Terms and ConditionsFor Virtual Servers at DataCell Data Centers
Table of Contents
- 1.Subject of the Agreement
- 2.Services Provided
- 5.Administrative Access
- 6.Network Data Transfer Charges
- 7.Hardware and Software Configuration
- 8.Customer Conduct
- 11.Ownership of Server
- 12.Limited Warranties
- 13.Identification Information
- 14.No Interference with Operation of System
- 16.Transmittal of Materials
- 18.Prior Agreements
- 21.Dispute Resolution
- 23.No Agency
By ordering virtual private server services from DataCell Ehf. ("DataCell"), you ("you" or "Customer") agree to the terms and conditions set forth herein. The provisions contained in this Service Level Agreement for Virtual Private Server Hosting Services (the "Agreement") incorporate and are supplemental to DataCell's General Terms and Conditions (the "DataCell GT&C"), by which you are also bound, to the extent they are not modified by this Agreement.
1.Subject of the Agreement
The Agreement governs the provision of virtual private server services (the "Services") to the Customer by DataCell and certain administration and servicing thereof. The Services comprise making available for use by the Customer a partition on a commonly used server with certain, limited server functions granted to the customer via software control (hereafter, a "Virtual Server"). The Virtual Server is not a dedicated server, and access to certain functions of the system hardware and software are limited.
DataCell agrees to provide the use of a Virtual Server to Customer, for the exclusive use of Customer at the price agreed upon before the initiation of service, for the term as defined below. Customer represents and warrants that Customer has or has access to the knowledge and expertise necessary to configure, maintain, monitor, and secure the Virtual Server. DataCell further agrees to maintain the hardware on which the Virtual Server is located. Except with respect to the use or configuration of any software running at that server, DataCell does not provide phone or e-mail support or other technical assistance for the administration of the Virtual Server or otherwise related to the Services.
Fees for the Services shall be charged in accordance with the schedule of fees set and adjusted by DataCell from time to time and posted at the DataCell web site at http://www.datacell.com. Published fees include initial setup and installation services as set by DataCell, and are non-refundable.
Subject to termination in conformity with Section 10 of this Agreement, the initial term of this Agreement shall be one (1) month with automatic renewal for one subsequent additional month after the expiration of the initial term and each such renewal term (each such month a "Contract Term"). DataCell reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The Contract Term, however, shall remain one (1) month.
Notwithstanding the provisions of this Section to the contrary, DataCell may offer certain packages for which the initial term of this Agreement shall be longer than one month (the "Extended Term Package"), at the end of which this Agreement shall renew automatically on a month-to-month basis pursuant to the terms of this Section. Any and all service fees for the Extended Term Package are due and payable for the entire initial term thereof, and should you terminate, attempt to terminate, or otherwise default on this Agreement prior to the end of the initial term you authorize DataCell to charge your credit card for all such fees and charges for the remainder of such initial term.
For the purposes of this Section, any modification of the Extended Term Package shall be deemed a termination and shall entitle DataCell to the fees owing on the Extended Term Package. Fees paid for the Extended Term Package are not refundable unless this Agreement is terminated by DataCell without cause pursuant to Section 10. or as otherwise agreed to in writing by DataCell in its sole discretion.
Access to the Virtual Server is limited to you and your authorized agents. DataCell has limited access to the contents of your Virtual Server. DataCell reserves the right to require, at its discretion, software upgrades for the purposes of maintaining security and stability of the services provided and may require the installation of such upgrades. Standard fees for such upgrades shall be set by DataCell from time to time.
6.Network Data Transfer Charges
There shall be no charge for monthly aggregate or daily average network transfer within the allowance of the Virtual Server package purchased, depending on the terms agreed upon at purchase, as measured during any 30-day period. Monthly aggregate or daily average network traffic in excess of the pre-arranged allowance shall incur an additional fee as set by DataCell. Payment of this fee will be required in order to maintain service. Network traffic shall be measured by DataCell and may include all forms of traffic to and from the Virtual Server. All fees shall be set and adjusted by DataCell from time to time and posted at the DataCell web site at http://www.datacell.com.
7.Hardware and Software Configuration
All Virtual Servers must use software configurations that conform with DataCell requirements. Use of any particular software configuration may be declined at the sole discretion of DataCell. Customers have no right or expectation to receive a hardware or software configuration on their Virtual Server that is more capable than that which was initially ordered from DataCell, nor can a Customer expect to receive support from DataCell with respect to the correction of errors caused by mistakes, faulty settings, and installation errors caused by the Customer.
8.1.DataCell services and Virtual Servers may only be used for lawful purposes. Any use which violates any local, state, federal, or international laws which may apply to DataCell, Customer's local jurisdiction, or any jurisdiction that Customer or Customer's site may be subject to, is strictly prohibited.
8.2.While using a DataCell supplied Virtual Server, Customer will not:
8.2.1.Restrict or inhibit any other users from using the Internet;
8.2.2.Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the applying export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
8.2.3.Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;
8.2.4.Operate an open mail relay;
8.2.5.Transmit any unsolicited commercial or bulk e-mail or engage in any activity known or considered to be "spamming" or "Mail Bombing";
8.2.6.Use any DataCell Virtual Server or service to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.
9.1.You agree to fully defend and indemnify and hold harmless DataCell of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of DataCell in any way related to your use of the DataCell Services or any portion thereof.
9.2.You agree to fully defend and indemnify and hold harmless DataCell of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the DataCell Services or any portion thereof. Choice of counsel remains exclusively that of DataCell.
9.3.For purposes of this Section 9, DataCell includes Datacell ehf., as well as its parent company or companies, its subsidiaries and affiliated companies.
Either party can terminate this Agreement upon 30 days' written notice prior to the end of the then-current Contract Term. DataCell can terminate this contract for any reason upon thirty (30) days' prior notice. Any such termination shall take effect after the end of the thirty-day notice period. DataCell reserves the right to terminate this contract without notice in the event that DataCell believes, in its sole discretion, that you have breached any provision(s) of Section 8 of this Agreement, or any provisions of the GT&C, and DataCell may without any liability to you, and in addition to any other remedies, erase or purge any related content or information from DataCell's Equipment without prior notice to you.
Datacell may deny Customer access to a Virtual Server without notice if Customer engages in any conduct or activities that Datacell in its sole discretion believes to be in violation of any of the terms and conditions of this Agreement or the GT&C. DataCell shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Customer agrees that Datacell has the right, but not the obligation, to monitor the Virtual Servers electronically from time to time and to disclose any information as necessary under the law, or to protect itself from claims by a third party or parties. DataCell reserves the right to remove or remove access to any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, offensive, or in violation of this Agreement.
11.Ownership of Server
All servers and other Equipment shall at all times remain the property of DataCell and are not subject to customer demands.
12.1.Datacell makes every reasonable effort to maintain the uninterrupted operation of the DataCell Services, subject to regularly scheduled server and network maintenance cycles. However because many events and circumstances are beyond the control of DataCell, Datacell does not in any way warrant or otherwise guarantee the availability of the DataCell system or servers, including but not limited to Virtual Servers, and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of DataCell. Datacell may, at its sole discretion, limit or deny access to its servers, including but not limited to Virtual Servers, if, in the judgment of DataCell, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the DataCell system.
12.2.ALL DataCell services are provided to you on an "as is" basis, and without any warranty of any kind, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.
12.3.The total sole and exclusive remedy available to you as the result of any breach of this agreement, negligence, or any action or failure to act whether intentional or otherwise shall be limited to the total amount of service fees paid by you to DataCell in the six (6) months immediately proceeding any allegation of entitlement to such remedy, but in no event to exceed one hundred thousand United States dollars ($100,000), or equivalent in Euro. In no event shall DataCell be liable for any indirect, special, exemplary, punitive, incidental or consequential damages, loss of profits or loss of business as the result of any such actin or inaction without regard to the likelihood of any such damages.
12.4.Customer understands that by placing information on a Virtual Server, depending on the configuration of the Virtual Server, such information may be accessible to all Internet users. DataCell does not limit or restrict access to such information, nor protect any such information from copyright infringement or other wrongful activity. Customer assumes full responsibility and risk for their use of the Virtual Server. It is the Customer's sole responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, and other information, and the quality and merchantability of all merchandise, provided through DataCell or on the Internet generally.
Customers must be at least 18 years of age or require the approval of the minor's legal guardian. Customer agrees to supply DataCell with a current and truthful full name, e-mail address, postal address, and telephone number and, in case the Customer is a minor, with the current and truthful full name, e-mail address, postal address, and telephone number of at least one legal guardian. Customer agrees to keep this information current and to inform DataCell whenever any of this information changes.
14.No Interference with Operation of System
14.1.Customer agrees not to maliciously or intentionally interfere with the proper operation of the server and network, including but not limited to defeating identification procedures, obtaining access beyond that which Customer is authorized for, and impairing the availability, reliability, or quality of service for other customers. Customer further agrees not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. Customer agrees to follow the Acceptable Use Policy of any network or service to which Customer connects.
14.2.Customer agrees to adhere to all system policies of DataCell, as such may be published by DataCell online from time to time, including restrictions on services available, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of the services of DataCell. Customer agrees to abide by any and all future policy decisions by DataCell.
15.1.Except with respect to issues concerning the physical security of DataCell's data center facilities, Customer agrees that the security of the Virtual Server and all Services is solely Customer's responsibility. It is the sole responsibility of the Customer to maintain and update security software on the Virtual Server. Under no circumstance will DataCell be held liable for security breaches and damage caused by the Customer's failure to maintain or update the security software or to maintain adequate security protocols in the administration of the Virtual Server.
15.2.To secure Virtual Servers from external misuse, Customers are encouraged to utilize packet filtering technology.
15.3.Customer agrees that if the security of Customer's Virtual Server has been compromised in any way, Customer will notify DataCell immediately in writing as set forth in Section 22 herein. Customer shall be held fully responsible for any misuse or compromise of Customer's Virtual Server. Customer agrees that if any security violations are believed to have occurred in association with Customer's Virtual Server, DataCell has the right to suspend access to the Virtual Server pending an investigation and resolution. Customer also agrees that DataCell has the right to cooperate in any government or legal investigation regarding any aspect of its services, including any servers or Virtual Servers used by Customer. Any use of DataCell's system to engage in software piracy or other violations of law will result in service suspension and be immediately reported to the appropriate authorities.
16.Transmittal of Materials
Customer agrees not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. The use of DataCell or any other service with reference to services obtained through DataCell, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as "spamming", is strictly prohibited and may cause Customer's services to be terminated immediately and without warning, and Customer will be held fully responsible for any damages to Customer, DataCell, or any other party or parties resulting from any such conduct.
17.1.Payment for the Services is due in advance, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the Services. All payments shall be made in Euro.
17.2.Prior to activation of your user account and at any applicable time thereafter you authorize DataCell to charge the credit card provided by you for the amount of the fees due for Services, together with any applicable set-up charges or any other charges outlined herein as may be applicable. You further authorize DataCell to charge your credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. Should you fail to provide credit card authorization to pay for the Services, DataCell, at its sole discretion will have the right to suspend or terminate the Services. Refusal or rejection of any charge or any portion thereof is grounds for termination or suspension of the Services, at the sole option of DataCell.
17.3.Refunds of Service fees will be made only for pre-payment of Service fees beyond the renewal date following the effective notice and termination of this Agreement as provided for herein. All refunds shall be pro-rated based upon the number of days for which Services remain unused as of that renewal date. DataCell may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder.
Except for the DataCell GT&C, which apply to all transactions between DataCell and any of its customers, this Agreement supersedes any written, electronic, or oral communication Customer may have had with DataCell or any agent or representative thereof, and constitutes the complete and total agreement between the parties. If any of the provisions contained herein are in conflict with the Datacell GT&C, the provisions in this Agreement shall prevail.
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.
This Agreement shall be interpreted under Iceland Law, without regard to any conflict of laws provisions.
Any claim, dispute or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration of the Municipal Court of Reykjavik.
Any notice under this Agreement shall be given by DataCell to you via e-mail at the address provided by you to DataCell at the commencement of this Agreement or as DataCell is subsequently advised pursuant to the requirements of Section 14 hereof. Notice to you at this address is deemed sufficient regardless of your receipt of such e-mail.
Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between DataCell and the Customer.
DataCell may without advance notice amend this Agreement and any fee schedules related thereto from time to time, and will do so by posting the new Agreement on the DataCell website in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts. It is your responsibility to periodically check the DataCell website for updates of this Agreement.
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