This Acceptable Use Policy (the “Agreement”) sets forth the terms and conditions of Your Use of hosting and related services (“Services”). In this Agreement “You” and “Your” refer to You, as the user of Our Services, or any agent, employee, servant or person authorized to act on Your behalf. “We”, “us” and “our” refer to Tuned Enterprises LLC, as well as its subsidiaries and sister companies (“TUNEDCLOUD”). This Agreement explains Our obligations to You, and explains Your obligations to Us for various services offered by TUNEDCLOUD. When You Use Your account or permit someone else to Use it to purchase or otherwise acquire access to additional TUNEDCLOUD service(s) or products or to cancel Your TUNEDCLOUD service(s) (even if We were not notified of such authorization), this Agreement covers such service or actions. TUNEDCLOUD’s Terms of Service agreement (“TOS”) is incorporated herein by reference and is applicable to all Services under this Accepted Use Policy.
1. Sharing of Information.
2. User Obligations.
You represent and warrant to TUNEDCLOUD that: Your content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person and that You own Your account content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your server account. You also represent and warrant that the server content being hosted by TUNEDCLOUD shall not be used in connection with any illegal activity.
You expressly (i) grant to TUNEDCLOUD a license to cache the entirety of the content that is submitted, stored, distributed or disseminated by you via the Services and your website, including content supplied by third parties, hosted by TUNEDCLOUD under this agreement; and (ii) agree that such caching is not an infringement on any of your intellectual property rights or any third party’s intellectual property rights.
3. Network Interruptions.
TUNEDCLOUD will use its best efforts to maintain a full time Internet presence for Your account. You hereby acknowledge that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall TUNEDCLOUD be liable to You for any damages resulting from or related to any failure or delay of TUNEDCLOUD in providing access to the Internet or other services under this Agreement. In no event shall TUNEDCLOUD be liable to You for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof. The aggregate, total liability of TUNEDCLOUD under this Agreement, if any, shall in no event or circumstance exceed the total amount actually paid by the Account Holder hereunder. The terms of this Section will survive the termination of this Agreement.
This Agreement applies to all accounts, sub-accounts, and alternative account names associated with Your principal account. You are responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account. A TUNEDCLOUD account may not be transferred without prior written approval from TUNEDCLOUD.
5. IP Address.
TUNEDCLOUD assigns to You an Internet Protocol (“IP”) address in connection with Your use of the TUNEDCLOUD services. The right to use that IP address will remain with and belong only to TUNEDCLOUD, and You will have no right to use that IP address except as allowed by TUNEDCLOUD in its sole and absolute discretion.
6. Payment Terms:
- You may receive a full refund if Your account is cancelled within the initial 14 days after sign up. If the account holder cancels after the time period specified, there will be no refund given. Refunds do NOT apply to Virtual Machines (Cloud VPS), dedicated IP addresses, SSL certificates, renewals of services or promotional tools, any licenses (WHMCS, cPanel, Fantastico, Softaculous, Windows, etc.) that are not included into the package and are purchased at additional fee, domain registration related fees.
- TUNEDCLOUD may temporarily deny service or terminate this Agreement upon Your failure to pay charges when they become due. Such termination or denial will not relieve You of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
- If Your account becomes overdue, the account will be suspended. And it won’t be reactivated until the outstanding balance is paid in full. If outstanding balance is not paid by You within 15 days after Your hosting account’s billing date for shared hosting accounts and within 72 hours for VM Instances, TUNEDCLOUD reserves the right to terminate Your services for non-payment.
- If an account is found to be in violation of the Terms of Service it will be terminated immediately and all payments forfeited.
- At TUNEDCLOUD’s discretion a backup of a terminated account can be recovered for a fee of $100 per account if a backup exists.
- For closed accounts there is a $10.00 per incident charge for all inquiries regarding previous services and or support.
- Backups of new/changed data are made daily and weekly for shared and reseller servers. No guarantees are made of any kind, either expressed or implied, as to the integrity of these backups. Backups are made for server restoration purposes only. It is Your responsibility to maintain local copies of their web content and information. A “Backup/Restore” feature is included with each hosting plan and You can use this tool to back up Your files. If loss of data occurs due to an error of TUNEDCLOUD, We will attempt to recover the date for no charge to the client. If data loss occurs due to negligence of a client in securing their account or by an action of the client, TUNEDCLOUD will attempt to recover the data from the most recent archive for a $25.00 service charge.
7. Secure Shell (“SSH”) Access.
To request SSH access You need to contact technical support. Upon completion of said terms You will be granted Jail access to the system on a provisional basis any misuse of the system will result in access being revoked. The use of PHP or any other means to circumvent this policy will result in immediate account termination.
8. Prohibited Activities.
By using any Services, provided by TUNEDCLOUD You agree:
- not to violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government.
- not to transmit any unsolicited commercial or bulk email, not to be engaged in any activity known or considered to be spamming or Mail Bombing.
- not to make any inappropriate communication to any Newsgroup, Mailing List, Chat Facility, or another Internet Forum.
- not to make, attempt or allow any unauthorized access to TUNEDCLOUD website, servers, your own hosting account or the account of any other customers of TUNEDCLOUD.
- not to allow any remote code execution of malicious software through the hosting account provided by TUNEDCLOUD.
- not to cause denial of service attacks, port scans or other endangering and invasive procedures against TUNEDCLOUD servers and facilities or the servers and facilities of other network hosts or Internet users.
- not to forge the signature or other identifying mark or code of any other person or engage in any activity to attempt to deceive other persons regarding the true identity of the User.
- not to use TUNEDCLOUD services to host any website, other content, links or advertisements of websites that: infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party information; contain nudity, pornography or other content deemed adult related; profess hatred for particular social, ethnic, religious or other group; contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs that may damage the operation of a computer or a person’s property; contain warez; contain any kind of proxy server or other traffic relaying programs; promote money making schemes, multi-level marketing or similar activities; contain lottery, gambling, casino; contain torrent trackers, torrent Portals or similar software; violent or encouraging violence.
- not to upload unacceptable material which include: IRC bots, warez, image, file storage, mirror, or banner-ad services, topsites, streaming, Escrow, High-Yield Interest Programs (HYIP) or related sites, investment sites (FOREX, E-Gold Exchange, etc), bitcoin miners, sale of any controlled substances without providing proof of appropriate permit(s) in advance, AutoSurf sites, Bank Debentures, Bank Debenture Trading Programs, Prime Banks Programs, lottery sites, muds / rpg’s, hate sites, hacking focused sites/archives/programs, or sites promoting illegal activities, IP Scanners, Brute Force Programs, Mail Bombers and Spam Scripts.
- not to engage in or to instigate actions that cause harm to TUNEDCLOUD or other customers. Such actions include, but are not limited to, actions resulting in blacklisting any of Our IPs by the any online spam database, actions resulting in DDOS attacks for any servers, etc. TUNEDCLOUD reserves the right to refuse service to anyone upon Our discretion. Any material that in TUNEDCLOUD’s judgment, is either obscene or threatening is strictly prohibited and will be removed from TUNEDCLOUD servers immediately with or without prior notice and may lead to possible warning, suspension or immediate account termination with no refund. You agree that We have the sole right to decide what constitutes a violation of the acceptable policy use described above as well as what is the appropriate severity of any corrective action to be applied. In the event that a violation of Our Acceptable Use Policy is found, TUNEDCLOUD will take corrective action upon our own discretion and will notify You. TUNEDCLOUD’s decision in such case is binding and final, and cannot be a subject of a further change. TUNEDCLOUD cannot and shall not be liable for any loss or damage arising from our measures against actions causing harm to TUNEDCLOUD or any other third party. We have the right to terminate each and any hosting account that has been suspended for any reason for more than 14 calendar days after the suspension date, unless You have taken corrective measures to remove the initial suspension threat or violation. Any backup copies of the hosting account will be permanently deleted upon termination and no refund will be due. TUNEDCLOUD will not be liable for any loss or damages in such cases.
- not to violate the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promote, encourage or engage in the sale or distribution of prescription medication without a valid prescription.
At its discretion, TUNEDCLOUD can remove any content we determine to be prohibited by this agreement or our Terms and Conditions. No backups will be kept of removed content.
9. Email and Anti-spam Policy.
You must comply with the CAN-SPAM Act of 2003 and all relevant regulations and legislation on bulk and commercial email. You are prohibited from sending mass unsolicited email messages. All emails sent to recipients who have not Confirmed Opt-In or Closed-Loop Opt-In in to mailings from You will be considered as unsolicited email messages. You using and sending mass mailings must at all times maintain complete and accurate records of all consents and opt-ins and upon request provide said records to TUNEDCLOUD. In the event that You cannot provide actual and verifiable proof of such consents and opt-ins, We will consider the mass mailing to be unsolicited. TUNEDCLOUD prohibits the following activities listed without limitation hereunder:
- Usage of the TUNEDCLOUD network and systems to receive replies to unsolicited mass e-mail messages.
- Forgery of e-mail headers (i.e.”spoofing”).
- Spamming using third-party proxy, aggregation of proxy lists, or proxy mailing software installation.
- Configuring a mail server to accept and process third-party emails for sending with no user identification and/or authentication.
- Hosting web pages advertised via “spam e-mail” sent from another network (“spamvertising”).
- Hosting any web pages or providing any services that support spam.
- Using weblog posts, IRC/chat room messages, guestbook entries, HTTP referrer log entries, usenet posts, pop-ups, instant messages or text/SMS messages for sending, posting or transmitting unsolicited bulk messages.
- Advocating any activities, prohibited by the Acceptable Use Section of this Agreement.
- If we determine that you have deliberately or recklessly used our hosting services for the sending of SPAM e-mail messages, we reserve the right to assess a $500 charge per SPAM email upon your account, which shall serve to compensate us for increased administration costs and expenses of redressing SPAM-related activity. You agree that in the event we determine that you have deliberately or recklessly engaged in SPAM activity, we may assess the fee entirely at our discretion. The fee will be charged to your account, in accordance with the payment information submitted by you as part of your acquisition of our services. You further agree that in the event we determine that you have deliberately or recklessly engaged in SPAM activity we may share information regarding your activities, including but not limited to your identity, with the various anti-SPAM organizations and/or blacklists.
We take all SPAM issues extremely seriously and will take redress such activity whenever we deem necessary.
10. Additional Acceptable Use Policy for Virtual accounts:
10.1. Server Resource Provision.
Your use of the server resources shall not endanger the capacity and operation of the shared server. Any shared or reseller account may use no more than:
- 50% or more of total account memory – continuously for 90 seconds or more repeatedly
- 50% or more of total account CPU resources – 90 seconds or more repeatedly
- We may allow any shared / reseller account to burst up to
- 100% of account memory
- 100% account CPU time
The burst allowance is considered an exception to the acceptable use allowance and shall be permitted solely to stabilize the operation of the account during peak use. Any user whose account/server employs the higher burstable resources on a consistent basis shall agree to upgrade it to a package with higher resource availability, i.e. a VM Instance.
The decision to require account upgrade shall rest solely with TUNEDCLOUD and shall be made in its reasonable discretion.
For all account packages:
- No script may use 50% or more of account resources for 90 seconds or longer;
- Running stand-alone, unattached server side processes/daemons is strictly prohibited
- Running any type of web spider / indexer (Google Cash / Ad Spy) is strictly prohibited
- Running any bit-torrent / P2P application is strictly prohibited
- Running cron scripts with intervals of less than 15 minutes, or setting up more than 5 simultaneous cron jobs is strictly prohibited
- Running of public file exchange services is strictly prohibited.
TUNEDCLOUD staff may use the following tools at our discretion to identify use of system resources:
- Conventional UNIX system tools, like ‘ps’, ‘top’, ‘iostat’ etc.
- MySQL/PostgreSQL stats reporting features
- cPanel report
- Resource usage alerts from CSF/LFD server security system
10.2. Disk Usage Provision.
The content on your website must be linked from an HTML or similarly coded web page with all content being freely available to the public. Your website must consist of web pages of a standard design, essentially HTML based text and graphics. Your hosting account should consist mostly of html and PHP files.
The number of inodes/files employed by one shared hosting account should not exceed a maximum of 600,000 total.
- Uploading of all data required by your website to operate, which should MAINLY consist of HTML and PHP, etc.
- Limited to 600K inodes/files for shared hosting packages. *to keep automated backups active.
- Shared hosting is not to be used for storing backups of your computer or other devices, use a 3rd party backup service for this purpose, Google Drive, MyCubby, etc., this includes backups of your hosting account, we provide offsite backups for all account already, having additional local backups is not only useless in data loss situations it also creates unusually high levels of server load when our system performs automated backups.
- Video storage… not allowed, streaming videos severely impacts the performance of the service for other users, use YouTube or other services to host your videos or upgrade to a Cloud VPS to host and stream videos directly from your site.
- Over usage of server resources is not allowed, i.e. using 50% or more total CPU limit for 90 seconds or more, on a repeated basis.
- Giving away free hosting to all of your ‘minions’ or ‘buddies’, because you want to be really cool… sorry, not allowed. Your account is your account and belongs only to you.
These limits are in place to keep the health of our service, i.e. speed, reliability etc. in tip top shape!
Any user whose account/server uses higher resources on a consistent basis shall agree to upgrade it to a package with higher resource availability, i.e. a reseller account or cloud VPS/VM Instance.
Under its sole discretion, TUNEDCLOUD reserves the right to determine any kind of unfair or inappropriate usage of database management systems (e.g. MySQL) which may result in immediate account suspension or upgrade to a package with higher resource availability. The decision to upgrade shall rest solely with TUNEDCLOUD and shall be made in its reasonable discretion.
10.3. Backup Limitations.
Any shared hosting account that contains more than 600,000 inodes total will be removed from our daily system backup to conserve backup space and reduce server load, at that point backups become the responsibility of the account holder and NOT TUNEDCLOUD. All Tuned TUNEDCLOUD shared and reseller accounts are backed up at no additional charge within backup guidelines, if your account does go over we can provide backups for a low monthly fee at your request.
For most of our clients on our Starter or multiple websites hosted with our Professional and Enterprise shared hosting packages will be just fine, they won’t go over on limits or cause issues with server CPU usage etc., those that do will be asked to upgrade to a VPS package to gain access to all the resources of the VPS as needed for their applications.
10.4. Use of Email Services.
You should use the email and other related services in full compliance with the terms below:
- Each domain on your account is allowed to send a maximum of 500 emails per hour. Any account that exceeds these limitations is endangering the overall server performance for all users. These limits are to be considered maximum or max burst emails allowed as a per hour basis, for normal site operation, not for marketing or the sending of bulk email to email marketing lists, etc.
- The use of email clients with IMAP protocol is allowed for mailboxes with a maximum size up to 1024MB. Any use of IMAP with a bigger mailbox is endangering the overall server performance.
- The use of email clients with POP3 protocol is allowed for mailboxes with a maximum size up to 1024MB. Any use of POP3 with a bigger mailbox is endangering the overall server performance.
- TUNEDCLOUD allows up to 30 checks per hour for a POP3 mailbox. Any use of POP3 service to check a mailbox more often than 30 times per hour is endangering the overall server performance.
Using TUNEDCLOUD Shared or VM/VPS Instance hosting services for the origination, relay, or support of bulk email is prohibited. Customers are permitted to send transaction emails, such as account detail and password reset emails, or use the service for individual email accounts, however the service may not be used for sending commercial email in bulk in any form, even if the customer has opted in to such emails. Sending bulk marketing email in any type of automated fashion is specifically prohibited.
10.5. Upgrade to VM/VPS Instance.
Each Virtual hosting account can be upgraded to a VM (Virtual Machine), what we simply call a Cloud VPS. The upgrade is performed by TUNEDCLOUD after You have paid the first month fee. The fee depends on the VM/VPS type chosen by You and is non-refundable. Prorate amount for unused time of the shared hosting account will not be refunded, it will be added to Your hosting account balance in the event of upgrade to VM/VPS. Once the account is transferred to the VM/VPS the Virtual hosting account is terminated and the new VM/VPS account use is governed by the paragraph 11 of this Agreement accordingly.
10.6. IPv4 Address Usage Policy.
Due to the exhaustion of the IPv4 address space we actively conserve IP address space by limiting the IP addresses each web hosting account can use.
Shared hosting accounts may each use only 1 IP address as assigned during signup.
If you need more than a single IP, you will need to upgrade to a VM Instance.
11. Additional Acceptable Use Policy for VM/VPS accounts:
- Use of Traffic (Bandwidth).
- Your account monthly traffic is limited in accordance with the VM/VPS Type. Additional Traffic can be ordered as disclosed on our site. The additional bandwidth is paid and applied on a monthly basis. The fee is non-refundable. If the monthly traffic limit is reached before the end of the month Your account will be suspended until the beginning of the next month or until more bandwidth is purchased.
- Disc Space Use.
- Your account disc space is limited in accordance with the VM/VPS Type. Up to 4 GB from the disc space is allocated to the VM/VPS system files and this space cannot be used for storing Your content.
- Additional Services.
- The initial and renewal fees for each VM/VPS include the number of IPs in accordance with VM/VPS type. Additional IPs can be added to a VM/VPS. In such a case TUNEDCLOUD will charge the appropriate fee for the dedicated IP. The fee is applied and should be paid on a per month basis. The fee is non-refundable.
- You can order Additional RAM as extra features to Your VM/VPS account(s). TUNEDCLOUD will charge the appropriate fee for the additional RAM, depending on the amount of RAM ordered. The fee is applied and paid on a monthly basis. The fee is non-refundable. Renewal fee is due for the Additional RAM each month after the initial order, until the upgrade or the VM/VPS account itself is cancelled. You are solely responsible to make the renewal payments in a timely manner. In case no renewal payment is received, TUNEDCLOUD will remove the additional RAM or will suspend the whole VMVPS account until receiving additional RAM renewal payment.
12. Storage and Security.
At all times, You shall bear full risk of loss and damage to your server and all of your server content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and 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 server or any of Your server content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your server content; (ii) maintain independent archival and backup copies of Your server content; (iii) ensure the security, confidentiality and integrity of Your server content transmitted through or stored on TUNEDCLOUD servers; and (iv) ensure the confidentiality of Your password. TUNEDCLOUD’s servers are not an archive and TUNEDCLOUD shall have no liability to You or any other person for loss, damage or destruction of any of your content. The services offered by TUNEDCLOUD are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. TUNEDCLOUD shall have no liability to You or any other person for Your use of TUNEDCLOUD products and/or services in violation of these terms.
13. Transfer of Content.
In the event You terminate this Agreement or Your use of TUNEDCLOUD products and/or services, then moving Your server content off of the TUNEDCLOUD servers is Your responsibility. TUNEDCLOUD will not transfer or FTP Your server content to another provider. In the event Your use of TUNEDCLOUD products and/or services is terminated, TUNEDCLOUD will not transfer or manage Your services or Your content.
14. Third-Party Software.
TUNEDCLOUD provides some third-party software to You for easier account management including, but is not limited to cPanel, Fantastico, Softaculous, etc. Such software is provided on an as is as available basis. We do not guarantee that any specific results can be obtained by using such software. TUNEDCLOUD does not take responsibility for any faults in such software functioning.
You can add and use third-party software on Your account only if it is compatible with Our servers and is approved by TUNEDCLOUD. Your use of any third party software is at Your own risk. TUNEDCLOUD cannot be responsible for any third party software performance and provides no guarantees that its use will result in any particular outcome or result. TUNEDCLOUD will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Your use of third party software or products.
You are solely responsible for any license and other fees required by the software providers, for using any third-party software installed on Your account apart from the initial account setup.
15. TUNEDCLOUD Reservation of Rights.
TUNEDCLOUD explicitly reserves the right and sole discretion to: (i) modify its pricing, if desired by TUNEDCLOUD; (ii) establish limits and guidelines concerning the use of TUNEDCLOUD services and/or products; (iii) terminate Your use of TUNEDCLOUD services and/or products for use of TUNEDCLOUD services and/or products to unnecessarily or illegally harass TUNEDCLOUD or third parties, non-payment of fees for TUNEDCLOUD services and/or products, activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties, activities prohibited by the laws of the United States and/or foreign territories in which You conduct business, activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography, activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable in the sole opinion of TUNEDCLOUD, activities designed to impersonate the identity of a third party, activities designed to harm minors in any way, and other activities whether lawful or unlawful that TUNEDCLOUD determines, in its sole discretion, to be harmful to its other customers, operations, or reputation; (iv) terminate Your use of TUNEDCLOUD services and/or products if Your use of TUNEDCLOUD services and/or products may results in, results in, or is the subject of, legal action or threatened or proposed legal action, against TUNEDCLOUD or any of its affiliates or partners, without consideration for whether such legal action or threatened or proposed legal action is eventually determined to be with or without merit; and (v) terminate Your use of TUNEDCLOUD services and/or products at any time and for any reason if deemed reasonably necessary by TUNEDCLOUD. TUNEDCLOUD has no obligation to monitor Your use of TUNEDCLOUD services and/or products, but reserves the right in its sole discretion to do so.
Right of Refusal. TUNEDCLOUD has the right to refuse services to anyone at Our discretion.
16. Limitation of Liability; Waiver and Release.
The services offered by TUNEDCLOUD are being provided on an “AS IS” and TUNEDCLOUD expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, and non-infringement, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, TUNEDCLOUD expressly does not warrant that TUNEDCLOUD services and/or products will meet Your requirements, function as intended, or that the use of the provided Services will meet Your requirements, function as intended, or that the use of the provided Services will be uninterrupted or error free. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data. No advice or information, whether oral or written, obtained by you from TUNEDCLOUD shall create any warranty not expressly made herein. You agree that TUNEDCLOUD will not be liable for any (i) suspension or loss of the Services, except to the limited extent that a remedy is provided under this Agreement; (ii) interruption of business; (iii) access delays or access interruptions to the website(s) provided through or by the Services; (iv) loss or liability resulting from acts of god; (v) data non-delivery, mis-delivery, corruption, destruction or other modification; (vi) events beyond the control of TUNEDCLOUD; (vii) the processing of Your application for Services; or (viii) loss or liability resulting from the unauthorized use or misuse of Your account identifier or password.
Information obtained by you from the internet may be inaccurate, offensive or in some cases illegal. TUNEDCLOUD 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 accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Services of obtain from the Internet. You agree that TUNEDCLOUD has no obligation to back-up any data related to your website unless TUNEDCLOUD expressly agrees otherwise in writing or has expressly stated so on the website.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge TUNEDCLOUD and all affiliates of TUNEDCLOUD, and all officers, agents, employees, and representatives of TUNEDCLOUD, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Services and Your acquisition and use thereof, including, but not limited to, the provision of the TUNEDCLOUD products and/or services by TUNEDCLOUD and its agents and employees. Further, You agree to defend, indemnify and hold harmless TUNEDCLOUD and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by TUNEDCLOUD’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Services or your use of the Services, including without limitation infringement or dilution by You or by another using the Services from Your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data You supplied to TUNEDCLOUD, including, without limitation, any misrepresentation in Your application, if applicable; (v) the inclusion of metatags or other elements in any website created for you or by you via the Services; (vi) any information, material, or services available on your licensed TUNEDCLOUD website; or (vii), any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of You elsewhere. Should TUNEDCLOUD be notified of a pending law suit, or receive notice of the filing of a law suit, TUNEDCLOUD may seek a written confirmation from You concerning Your obligation to defend, indemnify TUNEDCLOUD. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that TUNEDCLOUD shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify TUNEDCLOUD of any such claim promptly in writing and to allow TUNEDCLOUD to control the proceedings. You agree to cooperate fully with TUNEDCLOUD during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
18. Trademark or Copyright Claims.
TUNEDCLOUD is a service provider and respects the copyrights and other intellectual property rights of others [and herein incorporates its Copyright Infringement Policy]. To the extent TUNEDCLOUD receives a proper notice of infringement of copyright, trademark or other intellectual property, TUNEDCLOUD reserves the right to access, preserve and disclose to third parties any of Your information or data (including personally identifiable information and private communications) related to a written complaint of infringement if TUNEDCLOUD believes in its sole discretion that such access, preservation, or disclosure is necessary or useful to respond to or otherwise address such complaint.
TUNEDCLOUD expressly reserves the right to terminate in appropriate circumstances an account or the access rights of a subscriber for repeated copyright infringement. TUNEDCLOUD also reserve the right to terminate an account or subscriber for even one instance of infringement.
Proper notice of infringement shall include the following information in writing to TUNEDCLOUD’s designated agent:
- the electronic or physical signature of the rights holder or the person authorized to act on behalf of that person;
- identification of the work that has been infringed;
- an identification of the material that is claimed to be infringing, and information reasonably sufficient to permit TUNEDCLOUD to locate the material (for example, by providing a URL to the material); or, if applicable, identification of the reference or link to material or activity claimed to be infringing, and information reasonably sufficient to permit TUNEDCLOUD to locate that reference or link;
- Your name, address, telephone number, and email address;
- a statement by You that You have a good faith belief that the disputed use is not authorized by the rights holder, its agent, or the law; and
- a statement that the information in Your notification is accurate and a statement, made under penalty of perjury, that You are the rights holder or are authorized to act on the behalf of the rights holder.
- Notice of infringement must be sent to TUNEDCLOUD’s designated agent to receive notification of claimed infringement as follows: Open a support ticket with all details.
19. Additional Reservation of Rights.
TUNEDCLOUD expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any account or any Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by TUNEDCLOUD in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by TUNEDCLOUD in offering or delivering any Services (including any domain name registration); (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry; (iii) to assist with our fraud and abuse detection and prevention efforts; (iv) to comply with applicable local, state, national and international laws, rules and regulations; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of TUNEDCLOUD, its officers, directors, employees and agents, as well as TUNEDCLOUD’s affiliates.
In the event that TUNEDCLOUD need exercise any of its rights expressed herein to investigate any potential breach or violation of the terms and conditions of this Agreement, service fees may continue to accrue on your accounts, and you will continue to remain responsible for the payment of any service fees that accrue during the relevant period.
20. Governing Law and Jurisdiction for Disputes.
Except as otherwise set forth in the UDRP or any similar policy with respect to any dispute regarding the Services provided under this Agreement, Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of Oregon, as if the Agreement was a contract wholly entered into and wholly performed within the State of Oregon. You agree that any action to enforce this agreement or any matter relating to Your use of the Services must be brought exclusively in the United States District Court for the Central District of Oregon, or if there is no jurisdiction in such court, then in a state court in Jefferson County, State of Oregon.
You agree that any notices required to be given under this Agreement by Us to You will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information You have provided. You acknowledge that it is Your responsibility to maintain current contact information in the account and/or domain name WHOIS information You have provided.
22. Legal Age:
You attest that you are of legal age (18 or over) to enter into this Agreement.
23. Final Agreement.
This Agreement, together with all modifications, constitute the complete and exclusive agreement between You and Us, and supersede and govern all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by You except by means of a written document signed by both You and an authorized representative of Us. By applying for TUNEDCLOUD’s services through the online application process or otherwise, or by using the Services under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
24. No Agency Relationship.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
26. Assignment and Resale.
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without TUNEDCLOUD’s prior express written consent.
27. Force Majeure.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over TUNEDCLOUD, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, TUNEDCLOUD may immediately terminate this Agreement.
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.