Terms of Service
Thank you for choosing Cloud My Office for your VPS hosting services. Cloud My Office is the product and/or service of Flashpoint Informatics, Inc. (“Flashpoint”) located at 120 Skyview Drive, Bellefonte, PA 16823. Flashpoint is the designated provider of such Cloud My Office products and/or services. This website is operated by Flashpoint. By using Flashpoint’s products, services and website (collectively, the “Services”) you agree to the following terms, conditions, policies, guidelines or amendments thereto (the “Terms of Service” or this “Agreement”) and all applicable laws. Please take the time to read these Terms of Service carefully before using Cloud My Office. By visiting or browsing Cloud My Office’s website or using our Services, you accept, without limitation or qualification, these Terms of Service. If you do not agree to these Terms of Service, you may not access or use Cloud My Office’s website or Services.
Flashpoint reserves the right to update or modify these Terms of Service at any time, without prior notice, by posting any such revised version of these Terms of Service behind the link marked “Terms of Service” on the bottom of each page of this website. Your continued use of the website or Services after we have posted the revised Terms of Service constitutes your agreement to be bound by the revised Terms of Service.
As used in this Agreement, the following terms shall have the meanings set forth below.
- “Agreement” means this Agreement, including all schedules, appendices, and other additions as amended from time to time.
- “Active Server” means any server or virtual machine that responds via a Ping Test.
- “Cause” means materially misrepresenting a fact, materially breaching a warranty or covenant, conduct materially detrimental to either party, and any conduct by either party that does not meet the standards set forth in this Agreement.
- “Cloud Hosting Services” means Flashpoint’s collection of virtual machine hosts (the hardware on which a virtual machine resides).
- “Cloud” means a network of server hardware that is specifically designed and maintained to store and manage virtual installations of many operating systems.
- “Effective Date” means the first day of the term of this Agreement.
- “Fees” means any cost owed to Flashpoint due to services performed and the terms of this Agreement.
- “Fee Cycle” means a period of time for which Flashpoint calculates the amount of Fees due by for services rendered during that period of time.
- “Force Majeure” means an event beyond the control of either party, which prevents either party from complying with any of its obligations under this Agreement, including but not limited to an act of God, war, acts or threats of terrorism, invasion, failure of the power grid, other unforeseeable circumstances beyond the control of the parties against which it would have been unreasonable for the affected party to take precautions and which the affected party cannot avoid even by using its best efforts.
- “Intellectual Property” means the exclusive rights retained over ones ideas.
- “Normal Business Hours” means Monday through Friday, from 9 a.m. to 5 p.m. Eastern Standard Time, excluding federal holidays.
- “Overage Fees” means any additional Fees added onto the normal Fees of a Fee Cycle for a change in Services.
- “Processor Core” means the physical or logical processing core assigned to a virtual machine.
- “Services” means any service provided by Flashpoint pursuant to the terms of this Agreement.
- “Software” or “Software Licenses” means any program provided by Flashpoint pursuant to the terms of this Agreement.
- “Virtual Machine” means a software implementation of a machine (i.e. a computer) that executes programs like a physical machine.
Cloud My Office is a full-service virtual machine hosting product. We represent that our business operation and infrastructure shall, to the best of our ability, provide a safe, reliable, and stable platform for all requested Services. You agree to retain Flashpoint to provide such Services on the terms set forth in the Terms of Service and any appendices that modify the Terms of Service.
Cloud My Office shall provide a basic Cloud Hosting Services package (described below) to all clients. By signing up for our Services, you will be entitled to this Cloud Hosting Services package and have the ability to add additional Upgrades to this package at an additional cost. The applicable rules, regulations, terms and conditions, fee agreements, and any and all applicable laws that pertain to these additional Upgrades shall be appended to this Agreement, and shall be accessible electronically.
Basic Cloud Hosting Services Package
Cloud My Office shall provide management of Virtual Machines within your private VLAN on Cloud My Office’s network. This Virtual Machine management includes the following base hardware and services:
a. Processor cores;
c. Hard Drive Storage; and
d. Network Connectivity
Service Payments and Fees
We calculate and bill fees and charges monthly. You agree that you will pay the applicable fees in accordance with these calculations and the billing information described below. Payments shall be by credit card only. Personal checks, cash, or other monetary consideration shall not be accepted in exchange for Cloud My Office Services. All charges are non-refundable unless expressly stated otherwise in the Service License Agreement, or otherwise provided by applicable law.
Fee Cycles are calculated and billed every thirity (30) days. You permit Cloud My Office to bill you for Services, in full, on the first day of your paid subscription and every 30 days thereafter, unless and until you cancel your subscription. If your billing date lands on a day not contained in a given month, you will be billed on the last day of that month. For example, if your paid subscription began on March 31st, your next billing date would be April 30th.
Additional, accumulated overage fees and software licensing fees in connection with Cloud My Office services will be charged in the payment period directly following the month in which the overages were incurred.
Payment of Fees
You agree to permit Cloud My Office to charge your credit card every 30 days in advance for providing Services or as needed for additional overage costs, for your subscription fees, any applicable sales taxes, and any other charges you may incur in connection with your use of Cloud My Office Services.
Calculation of Invoices
We calculate fees for Cloud My Office services at the end of each Fee Cycle in the following manner:
a. Sum of Fees for Services; plus
b. Overage Fees from previous Fee Cycle; plus
c. Software Licensing Fees.
Cloud My Office shall send an invoice of total Fees due during a Fee Cycle via electronic mail on the first business day of each Fee Cycle. Payments will be billed to your card within 24 hours of their receipt. Payments are non-refundable. In addition, we do not give pro-rated refunds for unused time if cancellation is initiated during the middle of a Fee Cycle. In the event of a technology outage, payments will only be reimbursed in accordance with the Service License Agreement (listed below).
You agree to pay for any and all Service upgrades requested for your Basic Cloud Hosting Services package. Upgrades purchased after the Effective Date will be pro-rated during the Fee Cycle they are purchased within. Cloud My Office reserves the right to renegotiate the terms of this Agreement or refuse to provide upgrades without being in breach of this Agreement.
The following additional upgrades may be purchased or removed at any time during the Term:
a. Additional RAM;
b. Additional Processor Cores; and
c. Additional Hard Drive Storage.
The Fees for all Upgrades will be charged in accordance with the applicable Fees listed on the Cloud My Office website.
Cloud My Office is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by Cloud My Office. Currency exchange settlements will be based on agreements between you and the provider of your credit card.
We reserve the right to change our fees, but will notify you in advance of increases. This includes the reservation of our right to modify your fees if there is a substantial change in your infrastructure footprint.
If Cloud My Office does not receive Fees, in full, for Services within three (3) days of credit card processing, Cloud My Office retains the right, without notice, to terminate all Services in this Agreement. If Cloud My Office terminates Services, you shall have sixty (60) days to cure the defaulted payment. Within sixty (60) days to cure and after curing the defaulted Fees, you retain the right to re-activate the Services of this Agreement. If you choose to re-activate your account, Cloud My Office may charge an hourly fee (to be determined at a later date) for Services spent both on maintenance of the deactivated services and reactivation of Services, and the Fees shall be added to the next Fee Cycle. If you do not cure the defaulted Fees within sixty (60) days, Cloud My Office retains all rights and options under the laws of the Commonwealth of Pennsylvania.
Service Level Agreement
99.9% Uptime Agreement
For clients who select the 99.9% Uptime Agreement: Cloud My Office shall provide you with an active server for the Cloud My Office Cloud ninety-nine and nine-tenths (99.9) percent (%) of each Fee Cycle throughout the Term (defined, supra) of this Agreement, excluding maintenance services and Force Majeure events provided for in the sections below.
If Cloud My Office does not meet its server up-time obligation, you are entitled to a credit (the “Chargeback Credit”) of five (5) percent (%) for each hour the Cloud My Office Cloud is unavailable in excess of allowable downtime. The Chargeback Credit shall not exceed fifty (50) percent (%) of the total Fees of the Fee Cycle in which the server up-time obligation was not met.
100% Uptime Agreement
100% Uptime Agreement
For clients who select the 100% Uptime Agreement: Cloud My Office shall provide you with an active server for the Cloud My Office Cloud one hundred (100) percent (%) of each Fee Cycle throughout the Term (defined, supra) of this Agreement, excluding maintenance services and Force Majeure events provided for in the sections below.
If Cloud My Office does not meet its server up-time obligation, you are entitled to a Chargeback Credit of five (5) percent (%) for each hour the Cloud My Office Cloud is unavailable. Any time accrued over the first hour of downtime will entitle you to an additional five (5) percent (%) in Chargeback Credit. The Chargeback Credit shall not exceed fifty (50) percent (%) of the total Fees of the Fee Cycle in which the server up-time obligation was not met.
99.9% Uptime Agreement
Generally Cloud My Office shall perform, as needed, maintenance on any and all provided Services. Cloud My Office shall notify you of any pre-planned maintenance that will cause Service outages to be performed at least twenty-four (24) hours prior to the planned maintenance via electronic mail. The notification shall include the estimated length of the planned maintenance outage. Cloud My Office will use its best efforts to schedule maintenance outages of Services outside of Normal Business Hours.
Cloud My Office may perform maintenance on any and all provided Services without following the terms of the General Maintenance section (listed above) if Cloud My Office reasonable believes that it is in the best interest of the infrastructure. Cloud My Office shall notify you that an Emergency Maintenance of Services situation is occurring within a reasonable time of the beginning of the Emergency Maintenance situition.
Representations and Warranties of Flashpoint's Cloud My OfficeServices
Flashpoint represents and warrants that in performing the Services provided in this Agreement that:
o It shall, at a minimum, conform to generally accepted industry standards and practices;
o It shall be qualified by education and experience to perform the duties required in this Agreement;
o It is sufficiently staffed and equipped to fulfill its obligations under this Agreement and that it will not interfere with or derogate from full performance of this Agreement;
o It shall update necessary software and programs to ensure the availability of access to the Virtual Machines that Cloud My Office provides;
o It shall not use any Software or provide clients with services that are in violation of the Intellectual Property rights of any third party;
o It shall maintain one active internet source through a reputable internet provider;
o It retains all proper licensing rights to any program distributed through Cloud My Office’s services.
Your Representations and Warranties
By using our Services:
o You represent and you warrant that you are of legal age to form a binding contract, and you are not barred from receiving services under the laws of the United States or other jurisdictions.
o You represent and you warrant that you are financially able to pay the Fees required through the Term of this Agreement and any additional amendments or attachments appended hereto.
o You agree to provide current and accurate identification, contact, credit card and other information as part of the registration process for access to our Services.
o You agree to be solely responsible for all content on your account. Your account, including your username and password, are personal to you and should not be used by anyone else.
o You agree to be solely responsible for maintaining the confidentiality of your account information, and you are responsible for all activities that occur under your account.
o You agree to be solely responsible for backing up any and all data stored within your Cloud My Office account. Cloud My Office will not be liable for any loss or damage arising from your failure to back up the data on your account
o You understand and agree that all requests for additional storage are subject to availability. Flashpoint will not be liable for any situation of which Cloud My Office cannot immediately fill requests for additional space.
o You agree to immediately notify Flashpoint of any unauthorized use of your account or any other breach of security. Flashpoint will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your account secure.
o You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, files, attachments or other materials (“Content”) are the sole responsibility of the account from which such Content originated.
o Flashpoint reserves the right, but does not assume the responsibility, to monitor or review any Content on Cloud My Office Services. You agree that you are responsible for the conduct of all users of your account and any Content that is created, transmitted, stored, or displayed by, from, or within your account while using Cloud My Office services and for any consequences thereof.
o You agree to use Cloud My Office services only for purposes that are legal, proper and in accordance with the Terms of Service and any applicable policies or guidelines.
o You agree that you will not engage in any activity that interferes with or disrupts Cloud My Office services or servers or networks connected to Cloud My Office services.
o You represent and you warrant that you will not use Cloud My Office services in any way considered “prohibited” (listed below). Such actions are subject to the strict regulation of Cloud My Office and are grounds for suspension or termination of your Cloud My Office account.
You agree that activities listed below are a non-exhaustive list of prohibited uses of Cloud My Office’s Services:
o Employing programs that consume excessive CPU time (outside of allotted CPU), network capacity, disk IO or storage space.
o Sending unsolicited bulk electronic mail messages utilizing our network (“Spam”)
o Utilizing “warez”, including pirated software, ROMs, emulators, phreaking, hacking, phishing, password cracking or cheating, IP spoofing, etc.
o Utilizing BitTorrents, or related technology on our servers.
o Using a false email return address to confuse other users.
o Attempting unauthorized and/or illegal access of computers, networks and/or accounts not belonging to the party seeking access.
o Any act which interferes with the services of another user or network.
o Any act relating to the circumvention of security measures.
o Engaging in illegal activities or engaging in activities harmful to the operations of Cloud My Office or other customers.
o Engaging in terroristic activities.
o Providing false data on any contract or application, including fraudulent use of credit card numbers.
Any prohibited use of Cloud My Office listed above, or any other use of Cloud My Office services that Flashpoint deems to be unacceptable will result in immediate account suspension or cancellation without a refund and the possibility that Flashpoint will impose fees; and/or pursue civil remedies without providing advance notice.
You agree to defend, indemnify and hold Flashpoint harmless from any and all claims, actions, losses or expenses, including court costs and reasonable attorney fees, arising out of or relating to:
a. Services performed under this Agreement;
b. Warranties made by you pursuant to this Agreement and its appendices or other attachments; or
c. Personal injury or tangible property damage caused by the act or omission of Flashpoint and Flashpoint personnel, including claims based on fault or negligence of Flashpoint or Flashpoint personnel.
Intellectual Property Indemnification
You also agree to defend, indemnify, and hold Flashpoint harmless from any claim or action against Flashpoint for alleged infringement of Intellectual Property rights of a third party (the “Infringing Materials”) based on your use of any Software, service, or other materials furnished to you by Cloud My Office pursuant to the terms of this Agreement.
Service Level Agreement Liability
Flashpoint shall be held harmless from any and all claims, actions, losses or expenses, including court costs and reasonable attorney fees, arising out of or relating to the unavailability of the Cloud My Office service, excluding the Chargeback Credit provided for in the terms of the Service Level Agreement (listed above).
Term and Termination
The term of this Agreement (the “Term”) shall commence on the Effective Date, and shall continue in force for one (1) month. The Term shall renew automatically thereafter in monthly increments, unless otherwise terminated as provided herein.
Flashpoint reserves the right, at any time or for any reason, to suspend or cancel your Services account without notice. Upon cancellation or suspension of your account, your right to use the Services will stop immediately. You are responsible for backing-up your data that you use within our Services. Following account cancellation and deletion, you will not have access to any data that you stored on our Services. You acknowledge that we do not give pro-rated refunds for unused time if cancellation is initiated during the middle of a Fee Cycle.
You have the right, at any time or for any reason, to cancel your account with Cloud My Office. You may terminate your account by following the directions in your account’s Management Console, or you may contact us with your intent to terminate through electronic mail at: firstname.lastname@example.org. Upon termination: for security purposes, you are responsible for deleting your own account. Your right to access your account and the data stored within it is terminated immediately following account cancellation and deletion. You are responsible for backing-up your data that you use within our Services. Following account cancellation and deletion, you will not have access to any data that you stored on our Services. You acknowledge that we do not give pro-rated refunds for unused time if cancellation is initiated during the middle of a Fee Cycle.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT FLASHPOINT SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, PROFITS, BUISNESS INTERRUPTION, GOODWILL, USE OR OTHER INTANGIBLE LOSSES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE VMSTORM’S SERVICES; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (III) ANY OTHER MATTER RELATING TO CLOUD MY OFFICE SERVICES EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE MONETARY LIABILTY OF FLASHPOINT AND ANY OF ITS AGENTS, SUPPLIERS, EMPLOYEES, OR AFFILIATES IN CONNECTION WITH THE CLOUD MY OFFICE SERVICES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED THREE TIMES ONE MONTHS RECURRING FEE FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM AS OF THE TIME OF THE OCCURRENCE OF THE EVENTS GIVING RISE TO THE CLAIM.
Exclusions and Limitations
Nothing in this Agreement is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited.
No Third Party Beneficiaries
You agree that, except as otherwise expressly provided in this Terms of Service, there shall not be third party beneficiaries to the Terms of Service.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUD MY OFFICE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. CLOUD MY OFFICE DOES NOT WARRANT THE OPERATION OF ITS OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE. YOU AGREE THAT YOUR USE OF CLOUD MY OFFICE SERVICES SHALL BE AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A FLASHPOINT AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
You agree that Flashpoint may provide you with notices, including those regarding changes to the Terms of Service, by email, regular mail, or postings on Cloud My Office services.
The Terms of Service (including any policies, guidelines or amendments that may be presented to your from time to time) constitute the entire agreement between you and Flashpoint and govern your use of Cloud My Office Services, superseding any prior agreements between you and Flashpoint for the use of Cloud My Office services. You also may be subject to additional terms and conditions, rules, regulations, and applicable law that may apply when you use or purchase certain other Cloud My Office Updates. The provisions limiting Flashpoint’s liability will survive the expiration or termination of this Agreement and all appendices and attachments.
Choice of Law and Forum
The Terms of Service and the relationship between you and Flashpoint shall be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of law provisions. You and Flashpoint agree to submit to the personal and exclusive jurisdiction of the courts located within Centre County, Pennsylvania.
In the event of any dispute between the parties which arises under this Agreement, such dispute shall be settled by arbitration in accordance with the laws of the Commonwealth of Pennsylvania if a resolution cannot be attained by informal means within thirty (30) days of written notification of the dispute. Any dispute that reaches arbitration shall be held in the locale of Flashpoint’s choosing. The decision of the arbitrator shall be final and binding upon all parties.
Flashpoint may assign or transfer (whether by merger, reorganization, consolidation, Intellectual Property or otherwise) this Agreement or any obligation incurred hereunder. Flashpoint may assign this Agreement without the need for your consent to a subsidiary or affiliated company now existing or hereafter organized. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.
Waiver and Severability of Terms
If any provision of this Agreement is illegal or unenforceable, that provision is severed from this Agreement and the other provisions remain in force.
Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Cloud My Office Services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement for interruption of service directly or indirectly from acts of God. Neither party shall incur any liability to the other party for any losses or damages of any nature whatsoever incurred or suffered by that other party (otherwise than under any express indemnity in these Terms of Service or Service Level Agreement).
As soon as reasonably practicable following the date of commencement of a Force Majeure Event, and within a reasonable time following the date of termination of a Force Majeure Event, any party invoking it shall submit to the other party reasonable proof of the nature of the Force Majeure Event and of its effect upon the performance of the party's obligations under this Agreement.