Posted: July 5, 2013.
These TERMS OF SERVICE ("Terms") are made between i2 Internet, Inc. d/b/a Cloud3x (referred to here as “i2”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “you” or “Customer”).
These Terms form a binding agreement between i2 and you regarding your use of and access to i2’s web and email hosting services (the “Services”). All access to and use of the Services available from i2 is subject to these Terms.
By using the Services, you agree to be legally bound by these Terms. IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS, i2 IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SERVICES AND YOU MUST NOT ACCESS OR USE THE SERVICES. IF YOU ACCESS OR USE THE SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS AND AGREE TO BE BOUND BY THESE TERMS.
These Terms may be modified by i2 from time to time, and you should check regularly for any updates. You agree that any modifications to the Terms shall be effective 30 days following posting by i2. Your continued use of the Services following such 30-day period constitutes your acceptance of the modified Terms.
These Terms are entered into as of the earlier of the date you first submit an Order (as defined below) relating to the Services or first access or use of the Services (the “Effective Date”).
- DEFINITIONS. The capitalized terms used in these Terms will have the definitions given in these Terms or, if not defined in these Terms, will have their plain English meaning as commonly interpreted in the United States.
- ELIGIBILITY. The Services are not available to individuals under the age of 18 or who do not meet any of the other qualifications included in these Terms.
- STARTUP AND COMMERCIAL SERVICES. These Terms shall apply to your use of the Services, referred to by i2 as “Startup Services” (for which i2 does not charge you a fee), as well as to the Services referred to by i2 as Pro, Agency, or Enterprise Services (collectively, the “Commercial Services”) (for which i2 charges you a fee).
- ORDERS. The Services you receive from i2 will be as set forth on an order form submitted by you online and accepted by i2 (each, an “Order”). These Terms will govern and control the terms of each Order and acceptance by i2. By accessing or using any of the Services, you agree to be bound by the terms of these Terms and each applicable Order with respect to the Services stated in that Order.
5. YOUR USE OF THE SERVICES.
5.1. Subscription. Subject to these Terms, during the term i2 will provide you with a limited subscription to access and use the Services subject to Orders accepted by i2 under these Terms, solely in connection with your own business purposes.
5.2. Access to Services. Upon confirmation of your Order by i2, the rights granted to under these Terms entitle you to access the Services through one or more accounts (each, an “Account”). You will be provided with a user identification and password applicable to each Account you have created (each such user identification and password, an “Account ID”). Each Account ID is personal in nature and may be used only by you or, if you are an organization, by designated employees within your organization (such individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each Account ID and will notify i2 immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that you are fully responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID (including without limitation the configuration of the Services provided through the Account) will be deemed to have been lawfully completed by you. In no event will i2 be liable for the foregoing obligations or the failure by you to fulfill such obligations. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you and each User to connect to, access, and use the Services.
5.3. Your Content. You will be solely responsible for all data, information, and other content that you or any End User (as defined below) may provide to i2 or transmit through the Services, including, without limitation, (a) the content of any data transmitted through or using the Services, or (b) any personally identifiable information relating to you or any End User, customers, service providers, employees, contractors, recipients, or agents generated or provided to i2 through your use of the Services (collectively, “Your Content”). You grant to i2 all necessary rights and licenses in and to Your Content necessary for i2 to provide the Services under these Terms. As between you and i2, you retain all of your rights in and to Your Content and do not convey any proprietary interest therein to i2. You represent and warrant that none of Your Content or any End Users’ use of Your Content violates these Terms. You will maintain an adequate back-up of all Your Content and i2 will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your Content. You represent and warrant to i2 that you have all necessary right, title, interest and consent necessary to allow i2 to use Your Content for the purposes for which you provide Your Content to i2. You will defend, indemnify and hold harmless i2 from any and all losses, costs, damages, liabilities or
expenses (including without limitation reasonable attorney's fees) incurred or arising from any claim by a third party arising out of or relating to Your Content or the use thereof by i2 in providing the Services.
5.4. Restrictions. You acknowledge that the Services as well as the proprietary software, materials, formats, interfaces, information, data and content used by i2 or provided to you in connection with the Services, and all Intellectual Property therein and related thereto (collectively, the "i2 Technology") constitute valuable trade secrets of i2. You will not, and will not permit any third party or End User to: (a) access or use the i2 Technology, in whole or in part, except as expressly provided in these Terms; (b) use the i2 Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the i2 Technology; (c) alter, modify, reproduce, create derivative works of the i2 Technology; (d) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the i2 Technology; (e) use the i2 Technology to obscure or alter the identification of the origin of any data transmitted through the Services; (f) use automated scripts to collect information from or otherwise interact with the Technology except as permitted by i2 through published APIs for the Services; (g) interfere in any manner with the operation or hosting of the i2 Technology, or attempt to gain unauthorized access to the i2 Technology; (h) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (i) attempt to gain unauthorized access to the Services or their related systems or networks; or (j) use the Services or a Server to deliver bulk communications of any kind, including without limitation solicitations via electronic mail, on-line social networks, or text messages.
5.5. End User Violations. “End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Services under your Account. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to these Terms, Your Content, or use of the Services. You are responsible for End Users’ use of Your Content and the Services. You will ensure that all End Users comply with your obligations under these Terms and that the terms of your agreement with each End User are consistent with these Terms. If you become aware of any violation of your obligations under these Terms by an End User, you will immediately terminate such End User’s access to Your Content and the Services.
5.6. End User Support. You are responsible for providing customer service (if any) to End Users. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
5.7. Limitation on Number of End Users. You are limited to providing (a) access to or use of Your Content; or (b) otherwise access to or use of the Services under your Account to fifty (50) or fewer End Users.
6. POLICIES AND SECURITY.
6.1. Modification/Discontinuation. i2 reserves the right to modify or discontinue the features, functionality and other attributes of the Services at any time in its sole discretion to you or any End User. You acknowledge and agree that i2 will not be liable to you in connection with its modification or discontinuation of the Services.
6.2. Security. i2 will use industry standard efforts to maintain the confidentiality of Your Content. Although i2 will implement and follow measures to protect against unauthorized access to or interception of your keys, you acknowledge and agree that i2 cannot fully eliminate security risks and cannot guarantee that unauthorized access to Your Content will never occur. You acknowledge and agree that i2 may disclose information about you or your use of the Services, or any End User or any End User’s use of the services, if compelled by law to do so, or if such action is deemed by i2 reasonably necessary to (a) comply with any applicable laws rules or regulations, (b) comply with any legal process, (c) enforce these Terms, (d) respond to claims that such information violates a third party's rights, or (e) protect the interests of i2 or other third parties.
7. FEES, PAYMENT AND SUSPENSION OF SERVICES. As consideration for i2’s provision of Commercial Services under these Terms, you will pay i2 the fees ("Fees") set forth in each Order in accordance with the terms set forth in that Order and these Terms. If an applicable Order does not specify any applicable billing terms, the initial payment of Fees specified under that Order for each period in your subscription will be due and payable by you in advance on or before the Effective Date and again on or before the start of each subsequent period under these Terms. All Fees will be non-refundable once paid to i2 (including upon any termination or suspension of these Terms). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1.5% per month or the maximum amount permitted under applicable law. i2 may change any portion of the Fees by notifying you through the Services of the change, such changes to take effect at the beginning of the next period of these Terms. You will provide a payment card or debit bank account and related billing and payment information requested by i2. You grant i2 the right to charge the payment card or debit the bank account provided to i2 for all Fees incurred under these Terms. You further agree that any such information you provide to i2 may be shared by i2 with payment processors and/or credit agencies, solely for the purposes of checking credit and effecting payment to i2 for the Services. i2 shall not be liable for any use or disclosure of such information by such third parties. All Fees are expressed in and all payments will be made in U.S. dollars. All Fees owed by the Customer in connection with these Terms are exclusive of, and the Customer shall pay, all sales, use, excise and other taxes that may be levied upon the Customer in
connection with the Services, except for taxes based on i2’s net income. i2 reserves the right (in addition to any other rights or remedies i2 may have) to discontinue the Services and suspend the Customer's or any End User’s access to the Services if any Fees owed are more than two (2) business days overdue until such amounts are paid in full.
8. INTELLECTUAL PROPERTY RIGHTS.
8.1. Services and Technology. You acknowledge that i2 retains all right, title and interest in and to the Services, as well as to the i2 Technology. Other than as expressly set forth in these Terms, no license or other rights in the Services, i2 Technology, or any Intellectual Property Rights therein or related thereto are granted to you, and all such rights are hereby expressly reserved by i2. For purposes of these Terms, “Intellectual Property Rights” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
8.2. Anonymous and Aggregated Data. Notwithstanding anything else to the contrary in these Terms, i2 may aggregate and de-identify the information provided by you including, without limitation, information and data on how the Services are used by you or any End User. i2 reserves the right to disclose to and share such information and data with third parties in an anonymous and aggregate form at its discretion.
9. TERM AND TERMINATION.
9.1. Term. If you have ordered the Startup Services, as indicated in an applicable Order, then the term of these Terms will continue for the period of the Startup Services indicated in the applicable Order and will thereafter expire unless you convert (either automatically or through a new Order) to the Commercial Services before the end of such period. If you have ordered or converted to the Commercial Services, then the term of these Terms will continue for the initial period stated in the applicable Order for the Commercial Services and will thereafter automatically renew for successive additional periods of equal duration. If no initial period is stated in the applicable Order for the Commercial Services, these Terms will continue for an initial period of one (1) month and will thereafter automatically renew for successive additional one (1) month periods. Unless terminated as set forth herein, these Terms will continue to renew until you notify i2 that you do not wish to renew these Terms at least 10 days prior to the end of the then-current period. In all other cases, these Terms will continue until terminated as set forth herein.
9.2. Termination. You may terminate at any time by canceling the Services online with i2; provided, however, any such termination shall not relieve you of any payment obligations to i2 in connection with your use of the Services or entitle you to a refund of any prepaid Fees. These Terms may be terminated by i2, at any time, in i2’s sole discretion: (a) upon any breach by you of these Terms that remains uncured ten (10) days after i2 delivers written notice to you of such breach; or (b) at any time during any Startup Services for any reason or no reason, upon notice to you. In addition, i2 may suspend your access to the Services at any time, for any reason, including, without limitation, if i2 believes that: (i) you or any End User has violated these Terms, or (ii) you or any End User has violated the rights of i2 or any third party.
9.3. Effects of Termination. Upon termination or expiration of these Terms for any reason: (a) the rights and subscriptions granted hereunder shall terminate effective immediately you shall promptly discontinue use of the Services; (b) you will immediately cease all use of and access to the Services, including use of and access to the Services by any End User; (c) all Fees then owed by you will become immediately due and payable; and (d) you will immediately either return to i2 or, at i2's discretion, destroy any i2 Technology or content or other data, content or information of i2 in your possession or control. i2 shall have no liability to you or any End User as a result of its termination of these Terms or suspension of your access to the Services as permitted by these Terms. The following provisions will survive termination or expiration of these Terms for any reason: 1, 3, 4, 7, 8, 9, 10, 11, 12, and 13.
10.1. By i2. Except in the case of any Startup Services, i2 represents and warrants to you that i2 will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with these Terms. i2’s sole obligation and your sole and exclusive remedy in the event of any failure by i2 to comply with the foregoing sentence will be for i2 to, at i2’s option, re-perform the affected Services or refund to you the fees you have actually paid for the affected Commercial Services during the month in which the failure occurred. Notwithstanding the foregoing, you remain solely and entirely responsible for your compliance with, and will defend, indemnify and hold harmless i2 from and against any claims arising from any actual or alleged violation by you or any End User of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding use of the Services or regarding your business, products or services.
10.2. By You. You hereby represent, warrant, and covenant for the benefit of i2 that: (a) you have the legal right and authority to enter into these Terms and meet all requirements to use and access the Services; (b) if you are accepting these Terms on behalf of a company or other entity, you have all legal right and authority to bind that company or other entity to the terms of these Terms; (c) you have the legal right and authority to perform your obligations under these Terms and to
grant the rights and licenses described in these Terms and in any applicable additional agreement you enter into in connection with any of the Services; and (d) all content, data, information or materials you provide to i2 in connection with these Terms or your access to the Services is correct and current.
11. DISCLAIMER. i2 MAKES NO WARRANTIES CONCERNING THE SERVICES, i2 TECHNOLOGY, OR ANY DATA, CONTENT, INFORMATION, MATERIALS, OR DOCUMENTATION PROVIDED IN CONNECTION WITH THE SERVICES. ALL SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". i2 DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. i2 DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE. YOU UNDERSTAND THAT ALL DATA, INFORMATION OR OTHER MATERIAL PLACED ON SERVERS BY YOU ARE YOUR SOLE RESPONSIBILITY. i2 IS NOT RESPONSIBLE FOR ANY LOSS OF DATA OR HARM DONE TO YOUR COMPUTER, SYSTEMS OR OTHER EQUIPMENT ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND DISCRETION.
12. INDEMNITY. You hereby indemnify, defend, and hold harmless i2 and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from your or any End Users’ use of the Services, violation of any law, or infringement upon or misappropriation of any third party Intellectual Property Right or any other third party's rights, a breach of these Terms, or a dispute between you and any End User. i2 will provide you with notice of any such claim or allegation, and i2 will have the right to participate in the defense of any such claim at its expense.
13. LIMITATION OF LIABILITY. i2’s TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THE SERVICES (HOWEVER CAUSED, UNDER ANY LEGAL THEORY, INCLUDING CLAIMS IN CONTRACT, TORT, OR STRICT LIABILITY) WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO i2 BY THE CUSTOMER IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING FORMAL WRITTEN NOTICE FROM YOU OF THE CLAIM FOR LIABILITY HEREUNDER (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). TO THE MAXIMUM EXTENT PERMITTED BY LAW, i2 WILL NOT BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES (HOWEVER CAUSED, UNDER ANY LEGAL THEORY, INCLUDING CLAIMS IN CONTRACT, TORT, OR STRICT LIABILITY), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, EVEN IF i2 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND ACKNOWLEDGE THAT i2 WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, i2’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. GENERAL PROVISIONS
14.1. Assignment. You may not assign any rights or obligations arising under these Terms, whether by operation or law or otherwise, without the prior written consent of i2. i2 may assign these Terms to any party that assumes i2’s obligations hereunder. These Terms shall inure to the benefit of and shall be binding on the permitted successors and assignees of the parties. Any attempted transfer of assignment hereof in violation of this Section 14.1 is null and void.
14.2. Governing Law and Venue. These Terms will be governed by and construed in accordance with the laws of the State of Colorado without giving effect to principles of conflict of laws that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Any action or proceeding arising from or relating to these Terms must be brought in any federal court in Denver, or state court in Boulder, Colorado, or any court having jurisdiction over such courts, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under these Terms results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys' fees of the prevailing party.
14.3. Miscellaneous. Any notice or other communication required or permitted under these Terms and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address), provided that i2 may additionally deliver any notice to you under these Terms to the email address i2 maintains on file for you. These Terms constitute the entire understanding and agreement of the parties, and supersede any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Except as set forth herein, only a writing signed by both parties may
modify or amend these Terms. If any provision of these Terms is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.