TryTheCloud™ Terms of Service

These TryTheCloud™ terms of service (TOS) are entered into between Hosting.com, Inc. (Hosting.com, we, us, or our) and the entity using our TryTheCloud™ services provided by or through Hosting.com (You or your). We agree to be bound by this TOS when we process your activation of your trial account. You agree to be bound by this TOS when you click on the link to activate your trial account. 

You understand and agree that the TryTheCloud™ services are being provided to you on a TRIAL basis only and that this TOS is not a “Master Services Agreement” (pursuant to which other services are provided by us) and shall not be construed as such.  IF YOU DESIRE TO RECEIVE ANY SERVICES FROM HOSTING.COM FOR ANY PERIOD OF TIME BEYOND THE TERM OF THIS TOS, YOU MUST EXECUTE AND DELIVER A MASTER SERVICES AGREEMENT. 

If you are a Hosting.com customer as of the Effective Date or if you become a Hosting.com customer during the term of this TOS, this TOS shall not in any way supersede or affect any of the terms and conditions set forth in any Master Services Agreement or similar agreement or any agreement or document attached thereto or referenced therein between Hosting.com (or any related entity) and you (or any related entity). 

1. Our other agreements are incorporated into the TOS

This TOS incorporates our Acceptable Use Policy (AUP) and Privacy Policy by reference. To the extent that these agreements conflict, this TOS shall prevail, followed by the AUP and Privacy Policy.

2. The Services we provide to you are for trial purposes only

Throughout this TOS, the service(s) offered to you by Hosting.com is referred to collectively as the "Service.”  The Service may include cloud enterprise services, software licensing, standard patching, and/or cloud replication between cloud sites.

The Service is provided to you on a trial basis only. Your trial account is for you only, and you shall not permit any third party to use the Service without our prior written consent. Hosting.com may modify or terminate the Service at any time for any reason or no reason.  You shall not have any recourse against us for any losses related to any modification or termination.  Your sole remedy for any dispute or disagreement arising from or related to the Service or this TOS is your termination of usage of the Service.  You agree (i) not to use the Service to run production grade services and (ii) not to resell the Service.  In the event that you use the Service to run production grade services or you attempt to resell the Service, we may immediately terminate the Service without liability to you or any other party.  Certain aspects of the Service may be provided by third parties. The Service is being provided at no cost to you based upon your agreement to these provisions.

3. Contact Information

You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. On occasion, we may need to communicate with you by e-mail about the Service. You agree to maintain a working e-mail address that is monitored daily. We have no responsibility, or liability, for interruptions in the Service, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information.  The entity set out in our records is considered by us to be the trial account user. As a user of the Service, it is your obligation to ensure that our records accurately reflect ownership and control of the Service.

4. Term

The "Effective Date" of this TOS will be the day on which you click on the link to activate your trial account.

This TOS will begin on the Effective Date and continue for a maximum term of 60 days following the Effective Date. Your trial account will terminate on the date that is 60 days following the Effective Date. Except for the provisions that expressly survive termination, this TOS will terminate on the date that is 60 days following the Effective Date.

5. Payment

The Service is being provided at no cost to you based upon your agreement to these provisions.  In the event that you purchase any Service, whether during the term of this TOS or thereafter, you agree that the provision of any such Service to you and your purchase of any such Service will be governed by a separate Master Services Agreement.  You are responsible for any fees and charges incurred by your usage of the Service beyond the reasonable usage provisions set forth in Section 7 of this TOS. In the event that you incur fees due to your usage of the Service beyond the reasonable usage provisions set forth in Section 7 of this TOS, you agree to pay any such fees promptly and without offset or deduction. Our obligation to provide the Service is contingent on your compliance with this TOS. Your sole remedy for any dispute or disagreement arising from or related to the Service or this TOS is your termination of usage of the Service.

You may choose to purchase products and services that are not included in the Service but which are offered for sale by other parties through Hosting.com (Third Party Services). Third Party Services may be billed separately from the Service. Fees for the Third Party Services may not be billed on the month on which they are delivered. You agree to pay for these Third Party Services regardless of the length of time elapsed between their delivery date and the date on which you are charged.

6. Termination

6.1. Termination for convenience

Either party may terminate the Service by providing notice to the other at any time.

6.2. Termination for breach

Without limiting the generality of Section 6.1, we may terminate this TOS immediately upon the occurrence of a breach, including but not limited to a violation of any of our policies, including those incorporated by reference. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights, nor will you be entitled to any payment of any kind.

7. Use of the Service

Your use of the Service must be reasonable. You may not place excessive burdens on our CPUs, servers or other resources. You agree that we may place restrictions on your use of the Service, and charge you fees, to the extent that they exceed reasonable use of the Service, which shall be determined by us in our sole and absolute discretion. 

You agree to cooperate with us to facilitate your use of the Service. This cooperation includes, but is not limited to, providing us with correct contact information and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Service.

Upon termination or expiration, your account will be closed. We have no responsibility to forward e-mail, or other communications, for you once your account is closed. WE WILL HAVE NO RESPONSIBILITY FOR ANY LOST DATA, E-MAIL, OR OTHER COMMUNICATIONS OR DOCUMENTS WHATSOEVER.

8. Licenses and Intellectual Property

8.1. License from Hosting.com to you

Hosting.com grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by Hosting.com solely to access and use the Service. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in the Service and in Hosting.com's technology shall remain with Hosting.com or Hosting.com's licensors. You are not permitted to circumvent any devices designed to protect Hosting.com's, or its licensor's, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.

Any license provided to you, is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this TOS and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.

8.2. Licenses from you to Hosting.com

We may use information you provide to us for technical support, implementation, operation or administration of the Service (Operational Information). Operational Information, as well as aggregate information gleaned from the operation of our business in general, will be used to improve, or create new products and services. We shall be the exclusive owners of the resulting intellectual property. You waive any rights you may have in this intellectual property, and assign all right, title and interest in it to us and agree to cooperate with us to secure our rights.

You grant Hosting.com, and any third parties used by Hosting.com to provide the Service, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you in conjunction with the Service. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you or your licensors.

9. Representations and Warranties

9.1. Reciprocal

We each warrant to the other that: (i) we have the power, authority and legal right to enter into this TOS; and (ii) we have the power, authority and legal right to perform our obligations under this TOS and all incorporated provisions.

9.2. Your Representations and Warranty

You represent and warrant to Hosting.com that: (i) you have the experience and knowledge necessary to use the Service; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet; (iii) you will provide us with material that may be implemented by us to provide the Service without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service; (v) that you understand that you may not be able to access location based services, such as "911" emergency calls, using the Service; (vi) that in entering into this TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; and/or (vii) that you will make backup copies of your data even if you trial "back up" services from Hosting.com.

You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to Hosting.com, or which may be accessed or transmitted using the Service. You also warrant that to the extent you do business with other parties using the Service, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.

10. Disclaimers

THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS.  NO SERVICE LEVEL AGREEMENT OR OTHER GUARANTEE IS GIVEN OR MADE IN CONNECTION WITH THE SERVICES OR THIS TOS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 9.1, HOSTING.COM HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. HOSTING.COM DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. HOSTING.COM IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR AN END USER VIA THE SERVICE PROVIDED BY US. HOSTING.COM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY HOSTING.COM. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO HOSTING.COM SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.

THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM HOSTING.COM, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.

SOME STATES DO NOT ALLOW HOSTING.COM TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.

11. Limitation of Liability

You agree that Hosting.com has no liability, whatsoever, for (i) content that you or an End User access from the Internet; (ii) for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our system; and/or (iii) for your inability to access the publicly switched telephone network.

IN NO EVENT WILL Hosting.com's LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY HOSTING.COM FROM YOU FOR THE SERVICE FOR THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM HOSTING.COM SHALL BE INTERPRETED TO INCLUDE HOSTING.COM'S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICE TO YOU THROUGH HOSTING.COM.

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD HOSTING.COM 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 YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF HOSTING.COM 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; YOU AGREE THAT IN THOSE JURISDICTIONS HOSTING.COM'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

12. Indemnification

You agree to indemnify, defend and hold harmless Hosting.com 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) your use of the Service; (ii) any violation by you of any of Hosting.com's policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the term "you" as set out in subparagraphs (i) through (iv) include you and your employees and agents.

13. General Provisions

13.1. Notices

Notices will be sent to you at the address you provide to us. It is your obligation to ensure that we have the most current address for you in our records

Please refer to our website, Hosting.com, for contact information for most issues, including technical support and billing. Notices regarding this TOS and other Hosting.com policies should be directed to:

Hosting.com
Attention: Legal Department
900 S. Broadway, Suite 400
Denver, Colorado 80209
Facsimile: 303-623-9086

13.2. Force Majeure

Without limiting the generality of the other provisions of this TOS, and except for the obligation to pay fees (if applicable), 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, or other circumstances beyond its reasonable control. 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.

13.3. Choice of Law, Jurisdiction and Venue.

The parties agree that all disputes shall be brought before U.S. District Court for the District of Colorado located in Denver, Colorado (District Court). If the District Court may not consider the dispute, all disputes shall be brought before a Colorado state court located in Denver, Colorado. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this TOS or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of Colorado, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.

13.4. No Waiver.

No waiver of rights under this TOS, or any Hosting.com policy, or agreement between you and Hosting.com shall constitute a subsequent waiver of this or any other right under this TOS.

13.5. Assignment

This TOS may be assigned by Hosting.com. It may not be assigned by you. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.

13.6. Severability

In the event that any of the terms of this TOS 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 TOS. All remaining terms of this TOS shall remain in full force and effect.

13.7. No Agency

This TOS does not create any agency, partnership, joint venture, or franchise relationship. 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.

13.8. Notice to California Trial Account Users

You are advised that, as may be applicable to you under California Civil Code Section 1789.3, to initiate a complaint about the Service, you may contact us using your Customer portal. If you are dissatisfied with the manner in which we respond to a complaint regarding the Service, you may contact us at the address set out in Section 13.1, and the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254. If you are charged for the Service, such charges are set out in the applicable invoice. 

13.9. Survival

The following paragraphs shall survive the expiration or termination of this TOS: 1, 5, 9, 10, 11, 12, 13.1, 13.3, and 13.9.