Terms of Service
This Terms of Service Agreement (Agreement) is between Asia.Cloud Hosting Ltd. (Asia.Cloud, we, us, our) and the individual or entity to whom Asia.Cloud provides services (Customer, you, your). This Agreement consists of this Terms of Service Agreement, the Acceptable Use Policy (AUP), the Privacy Policy, the Service Level Agreement (SLA) and any other Agreements which reference this Agreement. The Incorporated Agreements are incorporated into this Agreement by reference. You are responsible for including these provisions in your agreements with your customers and users (End Users), and for all acts of your End Users under this Agreement.
The Effective Date of this Agreement is the date of account activation through the registration form (Order Form). The Order Form is completed by Customer online when signing up for Services (as that term is defined in this Agreement). The Term of this Agreement is set out on the web page describing the Services (Term). Customer consents to be bound by this Agreement by submitting the Order Form. Customer consents to any revisions to this Agreement or Incorporated Agreements by continuing to use the Services.
- Services
Asia.Cloud's web site sets out the technical specifications, term and pricing for the services it provides to Customer. Throughout this Agreement and Incorporated Agreements these are referred to as "Services." Certain aspects of the Services may be provided by third parties. If it is necessary to identify these aspects separately in this Agreement, they are referred to as "Third Party Services."
Customer's use of the Services must not exceed that of similarly situated customers (Fair Use). If Customer's use of the Services exceeds the Fair Use threshold, Asia.Cloud will notify Customer by email. Customer will have 2 days from the date on which Customer exceeds Fair Use to modify its use of the Services so as not to exceed Fair Use. If Customer fails to take this action, Asia.Cloud may assess Customer additional fees based on the costs associated with Customer's acts. Asia.Cloud may also terminate this Agreement, or suspend the Services, if by exceeding Fair Use Customer endangers Asia.Cloud's network or its ability to provide Services to other customers. To the extent that Customer's use of the Services exceeds the Fair Use threshold, and this use endangers Asia.Cloud's ability to provide services to other customer, or its network in general, Asia.Cloud may take action to mitigate this disruption without prior notice to Customer.
The following provisions govern certain Services:
- Configuration
Customer is solely responsible for determining whether Asia.Cloud's services and hardware configurations are suitable for Customer's intended use.
- IP Addresses
Asia.Cloud provides Customers with one IP address (Static IP) per virtual machine. Asia.Cloud will use reasonable efforts to provide advance notice to Customer prior to any change of a Static IP. Static IPs provided by Asia.Cloud may not be transferred or assigned by Customer. Static IPs are governed by the terms and conditions imposed on Asia.Cloud by ARIN, RIPE or APNIC. Customer may not terminate this Agreement should a change of either ARIN's or RIPE's or APNIC's rules and regulations alter this provision of the Agreement.
- Configuration
- Back Up
You are solely responsible for the preservation of your Content which you save onto its virtual server. ASIA.CLOUD SHALL HAVE NO RESPONSIBILITY TO PRESERVE DATA. ASIA.CLOUD SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF CUSTOMER FAILURE TO BACKUP THEIR DATA OR FOR ANY OTHER REASON.
- Fraud Prevention and Security Screening
Asia.Cloud uses multiple technologies to screen orders for fraud. Each request for new or additional Services is subject to fraud screening. Asia.Cloud is not obligated to provide the Services to Customer unless and until the information Customer provides to Asia.Cloud satisfies Asia.Cloud's fraud prevention controls. Should Customer fail to satisfy Asia.Cloud's fraud controls, Customer may remain responsible for Third Party Services ordered. Asia.Cloud is not responsible, and Customer agrees to hold Asia.Cloud harmless from, any liability or damage that Customer or any third party may sustain, should Customer fail to meet the criteria of the fraud prevention controls.
Asia.Cloud uses industry standard methods to secure the Services and its network. Customer is required to cooperate with Asia.Cloud's efforts to maintain this security. Customer is also required to report security deficiencies, viruses, and other network issues to Asia.Cloud. These incidents may be reported to Asia.Cloud at: [email protected]
If, in our sole discretion, we determine that our Services have been compromised by a security breach (Breach), we shall provide you with notice of the Breach within 24 hours after such determination (Breach Notification). It may be necessary to suspend the Services to cure, mitigate and investigate the Breach. We shall not be liable for any loss Customer may incur as a result of such suspension. The information contained in the Breach Notification may be of a preliminary and unconfirmed nature, and you rely on it at your own risk. All information you receive in connection with the Breach, including the Breach Notification, is confidential. We both agree to cooperate in investigating the Breach, but if our cooperation requires an inordinate expenditure of time and resources or we are asked to participate in a government investigation, we may be required to bill you at our standard consulting fees.
- Ownership
Customer is required to provide the contact information set out in the Order Form and in Asia.Cloud's control panel (Customer Information). Customer warrants that the Customer Information is accurate and up to date. We will use the Customer Information to determine ownership of the Services. If there is a dispute concerning ownership of the Services, we may freeze Customer's account until such time as the dispute is resolved by the parties.
If aspects of the Services are administered by Customer on behalf of another person or entity, Customer warrants that it will administer these Services in good faith. Customer further agrees to indemnify Asia.Cloud against all losses and liabilities sustained by Asia.Cloud should Customer administer the account in ways that are adverse to End Users and result in any claim against Asia.Cloud.
- Fees
The Fees for a particular Service are set out on the Order Form of each individual Service (Fees). Fees are guaranteed for the current Term. Should Asia.Cloud change the Fees during the Term, such changes will not take effect until the beginning of the next Renewal Term. From time to time, Asia.Cloud may offer special promotions with regard to the Fees. These promotions are specifically targeted, do not apply to previously ordered Services, and, depending upon their terms, may not apply to all Customers or Services introduced or added by customer in the future.
Asia.Cloud is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by Asia.Cloud. Currency exchange settlements will be based on agreements between you and the your credit card provider.
Fees will be charged to the payment method as Customer sets out in the Customer Information. Fees are due as set out in the Order Form. It is Customer's responsibility to ensure that their Customer Information is up to date and will not be declined. If Asia.Cloud does not receive undisputed Fees when charged (Payment Default), Customer's entire account will be suspended. During the time Customer's account is suspended because of a Payment Default, various features of the Services may not be available. Asia.Cloud is not responsible for any damages caused by an account suspended due to a Payment Default. Should Customer fail to cure a Payment Default within 10 days, public access to Services will be suspended. Should Customer fail to cure the Payment Default after 25 consecutive days this Agreement will be terminated, and all Services, including those for which Customer is not in Payment Default, will be terminated. Customer is responsible for all costs incurred by Asia.Cloud in its efforts to collect amounts due. These costs include, but are not limited to, collection fees, reasonable attorney's fees, and interest in the amount of 1.5% per month, or the highest amount Asia.Cloud may legally charge.
- Security
The security of your personally identifiable information is important to us. When you enter sensitive information (such as credit card number) on our registration or order forms and account management interfaces, we encrypt that information using secure socket layer technology (SSL). We support CVV/CVC check as well as secure authentication of Visa and MasterCard through the Verified By VISA and MasterCard SecureCode program for added security protection.
- Refunds
Pro-rated credits will be issued for cancelled services when customer retains any active service. Pro-rated refunds are issued if customer does not retain any active service and are specifically requested.
- Fee Disputes
Any disputes about Fees due must be presented in writing to Asia.Cloud at [email protected] prior to the date the Fee is due (Bill Dispute Notice). The Bill Dispute Notice must contain sufficient detail to allow Asia.Cloud to identify the basis and reasons for the dispute. If the Bill Dispute Notice is received by Asia.Cloud after the date a Fee is due, Customer has waived the right to dispute the Fee. Asia.Cloud will use reasonable efforts to investigate the dispute within 30 days of its actual receipt of the Bill Dispute Notice. Asia.Cloud will respond to the Bill Dispute Notice in writing. If Asia.Cloud finds that a particular Fee was charged in error, Asia.Cloud will credit Customer's account within 30 days. If Asia.Cloud disagrees with the Bill Dispute Notice, the parties agree that for a period of 60 days, they will work in good faith to resolve the dispute. If the parties fail to agree to resolve the dispute, the parties are entitled to exercise their rights under this Agreement or at law. During the time following Asia.Cloud's actual receipt of a Bill Dispute Notice, all undisputed Fees for Services must be paid when due. Customer agrees to waive its right to withhold Fees during a bill dispute, and/or to set off other Fees due against those in dispute.
- Security
- Term
The Term for a particular Service is set out on the Order Form. Upon expiration of the Term, the Order will renew for the period of the prior Term (Renewal Term), and subsequently renew at the end of each Renewal Term unless terminated as provided in this Agreement.
- Term
Asia.Cloud may terminate this Agreement, or an aspect of the Services covered by this Agreement, by providing the Customer with written notice of termination. Customer may terminate this Agreement, or an aspect of the Services by this Agreement, by logging into their Control Panel and/or using the Help Desk to submit cancellation request details to the Asia.Cloud Billing Department. This notice must be delivered at least 7 days prior to the expiration of the Term.
Either Customer or Asia.Cloud may terminate this Agreement, or an aspect of the Services covered by this Agreement, by providing the other with written notice of material breach. The party against whom material breach is alleged shall have 10 calendar days to correct the material breach. However, if the material breach is incapable of cure that aspect of the Services affected by the material breach, may be terminated immediately. Our decision to stop offering any Third Party Services shall not be considered a material breach.
Asia.Cloud may suspend or terminate this Agreement, or particular aspects of the Services covered by this Agreement, at Asia.Cloud's sole and exclusive discretion, if:
- Asia.Cloud receives a complaint that Customer has violated this Agreement, or any Incorporated Agreements, and Customer has not complied with Asia.Cloud's recommended course of action;
- a Third Party ceases making aspects of the Services available to Asia.Cloud, or continuing to provide the Services becomes commercially unreasonable; and/or
- a beta Program ends.
- Warranties
- Mutual Warranties
Customer and Asia.Cloud each agree that they have the requisite authority to enter into this Agreement, and that neither is prohibited from entering into it.
- Asia.Cloud Warranties
Asia.Cloud warrants that it will use reasonable efforts to deliver the Services to Customer as set out on the web page describing the Services upon the Effective Date.
- Customer Warranties
Customer represents and warrant to Asia.Cloud that: (i) Customer has the experience and knowledge necessary to use the Services; (ii) Customer understands and appreciates the risks inherent to Customer and Customer's business that come from accessing the Internet; (iii) Customer will provide Asia.Cloud with material that may be implemented by Asia.Cloud to provide the Services without extra effort on Asia.Cloud's part; (iv) Customer has sufficient knowledge about administering, designing and operating the functions facilitated by the Services to take advantage of the Services; (v) in entering into this Agreement, and performing the obligations set out in it, Customer will not violate any applicable laws and regulations; (vi) Customer owns, or has a license to use, all materials transmitted using the Services, or placed on Asia.Cloud's servers; and (vii) Customer will pass through the terms of Asia.Cloud's Acceptable Use Policy to End Users, and will be bound to End Users by a contract that is no less restrictive than this Agreement.
- Mutual Warranties
- Disclaimers
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS, AND WITH ALL FAULTS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 8.2, ASIA.CLOUD HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES, EITHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND TITLE. ASIA.CLOUD DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ADVICE GIVEN IN A COMMUNITY FORUM IS RELIABLE, ACCURATE OR WILL NOT DAMAGE CUSTOMER. ASIA.CLOUD IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER, OR STORED BY CUSTOMER OR AN END USER VIA THE SERVICES PROVIDED BY ASIA.CLOUD. ASIA.CLOUD SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY ASIA.CLOUD. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO ASIA.CLOUD SHALL BE PASSED THROUGH TO CUSTOMER, NOR SHALL CUSTOMER CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION CUSTOMER MAY HAVE RECEIVED FROM ASIA.CLOUD OR ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS, OR AFFILIATES. CUSTOMER MAY NOT RELY ON SUCH INFORMATION.
- Limitation of Liability
IN NO EVENT WILL ASIA.CLOUD'S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY ASIA.CLOUD FROM CUSTOMER FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM "ASIA.CLOUD" SHALL BE INTERPRETED TO INCLUDE ASIA.CLOUD'S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH ASIA.CLOUD.
CUSTOMER AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WILL NOT, UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD ASIA.CLOUD OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY CUSTOMER, ANY OF CUSTOMER'S END USERS, OR ANY OTHER THIRD PARTY. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, AND APPLY EVEN IF ASIA.CLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; CUSTOMER AGREES THAT IN THOSE JURISDICTIONS, ASIA.CLOUD'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
- Indemnification
Asia.Cloud shall indemnify and hold Customer harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against Customer so far as it is based on a claim that a Service infringes any issued patent. This indemnification provision is expressly limited to parts of the Service that are fully owned by Asia.Cloud. It does not extend to third party products or services, including Third Party Services, even if incorporated into the Service. This paragraph will be conditioned on Customer notifying Asia.Cloud promptly in writing of the claim and giving Asia.Cloud full authority, information, and assistance for the defense and settlement of that claim.
Customer shall have the right to participate in the defense of the claim at Customer's expense. If such claim has occurred, or in Asia.Cloud's opinion is likely to occur, Customer agrees to permit Asia.Cloud, at its option and expense, either to: (i) procure for Customer the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate Asia.Cloud's obligations (and Customer's rights) under this Agreement with regard to such Service and refund to Customer the price originally paid by Customer to Asia.Cloud for the Service, or the Fee actually received by Asia.Cloud from Customer for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
Customer agrees to indemnify, defend and hold harmless Asia.Cloud and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer's use of the Services or an End User or visitor's use of the Services through Customer; (ii) any violation by Customer, an End User, or visitor to Customer's site, of any of Asia.Cloud's policies; (iii) any breach of any of Customer's representations, warranties or covenants contained in this Agreement; (iv) any acts or omissions by Customer; and/or (v) any posts by Customer in the Community Forum. The terms of this section shall survive any termination of this Agreement.
- Intellectual Property
- Asia.Cloud's Intellectual Property
Asia.Cloud, or its third party vendors, retains ownership of all intellectual property rights in the Services. Asia.Cloud grants to Customer a non-exclusive, non-transferable, worldwide, royalty-free license to use the intellectual property provided by Asia.Cloud solely to access and use the Services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out herein, this license does not grant any additional rights to Customer. All right, title and interest in Asia.Cloud's intellectual property, or that of its third party vendors, shall remain with Asia.Cloud or its licensors. Customer is not permitted to circumvent any devices designed to protect Asia.Cloud's, or its licensor's, ownership interests in the intellectual property provided to Customer. In addition, Customer may not reverse engineer this intellectual property.
All information you provide to Asia.Cloud in the course of our support and administration of the Services shall be owned by Asia.Cloud. You waive and assign any right, title and interest you may have in the intellectual property contained in this information and shall cooperate with us in securing our rights.
Any license provided to Customer is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, or duplication.
- Customer's Intellectual Property
Customer grants to Asia.Cloud, and, if required, Asia.Cloud's third party vendors, a non-exclusive, non-transferable, worldwide, royalty-free license to use Customer's intellectual property (or that of its third party vendors and/or End Users) for the limited purpose of providing the Services to Customer. This license terminates upon termination or expiration of this Agreement. Except for the license rights granted herein, this license does not grant any additional rights to Asia.Cloud. All right, title and interest in Customer's intellectual property, or that of its third party vendors, shall remain with Customer or its licensors. Asia.Cloud is not permitted to circumvent any code designed to protect Customer's, or its licensor's, ownership interests in the intellectual property provided to Asia.Cloud. In addition, Asia.Cloud may not reverse engineer this intellectual property.
- Licenses Customer is Required to Have
Other than as set out in paragraph 12.1 above, Customer is solely responsible for obtaining all licenses and other intellectual property rights necessary to use the Services (Third Party Licenses). Upon written request, Customer agrees to provide Asia.Cloud with reasonable assurances that it has received the Third Party Licenses, including, but not limited to, written copies of the Third Party License.
- Asia.Cloud's Intellectual Property
- Miscellaneous
- Notices will be sent to Customer at the address in the Customer Information.
Notices regarding this Agreement and other Asia.Cloud policies should be directed to:
Asia.Cloud Hosting Ltd.
Attention: Legal Notices
Unit A, 21st Floor, 128 Wellington Street
Central, Hong Kong - Force Majeure
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, failures of beta products, or other circumstances beyond its reasonable control. Other than failures of beta products, the obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. Other than failures of beta products, the party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than 10 days from the beginning of the event. For beta products, Asia.Cloud shall have no liability or notice requirement whatsoever.
- Governing Law and Jurisdiction, Statute of Limitations
The parties agree that all disputes shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region (HKSAR). The parties agree that the courts or Hong Kong shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this Agreement or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the court set out above, and agree that they shall not contest notice from that court.
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 Asia.Cloud services or the Terms of Service must be filed within one year after such claim or be forever barred.
- No Waiver
No waiver of rights under this Agreement, or any Asia.Cloud policy, or other agreement between Customer and Asia.Cloud, shall constitute a subsequent waiver of this or any other right under this Agreement.
- Assignment
This Agreement may be assigned by Asia.Cloud. It may not be assigned by Customer. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties
- Severability
In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
- No Agency
This Agreement does not create any agency, partnership, joint venture, or franchise relationship between the parties. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. The parties are independent contractors.
- Survival
The provisions of paragraphs 1, 9, 10, 11, 13.1, 13.3, 13.4, 13.5, 13.6, and 13.8 will survive the expiration of this Agreement or its termination for any reason.
- Notices will be sent to Customer at the address in the Customer Information.
Last updated January 28, 2017