations of the Agreement;
    • 3.12.3 we reasonably believe that your Services are being access or used by third parties without your authorisation;
    • 3.12.4 your Credit Balance is zero and/or insufficient to cover current Services being utilised by you;
    • 3.12.5 we reasonably believe it is necessary in order to protect our network infrastructure and Services to other customers;
    • 3.12.6 we discover that you are affiliated with a person or legal entity that has used our Services in the past and had their account terminated; or
    • 3.12.7 we are required to do so by law.
  • 3.13 We will endeavour to provide you with reasonable notice of any suspension under this clause unless it our reasonable belief that an immediate suspension or shorter notice is required to protect our network infrastructure and services to other customers from significant operational or security risk or because we are compelled to do so by law.
  • 3.14 We may continue to charge you for Services during any suspension resulting from a breach of obligations under the Agreement by you. You may be charged a reinstatement fee of up to CHF 100 to remove a suspension over your account.
  • 3.15 We are not responsible for any unauthorized access to your data or the unauthorized use of Services under your account. You represent and warrant that you are solely responsible for the use of Services whether or not authorised by you, by any employee of yours, any person to whom you have given access to the Services and/or any person who gains access to your data or Services as a result of a failure by you to use reasonable security precautions. You hereby indemnify us and hold us harmless against all costs, claims, expenses and damages whatsoever arising from the use of or access to your data or Services by any third party.
  • 3.16 We do not support any operating systems and/or other software which you run within your virtual servers as part of the Services we offer to you.
  • 3.17 We do not monitor and have no liability for the contents of, any communications transmitted by you by virtue of our provision of the Services.
  • 3.18 We have no obligation to provide security other than as stated in the Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
  • 3.19 Both free Services and Services provided in exchange for Credits are provided to you on an AS IS basis.
  • 3.20 We will be the sole arbiter of any dispute regarding the provision of Services and our decision will be final and binding.

4.Use of Services

  • 4.1 You acknowledge, accept and agree to the following:
    • 4.1.1 only to use the Services in accordance with the Acceptable Use Policy;
    • 4.1.2 to comply with applicable laws at all times;
    • 4.1.3 not to interfere with Services or the provision of Services;
    • 4.1.4 you will at all times act in good faith in relation to the Services;
    • 4.1.5 not to continue to use Services if you have had an account suspended or terminated now or at any time in the past;
    • 4.1.6 that you are solely responsible for the suitability of the Services chosen;
    • 4.1.7 to use reasonable security precautions in relation to your use of the Services;
    • 4.1.8 only share your password with a person or persons whom you have authorised to use your account;
    • 4.1.9 that your account is non-transferable and you will be liable for any and all activities undertaken using your user account together with the associated password, whether or not the person undertaking the activities has been authorised by you;
    • 4.1.10 keep up to date your billing, contact and other account information;
    • 4.1.11 that there are inherent risks with internet connectivity that may result in the loss of your privacy, Confidential Information and/or property;
    • 4.1.12 immediately notify us of any suspected or actual unauthorised use of your account or any security breach; and
    • 4.1.13 to be solely and entirely responsible for maintaining at least one current backup copy outside of CloudSigma’s network of all data (including but not limited to operating systems, content and programs) stored on CloudSigma’s network to ensure that the potential for losses is mitigated.
  • 4.2 You accept, acknowledge and agree that the Services may not be used in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. This includes but is not limited to use of the Services in connection with modes of human mass transportation, nuclear and chemical facilities, critical infrastructure and medical devices whose failure or malfunction could result in harm to persons. Accordingly, without prejudice to any other disclaimer or limitation of liability in these Terms of Service, we specifically disclaim any express or implied warranty of fitness of the Service for use for such activities.
  • 4.3 You accept and agree that you have no right to physical access to the premises from which the Service is provided without our explicit prior permission which will be granted at our sole discretion.
  • 4.4 You may access the Services via our API in addition to via the Web Console. We reserve the right to change the API or suspend provision of the API at any time without notice.
  • 4.5 You acknowledge, accept and agree that the provision of Services is strictly subject to:
    • 4.5.1 payment of all fees and charges in a prompt and timely manner;
    • 4.5.2 your full compliance with the Agreement including these Terms of Service;
    • 4.5.3 compliance with all relevant laws and regulations at all times; and
    • 4.5.4 maintenance of sufficient Credit Balance to ensure Services remain fully paid up;
    • 4.5.5 your purchasing of additional Credits as required via the Web Console once your Credit Balance becomes insufficient to maintain Services for 5 days based on your Service usage and pay-as-you-go rates of exchange of Credits for Services level at that time.
  • 4.6 You represent and warrant to us that:
    • 4.6.1 you are 18 years of age or over, capable of taking responsibility for your own actions and of sound mind;
    • 4.6.2 you are able to enter into a legally binding agreement with us;
    • 4.6.3 if you are entering into the Agreement on behalf of a company or other legal entity you have the legal authority and entitlement to bind that entity into the Agreement;
    • 4.6.4 you are the person whose details are provided in connection with your user account;
    • 4.6.5 you are not an undischarged bankrupt or in a voluntary arrangement with your creditors; and
    • 4.6.6 you are not a person to whom CloudSigma is legally prohibited to provide Services.
  • 4.7 Notwithstanding the provisions of clause 5 you shall effect and maintain sufficient insurance cover in respect of any case of damage, loss or claim in relation to data loss, system fault, software failure, hardware failure or other activity which results in any loss of data, information or other item that is being stored as part of our Services.
  • 4.8 In the event that Services are suspended and/or terminated in relation to you and you believe that such action has been taken incorrectly, you must immediately contact us to allow a full investigation into the matter thereby limiting and mitigating against damage, loss and claims as a result of the suspension and/or termination.

5.Service Level Agreement

  • 5.1 The Service Level Agreement forms part of the Agreement for Services you Purchase from CloudSigma.
  • 5.2 Any credit resulting from the terms and conditions of the Service Level Agreement shall be credited to the Credit Balance for use against future Services. No credits resulting from the Service Level Agreement will be paid to you as cash or another form of refund.

6.Beta Services

A Service in Beta Testing is subject to the following terms:

  • 6.1 You acknowledge the Beta Testing involves using a pre-release version that may not function properly;
  • 6.2 You acknowledge that by Beta Testing you may expose yourself to higher than normal risks of operational failures;
  • 6.3 The full commercial release version of the Beta Testing service may change substantially from the pre-release version. This may result in programs, networks and operations that ran on the Beta Testing pre-release version not working with the initial full commercial release or subsequent versions;
  • 6.4 You are not entitled to any compensation under the Service Level Agreement for downtime, performance degradation, loss or corruption of data or any other problems that may result from your Beta Testing;
  • 6.5 You agree to provide information and feedback on your Beta Testing in a form reasonably requested by us;
  • 6.6 You agree that we may use your information and feedback for any purposes including but not limited to product development. We may use comments publicly for press and promotional materials with your prior permission;
  • 6.7 You agree that any intellectual property inherent in your feedback that we use in the product development of our Services arising from your Beta Testing of any Service shall be owned exclusively by CloudSigma and you agree to assign such intellectual property to us, if we request you to do so;
  • 6.8 You agree that any information regarding your Beta Testing including your experiences and opinions are Confidential Information of CloudSigma, as defined in these Terms of Service. All information in relation to Beta Testing may only be used for the purpose of providing feedback to CloudSigma;
  • 6.9 You should not use Beta testing for a live production environment. Beta Testing must not be used for critical computing functions including but not limited to any hazardous environments, life support or weapons systems;
  • 6.10 Beta Testing is provided “AS IS” with no warranty whatsoever;
  • 6.11 To the extent permitted by applicable law, CloudSigma disclaims any and all warranties with respect to Beta Testing including the implied warranties of merchantability, fitness for purpose and non-infringement;
  • 6.12 The maximum aggregate liability of CloudSigma and any of its employees, agents, affiliates, or suppliers, under any theory of law for harm to you arising from your Beta Testing shall be a payment of money not to exceed One Hundred Swiss Francs (CHF 100.00); and
  • 6.13 We reserve the exclusive right to terminate Beta Testing of a Service at any time at our sole discretion.

7.Support

  • 7.1 In relation to a fault or disruption with our Services, we will use reasonable endeavours to respond to all requests.
  • 7.2 We will use reasonable endeavours to resolve faults referred to us in accordance with clause 7.1.
  • 7.3 All requests for support should be made to us using the support contact details provided on the Website.
  • 7.4 We will provide you with reasonable notice for all scheduled maintenance and/or downtime in advance and shall be entitled to undertake said scheduled maintenance and/or downtime.
  • 7.5 In the event that it is our reasonable commercial believe that emergency maintenance and/or downtime is required, we may do so at any time without the requirement to provide reasonable notice to you.
  • 7.6 We will only provide you with support. We will not provide support to your end users.

8.Termination

  • 8.1 The Agreement shall commence on the Agreement Date and shall continue until terminated by you or us.
  • 8.2 You or us may terminate the Agreement by giving thirty (30) days written notice (including without limitation email notice).
  • 8.3 We may terminate the Agreement without notice to you and without providing any refund against your Credit Balance if any of the following occurs:
    • 8.3.1 the information you provided about yourself was false, materially inaccurate or incomplete;
    • 8.3.2 you were not 18 years old or did not have the legal capacity to enter into the Agreement at the time of submitting the Purchase for Services either in the capacity as an individual or on behalf of another person or legal entity;
    • 8.3.3 we are precluded from providing the Services to you by law or the decision of a competent legal or governmental authority;
    • 8.3.4 you do not use your account for a continuous period of three (3) months or more;
    • 8.3.5 your Credit Balance is zero (or negative) and you do not purchase any additional Credits within five (5) Working Days. In which case we shall additionally be entitled to immediately delete all data and information previously supplied as part of the Services and in relation to your account;
    • 8.3.6 a credit report indicates you no longer meet our reasonable criteria for creditworthiness;
    • 8.3.7 you are declared bankrupt, become insolvent, cease trading or otherwise are unable to meet debt and payment obligations as they fall due;
    • 8.3.8 you fail to pay any sum due to us as it falls due and do not remedy the overdue amounts within five (5) Working Days or receiving notice from us that you have amounts overdue;
    • 8.3.9 we reasonably decide that your ability to pay has been adversely affected including your credit or debit card being declined or us receiving notice of any disputed charges with your credit or debit card provider or your bank;
    • 8.3.10 you violate the Acceptable Use Policy;
    • 8.3.11 your death or the ceasing to exist of a legal entity where applicable; or
    • 8.3.12 you fail to comply with any provision of the Agreement and do not remedy the failure within twenty (20) Working Days of our notice to you outlining the failure.
  • 8.4 If you do not have overdue funds on termination of the Agreement we will give you a reasonable opportunity to migrate your environment out of our Services in an orderly fashion where possible.
  • 8.5 You may terminate the Agreement with us for breach of the Agreement by written notice if any of the following occurs:
    • 8.5.1 we materially fail to provide the Services as agreed and do not remedy the failure within five (5) Working Days of receiving your written notice outlining the failure; or
    • 8.5.2 we materially fail to meet any obligation under the Agreement and do not remedy the failure within twenty (20) Working Days of receiving your written notice outlining the failure.
  • 8.6 Upon termination of the Agreement you:
    • 8.6.1 will not have access to any data stored on our network and infrastructure using the Services;
    • 8.6.2 must discontinue use of the Services;
    • 8.6.3 shall remain liable for any amounts outstanding including negative Credit Balance at the date of termination; and
    • 8.6.4 must relinquish use of any IP addresses and server names assigned to you by us in relation to the Services and also point any Domain Name Services away from us in relation to you.
  • 8.7 Termination of this Agreement for whatever reason shall not affect:
    • 8.7.1 the accrued rights and liabilities of the parties arising in any way out of this Agreement at the date of termination including without limitation the right to recover damages against the other; and
    • 8.7.2 any provisions expressed to survive this Agreement, which shall remain in full force and effect.

9. Taxes, Duty and Value Added Taxation

  • 9.1 All amounts payable for Services and Credits are stated exclusive of any Sales Tax unless stated otherwise. We reserve the right and shall be entitled to charge Sales Tax and other taxes and duty as appropriate.
  • 9.2 You agree that you are liable for all taxes and duty resulting from your purchase of Credits from us and use of our Services.

10. Data Protection

  • 10.1 Each of us agrees to comply with our obligations under applicable data protection legislation. Subject to the foregoing, each of us agrees to use reasonable efforts to use any Personally Identifiable Information in compliance with the Network Advertising Initiative (“NAI”) Principles, available at: http://www.networkadvertising.org/networks/2008%20NAI%20Principles_final%20for%20Website.pdf. For purposes of this clause, “Personally Identifiable Information” will have the meaning ascribed to it in the NAI Principles.
  • 10.2 You hereby grant us a royalty-free licence, for the duration of the agreement, to use the data provided by you in our provision of the Services to you.
  • 10.3 You warrant that you have all rights and/or necessary permissions in the data necessary to allow you to use the Services.
  • 10.4 You acknowledge, agree and accept that we are reliant on you alone for direction as to the extent that we are entitled to use and process data. Consequently, we are be entitled to relief from liability in circumstances where the owner of the data makes a claim or complaint with regards to our actions to the extent that such actions directly result from instructions received from you.
  • 10.5 You shall indemnify us and keep us indemnified against any claim or loss in relation to our use of the data to the extent that such use directly result from your use of the Services.
  • 10.6 To the extent we process any Personal Data on your behalf (a) we shall act only on instructions from you, and (b) we have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
  • 10.7 In this clause, Personal Data has the meaning given to it in Directive 95/46/EC.

11. Intellectual Property Rights and Confidential Information

  • 11.2 Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by CloudSigma during the performance of the Services shall belong to CloudSigma unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
  • 11.3 Additionally each of us agree not to use the other’s Confidential Information except in connection with the delivery or use of Services, the exercise of respective legal rights with regards to the Agreement or as may be required by applicable law.
  • 11.4 Each of us agrees not to disclose Confidential Information of the other to any third parties except:
    • 11.4.1 to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service;
    • 11.4.2 to law enforcement or government agencies when required to do so by law; and
    • 11.4.3 in response to a subpoena or other compulsory legal process provided that at least 5 Working Days notice period is provided prior to the disclosure unless prohibited from provided such notice in law.

12.Notices

  • 12.1 All Services and the Website are operated and managed by CloudSigma. For routine communications regarding the Website or Services please contact us using the details provided on the Website.
  • 12.2 Notices regarding termination of the Agreement or other legal matters should be sent by email and by recorded postal delivery to:
    • By Post:
      CLOUDSIGMA INCORPORATED
      Sä2225 E. Bayshore Rd. Suite 200
      Palo Alto, CA 94303-3220
      USA
      By Email: legal@cloudsigma.com
  • 12.3 CloudSigma will give notice of amendments to the Acceptable Use Policy, Terms of Service and Service Level Agreement by posting them on the Website.
  • 12.4 Notices for amendments to the Acceptable Use Policy, Terms of Service and Service Level Agreement are deemed received at the time that you next log in to the Web Console or the beginning of the first Working Day following the time delivered.

13.no warranty

  • 13.1 All Services, software, content, images, materials and other data or information provided by us are done so ‘AS IS’.
  • 13.2 We make no representations or warranties whether express, implied, statutory or otherwise with respect to the services, software, content, images, materials and other data or information.
  • 13.3 Except to the extent prohibited by applicable law, we disclaim all warranties including, without limitation, any implied warranties of merchantability, fitness for purpose, satisfactory quality, quiet enjoyment, non-infringement and any warranties arising out of the course of dealing or usage of trade.
  • 13.4 We make no representations or warranties that the Services will be uninterrupted, error-free, or completely secure or that data stored using the Services will be secure or otherwise safe from loss or damage.
  • 13.5 We shall not be responsible for any interruptions to the Services including but not limited to power outages, system failures or other interruptions including those that affect the acceptance and completion of payments for Purchases.
  • 13.6 No advice or information obtained from us by you directly, via the Services or any third party shall create any warranty not expressly stated in these Terms of Service.
  • 13.7 Nothing in these Terms of Service shall exclude or limit our liability for death or personal injury caused by negligence, fraud or any liability which cannot be excluded by applicable law.
  • 13.8 We do not warrant that functions contained in the Services will be uninterrupted or error free or that defects will be corrected.

14. Limitation of Liability

  • 14.1 Other than the payment obligations and/or indemnity obligations as set out in these Terms of Service liability of each party to the other arising from any given event or series of connected events shall be strictly limited to the amount paid by you to us during the immediately preceding month in which the event (or first in a series of connected events) occurred.
  • 14.2 You acknowledge, accept and agree that the Service Level Agreement and Credits due under it from time to time are your sole compensation and recourse for damages and/or losses suffered by you and represent our total liability in relation to you in contract or tort (other than fraud) under the Agreement.
  • 14.3 You acknowledge, accept and agree that neither party shall be liable in contract or tort (other than fraud) for:
    • 14.3.1 pre-contract or other representations;
    • 14.3.2 damages or losses as a result of disruption or interruptions of any kind to Services and any associated data loss or lack of availability;
    • 14.3.3 loss of business, contracts, anticipated savings, loss of profit, loss of revenue, loss of goodwill, loss of reputation, loss or use of data; and
    • 14.3.4 or any DIRECT, indirect or consequential losses under any circumstances.

15.Indemnity

You shall indemnify and defend us, our agents, affiliates, suppliers, directors, officers, employees and partners (the “CloudSigma Indemnitees”) from and against any legal claims, losses, liabilities, expenses, fines, damages and settlement amounts including reasonable legal fees and court costs incurred by CloudSigma Indemnitees arising under any claim as a result of your actual or alleged gross negligence, wilful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the Acceptable Use Policy or the Terms of Service. These indemnification obligations shall be enforceable provided that we promptly communicate to you reasonable details of any claim and cooperate in defending any claim. We will choose legal counsel to defend any claim provided these decisions are reasonable and communicated promptly to you. You must comply with reasonable requests from us for assistance and cooperation in defence of the claim. We may not agree to any settlement in relation to any claim without your prior written consent which may not be unreasonably withheld. Expenses incurred by CloudSigma Indemnitees must be paid by you as they are occurred.

16.Force Majeure

Neither of us will be in violation of the Agreement or liable for any loss or damage that the other may suffer because of any: act of God; power cut; power surge; fire, flood, earthquake, storm, hurricane or other natural disasters, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities whether actual or threatened, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or other utilities, or any other delay or failure caused by a third party. In such an event, we reserve the right to cancel or suspend our Services without incurring any liability.

17.Changes to the Agreement

  • 17.1 We reserve the right to make changes to the Agreement including our Acceptable Use Policy, these Terms of Service and the Service Level Agreement, provided that changes are consistent with applicable law, industry norms and are reasonable. Any changes we make during the term of the Agreement will become effective to you in reference to all Services past, present and future when the earliest of the following occurs:
    • 17.1.1 you make a new/additional Purchase of credits that incorporates the revised Agreement;
    • 17.1.2 you exchange additional credits for our Services; or
    • 17.1.3 thirty (30) days after our notice to you describing the change.
  • 17.2 If you do not wish to continue to use our Services following any such change you may terminate the Agreement by giving us written notice of termination on such grounds not later than thirty (30) days following the date that you were notified of the change. If you terminate the Agreement following such a change, thirty (30) days from the date of receipt by us of your written notice of termination:
    • 17.2.1 you may continue to use Services already exchanged for Credits until this point. Any Services not fully delivered at that time will be converted back to Credits and added to your Credit Balance based on the original rate of exchange used in relation to said Services; and
    • 17.2.2 you will be entitled to receive your current Credit Balance at that time as a cash refund from us on a one to one basis in the default currency of your account.

18.Further Terms

  • 18.1 The illegality, invalidity or unenforceability of a provision of the Terms of Service under the law of any jurisdiction does not affect: the legality, validity or enforceability of any other provision of the Terms of Service in that jurisdiction; or the legality, validity or enforceability of that or any other provision of the Terms of Service under the law of any other jurisdiction.
  • 18.2 If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Terms of Service, the Acceptable Use Policy and the Service Level Agreement.
  • 18.3 The Agreement constitutes the entire agreement between you and us relating to the provision of the Service, and supersede any previous agreements, arrangements, undertakings or proposals, written or oral, between us in relation to this, and all past courses of dealing or industry custom. No oral explanation or information given by any party shall alter the interpretation of the Agreement. In agreeing to these Terms of Service, you have not relied on any representation other than those expressly stated in these Terms of Service.
  • 18.4 You may not assign the Agreement without our prior written permission. We may assign the Agreement in whole or in part as part of a sale or corporate reorganization of our company and we may transfer your Confidential Information as part of any such transaction.
  • 18.5 Any Purchase may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us.
  • 18.6 The relationship between you and us is one of independent contractors and the Agreement is not intended to create any type of partnership, joint venture, employee/employer relationship or franchise. Neither of us is an agent for the other and neither of us has the right to bind the other on any agreement with a third party.
  • 18.7 The captions, section headings and titles in the Agreement are for convenience only and are not part of the Agreement.
  • 18.8 We may use third party service providers to perform all or any part of the Services however we remain responsible to you under the Agreement for services performed by third party service providers to an equal extent as if we performed the third party services ourselves.
  • 18.9 No delay and/or failure by us to enforce our rights or entitlements under the Agreement shall be deemed to be a waiver.
  • 18.10 Other than as stated in these Terms of Service, the Agreement may be modified only by a formal document signed by both you and us.
  • 18.11 Any waiver of any breach of the Agreement can only be made by us to you expressly in writing. No such waiver shall be considered a waiver of any subsequent breaches similar or otherwise.
  • 18.12 Each of us acknowledges, accepts and agrees that we will not bring a claim against the other under the Agreement more than three calendar months after the time that the claim accrued.

19.Governing Law and Jurisdiction

The Agreement and all other legal relationships between you and us will be governed by and construed in accordance with the laws of the United States of America and of the State of New York as applied to agreements entered into and to be performed entirely within New York between New York residents, without giving effect to its conflict of law principles. The parties acknowledge that the United Nations Convention on Contracts for the Sale of International Goods (1980) is specifically excluded from application to this Agreement.

Unless submitted to arbitration as set forth in the following paragraph, all disputes arising out of or related to this Agreement shall be brought exclusively in the Federal District Court of the Southern District of New York, or if such court lacks subject matter jurisdiction over the dispute, in the Supreme Court of the State of New York in New York County. The parties irrevocably submit to the personal jurisdiction of, and waive any venue objection to, the above courts in any dispute arising out of or related to this Agreement.

20.Arbitration

Arbitration

For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Last Updated: 01 July 2013
Copyright CLOUDSIGMA INCORPORATED, 2013. All rights reserved.

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