Webdev Cloud Server Terms and Conditions
Webdev Cloud Server Terms and Conditions
Entered into between
Webdev Pvt. Ltd of
207 J. Tongogara Ave
herein after knows as ‘Webdev’ and,or ‘We’ and,or ‘Our’
[client name] of
herein after known as [client] and, or ‘You’ and, or ‘Your’
1. Defined Terms. Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Cloud Acceptable Use Policy in section 39.
“API” means application programming interface.
“Affiliate” means any and all legal entities which now or hereafter the ultimate parent of Webdev controls. For the purpose of this definition, “control” shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
“Business Day” means 8:00 a.m. – 5:00 p.m. Monday through Friday, CAT Central African Time, excluding public holidays in Zimbabwe.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Customer Data.
“Customer Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Services.
“Order” means: (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by Webdev for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the Webdev Cloud control panel or through an API.
“Personally Identifiable Information” or “PII” means: (i) a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information”, and (iii) “protected health information”.
“Services” means the software and services described in the Order and includes any services which you self-provision through the Webdev Cloud control panel or which you utilize via an API.
“Support” means (i) Webdev employees with training and experience relative to the Services will be available ‘live’ by telephone, chat, email during business hours (ii) any additional level of support offered by Webdev applicable to the specific Services ordered by you
- Webdev’s Obligations. Contingent on Webdev’s acceptance of your Order, and subject to these Cloud Terms of Service, Webdev agrees to provide the Services and Support described in your Order. Webdev agrees to follow security procedures at least as stringent as follows.2.1 Physical AccessThe Webdev servers used to provide the Services will be located in a controlled access data center operated by Webdev or a Webdev affiliated company. Access to the datacentre will be restricted to Webdev employees or its agents who need access for the purpose of providing the services.
2.2 Webdev Personnel
Screening. Webdev will perform pre-employment background screening of its employees who have access to customers’ accounts.
2.3 Reports of and Response to Security Breach.
Webdev will immediately report to you any unauthorized access or release of your information of which we become aware. Upon request, we will promptly provide to you all information and documentation that we have available to us in connection with any such event.
3. Your Obligations. You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy (ii) use software in compliance with Section 19 (ii) pay when due the fees for the Services, (iv) use reasonable security precautions in light of your use of the Services, including encrypting any PII transmitted to and from, and while stored on, the Services (including the underlying servers and devices) (v) cooperate with Webdev’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (vi) keep your billing contact and other account information up to date; and (vii) immediately notify Webdev of any unauthorized use of your account or any other breach of security.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. Webdev’s security obligations with respect to Customer Data are limited to those obligations described in Section 2 above. Webdev makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
4. Service Level Agreements. Cloud Service Level Agreements are detailed in the Order. The terms there are incorporated herein by reference as to the applicable Services.
5. Term. The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow Webdev’s non-renewal process accessible from the Webdev Cloud control panel to give an effective notice of non-renewal.
6. Fees. Webdev will charge you fees in accordance with your Order. Unless you have made other arrangements, Webdev will charge you as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, compute cycle fees, and domain name registration) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Webdev’s option. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Webdev first makes the Services available to you. Webdev may suspend all Services (including Services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges are unpaid or rejected for any reason. Webdev may charge interest on overdue amounts at 2% per month (or the maximum legal rate if it is less than 2%). If any amount is overdue by more than thirty (30) days, and Webdev brings a legal action to collect, or engages a collection agency, you must also pay Webdev’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any “credit” that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide Webdev with accurate factual information to help Webdev determine if any tax is due with respect to the provision of the Services, and if Webdev is required by law to collect taxes on the provision of the Services, you must pay Webdev the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize Webdev to obtain a credit report at any time during the term of the Agreement.
7. Fee Increases. For those Services provided on a month-to-month term, we may increase fees at any time on thirty (30) days advance written notice. If your Order contains Services with a specified term longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins thirty (30) days from the day of our written notice of a fee increase. In addition, if during the initial term or any renewal term there is an increase in the Producer Price Index over the Producer Price Index reported for the month in which you signed your Order, we may increase your fees by the same percentage as the increase in the Producer Price Index; provided that we may not increase your fees pursuant to this sentence more often than once per twelve months, and we must give you at least thirty (30) days advance written notice of the increase.
8. Suspension. We may suspend the Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that the Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Webdev or our other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
9. Termination for Convenience. You may terminate the Agreement for convenience at any time on thirty (30) days advance written notice.
10. Termination for Breach. We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order , or if you are an entity or fiduciary, the individual submitting the Order did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Webdev in an orderly fashion, (v) you use the Services in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
11. Access to Data.
11.1 You will not have access to your data stored on the Services during a suspension or following termination.
11.2 You have the option to create a snapshot or backup of your Cloud Servers or Databases, respectively, however, it is your responsibility to initiate the snapshot or backup and test your backup to determine the quality and success of your backups. You will be charged for your use of backup services as listed in your Order.
11.3 Although the Webdev Cloud services may be used as a backup service, you agree that you will maintain at least one additional current copy of your programs and data stored on the Cloud system somewhere other than on the Cloud system . If you utilize Webdev Cloud backup services, you are responsible for performing and testing restores as well as testing your systems and monitoring the integrity of your data.
12. Access to your customer data or use of the services. Webdev is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from Webdev’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
Webdev agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
13.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information, and property. Webdev has no obligation to provide security other than as stated in this 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 noninfringement. You are solely responsible for the suitability of the service chosen, including the suitability as it relates to your Customer Data. The Services are provided AS IS, subject to any applicable Service Level Agreement (as described in Section 4 above). Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS, including any services that are deemed Unsupported.
13.2 Some of the services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those services in a manner that complies with the applicable requirements.
13.3 You are solely responsible for determining the suitability of the Services for your use in light of any applicable regulations and data privacy laws.
14. Export Matters. If your service is hosted on our United States servers, you represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom Webdev is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
15. Confidential Information. Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) 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 this Agreement.
(ii) to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law as required by law; or
(iii) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
16. Limitation on Damages. Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of an applicable Service Level Agreement, or results from our gross negligence or willful misconduct. The credits stated in any applicable Service Level Agreement are your sole and exclusive remedy for our failure to meet those guarantees for which credits are provided unless such failure is due to Webdev’s willful misconduct.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from Webdev’s negligence, the maximum aggregate monetary liability of Webdev and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
17. Indemnification. If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Webdev Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 14 (Export Matters) of these Cloud Terms of Service, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the Webdev Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them. You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us.
18.1 All software that we provide for your use is subject to the terms of this Agreement, including software that we may authorize you to install on devices located outside of our data centre. You may not use any software we provide after the expiration or termination of this Agreement, or the particular service for which it was provided, and you may not copy the software unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us. Any additional restrictions which may apply to software we utilize in the performance of the Services will be specified in the applicable Order.
18.2 In the event we distribute any open source software to you as part of the Services (including for example Linux based software, OpenStack software, and software licensed under the Apache, GPL, MIT or other open source licenses) then such Open Source Software is subject to the terms of the applicable open source license. There are no warranties provided with respect to any Open Source Software and all implied warranties are disclaimed. In the event of any conflict between the terms herein and the applicable open source license with respect to any Open Source Software, the terms of the applicable open source license shall control.
19. Who may use the services. You may resell the Services, except as provided below or otherwise restricted by Webdev. If you resell Services, you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. Unless otherwise agreed, Webdev will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
20. Changes to the acceptable use policy. We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate the Services because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
21. Notices. Your routine communications regarding the Services should be sent to your Webdev Cloud account team using your email registered with us. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and postal mail to:
Webdev Pvt. Ltd.
207. J. Tongogara Ave.
Webdev’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account by electronic mail, and, or the Webdev Cloud control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
22. No High Risk Use. You may not use the Services 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. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Food, Drug and Cosmetic Act.
23. Ownership of Intellectual Property. 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 Webdev during the performance of the Services shall belong to Webdev unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
24. IP Addresses. Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by Webdev in connection with Services, including pointing the DNS for your domain name(s) away from Webdev Services. You agree that Webdev may, as it determines necessary, make modifications to DNS records and zones on Webdev managed or operated DNS servers and services.
25. Services Management Agent. You agree that you will not interfere with any services management software agent(s) that Webdev installs on your Services. Webdev agrees that its agents will use only a minimal amount of computing resources, and will not interfere with your use of your Services. Webdev will use the agents to track system information so that it can more efficiently manage various service issues. Your Services will become “Unsupported” as described in Section 33 below if you disable or interfere with our services management software agent(s). You agree that Webdev may access your Services to reinstall services management software agents if you disable them or interfere with their performance.
26. Assignment/Subcontractors. You may not assign the Agreement without Webdev’s prior written consent. We may assign the Agreement in whole or in part to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. Webdev may use third party service providers to perform all or any part of the Services, but Webdev remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Webdev performed the Services itself.
27. Server Hardware and Software Breakdown.
27.1 If you cause user error(s) or purposeful interruption(s) of the service (e.g. if you shuts your server down, Webdev is not responsible for the downtime;
27.2 Failure due to software that is not explicitly supported by Webdev.
27.3 If a hardware crash provoked by your actions takes place, Webdev is beyond the control and responsibility for the resulting downtime
27.4 Services provided by third parties. Webdev personnel may from time to time recommend third party software or other products and services for your consideration and may also make available to you third party products or services, including availability of third party applications through deployment or implementation tools. WEBDEV MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM WEBDEV. Your use of any such third-party products and services is governed by the terms of your agreement with the provider of those products and services.
28. Force Majeure. Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
29. Governing Law, Lawsuits. The Agreement is governed by the laws of Zimbabwe. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the city in which you reside. The arbitration shall proceed in accordance with the commercial arbitration rules of the Zimbabwe Arbitration Association (ZAA) in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from ZAA or a comparable arbitration service who is selected pursuant to the applicable rules of the ZAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favour. You and we waive any right to a trial by jury, so that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
30. Some agreement mechanics. These Cloud Terms of Service may have been incorporated in your Order by reference to a proforma invoice, invoice and, or a page on the Webdev website. Although we may from time to time revise the Cloud Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Cloud Terms of Service posted on the effective date of the Order. However, any amended Cloud Terms of Service will become effective the earlier of either your acceptance of the amended Cloud Terms of Service, your continued use of the Services after notice of the amended Terms of Service, or thirty days after the date Webdev posts such amended Terms of Service on the Webdev website. In addition, if over time you sign multiple Orders for a single account, then the Cloud Terms of Service incorporated in the latest Order posted on the effective date of the latest Order will govern the entire account. Webdev may accept or reject any Order you submit in its sole discretion. Webdev’s provisioning of the Services described in an Order shall be Webdev’s acceptance of the Order.
An Order 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. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
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: Order, Cloud Terms of Service, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
This Agreement is the complete and exclusive agreement between you and Webdev regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
ADDITIONAL TERMS FOR CERTAIN SERVICES
31. Managed Service Level. If you purchase a Managed Service Level for your account (or as part of an Order for the Services), then additional Support fees may apply (such as a monthly account fee and an additional incremental fee for Cloud Databases). Certain enhanced Support services are available for various Webdev Cloud Services if you have purchased a Managed Service Level, for details see the applicable Service Level Agreement. Webdev must have full root/administrator access to your Services in order to provide Managed Service Level Support. If you use Managed Service Level Services, you are responsible for updating Webdev about password changes that limit Webdev’s ability to manage or monitor the Services. No credits or refunds will be issued for failures caused by restrictions on Webdev’s root/administrator access to your Services.
32. Domain Name Registration Services. If you register, renew, or transfer a domain name through Webdev, Webdev will submit the request to its domain name services provider (the “Registrar”) on your behalf. Webdev’s sole responsibility is to submit the request to the Registrar. Webdev is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the Registrar’s applicable legal terms and conditions. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
33. Unsupported configuration elements or services. If you ask us to implement a configuration element (hardware or software) or other service in a manner that is not customary at Webdev, or that is in “end of life” or “end of support” status, we may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavor,” “one-off,” “EOL,” “end of support,” or with like term in the Order (referred to in this Section as an “Unsupported Service”). Webdev makes no representation or warranty whatsoever regarding any Unsupported Service, and you agree that Webdev will not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Service Level Agreement will not apply to the Unsupported Service, or any other aspect of the Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with Webdev’s other services.
34. Cloud Server Images. If you provision a Webdev Cloud Server or other Service using a non-standard or non-Webdev image or installation (even if such image is made available to you by Webdev during configuration, provided that it is identified as such), then Webdev shall have no obligation to provide Support for that Service, and any Support provided shall be on an AS IS basis.
35. Mail Services
35.1 Access. You may access you Mail Services over the web via the Webdev Cloud control panel, or via a Webdev-provided API. Webdev may modify its control panel or APIs at any time, or may transition to new APIs.
35.2 Management of the Service. Webdev will provision your initial mail environment, but you are otherwise responsible for managing your mail service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.
35.3 Filtering. Webdev will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. Webdev recommends that you employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Email that is quarantined by the filtering system is excluded from the Service Level Agreements. Webdev will use commercially reasonable efforts to deliver your email messages. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release Webdev and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of Webdev’s filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s email service provider.
35.4 Memory Limitations. Mail that exceeds the storage limit when received may be permanently lost. You may adjust the storage capacity of your individual mailboxes via the control panel, and it is your obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit of 50 MB (including attachments) may also be permanently lost.
35.5 Content Privacy. Your email messages and other items sent or received via the mail service will include: (i) the content of the communication (“content”), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the “message routing data”). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Cloud Terms of Service. However, you agree that we may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that we may disclose message routing data to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
35.6 Usage Data. We collect and store information related to your use of the Services, such as use of SMTP, POP3, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
35.7 Cloud Sites Mail Relays. You agree that if you utilize the Cloud Sites product offering, you will not send bulk or commercial e-mail to more than five-thousand (5,000) users per day, at a rate of two-hundred and fifty (250) messages every twenty minutes.
36. Content Delivery Services. Content that you distribute using our content delivery services may not be as secure as content stored on the Cloud. You should use our content deliver services only for content that you intend to distribute to the public via your website.
37. Service Optimisation and crowded host processes. By using the Services, you agree that we may establish new procedures for your use of the Services as we deem necessary for the optimal performance of the Services. By using Cloud Servers, you also agree that we may migrate your data within the same data centre if we determine in our reasonable judgment that server migration is required to remediate service degradation or shared resource constraints. In each case we will give you reasonable advance notice and use all reasonable endeavours to minimize the effect that such change will have on your use of the Services.
38. Bandwidth. For clarity, the bandwidth charges of your Managed Hosting Services and the Cloud Services shall be combined to form your cumulative monthly bandwidth usage (“Total Bandwidth Usage”). Any overages of bandwidth usage will be charged at the overage rate as set forth in the original price of bandwidth for that Order.
Billing for the Total Bandwidth Usage and any overages will be reflected on your Managed Hosting Services invoice.
39. Acceptable Use Policy (AUP).
This Acceptable Use Policy (“AUP”) is incorporated by reference in your services agreement with Webdev.
Your services may be suspended or terminated for violation of this AUP in accordance with your services agreement with Webdev.
Capitalized terms used in this AUP shall have the meaning given in your services agreement.
Inquiries regarding this policy should be directed to email@example.com.
You may not use Webdev’s network or services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:
Use of an internet account or computer without the owner’s authorization;
Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);
Collecting or using information without the consent of the owner of the information;
Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft’s “ad/remove” tool); or
Any conduct that is likely to result in retaliation against the Webdev network or website, or Webdev’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).
Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
Interference with service to any user of the Webdev or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
39.2 Excessive Use of System Resources
You may not use any shared system provided by Webdev in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. For example, we may prohibit the automated or scripted use of Webdev Mail Services if it has a negative impact on the mail system, or we may require you to repair coding abnormalities in your Cloud-hosted code if it unnecessarily conflicts with other Cloud customers’ use of the Cloud. You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.
39.3 Mail Requirements
You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, your bulk and commercial email must meet the following requirements:
Your intended recipients have given their consent to receive e-mail via some affirmative means, such as an opt-in procedure;
Your procedures for soliciting consent include reasonable means to ensure that the person giving consent is the owner of the e-mail address for which the consent is given;
You retain evidence of the recipient’s consent in a form that may be promptly produced on request, and you honor the recipient’s and the Webdev Cloud’s requests to produce consent evidence within 72 hours of receipt of the request;
You have procedures in place that allow a recipient to revoke their consent — such as a link in the body of the email, or instructions to reply with the word “Remove” in the subject line; you honour revocations of consent within 48 hours, and you notify recipients that the revocation of their consent will be implemented in 48 hours;
You must post an email address for complaints (such as firstname.lastname@example.org) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;
You have the means to track anonymous complaints;
You must not obscure the source of your e-mail in any manner. Your e-mail must include the recipient’s e-mail address in the body of the message or in the “TO” line of the e-mail;
You must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days;
These policies apply to messages sent using the services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site hosted via the services. In addition, you may not use a third party e-mail service that does not practice similar procedures for all its customers. These requirements apply to distribution lists created by third parties to the same extent as if you created the list.
Webdev may test and otherwise monitor your compliance with its requirements, including requesting opt-in information from a random sample of your list at any time. In addition, Webdev may block the transmission of email that violates these provisions. Webdev may, at its discretion, require certain customers to seek advance approval for bulk and commercial email, which approval will not be granted unless the customer can demonstrate that all of the requirements stated above will be met.
39.4 Vulnerability Testing
You may not attempt to probe, scan, penetrate or test the vulnerability of a Webdev system or network, or to breach the Webdev security or authentication measures, whether by passive or intrusive techniques, without the Webdev’s express written consent.
39.5 Newsgroup, Chat Forums, Other Networks
You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.
You must comply with the rules of any other network you access or participate in using your Webdev services.
39.6 Offensive Content
You may not publish, transmit or store on or via the Webdev network or equipment any content or links to any content that the Webdev reasonably believes:
Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;
is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;
is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
is defamatory or violates a person’s privacy;
creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with a investigation by law enforcement;
improperly exposes trade secrets or other confidential or proprietary information of another person;
is intended to assist others in defeating technical copyright protections;
infringes on another person’s copyright, trade or service mark, patent or other property right;
promotes illegal drugs, violates export control laws, relates to illegal gambling or illegal arms trafficking;
is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Webdev; or
is otherwise malicious, fraudulent or may result in retaliation against Webdev by offended viewers.
39.7 Live Events
You may not use your Webdev services to stream live sex acts of any kind, even if the content would otherwise comply with the AUP. Webdev may prohibit you from streaming other live events where there is a special risk, in Webdev’s reasonable discretion, that the event may violate the Offensive Content section above.
39.8 Copyrighted Material
You may not use Webdev’s network or services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image or other work protected by copyright law unless:
you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or
you are otherwise permitted by established copyright law to copy the work in that manner.
It is Webdev’s policy to terminate in appropriate circumstances the services of customers who are repeat infringers.
You must have valid and current information on file with your domain name registrar for any domain hosted on the Webdev network.
You may only use IP addresses assigned to you by Webdev in connection with your Webdev services.
You agree that if Webdev IP numbers assigned to your account are listed on an abuse database like Spamhaus, you will be in violation of this AUP, and Webdev may take reasonable action to protect its IP addresses, including suspension and/or termination of your service, regardless of whether the IP addresses were listed as a result of your actions;
You agree that if you register a DNS record or zone on Webdev managed or operated DNS servers or services for a domain of which you are not the registrant or administrative contact according to the registrars WHOIS system, that, upon request from the registrant or administrative contact according to the registrars WHOIS system, Webdev may modify, transfer, or delete such records or zones.
You may not register to use any Services under a false name, or use an invalid or unauthorized credit card in connection with any Services.
No credit will be available under the Webdev Service Level Agreement(s) for interruptions of service resulting from any AUP violation.
Webdev Representative Name, Signature and Date
[client name] Representative Name, Signature and Date
40. August 22, 2013 revision