This Cloud Hosting Agreement (“Agreement” or “Hosting Agreement” or “Cloud Hosting Agreement”) is entered into by and between CloudHostor.com, a brand owned and operated by eCuras LLC, a New Jersey limited liability company (“CloudHostor” or “eCuras” or “Company” or “We” or “Us”) and you (“Client” or “Customer” or “You”), and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of CloudHostor’s services (“Services” or “Cloud Hosting Services”), and represents the entire agreement between you and eCuras LLC concerning the subject matter hereof.
CloudHostor reserves the right, in its sole and absolute discretion, to change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this website (“Site”). If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services or Site. CloudHostor may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your CloudHostor account information current. We are not responsible and assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate or outdated account information.
This Agreement constitutes the entire agreement between the parties concerning the subject matter herein and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter herein. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement.
The Services are not targeted to, and should not be used by, persons under the age of 18. BY ACCESSING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, ARE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW, and are not barred from accessing the Services under the laws of any applicable jurisdiction.
If you are using the Services on behalf of a company, entity, or organization (“Organization” or “Entity”), then you represent and warrant that you: (i) are an authorized representative of that Organization with the authority to bind such Entity to the Cloud Hosting Agreement and (ii) agree to be bound by the Agreement individually and on behalf of such Organization. You further represent and warrant that the Entity is not a CloudHostor or eCuras LLC’s Competitor, nor are you or your Organization are using the Services for or on behalf of a Company’s Competitor.
3. Our Services
We offer the following plans of Cloud Hosting and related services:
CMS Cloud Hosting (Live Sites) – a managed CMS (WordPress, Drupal, Joomla or a similar system) container designed for production.
CMS Cloud Hosting (Test Sites) – a managed CMS (WordPress, Drupal, Joomla or a similar system) container designed for testing.
eCommerce Cloud Hosting (Live Sites) – a managed eCommerce (Magento, OpenCart, Prestashop or a similar system) container designed for production.
eCommerce Cloud Hosting (Test Sites) – a managed eCommerce (Magento, OpenCart, Prestashop or a similar system) container designed for testing.
Content Delivery Network – fast geographically scattered content delivery network (“CDN”), designed for media files, and websites.
We offer a content delivery network (CDN) designed to optimize your website performance through caching and secure distribution of static website content on a network of geographically dispersed servers. You acknowledge and agree that your website content will be stored throughout our network of geographically spread servers. You acknowledge and agree that our CDN program may be discontinued or suspended at any time, and your participation is subject to eligibility, and the CDN program is billed and calculated separately from other CloudHostor’s services.
In order to be eligible for CDN program, you acknowledge and agree that you meet and will keep in compliance with the following criteria: (1) your website must be hosted with CloudHostor; (2) your domain name and hosting must be in the same account; (3) you must make entry changes to your DNS; (4) you must not use DNSSEC; (5) you may not have or add SSL certificates; if you add an SSL with CDN activated, the SSL certificate will not function; (6) you must have a CDN subscription; and (7) you may not change operating systems, CMS or eCommerce platforms.
Migrations – moving the content to CloudHostor.
You are solely responsible for reviewing the functionality and accuracy of migrated content in its new location following a Migration. We will not perform website backups or archives in connection with a Hosting Migration, and we recommend that you back up your third-party hosted website before migration to ensure that no data is lost. You agree not to make any changes or revisions to your website during the migration process.
By requesting a Hosting Migration, you represent and warrant that you are authorized to provide us with access to your third-party hosting account and allow us to migrate the data at the third-party host to us. You agree that you retain sole contractual and any other legal or fiduciary responsibilities related to your third-party hosting account. You agree that we are not liable for any delay in website resolution or loss of data related to your Hosting Migration. Hosting Migrations are not available for websites with over 10GB of data or more than 100,000 files.
Support and Site Backups – technical support and site backups.
If we determine that any support request falls outside the scope of your plan, you can purchase our technical support services (“Support and Backups” or “Technical Support” or “Site Backup Services”) for a fee, on a subscription basis, which we will quote to you before providing the custom support service. If you elect to use our Support and Backups Services, we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. Support and Backups fees are non-refundable. In the event you request that we install any Third Party Software (defined below) not provided as part of the Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity. You also agree to defend, indemnify and hold harmless us and our employees, officers and directors for, from and against any and all claims brought against us and our employees, officers or directors by a third party alleging the Third Party Software is not being used lawfully or that it infringes a third party’s right, patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and any settlements incurred by us in connection with any such claims. You must, within (14) fourteen days of any Technical Support Services, notify us if there are any issues with the Technical Support Services. We are not responsible for and will not provide assistance with any issue(s) that arise beyond (14) fourteen days of any Technical Support Services.
We offer Site Backup Services for an extra fee. You acknowledge and agree that purchasing Site Backup may require additional down time to install and maintain. You further acknowledge and agree that in utilizing the Site Backup Services, you shall be subject to a maximum disk space and bandwidth usage according to the plan you purchase. Subject to the terms and conditions of this Agreement, we shall use commercially reasonable efforts to provide Site Backup Services on a twenty-four (24) hours per day, seven (7) days per week basis throughout the term of this Agreement. You acknowledge and agree that from time-to-time the Site Backup Services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs that we may undertake from time to time; or (3) causes beyond our control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
You agree that any domain name directory, sub-directory, file name or path that does not resolve to an active web page on your Website being hosted by CloudHostor, may be used to place a “parking” page, “under construction” page, “coming soon” page or other temporary page that may include promotions and advertisements for, and links to, CloudHostor’s website, our product and Hosting Service offerings, third-party Websites, third-party product and service offerings, and/or Internet search engines. You agree that CloudHostor may change the content and/or appearance of, or disable any of these pages at any time, in its sole discretion, and without prior notice.
5. Term and Termination
Your Cloud Hosting Services shall continue for the term selected in the package you purchased and shall automatically renew for terms of such length (with fees charged in advance), unless either party notifies the other of termination or cancellation in accordance with this Agreement, and subject to the then-current terms and conditions of this Agreement at the time of any renewal of your Cloud Hosting Services. You acknowledge and agree that in the event you do not desire to automatically renew your Cloud Hosting Services, it is your responsibility and obligation to contact CloudHostor’s customer service center to cancel your automatic renewal. Your failure to cancel your automatic renewal shall be deemed acceptance of the renewal term. Subject to your obligation to pay any outstanding fees, if any, you may cancel your Cloud Hosting Services at any time. To cancel your Cloud Hosting Services you must contact CloudHostor’s customer service center and cancel your service.
Notwithstanding anything to the contrary herein, CloudHostor may suspend or terminate your Hosting Services, suspend your access and password, remove your Hosting Services from CloudHostor’s servers, or remove any content within the Hosting Services, if CloudHostor concludes, in its sole and exclusive discretion, that you (a) have breached, violated, or acted inconsistently with the letter or spirit of this Agreement, including any applicable CloudHostor’s Policy or any applicable law or regulation; (b) have provided false information as part of your account information; (c) have failed to keep your account information complete, true, and accurate; (d) fail to respond to any email communication sent to the email address listed in your account information; (e) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; (f) are engaged in activities or sales that may damage the rights or reputation of CloudHostor or others; or (g) engage in any activity, whether or not intentionally, that threatens the stability or security of CloudHostor’s network, servers, or other services, in CloudHostor’s sole discretion (each “Termination for Cause”). Any Termination for Cause by CloudHostor will take effect immediately, and you expressly agree that you will not have any opportunity to cure. In addition, CloudHostor may terminate your Services at any time without cause upon notice to you. Your sole and exclusive remedy for such termination of your Cloud Hosting Services without cause will be a refund of your Service Fees for the then current term.
Server Migrations – You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, your assigned dedicated IP number will need to be updated in the corresponding DNS records of your domain name. We do not warrant that you will be able to consistently maintain your given IP numbers.
Termination of Services – You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your domain name(s) away from our servers. Prior to termination of the Services, you are responsible for moving your website or server content off our servers. We will not transfer or FTP your website or server content to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and we will not be able to provide a copy of such content.
Free Products Credits – Upon termination of the Services, all free products provided as part of the Services will be cancelled or revoked.
Agreement Term – Upon any termination of your Hosting Services or this Agreement for any reason, any provision which, by its nature or express terms should survive, will survive such termination.
6. Your Obligations
Justification – You acknowledge and agree that we shall have the right to seek justification in connection with your use of the Services, and you shall be obligated to provide any and all information reasonably sought by us pursuant to such justification. You acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, in accordance with policies promulgated by any and all such registries and such information may be displayed publicly on the Whois database.
Abusive Activities – You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all websites associated with your cloud hosting account may be removed if one website is in violation of this Agreement. In addition to the General Rules of Conduct listed in our Universal Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to: (1) disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis. We have plans under which you may be allowed to send more email than our standard STMP relay limit; (2) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (3) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (4) attempt to mislead any person as to the identity, source or origin of any communication; (5) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (6) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; (7) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization; (8) use your server as an “open relay” or for similar purposes. (9) act as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities; (10) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic); (11) banner ad services for display on other websites or devices (commercial banner ad rotation); (12) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare); (13) commercial audio streaming; (14) push button mail scripts that allow the user to specify recipient email addresses; (15) anonymous or bulk SMS gateways; (16) backups of content from another computer or website; (17) Bittorrent trackers; (18) perpetrate server hacking or other security breaches; (19) use of your web site as an anonymous gateway; (20) use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by CloudHostor; or (21) engage in any other activity deemed by CloudHostor to be in conflict with the spirit or intent of this Agreement or any of our policies, including the use of the Cloud Hosting Services in any way, in CloudHostor’s sole discretion, that impairs the functioning or operation of our services or equipment. Specifically, by way of example and not as a limitation, you shall not use the Hosting Services as (i) a repository or instrument for placing or storing archived files, and/or (ii) placing or storing material to be downloaded through other web sites. Please note: media files storage plans are available separately (content delivery network “CDN”).
We prohibit the running of a public recursive DNS service on any of our servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.
In order to ensure compliance with the foregoing, CloudHostor reserves the right to reasonably investigate you, your business, and/or your owners, officers, directors, managers, and other principals, your websites, and your Content at any time. If the investigation reveals any information, act, or omission, which in CloudHostor’s sole opinion, constitutes a violation of any local, state, federal, or foreign law or regulation, or the Agreement or any of CloudHostor’s other policies, we may immediately shut down the Cloud Hosting Services, without notice to you. You agree to waive any cause of action or claim you may have against CloudHostor for such action.
Website/Server Content – You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.
Storage and Security – At all times, you shall bear full risk of loss and damage to your website and all of your Content. You are entirely responsible for maintaining the confidentiality of your password and account information. You agree that you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with the website or any of your Content displayed, linked, transmitted through or stored on the CloudHostor’s servers. You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your website or server content; (2) maintain independent archival and backup copies of your website or server content; (3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers; and (iv) ensure the confidentiality of all your passwords associated with CloudHostor’s services.
CloudHostor’s servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. The Services are not intended to provide a PCI (Payment Card Industry) or HIPAA (Health Insurance Portability and Accountability Act) compliant environment and therefore should not be used or considered as one. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
You agree that CloudHostor has no obligation to back-up any data related to your website. In the event your use of the Hosting Services is terminated, moving your website off of CloudHostor’s servers is your responsibility. CloudHostor will not transfer or FTP your website to another provider.
Service Limits – All Cloud Hosting plans, including the unlimited plans, are subject to a limit of no more than 250,000 inodes/files per account. The plans are also limited to no more than 1,000 tables per database and no more than one gigabyte of storage per database. Any account or database that exceeds these limits may be issued a network violation warning and will be required to reduce the consumption or to upgrade their Cloud Hosting plan. We reserve the full right to temporarily or permanently suspend any account, in our sole discretion.
You acknowledge and agree that inbound UDP is not supported in shared hosting environments.
Our Cloud Hosting plans (production and testing plans), are designed for high traffic and performance, and thus we offer unlimited bandwidth and disk space. This means that we do not set a limit on the amount of bandwidth, or disk space you may use in the operation of your website, provided it complies with this Agreement. In the event the bandwidth, number of websites or disk space usage of your website presents a risk to the stability, performance or uptime of our servers, data storage, networking or other infrastructure, you may be required to upgrade your Cloud Hosting plan, or we may take action to restrict the resources your website is utilizing.
7. Service Uptime Guarantee
We offer a Service uptime guarantee of 99.9% (“Service Uptime Guarantee”) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 5% of your monthly hosting fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email; (4) causes beyond our control or that are not reasonably foreseeable; and (5) outages related to the reliability of certain programming environments.
8. Additional Warranty Disclaimers and Limitations of Liability
IN ADDITION TO THE OTHER DICLAIMERS AND LIMITATIONS OF LIABILITY OF CLOUDHOSTOR AS SET FORTH IN THE UNIVERSAL TERMS OF SERVICE, CLOUDHOSTOR IS ALSO NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR END USERS VIA THE CLOUD HOSTING SERVICES PROVIDED BY CLOUDHOSTOR.
Information obtained by you from the Internet may be inaccurate, offensive or in some cases illegal. CloudHostor has no control over information contained on the Internet and accepts no responsibility for any information that you may receive or transmit via the Internet.
You agree that if CloudHostor takes any corrective action under this Agreement in response to your or your end users’ actions or failures to act, that corrective action may adversely affect you or your end users and you agree that CloudHostor shall have no liability to you or your end users due to any corrective action taken by CloudHostor.
9. Titles and Headings; Independent Covenants; Severability
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.