Terms of ServiceLast Updated: July 12, 2020
Clients will be held responsible for any and all actions performed by their account whether done by the account holder or by others. If server security is compromised, the account holder is responsible for all violations of these Terms of Service (so called herein) and SunpathCloud’s Acceptable Use Policy (.AUP.), including SPAM, and all disconnect and reconnect fees associated with violations. SunpathCloud does not harden or enable additional server security software outside of operating system defaults. The following terms constitute an agreement between you and NETVAZ LLC (“SunpathCloud”). These Terms of Service govern your use of the services provided by SunpathCloud (the “Services”). BY USING THE SERVICES YOU SIGNIFY THAT YOU AGREE TO THESE TERMS OF SERVICE, including that you agree to transact with us electronically, that you consent to the information practices disclosed in our AUP, and that you consent to resolve in Bronx County, New York any dispute that you may have with us, our suppliers, or the Services. Please note that we offer the Services “AS IS” and without warranties. These Terms of Service govern your relationship with us and our suppliers. We may change these Terms of Service at any time, as we deem appropriate. If we make changes that we believe will have a material impact on your use of the Services, we will let you know by sending you an email if we have a current email address for you, and by noting on our website that these Terms of Service has been updated. If you disagree with the changes to these Terms of Service, discontinue your use of the Services. Your ongoing use of any Services after the changes take effect signifies your agreement to the new terms. We encourage you to review these Terms of Service regularly.
SunpathCloud agrees to furnish services, which are paid for in advance by the client, to the client, subject to complete compliance with the AUP and these Terms of Service. SunpathCloud reserves the right to refuse Services to any potential client and/or to deny renewal of Services to any existing client, at the sole discretion of SunpathCloud.
Changes to Terms of Service and AUP
SunpathCloud’s Terms of Service and AUP are both subject to change at any time and without notice at the sole discretion of SunpathCloud. A change in policy shall not be grounds for early contract termination or non-payment. Client recognizes that the nature of the service supplied and the initial rates and charges have been communicated to the client. The client is aware that from time to time rates may change based on availability of hardware, overall market conditions or other factors. Clients will be notified of any increases in rates or charges prior to the billing renewal date on which such increases will take effect.
Services interrupted for non-payment may be subject to a 10% late fee. Data stored on a client’s services will not be available to the client until reconnection is established or alternative arrangements are made to the sole satisfaction of SunpathCLoud. Clients deactivated for non-payment or charge-back are subject to their data being destroyed ten (10) days from suspension/charge-back date. SunpathCloud is not responsible for data integrity, regardless of circumstance. SunpathCloud strongly recommends keeping up to date and off network backups to protect against data loss.
No Services rendered by SunpathCloud are eligible for a refund. Prepayments and account credit are ineligible to be refunded, or transferred to alternate accounts. Any and all charge disputes must be reported directly to SunpathCloud within thirty (30) days of the date which the charge originally occurred. If a charge which is deemed valid by SunpathCloud, and validated by our Terms of Service or AUP, is disputed to a financial institution by performing a charge-back, then the client agrees to pay an ‘Administrative Fee’ of $200 in addition to original amount of funds which were reclaimed.
In the event a service is suspended for non-payment, it will be subject to termination ten (10) days from the time of suspension. SunpathCloud assumes no liability for the integrity of the data stored on a suspended server.
SunpathCloud requires a ten (10) day notice of cancellation prior to the billing renewal date for the upcoming billing cycle, submitted via the billing portal. A ten (10) day notice before the upcoming billing date is also required for any downgrades. All client data will be destroyed immediately after the cancellation date. If the notice of cancellation is not provided within ten (10) days, the server will still be canceled however a termination fee of $25 will be applied to the account and must be paid within 15 days to avoid full account suspension.
In the event fraud is discovered the fraudulent account, and all related accounts, are subject to immediate suspension or termination at the sole discretion of SunpathCloud. All information available to SunpathCloud about the fraudulent account/service shall be submitted to both local authorities, as well any financial institutions involved. All fraudulent orders are investigated, and all fraudulent clients will be prosecuted to the fullest extent of the law, whether within the United States, or abroad.
Disclaimers of Liability; Indemnification
WE PROVIDE THE SERVICES .AS IS., .WITH ALL FAULTS. AND .AS AVAILABLE.. WE AND OUR SUPPLIERS MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM IMPLIED WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE AND OUR SUPPLIERS DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE, ACCURATE OR MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. NO ORAL OR WRITTEN INFORMATION GIVEN BY A NETVAZ LLC REPRESENTATIVE SHALL CREATE A WARRANTY. You may have additional consumer rights under your local laws that this contract cannot change. You use the Services at your own risk. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US OR OUR SUPPLIERS IS THE CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL OUR, OUR AFFILIATES’ AND OUR SUPPLIERS’ AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID DURING THE PERIOD DURING WHICH SUCH CLAIMS AROSE. WE, OUR AFFILIATES, AND OUR SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR AFILLIATES AND SUPPLIERS, SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. You agree to defend, indemnify, and hold harmless us, our employees, contractors, officers, directors, agents, affiliated companies, and suppliers, from all liabilities, claims, and expenses, including attorneys’ fees, which arise from your use or misuse of the Services. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
SunpathCloud provides hardware support related to each direct client’s service functioning. SunpathCloud does not offer software support of any kind. SunpathCloud does not provide software support/troubleshooting for the software items chosen from the order form. SunpathCloud only ensures the correct default installation of any software item chosen from the order form, and in no way assumes liability for the configuration of any of the installed software. SunpathCloud is not responsible for any downtime associated with the incorrect configuration of operating system kernels or any software, whether installed by SunpathCloud or the client. SunpathCloud may provide enhanced software support (including kernel configuration) for an additional fee. Please contact sales or support for enhanced support pricing. Each client is eligible for one (1) complimentary operating system (.OS.) reload per billing cycle; each additional OS reload is $35 per reload. Installation of an unsupported OS is subject to the prior approval of SunpathCloud and to a $35 fee. SunpathCloud does not provide any type of support to the clients of our clients (third party clients). SunpathCloud will only provide support directly to clients of SunpathCloud.
Abuse/Spam/Bulk Email Policy
SunpathCloud reserves the right to deny mail delivery from any servers hosted on our network if they are believed to be involved in SPAM or SPIM activities. This includes spam support services such as DNS or spamvertised web sites. Our abuse department will locate abusive servers based on public blacklist monitors, abuse reporting from external networks, and other means. If our abuse department receives a report or otherwise becomes aware of abuse-related activities active on our network, we will identify the server the abuse was initially sent from (via IP and in some cases by domain) and create a ticket on behalf of the user who occupies the server with information regarding the abuse such as logs describing the abuse and an explanation of what abuse took place.
The following actions will be taken on a case-by-case basis:
-An abuse ticket serves as notification that our abuse department has received reports of abuse originating from the server. We require a client response to ALL abuse tickets within 24 hours of the ticket being opened. Typically no service will be suspended or filtered within the first 24 hours of an abuse ticket being opened. If a response is not received within 24 hours, or the server is determined to be abusive (or likely to be abusive in the case of spam blacklistings) after the ticket is opened, our abuse technicians may filter or disable ports or IPs assigned to the server temporarily to prevent further abuse until a response is received.
-If a response has not been received to an abuse ticket within 7 days of being opened, the server is eligible for suspension and may be completely disabled until we receive a response.
-Habitual neglect of abuse occurring on a client’s server may lead to service termination or longer-term port filters as some blacklistings can take several weeks to time out or be removed.
-SunpathCloud reserves the right to refuse services to any client whose account(s) have been fined or terminated for abuse-related activities. If an IP range or IP address has been blacklisted as a result of excessive abuse reports, SunpathCloud reserves the right to issue a fine of $200 and immediately terminate the service.
Compromised servers issued abuse notifications: If our abuse department suspects that abuse reports associated with a client’s server are a result of the server’s security being compromised, our abuse department will offer the following options:
-At the discretion of our abuse department, we will typically offer the ability to log in to the server and remedy the security compromise while leaving the abusive traffic filtered.
-Offer an Operating System reinstallation, setting the configuration back to the original state it was provisioned in.
-If Operating System reinstallation is not accepted as an option, SunpathCloud may offer to manually retrieve/repair the files on the server, at a fee to be assessed and paid prior to any work being done.
Habitual security compromises that result in abusive traffic being transmitted or received from the server may result in service termination.
If a client wishes to dispute any abuse reports, or any fine assessed in connection with abuse reports or blacklistings, the client must provide SunpathCloud with an explanation via SunpathCloud’s ticketing system within 10 days of the abuse ticket being opened.
SunpathCloud handles any and all Digital Millennium Copyright Act (.DMCA.) complaints very seriously, and will thoroughly investigate each complaint received. SunpathCloud reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation.
The following actions will be taken on a case-by-case basis:
-A ticket is opened as a warning, providing 24 hours to resolve the situation.
-After 24 hours with no client response, connection to the IP address from the DMCA complaint will be disabled at the network level. At this time, SunpathCloud reserves the right to assess a $25 fine.
-After 72 hours with no resolution, services on the server in question will be suspended.
-After 7 days of being suspended and the issue not having been resolved, services on the server in question will be canceled and an Abuse Charge of $200 will be placed on the account. All client data will be destroyed immediately after the cancellation date.
-Users who violate this policy and fail to resolve the situation within 24 hours agree that in addition to these administrative penalties, they will pay .Research Fees’ not to exceed $50 per hour that SunpathCloud personnel must spend to investigate the matter, to be charged only if claims are found to be valid.
Clients agree to pay any and all bandwidth overage charges accrued on their account from the previous billing cycle. Bandwidth overage charges are billed per gigabyte at a rate of $0.25 (twenty five cents) over the allotted bandwidth on the service. SunpathCloud reserves the right to suspend any account which does not pay bandwidth overage charges within 15 days. SunpathCloud is not responsible for spikes in bandwidth that are caused on a client’s service for any reason. Client assumes liability for all bandwidth to and from their services. If issued an expected to exceed bandwidth notification, clients are required to make payment arrangements within 24 hours of that notification to prevent possible service interruption until adequate arrangements are made. These arrangements may include being required to pro-actively upgrade bandwidth.
Clients agree to submit to identity verification measures, designed for both the security of the client as well as the security of SunpathCloud. The identity verification measures may include the faxing of two forms of government issued identification to SunpathCloud, as well as a front and back copy of the credit card used for payment, as well as a copy of a utility bill with the billing address. In certain circumstances additional identity verification may be required, in addition to the previously listed forms.
SunpathCloud keeps all client information private and will not publicly disclose that they are providing services to the client unless permission is received on a case-by-case basis. SunpathCloud reserves the right to use client quotes for promotional uses. Such quotes will be anonymous unless the client agrees to disclosure of their name.
All communications from SunpathCloud and the client are strictly confidential and for the intended use of the addressee only. Any disclosure, use or copying of the information by anyone other than the intended recipient is prohibited and you agree to be held liable for damages if you violate this agreement, forward the information, post it or allow it to be posted online in public or private forums or venues.
Your affirmative act of using the Services constitutes your electronic signature to these Terms of Service and your consent to enter into agreements with us electronically. You also agree that we may send to you in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, .Notices.). We can send you electronic Notices to the e-mail address that you provided to us during registration. The delivery of any Notice from us is effective when sent by us, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling or discontinuing your use of the applicable Services. In order to receive Notices electronically, you must have a personal computer with a modem connected to a communications source (telephone, wireless or broadband), and a Windows-based or a Macintosh-based operating system with an Internet browser. You will need a printer attached to your personal computer to print any Notices. You can retrieve an electronic copy and a printable version of this contract by clicking on the .Terms of Service. link on any web page that hosts any of the Services. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.
This contract and any supplemental terms, policies, rules and guidelines posted on our website constitute the entire agreement between you and us and supersede all previous or contemporaneous written or oral agreements. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
Choice of Law and Location for Resolving Disputes
You agree to defend, indemnify, and hold harmless us, our employees, contractors, officers, directors, agents, affiliated companies, and suppliers, from all liabilities, claims, and expenses, including attorneys’ fees, which arise from your use or misuse of the Services. We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.