Use of EZCluster's (hereafter "EZCluster") Service constitutes acceptance and agreement to EZCluster's AUP (Acceptable Use Policy) as well as EZCluster's TOS (Terms of Service). By providing service to a customer in compliance with this TOS and AUP, EZCluster agrees to be bound by the terms herein. From herewith in this TOS, AUP, SLA (Service Legal Agreement), the usage of "us", "we", "our", "ours" shall constitute reference to EZCluster, the usage of "you", "your", "they", "them" shall refer to client / customer of EZCluster.http://www.ezcluster.com/
The following documents pertain to your service with EZCluster:
This EZCluster Terms of Service (this "Agreement") and the EZCluster Acceptable Use Policy ("AUP") govern your purchase and use of all EZCluster services (collectively, the "Services"), as described in the Order Form(s) submitted by you, electronically or by analog means, and accepted by EZCluster ("Service Order"). Acceptance of any terms or conditions different from those contained herein by EZCluster will not be deemed by provision of service, but only by electronic or written signature of an officer or other duly authorized representative of EZCluster. You must register and accept the terms of this Agreement and the AUP in order to use the Services. BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND THE AUP, AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL POLICIES AND GUIDELINES OF THE AUP, WHICH ARE INCORPORATED HEREIN BY REFERENCE. EZCluster may modify any of the terms and conditions contained in this Agreement and the AUP, at any time, in its sole discretion. Any modifications are effective upon posting of the revisions on the EZCluster web site (the "Site") at the respective locations shown in Section II and incorporated herein by reference. Your continued use of the Services following EZCluster posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, do not continue to use the services and immediately notify EZCluster of your termination of this Agreement in the manner described in the section below. All termination provisions agreed to in this agreement will still be in effect regardless of any service or policy changes made by EZCluster. It is advised that you visit the EZCluster website frequently for updates.
EZCluster agrees to furnish services to the Subscriber, subject to the following TOS (Terms of Service).
Term: This Agreement will be for an initial "Term" of one (1) month from the date the Services are first provided by EZCluster. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term or any Renewal Term for a period of one (1) month unless you provide EZCluster with written notice of termination at least seven days (7) before the end of the Initial Term or Renewal Term (also referred to interchangeably and collectively as "Term"), whichever is then applicable. To provide your notice of termination, you must submit a billing request at http://www.ezcluster.com/ and fill out the corresponding cancellation form to initiate the cancellation of your service. In the event of a service failure within the ezcluster.com system, you may also submit your cancellation via facsimile to the number shown for EZCluster below under "Notices".
This Agreement may be terminated: (i) by you or EZCluster during any Renewal Term, without cause, by giving the other party no less than 7 days prior written notice; (ii) by EZCluster in the event of nonpayment by you as provided in the section below or (iii) by EZCluster, at any time, without notice, if, in EZCluster sole judgment, you are in violation of any terms or conditions of the AUP. If you terminate this Agreement, or if EZCluster terminates this Agreement for your breach, before the end of the Initial Term or the Renewal Term, whichever is then applicable, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the Term and any other amounts you owe to EZCluster under this Agreement. In no event will EZCluster be liable for any damages resulting from termination or suspension of your services, with or without notice.
You will pay all charges for your use of the Services at the then current EZCluster prices for that category of service or any special offer applicable to your account as determined by EZCluster. You are responsible for paying all federal, state, and local sales, use, value added, import/export, excise duty and any other taxes assessed with respect to the Services, other than taxes based on EZCluster net income. You are responsible for all costs of collection of all amounts owed under this Agreement, including reasonable attorney's fees of EZCluster. EZCluster DOES NOT ACCEPT ANY ANALOG PAYMENTS. ALL PAYMENTS MUST BE MADE VIA ELECTRONIC MEANS AND AS PREAPPROVED BY EZCluster.
You will pay all charges for the first month of service in advance on the first day of the Initial Term. Establishment of this service is contingent upon receipt of payment from you to EZCluster. You will pay all subsequent charges for Services in advance on the anniversary day of each month. You authorize EZCluster to charge your credit or debit card, paypal account, or other electronic draft mechanism as approved by EZCluster, to pay for any charges that may apply to your account. You must notify EZCluster of any changes to your card account including applicable account number, billing address, registered phone number, or cancellation or expiration of the account. Your failure to fully pay any fees and taxes within 72 hours from the applicable due date is a material breach of this Agreement, justifying EZCluster to suspend its performance and terminate this Agreement. If EZCluster terminates for your material breach, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term, if any, and any other amounts you owe to EZCluster under this Agreement. You are responsible for any costs that EZCluster incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees.
ALL PAYMENTS TO EZCluster ARE NONREFUNDABLE. This includes any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time that the dispute occurred. If you dispute a charge to your credit card EZCluster may, at it's sole discretion, terminate all services associated with your account, however, this will not relieve you of your obligations under this agreement.
The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve the Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees. In the event of a material breech of this agreement due to non- or late payment of your services, all data, files, logs, and other information on or associated with your service will be, at EZCluster's sole discretion, deleted or otherwise destroyed. In no event will EZCluster be liable for preservation of data subsequent to you breeching this agreement.
Payment is due on the defined monthly recurring billing date of each month. Credit cards that are declined for any reason are subject to a $10.00 declination fee. Service will be interrupted on accounts that reach 10 days past due. Service interrupted for nonpayment is subject to a $200.00 reconnect charge. Accounts not paid by due date are subject to a $7.95 late fee. Accounts that are not collectable by EZCluster will be turned over to an outside agency for collection. If your account is turned over for collection, you agree to pay the company a "Processing and Collection" Fee of not less than Fifty ($50.00) nor more than One Hundred, Fifty ($150.00)
Should your reseller account become delinquent, and payment not made to EZCluster, within 10 days of the due date, service is subject to termination as outlined above. Once a reseller account is terminated or suspended for non-payment EZCluster may, at EZCluster's sole discretion, allow your customers to purchase the service previously bought from you directly from EZCluster, and assume financial responsibility for the service from that point forward. Under no circumstances will EZCluster be liable for continuing service relationships with your customers subsequent to your termination or suspension for non-payment.
Your service with EZCluster is backed by our always available support staff. The terms below apply to unmanaged or semi-managed services.
EZCluster provides technical support 24 hours a day, 365 days a year with all services. EZCluster provides support related to your server. EZCluster does not provide support for application specific issues, such as any programming, website code, third-party applications or any other such issue, even if such programming or third-party application was sold or otherwise provided to you by EZCluster.
EZCluster does not provide technical support for YOUR clients.
Resellers are responsible for the conduct of their Customers and by agreeing with this AUP, Resellers agree that their Customers will adhere to the AUP. Resellers should make their perspective Customers aware of the AUP and the consequences of violation. In the event of an AUP violation, waiting to contact your customer is not an acceptable excuse for continuing abusive activity.
You are allocated a certain amount of internet bandwidth per month. This amount of bandwidth is shown at http://www.ezcluster.com/. Bandwidth includes all data transferred both IN and OUT of the server and is calculated from your billing anniversary date until the day before your next billing anniversary date. This bandwidth can be used as any combination of IN & OUT. Should the server go over its allocated amount of bandwidth in any given month, a fee of $0.50 per GB over is applicable. Bandwidth usage reports are available on request
Your Warranties and Representations to EZCluster: You warrant, represent, and covenant to EZCluster that: (a) you are at least 18 years of age if an individual; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines, including the AUP; and (d) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
EZCluster will maintain and control ownership of all Internet Protocol ("IP") numbers and addresses that EZCluster may assign to you. EZCluster may, in its sole discretion, change or remove any and all IP numbers and addresses.
EZCluster may provide you access to other third party software and/or services ("Third Party Products") through reseller relationships that EZCluster has established with certain commercial vendors, including without limitation, Microsoft Corporation ("Third Party Vendors"). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by EZCluster and not by the Third Party Vendor. Neither EZCluster nor any Third Party Vendor makes any representations or warranties, expressed or implied, regarding any Third Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM EZCluster OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER EZCluster NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND EZCluster WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
You shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product or that appear during use of any Third Party Product; or (ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
EZCluster reserves the right to suspend or terminate the Service immediately or take any other corrective action it deems appropriate in its sole discretion if in the sole judgment of EZCluster your server is the source or target of any violation of the AUP or for any other reason which EZCluster chooses. If inappropriate activity is detected, all of your accounts in question will be deactivated until an investigation is complete. Prior notification to you is not assured. In some cases, law enforcement will be contacted regarding the activity. These rights of action, however, do not obligate EZCluster to monitor or exert editorial control over the information made available for distribution via the Services. If EZCluster takes corrective action because of a possible violation, EZCluster will not refund you any fees that you paid in advance of the corrective action.
The AUP specifically prohibits the use of our service for illegal activities. Therefore, you agree that EZCluster may disclose any and all of your information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to you. In addition, EZCluster shall have the right to terminate all service set forth in this Agreement.
EZCluster exercises no control over, and accepts no responsibility for, the content of the information passing through EZCluster host computers, network hubs and points of presence, or the Internet. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT YOUR OWN RISK. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EZCluster DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. EZCluster DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
IN NO EVENT WILL EZCluster OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER EZCluster NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO EZCluster'S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF EZCluster HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF EZCluster AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO EZCluster UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY EZCluster UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE EZCluster AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION.
EZCluster and its suppliers are not liable, except as detailed in EZCluster's Service Level Agreement (SLA) available on EZCluster's website and incorporated herein by reference, for any temporary delay, outages or interruptions of the Services. Further, EZCluster is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any "act of God" or other cause beyond its reasonable control (including any mechanical, electronic, communications or third-party supplier failure).
In agreeing to the EZCluster AUP and this Agreement, you agree to indemnify, defend and hold harmless EZCluster, its employees, officers, directors, partners, representatives and affiliates, for any violation by you or your customers of the AUP or this Agreement that results either in (a) any cost, expense, damage or loss to EZCluster, or (b) the bringing of any claim against EZCluster by any third-party, and all costs, expenses, damages, and losses associated therewith. For example, if EZCluster is sued because of your or your customer's activity related to the Services, you will pay any damages awarded against EZCluster, its employees, directors, partners, representatives and affiliates, in addition to all costs and attorney's fees.
EZCluster and you agree that, except as otherwise expressly provided in this Agreement, the Order Form(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or your customers. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of EZCluster, and any attempted assignment or delegation without such consent will be void. EZCluster may assign this Agreement in whole or part. EZCluster also may delegate the performance of certain Services to third parties. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. You and EZCluster are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and EZCluster. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.
This Terms of Service Agreement can change at anytime and it is your responsibility to ensure that you regularly check for updated version of this Terms of Service Agreement.