This Cloud Terms of Service (“Terms of Service”) is by and between Atlantic.Net, Inc., a Delaware corporation (“we” or “Atlantic.Net”) and the customer who orders Atlantic.Net’s cloud services (“you” or “Customer”). These Terms of Service form part of an agreement (this/the “Agreement”) between Atlantic.Net and Customer. The Agreement (as defined below) governs provision of Atlantic.Net’s cloud services and the use of Atlantic.Net’s service constitutes acceptance and agreement to Atlantic.Net’s Terms of Service. By accepting the Agreement via electronic click through authorization, Customer acknowledges that it has read and fully understands all of the terms and conditions set forth in the Agreement and hereby agrees to abide by the terms and conditions hereof.
1. Defined Terms. Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means Atlantic.Net’s Acceptable Use Policy posted on Atlantic.Net’s website, as may be amended from time to time.
“Business Day” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States Eastern Standard time, excluding federal public holidays in the United States.
“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) for you, all information transmitted to or from, or stored on, the Atlantic.Net cloud system, (ii) for Atlantic.Net, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may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 (iii) for both of us, 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.
“Order” means either: (i) the online order form that you submit to Atlantic.Net via the Atlantic.Net website, or (ii) any other written order form (either in electronic or paper form) provided to you by Atlantic.Net for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
“Service Level Agreement” shall mean the Atlantic.Net’s Server Cloud Service Level Agreement posted on Atlantic.Net’s website, as may be amended from time to time.
“Services” means those services described in the Order.
2. Atlantic.Net’s Obligations. Contingent on Atlantic.Net’s acceptance of your Order, Customer’s satisfaction of Atlantic.Net’s credit approval requirements, and subject to these Terms of Service, Atlantic.Net agrees to provide the Services.
3. Customer’s Obligations. You may use our services, provided that you are of legal age to form a binding contract and are not barred from receiving such services under the laws of the United States or other jurisdictions. In order to access our services, you are required to provide current and factual identification, contact, and other information as part of the registration process. You agree to do each of the following: (i) comply with applicable law and the AUP (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with Atlantic.Net’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date; and (vi) immediately notify Atlantic.Net of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Atlantic.Net’s reasonable determination shall control.
4. Access to the Services. You may access the Services via the cloud server administration interface on Atlantic.Net’s website. Atlantic.Net may modify the cloud server administration interface or Application Programming Interface (“API”) at any time, or may transition to new API’s. Your use of any API you download from the Atlantic.Net website is governed by the license terms included with the code in the file named “COPYING” or “LICENSE” or like caption.
5. Service Level Agreement. The Cloud Service Level Agreement listed below is part of this Agreement for those Services you are buying and may be viewed at: https://www.atlantic.net/support/cloud-service-level-agreement/ . Atlantic.Net shall not be liable for interruptions in the Services or any other failure of the Services except as specifically set forth in the Service Level Agreement and in this Section 5. In the event of hardware failure: (i) Atlantic.Net will make reasonable efforts to recover lost data, upon Customer’s request, but data-recovery is not guaranteed; and (ii) Atlantic.Net will provide such credits as are required by the Service Level Agreement (if any). In the event that Customer is dissatisfied with the Services, Customer’s sole remedies are those listed in the Service Level Agreement and in this Section 5, or termination of this Agreement as authorized pursuant to Section 10. All Services, whether or not addressed in the Service Level Agreement, are provided pursuant to the provisions of Section 14 below and the other terms and conditions of this Agreement.
6. 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 equal to the initial term, unless and until one of us gives the other a written notice of termination for convenience prior to the expiration of the initial term, or then-current renewal term, as applicable. If the services purchased are offered on an hourly basis your term will start when we make the Services available for your use and will continue until you delete them. You must follow Atlantic.Net’s non-renewal process accessible from the Atlantic.Net Cloud control panel to give an effective notice of non-renewal.
7. Fees. Atlantic.Net will charge you the fees stated in your Order. If you have made a minimum commitment in your Order, and your actual usage does not meet or exceed the minimum commitment, Atlantic.Net will charge you the difference between your minimum commitment and your actual usage. Unless you have made other arrangements, Atlantic.Net will charge you without invoice 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 or overages) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that Atlantic.Net first makes the Services available to you. Atlantic.Net may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Atlantic.Net brings a legal action to collect, or engages a collection agency, you must also pay Atlantic.Net’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 guaranty, 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 Atlantic.Net with accurate factual information to help Atlantic.Net determine if any tax is due with respect to the provision of the Services, and if Atlantic.Net is required by law to collect taxes on the provision of the Services, you must pay Atlantic.Net the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. Any credit that we may owe you, such as a credit for a Service Level Agreement remedy, will be applied to unpaid fees for services or future services at our option.
8. Fee Increases. If you are under a month-to-month contract, then we may increase fees at any time on thirty (30) days advance written notice. If the initial term of your Agreement is longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins thirty days from the day of our written notice of a fee increase.
9. Suspension. We may suspend your 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 your 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 Atlantic.Net or its 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.
10. Credit Authorization. The Customer hereby authorizes Atlantic.Net and gives consent to Atlantic.Net under applicable privacy laws for Atlantic.Net. to obtain credit information and bank and other financial references regarding the Customer for the purposes of assessing the Customer’s credit worthiness. The Customer will promptly execute and deliver to Atlantic.Net such further documents and assurances and take such further actions as Atlantic.Net may from time to time reasonably request in order to carry out the intent and purpose of this Section. The Customer authorizes Atlantic.Net to post pending charges to credit, debit and prepaid cards provided to be used for payment of subscription services to determine the Customer’s credit worthiness.
11. Termination for Breach.
11.1 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 for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services 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 satisfy Atlantic.Net’s credit approval requirements, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Atlantic.Net in an orderly fashion, (v) you use your Service 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.
11.2 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 ten (10) 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.
12. Access to Data.
12.1 You will not have access to your data stored on the Atlantic.Net cloud system during a suspension or following termination.
12.2 Although the Atlantic.Net cloud service 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 Atlantic.Net cloud system somewhere other than on the Atlantic.Net cloud system.
13. Unauthorized Access to Your Data or Use of the Services. Atlantic.Net 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 Atlantic.Net’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.
14. Warranties, Disclaimers and Limitations of Liability.
14.1 ATLANTIC.NET MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. Atlantic.Net has no obligation to provide security other than as stated in this Agreement. Atlantic.Net does not warrant that the Services will be uninterrupted, error-free, completely secure, or free from viruses or other harmful components. The Service is provided with no warranties regarding security, reliability, protection from attacks, data integrity, or data availability (including without limitation data integrity or availability related to cloud storage features of the Services). Except to the extent specifically provided in the Service Level Agreement, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. No communication between Customer and Atlantic.Net will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 14 or elsewhere in this Agreement. As used in the previous sentence, “communications” include, without limitation, marketing materials and representations of salespeople, advice provided by Atlantic.net or any of its representatives, quotes, and any Order or other ordering document.
14.2 ATLANTIC.NET WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. ATLANTIC.NET’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER DURING THE THREE (3) MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM.
14.3 Except to the extent specifically provided in Section 5 above, and except to the extent that applicable law specifically forbids such limitation of liability, ATLANTIC.NET WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY ATLANTIC.NET EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO ATLANTIC.NET, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO CUSTOMER’S OWN CUSTOMERS AND OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION BY OTHER ATLANTIC.NET CUSTOMERS; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OTHER ATLANTIC.NET CUSTOMERS AND THIRD PARTY PRODUCTS AND SERVICES PROVIDERS; (vi) ACTIONS OF ATLANTIC.NET EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION AND TERMINATION OF SERVICE; AND (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE. THE PROVISIONS OF THIS SUBSECTION 14.3 APPLY, WITHOUT LIMITATION, EVEN IF CUSTOMER PURCHASES SERVICE FEATURES ADDRESSING SECURITY, DATA INTEGRITY, DATA BACKUP, ATTACK PROTECTION, VIRUSES, SPAM, MONITORING, OR SYSTEM INTEGRITY. Atlantic.Net does not control and has not thoroughly reviewed all the websites linked to Atlantic.Net’s website or run by Atlantic.Net’s customers or by providers of third party products and services. With the exception of its own website, Atlantic.Net is not responsible or liable for the content or practices of any website, including without limitation third party websites referenced in the preceding sentence.
14.4 THE LIABILITIES LIMITED BY THIS SECTION 14 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF ATLANTIC.NET IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Atlantic.Net’s limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 14 and elsewhere in this Agreement apply equally to Atlantic.Net’s officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. Customer acknowledges and agrees that Atlantic.Net has set its prices and entered into this Agreement in reliance upon such limitations of liability, and that such limitations of liability form an essential basis of the bargain between Atlantic.Net and Customer.
15. Indemnification. If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Atlantic.Net 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 16 (Export Matters) of the Agreement, 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 Atlantic.Net 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.
16. Export Matters. 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 Atlantic.Net 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.
17. 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 these General Terms and Conditions; (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 days prior to disclosing Confidential Information under this Section (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
18. Third Party Software. In addition to the terms of our Agreement, your use of any third party software is governed by the third party’s software license terms.
19. Who May Use The Services. You may resell the Services, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. If you resell any part of the Services then you must include in a written agreement with your customers the content of Section 21 (No High Risk Use). Unless otherwise agreed, Atlantic.Net 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. Regardless of the status of the business relationship between you and any third party, the Agreement shall continue to remain in full force and effect.
20. Notices. Notices to Atlantic.Net under the Agreement shall be given in writing via first class mail or established and well-known express courier to the Legal Department, at Atlantic.Net’s principal office address posted on Atlantic.Net’s website, currently:
440 West Kennedy Blvd, Suite 3
Orlando, FL 32810
Notices to Customer shall be given via electronic mail to the individual designated as the Contact on the Order or by means reasonable under the circumstances, including an e-mail to a known contact. Notices are deemed received on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered.
21. 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 Federal Food, Drug and Cosmetic Act.
22. 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 Atlantic.Net during the performance of the Services shall belong to Atlantic.Net unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
23. 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 Atlantic.Net in connection with Services, including pointing the DNS for your domain name(s) away from Atlantic.Net Services.
24. Assignment/Subcontractors. You may not assign the Agreement without Atlantic.Net’s prior written consent. We may assign the Agreement in whole or in part 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. Atlantic.Net may use third party service providers to perform all or any part of the Services, but Atlantic.Net remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if Atlantic.Net performed the Services itself.
25. 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.
26. Construction and Enforcement. The Agreement shall be construed in accordance with the laws of the State of Florida, without application of the principles or conflicts of laws. If it becomes necessary for any party institute legal action to enforce the terms and conditions of the Agreement, the successful party will be awarded reasonable attorney’s fees at all trial and appellate levels, expenses and costs. Any suit, action or proceeding with respect to the Agreement shall be brought in the state or federal courts located in Orange County in the State of Florida. The parties hereto hereby accept the exclusive jurisdiction of those courts for the purpose of any such suit, action or proceeding. Venue for any such action, in addition to any other venue permitted by statute, will be Orange County, Florida. The parties hereto hereby irrevocably waive, to the fullest extent permitted by law, any objection that any of them may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to the Agreement or any judgment entered by any court in respect thereof brought in Orange County, Florida, and hereby further irrevocable waive any claim that any suit, action or proceeding brought in Orange County, Florida, has been brought in an inconvenient forum.
27. Entire Agreement; Amendment. The Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and terminates any prior communication, agreement or understanding, whether written or oral.
28. Severability. In the event that any of the provisions of the Agreement, or portions thereof, are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby.
29. Survival of Representations, Warranties, Covenants and Agreements. The representations, warranties, covenants and agreements contained herein shall survive the termination of the Agreement.
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