Flex Metal Private Cloud Agreement

INMOTION HOSTING, INC
WEB HOSTING SERVICES
Terms of Service
Last Revised Date: May 17, 2021

PLEASE READ CAREFULLY.

THIS CONTAINS TERMS AND CONDITIONS REGARDING CUSTOMER’S LEGAL RIGHTS AND REMEDIES FOR ACCESSING AND USING COMPANY’S PRODUCTS AND SERVICES.

  1. Agreement. These Web Hosting Terms of Service (“Web Hosting TOS”) are an agreement between INMOTION HOSTING, INC. (“Company”) and the party (“Customer”) set forth in the related order form, which is incorporated herein by this reference (together with any subsequent order forms submitted by Customer, the “Order Form”) and applies to Web Hosting ordered by Customer (collectively, the “Web Hosting Services”). By accessing and/or using the Web Hosting Services Customer signifies that Customer has read, understands, acknowledges and agrees to be bound by these Web Hosting TOS, along with Company’s Universal Terms of Service Agreement (“Universal Terms”) www.legal.inmotinhosting.com, Acceptable Use Policy (“AUP”) www.inmotionhosting.com/acceptable-use-policy and Privacy Policy (“Privacy Policy”) https://privacy.inmotionhosting.com/, all of which are incorporated herein by reference. Any capitalized words not specifically defined herein shall have the meaning(s) set forth in the Universal Terms. In the event of a conflict between the provisions of the Universal Terms, AUP or Privacy Policy and the provisions of these Web Hosting TOS, the provisions of these Web Hosting TOS shall control.
  2. Modifications.
    1. Company may, in its sole and absolute discretion, at any time, change or modify these Web Hosting TOS.
    2. Customer’s access of and/or use of the Web Hosting Services after such changes or modifications have been made shall constitute Customer’s acceptance of these Web Hosting TOS as of the “Last Revised Date” stated above. If Customer does not agree to be bound by these Web Hosting TOS as of the “Last Revised Date”, Customer should not access or use or continue to access or use the Web Hosting Services.
    3. Company may (but is not obligated) occasionally notify Customer of changes or modifications to these Web Hosting TOS by electronic mail. It is therefore important that Customer keep the Account information accurate and current. Company assumes no liability or responsibility for Customer’s failure to receive an electronic mail notification if such failure results from an inaccurate Account information.
    4. Company may terminate, as determined in Company’s sole and absolute discretion, Customer’s access or use of these Web Hosting TOS for any violation or breach or threatened violation or breach by Customer of any of the terms of the Agreements or the Web Hosting Services.
    5. COMPANY RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THE Web Hosting SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME, WITH OR WITHOUT NOTICE.
  3. Flex Metal Private Cloud Service. Cloud account customers agree to following by use of the service
    1. In connection with Customer’s use of Flex Metal Private Cloud Service (including all instances and instance types, hosts and other on-demand resources and the Services, Customer is responsible for maintaining licenses and adhering to the license terms of any software Customer utilizes.
    2. Company may collect certain information about computing jobs Customer utilizes using Flex Metal Private Cloud Service, including CPU utilization, memory usage, IO performance, and error and information messages.
    3. Customer is responsible for all fees incurred from Customer’s use of Flex Metal Private Cloud Service regardless of the results obtained, the quality of the resulting data, or whether a computing job runs successfully.
    4. Customer is solely responsible for monitoring the status of all computing jobs. Company may throttle or terminate computing jobs that Company determines may degrade the performance of Flex Metal Private Cloud Service, the Services, or any component of the Services. Company is not responsible for any data loss or data corruption that occurs as part of Customer’s computing jobs.
    5. Using Microsoft Software. In conjunction with the Services, Customer may be allowed to use certain software (including related documentation) developed and owned by Microsoft Corporation or its licensors (collectively, the “Microsoft Software”). Using of the software requires Customer to abide by all terms and conditions for the software.
    6. If Customer chooses to use Third Party Software, Customer is required to be bound by all terms and conditions for the software.
  4. Flex Metal Private Cloud Database Software Use.
    1. Customer may only use Private Cloud Service to store, query, retrieve and serve data and other content owned, licensed or lawfully obtained by Customer. Customer acknowledges that neither Company we nor its licensors are responsible in any manner, and Customer is solely responsible, for the proper configuration of database security groups and other security settings associated with Private Cloud Service.
    2. Customer may terminate Customer’s Private Cloud Service database instance if Customer attempts to access or tamper with any software Company pre-loads on the database instance, including the operating system software running on the database instance.
    3. Customer is responsible for configuring Customer’s backup retention period to give Customer sufficient time to recover data from Customer’s backups in the event of hardware or file system failure.
  5. Bring-Your-Own-License” (BYOL). Under the BYOL option, Flex Metal Private Cloud enable Customer to provision Microsoft SQL and Oracle Software to Flex Metal Private Cloud instances and use the management capabilities of Flex Metal Private Cloud for the database software. Customer can use the software with Flex Metal Private Cloud if Customer meets the following conditions:
    1. Customer must have a valid license with “Software Update License & Support” for the Microsoft SQL and Oracle Software Customer wishes to run. The terms of Customer’s existing license and support agreement(s) with the vendor continue to apply to Customer’s use of the software; and
    2. Customer must follow the software vendor’s current policies for licensing database software in the cloud computing environment for the database instances using the Microsoft SQL and Oracle Software with Flex Metal Private Cloud reside in the Flex Metal Private Cloud environment.
  6. Using Flex Metal Microsoft SQL Database Software Service. Licenses and Database are available from the Flex Metal SQL Services Group. For more information regarding the Flex Metal Microsoft SQL Database Software Service Terms of Service Agreement.
  7. Proof of Concept(POC) Credits: POC Credits are not available for an exchange for cash value and not able to be transferred. Credits will expire after 14 days from the date awarded. POC Credits time frame of use are not extendable. We reserve the right to terminate POC Credits at any point in time.
  8. Flex Metal Timed Trial: Flex Metal Time Trial provides a non-production version of the Flex Metal service for Customer for evaluation purposes only. Use of the Flex Metal Time Trial Customer agrees to:
    1. Flex Metal Time Trial is limited to one per account. 
    2. Flex Metal Time Trial is limited to 8 hour blocks 
    3. Company reserves the right, in Company’s sole discretion, to restrict or terminate, access to or in progress Time Trials. 
    4. Company reserves the right, in Company’s sole discretion, to restrict or terminate Customer’s account for, at Company’s judgement, abuse or misuse of Time Trial process. 
  9. Hosting Back-up. Customer is expected and encouraged to maintain backup copies of their own data. Company does not perform internal disaster recovery backups for Flex Metal Services. Company assumes no liability for loss of data. 
  10. Acceptable Use Policy and Content
    1. Under this Agreement and Policies, Customer shall comply with Company’s then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, which currently can be viewed at https://www.inmotionhosting.com/acceptable-use-policy or under the Legal Details section of Company’s Site, and which is incorporated in this Agreement by this reference.
    2. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Services (collectively, the “Customer Content”). Customer Content also includes (but is not limited to) content of Customer’s website(s), customer(s) and/or user(s).
    3. Some of the features of Company’s Site or the Services may allow Users to view, post, publish, share, store, or manage ideas, opinions, recommendations, or advice via forum posts, literary, artistic, musical, or other content (“User Content”). All content submitted through an Account is considered User Content. By posting or publishing User Content to Company’s Site or through the Services, Customer represents and warrants to Company that (i) Customer has all necessary rights to distribute User Content via Company’s Site or via the Services, either because Customer is the author of the User Content and has the right to distribute the same, or because Customer has the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party.
    4. Customer understands and agrees that the content posted and/or stored on the Customer’s website(s) will not contain adult content, pornography nudity of any kind, and/or the written word of a sexual nature.
    5. Customer understands and agrees that posting and/or storing of material that contains hate speech is not permitted
    6. Customer understands and agrees that all Customer Content posted and/or stored on Customer’s website(s) will not be used for committing or promoting any type of illegal activity including, but not limited to, fraud, mailbombing, denial of service attacks, storing and/or housing and/or linking to illegal content, including but not limited to, “warez,” “hacking”/”cracking”/”key generators,” gambling, obscene material, or be used in the traffic of illegal materials.
    7. Customer is not permitted to use ad-servers, attempts to circumvent quota system owned by “nobody,” certain podcasting sites, use of torrent software, proxies, excessive resource usage or ‘core dumping’, attempting to circumvent any of our or other sites security policies, procedures or systems.
    8. Customer may not use the Services to engage in mining cryptocurrency.
    9. Customer shall be solely responsible for any and all of Customer Content or User Content that is submitted through an Account, and the consequences of, and requirements for, distributing it.
    10. Customer shall be solely responsible and will be held liable for incorrect setting of netmasks, routes, or any other network configuration or programming issue which causes unnecessary broadcast or multicast traffic on Company’s network, or denial of service, deliberate or not, caused by forging address resolution protocol (“ARP”) queries or replies or by configuring internet protocol addresses into Customer’s hardware which were not assigned to Customer’s Account. The foregoing actions may result in disconnection of the Services. Any loss of functionality of the Account related to the foregoing actions will be and remain the Customer’s sole responsibility. If the foregoing actions are deemed by Company to not warrant an immediate and drastic action, Customer will be contacted.
    11. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement. In the event Company takes corrective action due to a violation of this Agreement or the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer’s customers due to any corrective action that Company may take (including, without limitation, disconnection of the Services).
  11. Data Protection.
    1. The Services may involve the submission, collection and/or use of personally identifying or identifiable information about Users, Customer and Customer own customers (“Data”) in the course of Customer use of these Services (“Covered Services”). The Data, for the purpose of this Section, excludes any User Content. Company’s Data Processing Addendum (“DPA”), which is hereby incorporated by reference and applicable to Covered Services, is meant to provide Customer contractual assurance that Company has robust mechanisms to ensure the transfer of Customer Data, including transfers of Customer Data from the European Economic Area (“EEA”) to the Covered Services, meets with compliance under applicable data privacy laws. The DPA can be viewed on the Company website.
    2. For the purposes of the DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable), Customer (and Customer applicable affiliates) are considered the Data Controller/Data Exporter (as such terms are defined in the DPA), and Customer acceptance of the terms of service governing Covered Services at the time of purchase of any Covered Services will also be treated as Customer acknowledgment and acceptance of the DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable). If Customer wishes to print, sign and return a physical copy of the DPA, please send an email request to [email protected].
    3. General Data Protection Regulation (“GDPR”) Company has made clear the opt-out procedure for sharing of personal data, implemented security measures to safeguard the personal data that we do keep, minimized the data collected to that which is relevant to the operation of our business and the customer’s site, made available the data collected in an easily accessible way to the customers to whom it belongs, as well as provide an easy method by which they can request that their personal data be purged from our system. Company’s GDPR information can be located on the Company website.
  12. Company as Reseller or Licensor. Company may act only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Company Product”). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Company Product either sold, licensed or provided by Company to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Company’s obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Customer by the manufacturer of such Non-Company Product. Customer is entitled to use any Non-Company Product supplied by Company only in connection with Customer’s permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Customer through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
  13. Caching. Customer expressly grants to Company a license to cache the entirety of the Customer Content, including content supplied by Users or to third parties, and agrees that such caching is not an infringement of any of Customer, User or third party’s intellectual property rights.