The following Terms of Service Agreement (hereinafter referred to as "Agreement") is between ZDCloud, Inc. sub-brand "ZDCLOUD" and "Customer".
In consideration of the mutual promises contained herein, the parties agree as follows:
1. This Agreement supersedes any other written or oral agreement reached between ZDCLOUD and the Customer.2. ZDCLOUD will provide Products and Services in exchange for payment of fees and compliance with the terms and conditions of this Agreement.
3. ZDCLOUD Services are defined as the use by the Customer of computing, telecommunications, software, and information services on the network connection to the Global Internet provided by ZDCLOUD. These services also include the provision of access to computing, telecommunications, software, and information services provided by others via the Global Internet.
4. ZDCLOUD disclaims all implied warranties and similar obligations including but not limited to those of fitness for a particular rurpose, and merchantability, whether otherwise arising by lan,custom,usage,trade practice,coures of dealing, or course of performance. There are no warranties which extend beyond those express warranties contained in the Service Level Agreement (SLA). Customer affirms that it has not relied upon ZDCLOUD's skill nor judgement to select or furnish the services for any particular purpose beyond the specific express warranties in the SLA.
5. ZDCLOUD shall not be liable to Customer or any other person or entity for any indirect, punitive, consequential, special, or incidental losses or damages that arise out of or relate to this Agreement or the services or licenses provided hereunder, for any reason whatsoever, regardless of the claim or cause of action, including, without limitation, breach of contract, breach of warranty, negligence, strict liability or otherwise. The remedies set forth in the Service Level Agreement shall be Customer's sole and exclusive remedies for any claims relating to the services. The SLA may be modified by ZDCLOUD with thirty (30) days notice on ZDCLOUD’s web site. A copy of the SLA can be obtained from ZDCLOUD’s web site. 6. The Customer agrees that it shall defend, indemnify, save and hold ZDCLOUD harmless from any and all claims, demands, liabilities, losses, costs, including attorney’s fees, asserted against ZDCLOUD, its agents, its customers, servants, officers, and employees, that may arise or result from any product or service provided or performed or agreed to be performed by ZDCLOUD, which cause direct or indirect damage to another party or to the Customer.
7. This agreement is not assignable by Customer, in whole or in part, voluntarily or involuntarily, including by operation of law or by merger in which Customer does not survive, without the prior written consent of ZDCLOUD. Any attempted assignment without the written consent of ZDCLOUD will not be valid.
8. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to choice of law provisions that would cause the application of the law of another jurisdiction.
9. ZDCLOUD reserves the right to terminate service for any reason with twenty-four hours notice. ZDCLOUD does not forfeit any rights under this agreement by terminating service. ZDCLOUD reserves the right to refuse service to anyone at any time for any reason.
10. This agreement will begin upon submission of the first payment and continue until the end of the billing period. The agreement will automatically renew for successive billing periods equal in length to the original billing period until terminated by either party.
11. Customer acknowledges that it may have access to certain confidential information of the other party concerning ZDCLOUD’s business, plans, customers, technology, products, and services ("Confidential Information"). Confidential Information shall include, but not be limited to, ZDCLOUD’s proprietary software, technology and trade secrets and customer information, to the extent identified as confidential or proprietary, and the terms and conditions of this Agreement. Communications between ZDCLOUD and Customer are confidential and shall not be disclosed to any third party for any reason (except those required by law). Customer agrees that it shall not use in any way, for its own account or the account of any third party, nor disclose to any third party (except as required by law), any of ZDCLOUD’s Confidential Information and shall take reasonable precautions to protect the confidentiality of Confidential Information.
12. Either party shall excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, hurricane, acts of terrorism, labor disputes and strikes, riots, war, and governmental requirements.
13. The Customer and all of Customer’s end users shall use Services in accordance with ZDCLOUD’s Acceptable Use Policy (AUP). The AUP may be modified by ZDCLOUD with thirty (30) days notice on ZDCLOUD’s web site. A copy of the AUP can be obtained from ZDCLOUD’s web site.
14. Upon thirty (30) days notice, published on ZDCLOUD’s web site, ZDCLOUD may modify or amplify these terms and conditions as well as discontinue or change the services offered.
15. The Customer has authority to enter into this agreement on behalf of the Company, if applicable.
16. ZDCLOUD provides hosting and related services (including, but not limited to dedicated servers, co-location, virtual private servers, and related services) in exchange for payments billed on a generally billed on a monthly basis (although some services may be billed on a longer-term basis). All services are billed in full increments of the billing term (with the exception of the first month for certain plans).
17. Upon signup and submission of the first payment, the Customer certifies that it has read and agrees to be bound by the Agreement. Payment for and utilization of ZDCLOUD products and services signifies that Customer has read and agree to be bound by the current version of the Agreement. The current version of the Agreement may be obtained from web page at ZDCLOUD. Customer acknowledges that it is their responsibility to check for updates to the Agreement on ZDCLOUD's web page.
18. The customer shall submit payment by credit card, wire/bank transfer, PayPal, BitPay, Alipay, WeChat Pay or other acceptable payment method as determined by ZDCLOUD by 11:59 PM local time (US Eastern Time) on the due date of the invoice. A late fee of 5% of the invoice balance or $1.00, whichever is higher, will apply to all past due invoices. Failure to make payment on time may result in the interruption of all services on the Customer's account. If the Customer's service is interrupted, a $35 reactivation fee per service may be imposed at the discretion of ZDCLOUD. Service interruption does not cancel the Customer's service. ZDCLOUD may terminate the services for non-payment after seven (7) days. Interest will accrue on past due balances at the rate of one and one half percent (1.5%) per month or at the maximum interest rate allowed by law until all past due balances are paid. The customer agrees to pay all fees, interest, and collection costs, including attorneys' fees, if applicable.
19. If any payments are returned as a result of a dispute, insufficient funds or otherwise charged back ("returned payment"), ZDCLOUD may impose a $35 returned payment fee. Service may be interrupted or terminated as a result of a returned payment. If service is interrupted, service will not be restored until the returned payment is repaid in addition to the $35 returned payment fee. If service is terminated, the customer is not entitled to a refund and is prohibited from any further use of ZDCLOUD services until the $35 returned payment fee is paid.
20. All sales are final. Refunds will not be provided for any products and services.
21. Co-location services have a minimum initial term of one year. The term will automatically renew for additional one-year periods unless 60-days' notice is provided by ticket to the ZDCLOUD billing system. If notice of non-renewal is provided, services will continue on a month-to-month basis until canceled. Month-to-month pricing is higher than one-year term pricing and the customer agrees to pay the higher price if they elect to opt out of the term renewal.
22. ZDCLOUD requires written notice of cancellation on all products and services. Co-location services require 30-days' notice of cancellation and all other services require 5-days' notice of cancellation. Notification of cancellation must be submitted to the ZDCLOUD billing system. Service will not be cancelled until the Customer receives written confirmation from ZDCLOUD. Until ZDCLOUD acknowledges the Customer's service cancellation request, the Customer will continue to be billed all applicable fees and interest. Upon submission of the cancellation notice and acceptance by ZDCLOUD, the cancellation will take effect at the end of the billing cycle unless prior arrangements are made in writing by support ticket. We do not provide credit, refunds, or prorated billing for services that are canceled mid-billing cycle. In such a circumstance, Customer will continue to have access to the services until the end of the billing cycle. However, we reserve the right to offer refunds, discounts, or other consideration in select circumstances at our sole discretion. Each circumstance is unique and the election to make such an offer in one instance does not create the obligation to do so in another. After cancelling services, the Customer is responsible for cancelling any recurring payments which push payments to ZDCLOUD automatically (from third-party payment systems, including but not limited to PayPal subscriptions or the Customer's bank online bill pay). Any excess funds sent to ZDCLOUD will be stored as an account credit to be applied toward future invoices.
23. All orders must include the Customer's real name, street address, phone number, and e-mail address. Providing false information may result in immediate termination of the Customer's account without a refund. In order to protect against fraudulent orders, ZDCLOUD requires the name submitted in new orders to match the name on the payment account. Additionally, ZDCLOUD may choose to not accept payments from unverified payment accounts. ZDCLOUD may request a government-issued photo identification (such as a passport) and/or a recent utility bill with the Customer's name and address listed as a form of order verification. The Customer agrees to provide this information, if requested.
24. ZDCLOUD utilizes FraudRecord and other fraud screening measures to screen new orders. In the event of a breach of the Agreement, you may be reported to FraudRecord and/or other fraud databases using non-identifiable anonymous information.
25. ZDCLOUD makes no guarantee of confidentiality or privacy of any information transmitted through or stored upon ZDCLOUD technology, and makes no guarantee that any other entity or group of users will be included or excluded from ZDCLOUD's network. In addition, ZDCLOUD may periodically monitor transmissions over its network for maintenance, service quality assurance or any other purpose permitted by the Electronic Communications Privacy Act, P.L. No. 99-508, as amended.
26. Customer grants ZDCLOUD a first priority blanket security interest in the equipment which the Customer has colocated with ZDCLOUD. In the event of non-payment by Customer, Customer agrees that ZDCLOUD may sell the Customer's equipment to satisfy the account balance owed to ZDCLOUD by the Customer. Any amounts collected from any sale of the Customer's equipment in excess of the balance owed will be returned to the customer within ten (10) business days.
27. All Internet Protocol Addresses ("IP Addresses") assigned by ZDCLOUD to the customer for use with the products and services remain the property of ZDCLOUD. After the termination of services, the customer must immediately vacate and return all IP Addresses.
28. All requests for IP Addresses must be justified. ZDCLOUD will be the sole arbiter as to whether or not the justification provided by the Customer is adequate. ZDCLOUD may request additional information to comply with requests from the Regional Internet Registry (RIR) (for North America, the RIR is the American Registry for Internet Numbers - ARIN). The customer agrees that any information provided may be shared with the RIR.
29. Promotional pricing (including but not limited to advertised offers and coupon codes) is valid for new customers or for existing customers adding additional services. Customer agrees that if they order a new service under promotional pricing and cancel a previously ordered service, ZDCLOUD may remove all promotional pricing on the Customer's account.
30. Dedicated servers and virtual private servers are unmanaged services. Unmanaged services only offer support for network, power, and hardware issues. System administration assistance is available as part of our server management services, which is an additional service that must be purchased as an addon.
31. For dedicated server customers, if the Customer's server uses more electricity than the average dedicated server of similar specification utilizes due to use of the server in violation of the Terms of Service or Acceptable Use Policy (including, but not limited to activities such as cryptocoin mining), ZDCLOUD reserves the right to bill the customer for the increased electricity usage. ZDCLOUD also reserves the right to retroactively remove any promotional pricing as the result of abnormal electricity usage.
32. For dedicated server customers, the customer is not authorized or permitted to change any hardware settings (including, but not limited to BIOS, BMC/IPMI, or RAID) without the express written permission of ZDCLOUD. The customer is not permitted to disable ZDCLOUD's access to the system by disabling usernames or passwords (including, but not limited to administrator or root usernames and passwords in the BIOS or IPMI settings). The customer is not authorized to upgrade or downgrade the firmware for any hardware (including, but not limited to drives, BIOS, fan controller, BMC/IPMI, RAID). In the event the customer makes unauthorized changes, the customer agrees to pay any penalty levied by ZDCLOUD, equivalent to the retail cost of replacement hardware and up to an additional $250 fee to cover the work associated with restoring the equipment to the original condition. ZDCLOUD shall be the sole arbiter as to the penalty incurred.
33. If any provision of this agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable.
34. each of the parties hereto irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or relating to this agreement or the transactions contemplated hebeby.
35. Customers purchasing DDoS protection/filtering for a single VPS or single dedicated server may only use the DDoS protection/filtering for their single VPS or single dedicated server on ZDCLOUD's network. The customer may not resell the DDoS protection/filtering (including, but not limited to tunneling traffic to another network to offer DDoS filtering/protection to another network) without express written permission from ZDCLOUD.
Updated on 2020-08-20 00:00 www.zdcloud.com