TOS APPLIES TO ALL CLOUDGAROO WEB SOLUTIONS (“CLOUDGAROO”) CLIENTS.
TOS applies automatically to all Cloudgaroo clients upon subscription to the Services including subscription through a third party or any commercial partner. BY SUBSCRIBING TO CLOUDGAROO’S SERVICES YOU ACCEPT THE POLICIES LISTED IN THIS DOCUMENT AND ACCEPT TO RESPECT THEM. The service order is described as the package description as presented on the web site. In this document, Cloudgaroo Hosting sections apply to subscribers of the Hosting packages.
Cloudgaroo agrees to provide services described in the Service Order(s) signed by the parties (“Services”) to the Customer subject to the following TOS. Use of Cloudgaroo services constitutes acceptance and agreement to these Terms Of Service and all attachments. Cloudgaroo will make all reasonable efforts to provide a quality service to the Customer.
Cloudgaroo will use the Customer’s personal information only as reasonably necessary to provide contracted services and to collect fees owed and will not disclose such information to any third party except as required by law as evidenced by an order of a court of competent jurisdiction and to collection services if needed. The Customer authorizes Cloudgaroo to use it’s name, business name and comments in marketing documents. At any time, the Customer can send a written notice to withdraw this authorization.
Cloudgaroo will provide to the Customer the Internet Connectivity, IP Addresses and Internet Traffic services (collectively, the “Bandwidth Services”), as specified in the Service Order. The Customer agrees to use bandwidth as described in the Acceptable Usage Policy.
Any IP Addresses allocated to the Customer by Cloudgaroo must be maintained by the Customer in an efficient manner as deemed by ARIN and utilized at 80% within 30 days of assignment by Cloudgaroo to the Customer. Failure to comply with this Section may result in the revocation of IP Addresses by Cloudgaroo after five days notice to the Customer. Cloudgaroo shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to the Customer by Cloudgaroo, and Cloudgaroo reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Upon request by the Customer, Cloudgaroo may at its discretion, provide the Customer with technical and non-technical support, such as equipment reboots, troubleshooting, DNS and other support, in connection with the Customer’s use of the Customer Space and Bandwidth Services. The Customer agrees to pay the hourly rate of $150 CA for those other services.
INSTALLATION, REMOVAL, REPLACEMENT, MAINTENANCE AND ACCESS TO EQUIPMENT
Cloudgaroo is the owner of the equipment used by the Customer and grants a license to use this equipment. The Customer has no rights on the equipment. Physical access to the equipment by the Customer is strictly prohibited.
If, in the determination of Cloudgaroo, acting reasonably, the Equipment, software or hosted applications used by the Customer or the activities of the Customer poses an immediate threat to the physical integrity of the Premises or the physical integrity or performance of the equipment or network of Cloudgaroo or any other user of the Premises, or poses an immediate threat to the safety of any person, then Cloudgaroo may perform such work and take such other actions that it may consider necessary without prior notice to the Customer and without liability for damage to the Equipment or Data for any interruption of the Customer’s (or its Customers’) businesses. As soon as practical after performing such work, Cloudgaroo will advise, by email, the Customer of the work performed or the action taken.
The Customer will, upon email request from Cloudgaroo’s, relocate the Equipment, server or web site to other space offered by Cloudgaroo within 30 days of such request.
Under no circumstances will Cloudgaroo be obligated to provide insurance coverage for any Equipment or data owned by the Customer and hosted in the Premises.
IF THE CUSTOMER IS IN FAULT
If the Customer is in fault of any of its obligations under this Agreement, then Cloudgaroo may in its sole discretion do any or all of the following: (i) without notice suspend access to the Customer Space or the Premises, (ii) if the Customer’s fault is non-payment of any sums due to Cloudgaroo, exercise all the rights and remedies of a secured party under applicable law including, without limitation, with the minimum notice (if any) required by law, Cloudgaroo may seize the Equipment and sell the Equipment to third parties in satisfaction of any Customer indebtedness owing to Cloudgaroo as well as any costs (including reasonable legal fees) incurred by Cloudgaroo in exercising any remedy under this Agreement.
BILLING AND TERMINATION
Invoices are sent by email, upon request a copy can be sent by mail. For services ordered on a monthly basis, the First Month’s Payment shown in the Service Order must be paid by the Customer to Cloudgaroo before commencement of the Term. All other invoices must be paid by the Customer within 15 days from the date of Cloudgaroo’s invoices, which invoices will be issued 15 days before the end of the last paid period.
All the monthly recurring fees are payable in advance as per the Customer’s selected terms (i.e.: monthly, quarterly, yearly). The first month of service is payable as specified in the Service Order, and must be paid by the Customer to Cloudgaroo at the opening of the account. All fees must be paid in Canadian dollars in the fifteen (15) days following the date showing on the invoices sent by Cloudgaroo which are sent 15 days before the end of the paid period. All payments that are not issued in time will know a monthly 2% interest fee compounded monthly (equivalent to a yearly interest rate of 26.86%). Bounced checks or automatic withdrawals are subject to penalty fees of $40.00 CAD.
AUTOMATIC DEBITS BY CREDIT CARD
In the case of payments by credit card, Cloudgaroo will use the information in its possession to make a payment at the invoice date. The Customer will not receive any previous notification but will receive a notice after every debit on the credit card. If ever the Customer wants to disable the automatic debit, they will only need to remove their credit card information via Cloudgaroo’s client portal. If the Customer wants then to re-enable the automatic debit, they will need to re-enter their credit card information via Cloudgaroo’s client portal. By submitting an initial payment or re-activating the automatic debit option, the Customer confirms that they have read and accept the conditions related to the automatic debit. In addition, the Customer allows Cloudgaroo to withdraw the amount of the unpaid balance from the credit card. The client also authorizes the financial institution issuing the credit card to charge his account for the amounts related to the Cloudgaroo services. This authorization will be valid until an authorized person on the account asks to suspend the automatic debit.
The Customer will pay by pre-authorized payment with a Customer credit card, or by cheque from immediately available funds remitted to Cloudgaroo. Payment by cheque will only be accepted for minimal three (3) month prepayment periods.
Service will be interrupted on past due accounts after a 48 hours notification. This suspension will be executed by removing FTP access and changing the home page of the account. Service interrupted for nonpayment is subject to a $25 reconnect charge. Accounts that are not collectible by Cloudgaroo may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay the company a “Processing and Collection” Fee. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this TOS.
Upon 30 days or greater written notice prior to the end of the initial commitment, Cloudgaroo may change any fees payable under this Agreement.
TERM AND TERMINATION
The term of this Agreement shall begin upon the date the server is installed and made available to the Customer and shall be for the period stated in the commitment section of the Service Order. If no commitment is stated, the term will be of 1 year. Agreement is renewed for successive 1 month after initial commitment until terminated by either Party. After initial commitment stated on the service order, either party may terminate this Agreement on the account’s anniversary date (an account anniversary date corresponds to the day of the month at which an account was opened.) (i) for convenience on 48 hours before the next anniversary date written notice to the other party, or (ii) if the other party (x) commits a material default (which, in the case of the Customer, will include any failure to make any payment when due) and fails to rectify such default within 10 days after being given notice of such default by the other party, or (y) becomes the subject of any voluntary proceedings under any bankruptcy or insolvency laws, or becomes the subject of any involuntary proceedings under any bankruptcy or insolvency laws which are not dismissed or withdrawn within 60 days after filing.
Cancellation requests must be made using the “Client Portal” control panel or in writing with the Customer’s signature with at least 48 hour’s notice and sent to: Cloudgaroo Web Solutions, PO Box 54572 – 7155 Kingsway, Burnaby, British Columbia, V5E 4J6, Canada. You can also send the cancellation request by e-mail at support[at]cloudgaroo.com.
Any prepayment is a commitment regarding the payment period that cannot be refunded outside the terms of the satisfaction warranty which applies for 30 days following the opening of the account. However, when closing a product, the account may be credited with the value of advanced payments for that product. The credit may be used for further purchases at Cloudgaroo.
Billing errors can be credited retroactively for a period of up to two (2) months.
Upon account activation, Cloudgaroo reserves space, equipment and resources for the Customer’s needs. The Customer must pay its account even if they are not making any use of it.
The Customer hereby authorizes Cloudgaroo and gives consent to Cloudgaroo under applicable privacy laws for Cloudgaroo to obtain credit information and bank and other financial references regarding the Customer for the purposes of assessing the Customer’s credit worthiness, and the Customer will promptly execute and deliver to Cloudgaroo such further documents and assurances and take such further actions as Cloudgaroo may from time to time reasonably request in order to carry out the intent and purpose of this Section.
The Customer has 30 days following the account’s activation date to cancel their subscription with complete reimbursement of the monthly fees paid. Exclusions, terms and conditions of the guarantee are posted in the Service Guarantees section of our web site.
GUARANTEED NETWORK AVAILABILITY
Cloudgaroo will provide 100% transit to the Internet to all the Customers who have purchased said service from Cloudgaroo. Exclusions, terms and conditions of the guarantee are posted in the Service Guarantees section of our web site.
LIMITATION OF LIABILITY
THE CUSTOMER ACKNOWLEDGES THAT CLOUDGAROO PERMITS OTHER CUSTOMERS TO INSTALL THEIR SOFTWARE AND EQUIPMENT IN THE PREMISES. CLOUDGAROO WILL HAVE NO LIABILITY FOR ANY DAMAGES, COSTS, OR LOSSES INCURRED BY THE CUSTOMER (OR ITS CUSTOMERS) CAUSED BY SUCH OTHER LICENSEES’ ACTS, EQUIPMENT, SOFTWARES, ACTIVITIES OR FAILURES TO ACT. THE LIMIT OF CLOUDGAROO’S LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR BY STATUTE OR OTHERWISE TO THE CUSTOMER (OR ITS CUSTOMERS) CONCERNING PERFORMANCE OR NON-PERFORMANCE IN ANY MANNER RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS WILL NOT, IN THE AGGREGATE, EXCEED THE TOTAL FEES PAID BY THE CUSTOMER TO CLOUDGAROO. UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING 3 MONTHS FROM THE DATE THE CLAIM AROSE. IN NO EVENT WILL CLOUDGAROO BE LIABLE FOR ANY LOST PROFITS, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
Neither party will be liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, or other similar event beyond the control of the party affected (“Force Majeure”). If any Force Majeure occurs, the party claiming the Force Majeure will promptly notify the other. The party claiming the Force Majeure will use commercially reasonable efforts to eliminate or remedy the Force Majeure. This Section will not apply to excuse a failure to make any payment when due.
Cloudgaroo will make all possible efforts to provide a backup mechanism and keep complete backup copies of all shared hosting solutions exclusive of VPS or Dedicated hosting packages. However, the Customer must keep a personal backup copy of its software, sites, databases and all hosted content. Cloudgaroo should not be held responsible of any loss of data or data corruption.
The Customer in the normal course of its business may resell to its Customers use (subject to all the terms of this Agreement) of the Customer Space, Resources and Bandwidth Services provided by Cloudgaroo to the Customer pursuant to this Agreement, except that the Customer will not allow such Customers to interconnect with other users in the Premises. Any act or omission of any such Customer that would be a breach of this Agreement if committed by the Customer will be deemed a breach of this Agreement by the Customer. The Customer agrees to defend, indemnify and hold harmless Cloudgaroo, and its officers, directors and employees (collectively, the “Compensated”), from any and all liabilities, costs and expenses, including reasonable legal fees, related to or arising from (i) any act or omission of any such the Customer that would be a breach of this Agreement if committed by the Customer, and (ii) any claim by any such Customer arising from use of the Premises, services provided by Cloudgaroo under this Agreement or otherwise from performance or non-performance by a party in any manner related to this Agreement.
RESPONSIBILITY FOR CONTENT
The Customer is solely responsible for the content stored on and served by their servers.
This Agreement including the attachments hereto and any Service Orders signed by the parties constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, CLOUDGAROO MAKES NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. In case of any dispute or inconsistency this main agreement, any attachments, and/or any Service Order, the Service Order will take first priority, this main agreement will take second priority and the attachment will take third priority in interpreting the parties’ rights and obligations.
SEVERABILITY AND REFORMATION
If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
GOVERNING LAW AND JURISDICTION
Any disputes arising from this Agreement will be arbitrated in Vancouver, British Columbia. This Agreement shall be governed and construed in accordance with the laws of the Province of British Columbia, Canada.
Complaints or TOS & AUP violations must be reported to abuse[at]cloudgaroo.com or by mail at: Cloudgaroo Web Solutions, PO Box 54572 – 7155 Kingsway, Burnaby, British Columbia, V5E 4J6, Canada.
CHANGES AND RIGHTS
Cloudgaroo may update these rules and regulations from time to time in its sole discretion, and the Customer will comply with all other reasonable security requirements that Cloudgaroo may impose from time to time, provided that the Customer has been given 30 days’ notice.