US – Honolulu Cloud – Legal Documents

All services provided to you (“you“, “your“, “user“) by CLOUDSIGMA Incorporated and DR Fortress, LLC (collectively “CloudSigma-DRF”, “we“, “us“, or “our“) apply to and are governed by Terms of Service, the Acceptable Use Policy, the Privacy Policy, the Data Processing Agreement under the European General Data Protection Regulation (GDPR), the Copyright Notice, the Service Level Agreement and the terms of your Purchase including any services provided through the Website and to any email, written or other correspondence relating to such services. While CLOUDSIGMA Incorporated agrees to abide by the operational duties set forth in these Terms of Service, the Acceptable Use Policy, the Privacy Policy, the Data Processing Agreement under the European General Data Protection Regulation (GDPR), the Copyright Notice, the Service Level Agreement and any terms included in your Purchase, privity of these contracts shall be between to you and DR Fortress, LLC.

We retain the right and entitlement to revise or vary the Agreement and such revisions and variations will become binding on you as referred to below. The Agreement forms a legally binding agreement between us and you. Accepting Services offered by us by ticking the box ‘Please confirm you have read and agree to our Terms of Service.’ constitutes acceptance of the Agreement and formation of a legally binding agreement.

Any individual submitting a Purchase on behalf of a company or other legal entity represents and warrants that he or she has the legal authority and entitlement to bind that entity into the Agreement in which case “you”, “your” and “user” shall mean the company or legal entity. The Agreement is the complete and exclusive agreement between you and us regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral. If you do not accept any element of the Agreement you must not take up any of the Services. THE AGREEMENT IMPOSES SIGNIFICANT LEGAL OBLIGATIONS ON YOU AND ALSO PLACES LIMITS ON YOUR LEGAL RIGHTS. PLEASE SEEK INDEPENDENT LEGAL ADVICE BEFORE ENTERING INTO THE AGREEMENT.

Any Purchase or commencement of supply of Services is done so on the basis that you have agreed to be legally bound to the terms of the Agreement and that you represent and warrant that you have the legal authority to enter into said Agreement.

The Services are provided and offered for adults over the age of 18 only. If you are under 18 and/or you are not able to form legally binding contracts you should not use the Services. You must check with the owner and/or providers of the internet access you are using to access the Services and whether such access is lawful and allowed by any policy and/or terms of service governing the use of any equipment or internet connection.

By continuing to use the Services, you certify, represent, and warrant that you are 18 or over and are accessing and Services offered lawfully.

Variation to the Agreement

We reserve the right and entitlement to alter the Agreement at any time. We will notify you in accordance with the Agreement at least thirty (30) days prior to any alterations becoming valid and binding. Upon receipt of such notice, you will have the option either to terminate your account under the provisions of clause 17 below and receive a refund for any positive account balance or to continue to use our Services and be bound by the altered Agreement. After the altered Agreement has come into force, purchase of additional Services including API usage constitutes your agreement to be legally bound to the altered Agreement’s terms and conditions in full.

1. Definitions

In this Terms of Service:

• “Acceptable Use Policy” or “AUP” means the CloudSigma-DRF Acceptable Use Policy in force on the date you make each Purchase or exchange of Credits for Services, as may be amended from time to time in accordance with the Agreement.
• “Agreement” refers collectively to the Purchase, these Terms of Service, the Service Level Agreement, the Acceptable Use Policy, and any written sales order.
• “Agreement Date” means the earlier of: (i) the date on which you accept these Terms of Service via the Website and/or (ii) the date you first use the Services including the purchase of Credits.
• “API” means CloudSigma’s proprietary application programming interface.
• “Beta Testing” refers to a situation when you choose to participate in any beta test of a Service that is pre-release.
• “CloudSigma” means CLOUDSIGMA INCORPORATED Registered in: State of Delaware Operational office: 2225E. Bayshore Rd., Suite 200 Palo Alto, CA 94303-3220 United States
• “CloudSigma-DRF” means the collective entity providing services and made up CloudSigma and DRFortress
• “Confidential Information” means all non-public information disclosed by one party to the other party (the “Receiving Party“) at any time irrespective of the date of the Agreement, that the Receiving Party should reasonably understand to be confidential, including: (i) for you, all information stored or transmitted to or from the CloudSigma-DRF network, (ii) for us, any data center or server designs, unpublished prices, unpublished terms of service, internal reports (including for auditing and security purposes), future company development plans, and any other proprietary information, and (iii) for both of us, any information marked as confidential. Confidential Information excludes any information or technology that is developed by one of us without reference to the other’s Confidential Information or becomes available without violation of an applicable law or this Agreement.
• “Credits” means the non-refundable credits you purchased via the WebApp which can be used in exchange for Services only. The credits are expressed in Swiss Francs (CHF), British Pounds (GBP), Euro (EUR) or United States Dollars (USD) on a one credit equals one currency unit basis. Credits are only expressed in relation to one currency equivalent in accordance with your currency selection upon opening an account with CloudSigma-DRF.
• “DRFortress” means DR Fortress, LLC Registered in: State of Delaware Operational office: 3375 Koapaka Street, Suite D198, Honolulu, HI, 96819 United States
• “Credit Balance” means the number of Credits you have purchased less the number of credits exchanged in respect of Services provided in accordance with the Agreement.
• “Junk Mail” means email that is designated by our email systems as such as well as email reported by other users of CloudSigma-DRF and by you as unsolicited.
• “Personal Data” shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as amended from time to time, or replaced by subsequent legislation), or under any equivalent data protection regulation of applicable law. Without limiting the foregoing, Personal Data means any information that could be used to identify a natural person, directly or indirectly, in particular by reference to a name or personal identification number, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
• “Purchase” means the purchase of Credit that you submit to us via the Website or any other written purchase provided to you by ourselves for signature which describes the Services you are purchasing and that is signed by you whether that be manually or electronically.
• “Service Level Agreement” means the CloudSigma-DRF Service Level Agreement in force on the date you make each Purchase or exchange of Credits for Services, as may be amended from time to time in accordance with the Agreement.
• “Services” means services provided in exchange for Credit balance or provided free by CloudSigma-DRF as described on the pages of the Website relevant to that service. Services include only those services which are offered via the Website including but not limited to the provision of virtual servers, core-CPU power, disk data storage, RAM, network data transfer, IP addresses and VLANs. Services are provided in accordance with the Agreement.
• “WebApp” means the WebApp available at https://hnl.cloudsigma.com/ui/ which forms part of the Website and which you use to purchase Credits and to manage the provision of Services.
• “Website” means any website with a domain name ending “cloudsigma.com”.
• “Working Day” means 9:00 a.m. – 5:00 p.m. Monday to Friday, PST TIME ZONE excluding US national holidays.

2. Purchase of Credits

• 2.1 You acknowledge and agree that any Purchase made via the Website is for Credits that can be exchanged only in relation to Services. No amounts received by DRFortress or Credits granted to you in relation to any Purchase (except under the terms of termination as set out in clause 17 of these Terms of Service) are:
  • 2.1.1 refundable;
  • 2.1.2 exchangeable for cash or any other form of payment; or
  • 2.1.3 usable in any manner other than in exchange for Services.
• 2.2 All Purchases must be made via:
  • 2.2.1 credit or debit card made via the WebApp; and
  • 2.2.2 bank transfer to the correct bank account matching the currency used for your account and using your unique bank transfer ID as available via the payment section of the WebApp.
• 2.3 Invoices are issued by us following shortly after any Purchase as we deem appropriate and necessary, and are also made available to you via the WebApp.
• 2.4 You acknowledge and accept that Services and/or continued access to the WebApp may be suspended or terminated immediately if any payment in relation to a Purchase is declined, delayed or refused by your financial institution and/or credit card or debit card provider.
• 2.5 We will adjust your Credit Balance in line with Services provided to you from time to time in accordance with the rates for exchange for those Services as advertised on our Website.
• 2.6 At our reasonable discretion if at any time during the Agreement you fail to meet an appropriate standard of creditworthiness, as determined at our sole discretion, we may either:
  • 2.6.1 require you to make advance Purchase(s) on a regular basis as we deem necessary;
  • 2.6.2 require you to make payments in relation to Purchase(s) by bank transfer that you could otherwise make under these Terms of Service by credit or debit card;
  • 2.6.3 impose a limit on the number of Credits you may Purchase; or
  • 2.6.4 impose restrictions or conditions on your right to use Services as we deem appropriate.
• 2.7 All Purchases must be made in the default currency of your account as selected by you upon account opening. Currency selection for your account is permanent. Accounts can be opened in Swiss Francs (CHF), British Pounds (GBP), Euro (EUR) or United States Dollars (USD).
• 2.8 The rates of exchange of Credits for Services will only be available to you in the default currency of your account. You may open multiple accounts with different default currencies.
• 2.9 In the event that any payment made by you in relation to a Purchase fails to be honored or accepted by your financial institution and/or our Website’s automated payment gateway then we reserve the right to charge a returned payment fee to cover any additional administration costs and/or any other associated costs which we may incur.
• 2.10 We reserve the right, at our absolute discretion, to suspend or cancel access to the WebApp, the API or to withhold the provision of any Services until payment in full of such amounts has been received by us including any fees we may have the right to charge you to return an unhonored payment.
• 2.11 Upon termination of the Agreement your Credit Balance (unused or otherwise) that you have purchased will not be refunded or returned to you other than as specifically outlined under the terms of termination as set out in clause 8 of these Terms of Service.
• 2.12 We may charge interest on any overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than twenty (20) Working Days and we bring legal action to collect or engage a collection agency to do so on our behalf, you must also pay our reasonable costs of collection, including but not limited to legal fees and court costs. All fees in relation to this are stated in and will be charged in United States Dollars (USD). All interest will be charged in the currency with which you purchased the Credits.

3. Services

• 3.1 Contingent on CloudSigma-DRF’s acceptance of your Purchase, and subject to these Terms of Service, CloudSigma-DRF agrees to provide Services in exchange for Credits at the rates of exchange outlined on the Website and WebApp.
• 3.2 We reserve the right to vary the rates of exchange of Credits for Services at any time at our sole discretion with immediate effect. Amended rates become applicable upon your next Purchase or exchange of Credits for Services.
• 3.3 Services offered via the Website may vary in scope and nature over time. You acknowledge, accept and agree that elements of the Services may be varied, updated, replaced, removed, supplemented or added to over time as we so determine appropriate.
• 3.4 Unless otherwise agreed to in writing, we provide certain Services on a pre-paid subscription basis for the periods of 1 month, 3 months, 6 months and 1 year. Services purchased on a subscription basis are paid for in advance with Credits. Rates of exchange of Credits for Services are as outlined on the Website and WebApp. The number of Credits exchanged for Services is fixed at the time of the exchange for the period of the subscription in relation to the Services exchanged for credits at that time only.
• 3.5 We provide certain Services on a pay-as-you-go basis based on five minute billing cycles. We provide dynamic rates of exchange of Credits for Services which are updated every five minutes and are available via our Website and the WebApp. The number of Credits exchanged for Services on a pay-as-you-go basis is fixed at the time of the exchange for the period of the next five minute billing cycle.
• 3.6 Upon expiry of Services purchased on a pre-paid subscription basis you will automatically continue to be charged for the same Services on a pay-as-you-go basis at the on-going rates of exchange of Credits for Services at that time unless you cease to utilize our Services in relation to your expired subscription.
• 3.7 We shall provide the Service to you subject to the Agreement from the Agreement Date until the Service is fully delivered, its term expires, it is terminated or it is suspended under the terms of the Agreement.
• 3.8 The provision of Services is strictly subject to you maintaining a sufficient Credit Balance and you acknowledge, accept and agree that we may suspend or terminate Services to you if you have Credit Balance for less than 24 hours usage at your latest Service usage level and pay-as-you-go Service rates of exchange of Credits at that time.
• 3.9 We retain the right to verify your identity at any time. In the event that we are unable to verify your identity using reasonable endeavors, at our sole discretion we may require you to provide further proof of identity including but not limited to:
  • 3.9.1 an original or certified copy of photographic ID in the form of a driving license or passport; and/or
  • 3.9.2 an original or certified copy of proof of address as deemed acceptable to us.
• 3.10 If you fail or are unwilling to provide such evidence as reasonably requested by us then we shall be entitled to immediately suspend and/or terminate your use of Services.
• 3.11 We shall not be responsible for any back up, recovery or other step required to ensure that data and information stored on the CloudSigma-DRF network and infrastructure as part of provision of Services to you is recoverable in the case of any data loss, system fault, software failure, hardware failure or other activity which results in any loss of data, information or other item that is being stored as part of our Services.
• 3.12 We may suspend your Services without liability if:
  • 3.12.1 we have reason to believe that that the Services, have, are being or will be used in violation of the Agreement (including the AUP);
  • 3.12.2 you don’t co-operate with reasonable investigations into suspected violations of the Agreement;
  • 3.12.3 we reasonably believe that your Services are being access or used by third parties without your authorization;
  • 3.12.4 your Credit Balance is zero and/or insufficient to cover current Services being utilized by you;
  • 3.12.5 we reasonably believe it is necessary in order to protect our network infrastructure and Services to other customers;
  • 3.12.6 we discover that you are affiliated with a person or legal entity that has used our Services in the past and had their account terminated; or
  • 3.12.7 we are required to do so by law or request by legitimate government entity.
• 3.13 We will endeavor to provide you with reasonable notice of any suspension under this clause unless it our reasonable belief that an immediate suspension or shorter notice is required to protect our network infrastructure and services to other customers from significant operational or security risk or because we are compelled to do so by law.
• 3.14 We may continue to charge you for Services during any suspension resulting from a breach of obligations under the Agreement by you. You may be charged a reinstatement fee of up to CHF 100 to remove a suspension over your account.
• 3.15 We are not responsible for any unauthorized access to your data or the unauthorized use of Services under your account. You represent and warrant that you are solely responsible for the use of Services whether or not authorized by you, by any employee of yours, any person to whom you have given access to the Services and/or any person who gains access to your data or Services as a result of a failure by you to use reasonable security precautions. You hereby indemnify us and hold us harmless against all costs, claims, expenses and damages whatsoever arising from the use of or access to your data or Services by any third party.
• 3.16 We do not support any operating systems and/or other software which you run within your virtual servers as part of the Services we offer to you.
• 3.17 We do not monitor and have no liability for the contents of, any communications transmitted by you by virtue of our provision of the Services.
• 3.18 We have no obligation to provide security other than as stated in the Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
• 3.19 Both free Services and Services provided in exchange for Credits are provided to you on an AS IS basis.
• 3.20 We will be the sole arbiter of any dispute regarding the provision of Services and our decision will be final and binding.

4. Use of Services

• 4.1 You acknowledge, accept and agree to the following:
  • 4.1.1 only to use the Services in accordance with the Acceptable Use Policy;
  • 4.1.2 to comply with applicable laws at all times;
  • 4.1.3 not to interfere with Services or the provision of Services;
  • 4.1.4 you will at all times act in good faith in relation to the Services;
  • 4.1.5 not to continue to use Services if you have had an account suspended or terminated now or at any time in the past;
  • 4.1.6 that you are solely responsible for the suitability of the Services chosen;
  • 4.1.7 to use reasonable security precautions in relation to your use of the Services;
  • 4.1.8 only share your password with a person or persons whom you have authorized to use your account;
  • 4.1.9 that your account is non-transferable and you will be liable for any and all activities undertaken using your user account together with the associated password, whether or not the person undertaking the activities has been authorized by you;
  • 4.1.10 keep up to date your billing, contact and other account information;
  • 4.1.11 that there are inherent risks with internet connectivity that may result in the loss of your privacy, Confidential Information and/or property;
  • 4.1.12 immediately notify us of any suspected or actual unauthorized use of your account or any security breach; and
  • 4.1.13 to be solely and entirely responsible for maintaining at least one current backup copy outside of CloudSigma-DRF’s network of all data (including but not limited to operating systems, content and programs) stored on CloudSigma-DRF’s network to ensure that the potential for losses is mitigated.
• 4.2 You accept, acknowledge and agree that the Services may not be used in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. This includes but is not limited to use of the Services in connection with modes of human mass transportation, nuclear and chemical facilities, critical infrastructure and medical devices whose failure or malfunction could result in harm to persons. Accordingly, without prejudice to any other disclaimer or limitation of liability in these Terms of Service, we specifically disclaim any express or implied warranty of fitness of the Service for use for such activities.
• 4.3 You accept and agree that you have no right to physical access to the premises from which the Service is provided without our explicit prior permission which will be granted at our sole discretion.
• 4.4 You may access the Services via our API in addition to via the WebApp. We reserve the right to change the API or suspend provision of the API at any time without notice.
• 4.5 You acknowledge, accept and agree that the provision of Services is strictly subject to:
  • 4.5.1 payment of all fees and charges in a prompt and timely manner;
  • 4.5.2 your full compliance with the Agreement including these Terms of Service;
  • 4.5.3 compliance with all relevant laws and regulations at all times; and
  • 4.5.4 maintenance of sufficient Credit Balance to ensure Services remain fully paid up;
  • 4.5.5 your purchasing of additional Credits as required via the WebApp once your Credit Balance becomes insufficient to maintain Services for 24 hours based on your Service usage and pay-as-you-go rates of exchange of Credits for Services level at that time.
• 4.6 You represent and warrant to us that:
  • 4.6.1 you are 18 years of age or over, capable of taking responsibility for your own actions and of sound mind;
  • 4.6.2 you are able to enter into a legally binding agreement with us;
  • 4.6.3 if you are entering into the Agreement on behalf of a company or other legal entity you have the legal authority and entitlement to bind that entity into the Agreement;
  • 4.6.4 you are the person whose details are provided in connection with your user account;
  • 4.6.5 you are not an undischarged bankrupt or in a voluntary arrangement with your creditors; and
  • 4.6.6 you are not a person to whom CloudSigma-DRF is legally prohibited to provide Services.
• 4.7 Notwithstanding the provisions of clause 5 you shall effect and maintain sufficient insurance cover in respect of any case of damage, loss or claim in relation to data loss, system fault, software failure, hardware failure or other activity which results in any loss of data, information or other item that is being stored as part of our Services.
• 4.8 In the event that Services are suspended and/or terminated in relation to you and you believe that such action has been taken incorrectly, you must immediately contact us to allow a full investigation into the matter thereby limiting and mitigating against damage, loss and claims as a result of the suspension and/or termination.

5. Service Level Agreement

• 5.1 The Service Level Agreement forms part of the Agreement for Services you Purchase from CloudSigma-DRF.
• 5.2 Any credit resulting from the terms and conditions of the Service Level Agreement shall be credited to the Credit Balance for use against future Services. No credits resulting from the Service Level Agreement will be paid to you as cash or another form of refund.

6. Beta Services

A Service in Beta Testing is subject to the following terms:

• 6.1 You acknowledge the Beta Testing involves using a pre-release version that may not function properly;
• 6.2 You acknowledge that by Beta Testing you may expose yourself to higher than normal risks of operational failures;
• 6.3 The full commercial release version of the Beta Testing service may change substantially from the pre-release version. This may result in programs, networks and operations that ran on the Beta Testing pre-release version not working with the initial full commercial release or subsequent versions;
• 6.4 You are not entitled to any compensation under the Service Level Agreement for downtime, performance degradation, loss or corruption of data or any other problems that may result from your Beta Testing;
• 6.5 You agree to provide information and feedback on your Beta Testing in a form reasonably requested by us;
• 6.6 You agree that we may use your information and feedback for any purposes including but not limited to product development. We may use comments publicly for press and promotional materials with your prior permission;
• 6.7 You agree that any intellectual property inherent in your feedback that we use in the product development of our Services arising from your Beta Testing of any Service shall be owned exclusively by CloudSigma-DRF and you agree to assign such intellectual property to us, if we request you to do so;
• 6.8 You agree that any information regarding your Beta Testing including your experiences and opinions are Confidential Information of CloudSigma-DRF, as defined in these Terms of Service. All information in relation to Beta Testing may only be used for the purpose of providing feedback to CloudSigma-DRF;
• 6.9 You should not use Beta testing for a live production environment. Beta Testing must not be used for critical computing functions including but not limited to any hazardous environments, life support or weapons systems;
• 6.10 Beta Testing is provided “AS IS” with no warranty whatsoever;
• 6.11 TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLOUDSIGMA AND DRFORTRESS DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO BETA TESTING INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT;
• 6.12 The maximum aggregate liability of CloudSigma and DRFortress and any of theirs employees, agents, affiliates, or suppliers, under any theory of law for harm to you arising from your Beta Testing shall be a payment of money not to exceed One Hundred United States Dollars (USD 100.00); and
• 6.13 We reserve the exclusive right to terminate Beta Testing of a Service at any time at our sole discretion.

7. Support

• 7.1 In relation to a fault or disruption with our Services, we will use commercially reasonable efforts to respond to all requests.
• 7.2 We will use commercially reasonable efforts to resolve faults referred to us in accordance with clause 7.1.
• 7.3 All requests for support should be made to us using the support contact details provided on the Website.
• 7.4 We will provide you with reasonable notice for all scheduled maintenance and/or downtime in advance and shall be entitled to undertake said scheduled maintenance and/or downtime.
• 7.5 In the event that it is our reasonable commercial believe that emergency maintenance and/or downtime is required, we may do so at any time without the requirement to provide reasonable notice to you.
• 7.6 We will only provide you with support. We will not provide support to your end users.

8. Termination

• 8.1 The Agreement shall commence on the Agreement Date and shall continue until terminated by you or us.
• 8.2 You or we may terminate the Agreement by giving thirty (30) days written notice (including without limitation email notice).
• 8.3 We may terminate the Agreement without notice to you and without providing any refund against your Credit Balance if any of the following occurs:
  • 8.3.1 the information you provided about yourself was false, materially inaccurate or incomplete;
  • 8.3.2 you were not 18 years old or did not have the legal capacity to enter into the Agreement at the time of submitting the Purchase for Services either in the capacity as an individual or on behalf of another person or legal entity;
  • 8.3.3 we are precluded from providing the Services to you by law or the decision of a competent legal or governmental authority;
  • 8.3.4 you do not use your account for a continuous period of three (3) months or more;
  • 8.3.5 your Credit Balance is zero (or negative) and you do not purchase any additional Credits within five (5) Working Days. In which case we shall additionally be entitled to immediately delete all data and information previously supplied as part of the Services and in relation to your account;
  • 8.3.6 a credit report indicates you no longer meet our reasonable criteria for creditworthiness;
  • 8.3.7 you are declared bankrupt, become insolvent, cease trading or otherwise are unable to meet debt and payment obligations as they fall due;
  • 8.3.8 you fail to pay any sum due to us as it falls due and do not remedy the overdue amounts within five (5) Working Days or receiving notice from us that you have amounts overdue;
  • 8.3.9 we reasonably decide that your ability to pay has been adversely affected including your credit or debit card being declined or us receiving notice of any disputed charges with your credit or debit card provider or your bank;
  • 8.3.10 you violate the Acceptable Use Policy;
  • 8.3.11 your death or the ceasing to exist of a legal entity where applicable; or
  • 8.3.12 you fail to comply with any provision of the Agreement and do not remedy the failure within twenty (20) Working Days of our notice to you outlining the failure.
• 8.4 If you do not have overdue funds on termination of the Agreement we will give you a reasonable opportunity to migrate your environment out of our Services in an orderly fashion where possible.
• 8.5 You may terminate the Agreement with us for breach of the Agreement by written notice if any of the following occurs:
  • 8.5.1 we materially fail to provide the Services as agreed and do not remedy the failure within five (5) Working Days of receiving your written notice outlining the failure; or
  • 8.5.2 we materially fail to meet any obligation under the Agreement and do not remedy the failure within twenty (20) Working Days of receiving your written notice outlining the failure.
• 8.6 Upon termination of the Agreement you:
  • 8.6.1 will not have access to any data stored on our network and infrastructure using the Services;
  • 8.6.2 must discontinue use of the Services;
  • 8.6.3 shall remain liable for any amounts outstanding including negative Credit Balance at the date of termination; and
  • 8.6.4 must relinquish use of any IP addresses and server names assigned to you by us in relation to the Services and also point any Domain Name Services away from us in relation to you.
• 8.7 Termination of this Agreement for whatever reason shall not affect:
  • 8.7.1 the accrued rights and liabilities of the parties arising in any way out of this Agreement at the date of termination including without limitation the right to recover damages against the other; and
  • 8.7.2 any provisions expressed to survive this Agreement, which shall remain in full force and effect.

9. Taxes, Duty and Value Added Taxation

• 9.1 All amounts payable for Services and Credits are stated exclusive of any Sales or Excise Tax unless stated otherwise. We reserve the right and shall be entitled to charge Sales Tax, Excise Tax and other taxes and duty as appropriate.
• 9.2 You agree that you are liable for all taxes and duty resulting from your purchase of Credits from us and use of our Services.

10. Data Protection

• 10.1 Each of us agrees to comply with our obligations under applicable data protection legislation. Subject to the foregoing, each of us agrees to use reasonable efforts to use any Personally Identifiable Information in compliance with the Network Advertising Initiative (“NAI”) Principles, available at https://www.networkadvertising.org/sites/default/files/imce/principles.pdf. For purposes of this clause, “Personally Identifiable Information” will have the meaning ascribed to it in the NAI Principles.
• 10.2 You hereby grant us a royalty-free license, for the duration of the agreement, to use the data provided by you in our provision of the Services to you.
• 10.3 You warrant that you have all rights and/or necessary permissions in the data necessary to allow you to use the Services.
• 10.4 You acknowledge, agree and accept that we are reliant on you alone for direction as to the extent that we are entitled to use and process data. Consequently, we shall be entitled to relief from liability in circumstances where the owner of the data makes a claim or complaint with regards to our actions to the extent that such actions directly result from instructions received from you.
• 10.5 YOU SHALL INDEMNIFY US AND KEEP US INDEMNIFIED AGAINST ANY CLAIM OR LOSS IN RELATION TO OUR USE OF THE DATA TO THE EXTENT THAT SUCH USE DIRECTLY RESULTS FROM YOUR USE OF THE SERVICES.
• 10.6 To the extent we process any Personal Data on your behalf (a) we shall act only on instructions from you, and (b) we have in place appropriate technical and organizational security measures against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
• 10.7 In this clause, Personal Data has the meaning given to it in Directive 95/46/EC.

11. Intellectual Property Rights and Confidential Information

• 11.1 Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by CloudSigma or DRFortress during the performance of the Services shall belong to CloudSigma or DRFortress, as applicable, unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
• 11.2 Additionally each of us agree not to use the other’s Confidential Information except in connection with the delivery or use of Services, the exercise of respective legal rights with regards to the Agreement or as may be required by applicable law.
• 11.3 Each of us agrees not to disclose Confidential Information of the other to any third parties except:
  • 11.3.1 to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service;
  • 11.3.2 to law enforcement or government agencies when required to do so by law; and
  • 11.3.3 in response to a subpoena or other compulsory legal process provided that at least 5 Working Days notice period is provided prior to the disclosure unless prohibited from provided such notice in law.

12. Notices

• 12.1 All Services and the Website are operated and managed by CloudSigma-DRF. For routine communications regarding the Website or Services please contact us using the details provided on the Website.
• 12.2 Notices regarding termination of the Agreement or other legal matters should be sent by email and by recorded postal delivery to:
  • By Post:
    CLOUDSIGMA INCORPORATED
    Sa2225 E. Bayshore Rd. Suite 200
    Palo Alto, CA 94303-3220
    USA
    By Email: legal@cloudsigma.com
• 12.3 CloudSigma-DRF will give notice of amendments to the Acceptable Use Policy, Terms of Service, Privacy Policy, Data Processing Agreement, Copyright Notice and Service Level Agreement by posting them on the Website.
• 12.4 Notices for amendments to the Acceptable Use Policy, Terms of Service, Privacy Policy, Data Processing Agreement, Copyright Notice and Service Level Agreement are deemed received at the time that you next log in to the WebApp or the beginning of the first Working Day following the time delivered.

13. No warranty

• 13.1 ALL SERVICES, SOFTWARE, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US ARE DONE SO ‘AS IS’.
• 13.2 WE MAKE NO REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, SOFTWARE, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION.
• 13.3 EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET ENJOYMENT, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE.
• 13.4 WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE OR THAT DATA STORED USING THE SERVICES WILL BE SECURE OR OTHERWISE SAFE FROM LOSS OR DAMAGE.
• 13.5 WE SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS TO THE SERVICES INCLUDING BUT NOT LIMITED TO POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS INCLUDING THOSE THAT AFFECT THE ACCEPTANCE AND COMPLETION OF PAYMENTS FOR PURCHASES.
• 13.6 NO ADVICE OR INFORMATION OBTAINED FROM US BY YOU DIRECTLY, VIA THE SERVICES OR ANY THIRD PARTY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
• 13.7 NOTHING IN THESE TERMS OF SERVICE SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, FRAUD OR ANY LIABILITY WHICH CANNOT BE EXCLUDED BY APPLICABLE LAW.
• 13.8 WE DO NOT WARRANT THAT FUNCTIONS CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT DEFECTS WILL BE CORRECTED.

14. Limitation of Liability

• 14.1 Other than the payment obligations and/or indemnity obligations as set out in these Terms of Service liability of each party to the other arising from any given event or series of connected events shall be strictly limited to the amount paid by you to us during the immediately preceding month in which the event (or first in a series of connected events) occurred.
• 14.2 YOU ACKNOWLEDGE, ACCEPT AND AGREE THAT THE SERVICE LEVEL AGREEMENT AND CREDITS DUE UNDER IT FROM TIME TO TIME ARE YOUR SOLE COMPENSATION AND RECOURSE FOR DAMAGES AND/OR LOSSES SUFFERED BY YOU AND REPRESENT OUR TOTAL LIABILITY IN RELATION TO YOU IN CONTRACT OR TORT (OTHER THAN FRAUD) UNDER THE AGREEMENT.
• 14.3 You acknowledge, accept and agree that neither party shall be liable in contract or tort (other than fraud) for:
  • 14.3.1 pre-contract or other representations;
  • 14.3.2 damages or losses as a result of disruption or interruptions of any kind to Services and any associated data loss or lack of availability;
  • 14.3.3 loss of business, contracts, anticipated savings, loss of profit, loss of revenue, loss of goodwill, loss of reputation, loss or use of data; and
  • 14.3.4  or any DIRECT, indirect, punative, exemplary, or consequential losses under any circumstances.

15. Indemnity

You shall indemnify and defend us, our agents, affiliates, suppliers, directors, officers, employees and partners (the “CloudSigma-DRF Indemnitees”) from and against any legal claims, losses, liabilities, expenses, fines, damages and settlement amounts including reasonable legal fees and court costs incurred by CloudSigma-DRF Indemnitees arising under any claim as a result of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the Acceptable Use Policy or the Terms of Service. These indemnification obligations shall be enforceable provided that we promptly communicate to you reasonable details of any claim and cooperate in defending any claim. We will choose legal counsel to defend any claim provided these decisions are reasonable and communicated promptly to you. You must comply with reasonable requests from us for assistance and cooperation in defense of the claim. We may not agree to any settlement in relation to any claim without your prior written consent which may not be unreasonably withheld. Expenses incurred by CloudSigma-DRF Indemnitees must be paid by you as they are occurred.

16. Force Majeure

Neither of us will be in violation of the Agreement or liable for any loss or damage that the other may suffer because of any: act of God; power cut; power surge; fire, flood, earthquake, storm, hurricane or other natural disasters, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities whether actual or threatened, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or other utilities, or any other delay or failure caused by a third party. In such an event, we reserve the right to cancel or suspend our Services without incurring any liability.

17. Changes to the Agreement

• 17.1 We reserve the right to make changes to the Agreement including our Acceptable Use Policy, these Terms of Service, the Privacy Policy, the Copyright Notice, the Data Processing Agreement and the Service Level Agreement, provided that changes are consistent with applicable law, industry norms and are reasonable. Any changes we make during the term of the Agreement will become effective to you in reference to all Services past, present and future when the earliest of the following occurs:
  • 17.1.1 you make a new/additional Purchase of credits that incorporates the revised Agreement;
  • 17.1.2 you exchange additional credits for our Services; or
  • 17.1.3 thirty (30) days after our notice to you describing the change.
• 17.2 If you do not wish to continue to use our Services following any such change you may terminate the Agreement by giving us written notice of termination on such grounds not later than thirty (30) days following the date that you were notified of the change. If you terminate the Agreement following such a change, thirty (30) days from the date of receipt by us of your written notice of termination:
  • 17.2.1 you may continue to use Services already exchanged for Credits until this point. Any Services not fully delivered at that time will be converted back to Credits and added to your Credit Balance based on the original rate of exchange used in relation to said Services; and
  • 17.2.2 you will be entitled to receive your current Credit Balance at that time as a cash refund from us on a one to one basis in the default currency of your account.

18. Further Terms

• 18.1 The illegality, invalidity or unenforceability of a provision of the Terms of Service under the law of any jurisdiction does not affect: the legality, validity or enforceability of any other provision of the Terms of Service in that jurisdiction; or the legality, validity or enforceability of that or any other provision of the Terms of Service under the law of any other jurisdiction.
• 18.2 If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Terms of Service, the Acceptable Use Policy, the Service Level Agreement, the Copyright Notice, the Privacy Policy and the Data Processing Agreement.
• 18.3 The Agreement constitutes the entire agreement between you and us relating to the provision of the Service, and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between us in relation to this, and all past courses of dealing or industry custom. No oral explanation or information given by any party shall alter the interpretation of the Agreement. In agreeing to these Terms of Service, you have not relied on any representation other than those expressly stated in these Terms of Service.
• 18.4 You may not assign the Agreement without our prior written permission. We may assign the Agreement in whole or in part as part of a sale or corporate reorganization of our company and we may transfer your Confidential Information as part of any such transaction.
• 18.5 Any Purchase may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us.
• 18.6 The relationship between you and us is one of independent contractors and the Agreement is not intended to create any type of partnership, joint venture, employee/employer relationship or franchise. Neither of us is an agent for the other and neither of us has the right to bind the other on any agreement with a third party.
• 18.7 The captions, section headings and titles in the Agreement are for convenience only and are not part of the Agreement.
• 18.8 We may use third party service providers to perform all or any part of the Services however we remain responsible to you under the Agreement for services performed by third party service providers to an equal extent as if we performed the third party services ourselves.
• 18.9 No delay and/or failure by us to enforce our rights or entitlements under the Agreement shall be deemed to be a waiver.
• 18.10 Other than as stated in these Terms of Service, the Agreement may be modified only by a formal document signed by both you and us.
• 18.11 Any waiver of any breach of the Agreement can only be made by us to you expressly in writing. No such waiver shall be considered a waiver of any subsequent breaches similar or otherwise.
• 18.12 Each of us acknowledges, accepts and agrees that we will not bring a claim against the other under the Agreement more than three calendar months after the time that the claim accrued.

19. Governing Law and Jurisdiction

The Agreement and all other legal relationships between you and us will be governed by and construed in accordance with the laws of the United States of America and of the State of Hawaii as applied to agreements entered into and to be performed entirely within Hawaii between Hawaii residents, without giving effect to its conflict of law principles. The parties acknowledge that the United Nations Convention on Contracts for the Sale of International Goods (1980) is specifically excluded from application to this Agreement.

Unless submitted to arbitration as set forth in the following paragraph, all disputes arising out of or related to this Agreement shall be brought exclusively in the Circuit Court of the State Of Hawaii, or if such court lacks subject matter jurisdiction over the dispute, in the Federal District Court of the State of Hawaii. The parties irrevocably submit to the personal jurisdiction of, and waive any venue objection to, the above courts in any dispute arising out of or related to this Agreement.

20. Arbitration

Arbitration

For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Last Updated: 23 May 2018
Copyright CLOUDSIGMA Inc, 2021.  All rights reserved.

All users of CLOUDSIGMA powered by DRFortress (“CloudSigma-DRF”, “we”, or “us”) services retain copyright, trademarks and other intellectual property rights to all content uploaded to or generated using CloudSigma-DRF services by said users.

All content and design of hnl.cloudsigma.com (“Website”) is protected by copyright, trademarks and other intellectual property rights and is the property of CloudSigma-DRF. Except as stated herein, none of the material may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of CloudSigma-DRF.

You are granted a personal, non-commercial limited, non-transferable and non-exclusive license to access the Website, to display, copy, distribute and download the materials from the Website only in accordance with the following permissions:

1. You (“you”, “your”) acknowledge CloudSigma-DRF Website as the source of the material. You must include such acknowledgement and the CloudSigma-DRF web address (blog.cloudsigma.com) in the copy of the material,

2. You do not modify the materials,

3. You do not, and you do not allow any third party, to modify or create a derivative work, reverse engineer or otherwise attempt to discover any source code or software available on the Website; and

4. You must inform the third party that all the Terms of Service set out herewith apply to him/her and that he/she is bound by them.

This limited license to re-copy does not permit incorporation of the material or any part of it in any other work, publication, or website whether in hard copy or electronic or any other form without the express written consent of CloudSigma-DRF.

The granting of this limited license is wholly conditional upon your agreement to and compliance with the Terms of Service. We may revoke this license at any time at our absolute discretion.

Any data or software licensed to us from third parties are provided for use strictly in connection with the services we offer and in accordance with the CloudSigma-DRF Terms of Service. Any data or software from third parties is subject to the third party license terms only and may not be used for any other commercial purposes without the prior written consent of such third parties.

You grant to us a non-exclusive, royalty-free license for the duration of the provision of Services (as defined under the Terms of Service) to you, to use, store and maintain your data stored on our infrastructure and network for the purposes of providing the CloudSigma-DRF Services in accordance with the Terms of Service.

Any unauthorized publication, use or reproduction of any content including but not limited to images, code, data, graphics, trademarks and software may be prosecuted.

Last Updated: 29 August 2014
Copyright CLOUDSIGMA Inc, 2021.  All rights reserved.

This Data Processing Agreement (DPA) regulates the processing of customer data including personal data as per the requirements of the European General Data Protection Regulation.

This DPA is entered into between us (the Data Processor) and you (the Data Controller) and is incorporated into and governed by the terms of the Agreement.

In no event shall the DPA become effective later than May 25, 2018 for any data processing activities requested by you as the Data Controller from us as the Data Processor.

The parties agree as follows:

1. Definitions

For the purposes of the clauses in this Data Processing Agreement:

• “Agreement” shall mean the agreement between you and us for the provision of the Cloud Service as defined in the Terms of Service.
• “Affiliate” means any corporation or other business entity, now or hereafter existing, who directly or indirectly controls, is controlled by or is under common control with one of the contracting parties. As used herein, “control” means (a) the power, by ownership of voting equity, contract or otherwise, to elect a majority of the board of directors or other governing body of the subject entity or to otherwise direct the management and policies of the subject entity, or (b) the record or beneficial ownership, directly or indirectly, alone or in combination with one or more Affiliate(s), other than by way of security interest only, of more than 50% of the voting rights, income or capital of the subject entity; and “controlled” has a corresponding meaning.
• “Authorised Affiliate” means Your Affiliate(s) who are permitted to use the Cloud Service pursuant to the terms of the Agreement, but who have not signed the Agreement or a Purchase.
• “Controller” shall mean you.
• “Customer Data” means all files, content, metadata, Personal Data, Confidential Information and any other data stored or processed via the Services as requested by you as the Controller.
• “Data Subject” shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as amended from time to time, or replaced by subsequent legislation) or under any equivalent data protection regulation of applicable law. Without limiting the foregoing, Data Subject essentially means a natural person who is the subject of Personal Data.
• “DPA” means this data processing agreement together with its Appendices 1 and 2.
• “Personal Data” shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (as amended from time to time, or replaced by subsequent legislation), or under any equivalent data protection regulation of applicable law. Without limiting the foregoing, Personal Data means any information that could be used to identify a natural person, directly or indirectly, in particular by reference to a name or personal identification number, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
• “Processor” means us.
• “Services” means services provided in exchange for Credit balance or provided free by CloudSigma as described on the pages of the Website relevant to that service. Services include only those services which are offered via the Website including but not limited to the provision of virtual servers, core-CPU power, disk data storage, RAM, network data transfer, IP addresses and VLANs. Services are provided in accordance with the Agreement.
• “Standard Contractual Clauses” means means the EU model clauses for personal data transfer from controllers to processors and third countries as per c2010-593 – Decision 2010/87EU (as amended from time to time, or replaced by subsequent legislation).
• “Sub-Processor” means any person or entity engaged by us or any of our Affiliates to process Customer Data in the provision of the Services to you.

Any capitalised term not defined in this DPA shall have the meaning given to it in the Agreement.

2. Purpose

• 2.1 We have agreed to provide the Services to you in accordance with the terms of the Agreement. In providing the Services, we shall process Customer Data on behalf of you. We will process and protect such Customer Data in accordance with the terms of this DPA.

3. Scope

• 3.1 In providing the Services to you pursuant to the terms of the Agreement, we shall process Customer Data only to the extent necessary to provide the Services in accordance with both the terms of the Agreement and this DPA.
• 3.2 The details of the data processing activities to be performed by us and in particular the special categories of Personal Data where applicable are specified in Appendix 1 which forms an integral part of this DPA.

4. Obligations of the Processor

• 4.1 We may collect, process or use Customer Data only within the scope of this DPA.
• 4.2 We confirm that we shall process Customer Data on behalf of you and shall take steps to ensure that any natural person acting under the authority of us who has access to Customer Data does not process the Customer Data except on instructions from you.
• 4.3 We shall promptly inform you, if in our opinion, any of the instructions regarding the processing of Customer Data provided by you, breach any applicable data protection laws, in which case you are entitled to suspend the transfer of data.
• 4.4 We shall ensure that all employees, agents, officers and contractors involved in the handling of Customer Data: (i) are aware of the confidential nature of the Customer Data and are contractually bound to keep the Customer Data confidential; (ii) have received appropriate training on their responsibilities as a data processor; and (iii) are bound by the terms of this DPA.
• 4.5 We shall implement appropriate technical and organisational procedures to protect Customer Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
• 4.6 We shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Customer Data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security, account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Customer Data transmitted, stored or otherwise processed.
• 4.7 We confirm that we have implemented the technical and organisational security measures specified in Appendix 2 before processing the Personal Data. You accept and agree that the technical and organisational measures are subject to development and review and that we may use alternative suitable measures to those detailed in the attachments to this DPA.
• 4.8 We confirm that, unless you give us explicit permission, we will never inspect your stored data and will only measure the volume of your transmitted data for billing purposes or inspect your transmitted data to investigate suspected violations of our Acceptable Use Policy. We will never disclose your data to any third party unless we are required to do so by court or administrative order.
• 4.9 Where Customer Data relating to an EU Data Subject is transferred outside of the EEA, it shall be processed:
  • 4.9.1 in a third country or territory recognised by the EU Commission as having an adequate level of protection;
  • 4.9.2 in accordance to with legally recognised safeguards, such as the EU-US Privacy Shield or Binding Corporate Rules;
  • 4.9.3 in accordance with Standard Contractual Clauses in all other cases.
• 4.10 Taking into account the nature of the processing and the information available to us, we shall assist you by having in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject’s rights and your compliance with your data protection obligations in respect of the processing of Customer Data.
• 4.11 We confirm that we and/or our Affiliate(s) have appointed a data protection officer where such appointment is required by applicable data protection legislation. The appointed data protection officer may be reached at dpo@cloudsigma.com.

5. Obligations of the Controller

• 5.1 You represent and warrant that you shall comply with the terms of the Agreement, this DPA and all applicable data protection laws.
• 5.2 You represent and warrant that you have obtained any and all necessary permissions and authorisations necessary to permit us, our Affiliates and Sub-Processors, to execute their rights or perform their obligations under this DPA.
• 5.3 You are responsible for compliance with all applicable data protection legislation, including requirements with regards to the transfer of Customer Data under this DPA and the Agreement.
• 5.4 All Affiliate(s) of you who use the Services shall comply with your obligations set out in this DPA.
• 5.5 You shall implement appropriate technical and organisational procedures to protect Customer Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. You shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate: (i) the pseudonymisation and encryption of Customer Data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to Customer Data in a timely manner in the event of a physical or technical incident; (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In accessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Customer Data transmitted, stored or otherwise processed.
• 5.6 You shall take steps to ensure that any natural person acting under your authority who has access to Customer Data does not process the Customer Data except on your instructions.
• 5.7 You shall agree to forward any notification received from the Processor or any Sub-processor pursuant to Clause 4.3 to the data protection supervisory authority if the you decide to continue the processing or to lift the suspension.
• 5.8 You may require correction, deletion, blocking and/or making available the Customer Data during or after termination of the Agreement. We will process the request to the extent it is lawful, and will reasonably fulfil such request in accordance with its standard operational procedures to the extent possible.
• 5.9 You acknowledge and agree that some instructions from you, including destruction or return of data from us, may result in additional fees. In such case, we will notify you of such fees in advance unless otherwise agreed.

6. Sub-Processors

• 6.1 You acknowledge and agree that: (i) Our Affiliate(s) may be used as Sub-processors; and (ii) we and our Affiliate(s) respectively may engage Sub-processors in connection with the provision of the Services.
• 6.2 All Sub-processors who process Customer Data in the provision of the Services to you shall comply with our obligations set out in this DPA.
• 6.3 Where Sub-processors are located outside of the EEA, we confirm that such Sub-processors: (i) are located in a third country or territory recognised by the EU Commission to have an adequate level of protection; or (ii) have entered into Standard Contractual Clauses with us; or (iii) have other legally recognised appropriate safeguards in place, such as the EU-US Privacy Shield or Binding Corporate Rules.
• 6.4 We shall make available to you the current list of Sub-processors upon request which shall include the identities of Sub-processors and their country of location. During the term of this DPA, we shall provide you with prior notification, via email, of any changes to the list of Sub-processor(s) who may process Customer Data before authorising any new or replacement Sub-processor(s) to process Customer Data in connection with the provision of the Services.
• 6.5 You may object to the use of a new or replacement Sub-processor, by notifying us promptly in writing within ten (10) Business Days after receipt of our notice. If you object to a new or replacement Sub-processor, and that objection is not unreasonable, you may terminate the Agreement or applicable Purchase with respect to those services which cannot be provided by us without the use of the new or replacement Sub-processor. We will refund you any prepaid fees covering the remainder of the term of the Agreement (or applicable Purchase) following the effective date of termination with respect to such terminated services.

7. Liability

• 7.1 The limitations on liability set out in the Agreement apply to all claims made pursuant to any breach of the terms of this DPA.
• 7.2 The parties agree that we shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of our Sub-processors to the same extent we would be liable if performing the services of each Sub-processor directly under the terms of the DPA, subject to any limitations on liability set out in the terms of the Agreement.
• 7.3 The parties agree that you shall be liable for any breaches of this DPA caused by the acts and omissions or negligence of your Affiliates as if such acts, omissions or negligence had been committed by you yourself.
• 7.4 You shall not be entitled to recover more than once in respect of the same claim.

8. Audit

• 8.1 We shall make available to you subject to a fee all information reasonably necessary to demonstrate compliance with our processing obligations and allow for and contribute to audits and inspections.
• 8.2 Any audit conducted by you under this DPA shall consist of examination of the most recent reports, certificates and/or extracts prepared by an independent auditor bound by confidentiality provisions at least as strict as those set out in the Agreement. In the event that provision of the same is not deemed sufficient in your reasonable opinion, you may conduct a more extensive audit which will be: (i) at your expense; (ii) limited in scope to matters specific to you and agreed in advance; (iii) carried out during Swiss business hours and upon reasonable notice which shall be not less than 4 weeks unless an identifiable material issue has arisen; and (iv) conducted in a way which does not interfere with our day-to-day business.
• 8.3 This clause shall not modify or limit your rights of audit, instead it is intended to clarify the procedures in respect of any audit undertaken pursuant thereto.

9. Notification of Data Breach

• 9.1 We shall notify you without undue delay after becoming aware of (and in any event within 72 hours of discovering) any accidental or unlawful destruction, loss, alteration or unauthorised disclosure or access to any Customer Data (“Data Breach”).
• 9.2 We will promptly investigate every security breach and take reasonable measures to identify its root cause(s), mitigate its adverse effect and prevent a recurrence. As information becomes available, unless prohibited by law, we will provide you with a description of the security breach, the type of Customer Data that was the subject of the Data Breach, and other information you may reasonably request concerning the affected Customer Data.
• 9.3 We will take all commercially reasonable measures to secure the Customer Data, to limit the effects of any Data Breach, and to assist you in meeting your obligations under applicable law.

10. Compliance, Cooperation and Response

• 10.1 In the event that we receive a request from a Data Subject in relation to Customer Data, we will refer the Data Subject to you unless otherwise prohibited by law. You shall reimburse us for all costs incurred resulting from providing reasonable assistance in dealing with a Data Subject request. In the event that we are legally required to respond to the Data Subject, you will fully cooperate with us as applicable.
• 10.2 We will notify you promptly of any request or complaint regarding the processing of Customer Data, which adversely impacts you, unless such notification is not permitted under applicable law or a relevant court order.
• 10.3 We may make copies of and/or retain Customer Data in compliance with any legal or regulatory requirement including, but not limited to, retention requirements.
• 10.4 The parties acknowledge that it is the duty of you to notify us within a reasonable time, of any changes to applicable data protection laws, codes or regulations which may affect our contractual duties. We shall respond within a reasonable timeframe in respect of any changes that need to be made to the terms of this DPA. If the parties agree that amendments are required, but we are unable to accommodate the necessary changes, you may terminate the part or parts of the Services which give rise to the non-compliance. To the extent that other parts of the Services provided are not affected by such changes, the provision of those Services shall remain unaffected.
• 10.5 The Controller and the Processor and, where applicable, their representatives, shall cooperate, on request, with the applicable supervisory authority in the performance of their respective obligations under this DPA.

11. Term and Termination

• 11.1 The term of this DPA shall coincide with the commencement of the Agreement and this DPA shall terminate automatically together with termination or expiry of the Agreement.
• 11.2 We shall within forty-five (45) days of termination of the Agreement, delete all Customer Data from our systems and provide you with certificates of such deletion upon request. Excluded from this provision is Customer Data on Hosting types or Backup options with longer retention periods for which, after termination of the Agreement, we can continue storing Customer Data for as long as the retention period defined for the Hosting type or Backup option plus forty-five (45) days. If you make a request to have Customer Data deleted earlier than the expiry of the extended storage period, we shall delete the Customer Data without undue delay, for a charge unless prohibited from doing so by applicable law.

12. General

• 12.1 This DPA sets out the entire understanding of the parties with regards to the subject matter herein.
• 12.2 Should a provision of this DPA be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
• 12.3 This DPA shall be governed by the law applicable to the terms of the Agreement. The courts that shall have exclusive jurisdiction for the settlement of all disputes arising under this DPA shall be the same as those set out in the terms of the Agreement.

Last Updated: 23 May 2018 Copyright CLOUDSIGMA AG, 2021. All rights reserved.

Appendix 1: Data Processing Activities to Be Performed by Us

You as the Data Controller grant users the right to access the Services in accordance with the terms of the Agreement for transfer of Customer Data identified in sections 3, 4 and 5 below, as it relates to the processing operations identified in section 6 below.

1. Controller

You as the Data Controller grant users the right to access the Services in accordance with the terms of the Agreement for transfer of Customer Data identified in sections 3, 4 and 5 below, as it relates to the processing operations identified in section 6 below.

2. Processor

We as the Data Processor received data identified in sections 3, 4 and 5 below, as it relates to the processing operations identified in section 6 below.

3. Data Subjects

You acknowledge and agree that the categories of Data subjects that use and might process Customer Data via the Services are solely determined by you and your User’s use of the Services. Notwithstanding the foregoing, the Customer Data processed usually concerns the following categories of Data Subjects:

• Employees, freelancers and contractors of you;
• Users, Affiliates and other participants;
• Partners, suppliers or service providers of you;
• Customers of you;
• Any individual to whom you have granted the right to access the Services in accordance with the terms of the Agreement;
• Other individuals to the extent identifiable through their use or registration with the Services, or through content of files or metadata processed with the Services.

4. Categories of Customer Data

For using the Services, we do not require any other Customer Data from Users other than the full name, email address, password and IP address for using the Services.

The categories of Customer Data processed is solely determined by you and your Users use of the Services. Customer Data might be stored in database records, metadata and files on file systems which identify or may reasonably be used to identify, Data Subjects.

You agree and acknowledge that you and your Users have to strictly abide by the Acceptable Use Policy (AUP) and that Customer Data is only processed via the Services with the prior written consent of the Data Subject.

5. Special categories of Personal Data

We do not require any special categories of Personal Data for using the Services, and your and your User’s use of the Services solely determine if and which special categories of Personal Data are stored and processed.

You agree and acknowledge that you and your Users have to strictly abide by the Acceptable Use Policy (AUP) and that sensitive Personal Data is only processed via the Services with the prior written consent of the Data Subject.

6. Processing operations

The Customer Data processed will be subject to the following basic processing activities:

• Customer Data will be processed to the extent necessary to provide the Services in accordance with both the Agreement and your instructions. We process Customer Data only on behalf of you, the Data Controller.

Processing operations include, but are not limited to:

• Provision of the Services via our hosting infrastructure. This operation relates to all aspects of Customer Data processed;
• Auditing use of the Services for compliance with the Agreement or applicable law. This operation relates to all aspects of Customer Data processed;
• Finding, analysing and protecting the Services and Customer Data or users against threats. This operation relates to all aspects of Customer Data processed;
• Provision of Technical support, issue diagnosis and Defect resolution to ensure the efficient and proper running of the systems and to identify, analyse and resolve technical issues both generally in the provision of the Services and specifically in answer to your Support query. This operation may relate to all aspects of Customer Data processed;
• Complying with your requests for professional services or auditing that involve accessing and processing Customer Data. These operations relate to all aspects of Customer Data processed;
• Fulfilling any other obligation set out in the Agreement. These operations relate to all aspects of Customer Data processed.

Appendix 2: Technical and Organisational Security Measures

The following descriptions provide an overview of the technical and organisational security measures implemented. It should be noted however that, in some circumstances, in order to protect the integrity of the security measures and in the context of data security, detailed descriptions may not be available. It’s acknowledged and agreed that the technical and organisational measures described therein and in our internal Security Policies will be updated and amended from time to time, at our sole discretion. Notwithstanding the foregoing, the technical and organisational measures will not fall short of those measures described in the Security Policy in any material, detrimental way.

1. Hosting Infrastructure

We utilise third party Hosting infrastructure in form of data centres and Infrastructure-as-a-Service (IaaS) with organizations that maintain current ISO 27001 certifications and/or SSAE 16 SOC 1 Type II or SOC 2 Attestation Reports. We will not utilise third party data centres that do not maintain the aforementioned certifications and/or attestations, or other substantially similar or equivalent certifications and/or attestations.

2. Physical Access Control

Technical or organisational measures regarding access control, especially regarding legitimation of authorised persons.

The aim of the entrance control is to prevent unauthorised people from physically accessing such data processing equipment which processes or uses Customer Data.

We employ measures designed to prevent unauthorized persons from gaining access to data processing systems and the Services in which Customer Data is processed, such as the use of security personnel, secured buildings and data center premises.

For our Services, the constructional and substantive security standards comply with the security requirements for data centres.

3. System Access Control

Technical and organisational measures regarding the user ID and authentication:

The aim of the system access control is to prevent unauthorised use of data processing systems, are used for the processing of Customer Data.

The following may, among other controls, be applied depending upon the particular Services ordered: authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and logging of access on several levels.

For our Services: (i) log-ins to Services Environments by our employees and Sub-processors are logged; (ii) logical access to the data centers is restricted and protected by firewall/VPN/SSH/SSL; and (iii) intrusion detection systems, centralized logging and alerting, and firewalls are used.

4. Data Access Control

Technical and organisational measures regarding the on-demand structure of the authorisation concept, data access rights and monitoring and recording of the same:

Measures regarding data access control are targeted on the basis that only such data can be accessed for which an access authorisation exists and that data cannot be read, copied, changed or deleted in an unauthorised manner during the processing and after the saving of such data.

Customer Data is accessible and manageable only by properly authorized staff, direct database query access is restricted, and application access rights are established and enforced. Access to data necessary for the performance of the particular task is ensured within the systems and applications by a corresponding role and authorisation concept.

5. Transmission Control

Technical and organisational measures regarding the transport, transfer, transmission, storage and subsequent review of Customer Data on data media (manually or electronically).

Transmission control is implemented so that Customer Data cannot be read, copied, changed or deleted without authorisation, during transfer or while stored on data media, and so that it can be monitored and determined as to which recipients a transfer of Customer Data is intended.

Except as otherwise specified for the Services or parts thereof, transfers of data outside the Services environment are encrypted. The content of communications (including sender and recipient addresses) sent through some email or messaging services may not be encrypted. You are solely responsible for the results of your decision to use unencrypted communications or transmissions.

The transfer of Customer Data to a third party (e.g. sub-processors) is only made if a corresponding contract exists, and only for the specific purposes. If Customer Data is transferred to companies located outside the EEA, we provide that an adequate level of data protection exists at the target location or organisation in accordance with the European Union’s data protection requirements, e.g. by employing contracts based on the Standard Contractual Clauses.

6. Data Entry Control

Technical and organisational measures regarding recording and monitoring of the circumstances of data entry to enable retroactive review:

Data Entry Controls are implemented so that a retroactive review is enabled.

System inputs are recorded in the form of log files and database records therefore it is possible to review retroactively whether and by whom Customer Data was entered, altered or deleted.

7. Data Backup and Availability Control

Technical and organisational measures regarding data backup (physical/logical):

Data backup and availability controls are implemented to protect Customer Data against accidental destruction and loss.

For our Services: backups are taken on a regular basis where you have chosen a corresponding Hosting type or Backup option as defined in the agreement.

8. Data Processing Control

Technical and organisational measures to differentiate between the competences of principal and contractor:

The aim of the data processing control is to provide that Customer Data is processed by a commissioned data processor in accordance with the Instructions of the principal.

Details regarding data processing control are set forth in the Agreement and DPA.

9. Data Segregation

Technical and organisational measures regarding purposes of collection and separated processing:

Customer Data from our different customers environments is logically segregated on our systems or those of Sub-processors.

Customer Data used for internal purposes only e.g. as part of the respective customer relationship, may be transferred to a third party such as a sub-processor, solely under consideration of contractual arrangements and appropriate data protection regulatory requirements.

Employees are instructed to collect, process and use Customer Data only within the framework and for the purposes of their duties (e.g. service provision).

Customer Data is stored in a way that logically separates it from other customer data.

As part of the Terms of Service governing all purchases of CLOUDSIGMA Inc, trading as “CloudSigma” and DR Fortress, LLC (collectively “CloudSigma-DRF”, “we”, or “us”) services, we provide the following service level to you (“you”, “your”):

100% Virtual Server Availability Guarantee

CloudSigma-DRF guarantees 100% availability of virtual servers in any given calendar month as defined by their availability on our network and their responsiveness in a non-degraded way. This guarantee covers the hardware and virtualisation hypervisor layers only and not the software (including but not limited to operating systems and applications) running within virtual servers.

100% Network Uptime Guarantee

CloudSigma-DRF guarantees 100% network availability in any given calendar month. The network will be deemed ‘available’ if CloudSigma-DRF’s border routers and switches are available and responding to CloudSigma monitoring tools in a non-degraded manner.

1ms or less Network Latency Guarantee

CloudSigma-DRF guarantees a network latency of 1ms or less for data packets between servers within CloudSigma-DRF’s services and network. The network latency refers to network latency times between the boundary layer of one virtual server to the boundary layer of another virtual server and excludes internal latency times resulting from software running within a virtual server at either end of the data transit.

Credit

If we fail to meet the guarantees detailed above, you will be able to request a credit as detailed below up to a maximum of 100% of your fee for capacity used during the previous 30 calendar days:

• Credit of 50 times the fees for any period of lack of availability for a virtual server or network uptime lasting more than 15 minutes as measured from the time at which you validly inform us at support@cloudsigma.com or the time at which our monitoring systems detect the lack of availability, whichever is earlier;
• Credit of 50 times the fees for any period of network latency as defined above, with greater than 1ms lasting for more than 15 minutes as measured from the time at which you validly inform us at support@cloudsigma.com or the time at which our monitoring systems detect the lack of availability, whichever is earlier;
• Credit of your entire fee for the previous 30 calendar days in case of permanent loss of your stored data resulting from hardware or software failure of CloudSigma-DRF’s systems. This provision entirely excludes data loss or corruption resulting from software running within a virtual server.

In the event that we fail to meet the guarantee on more than one occasion within a period of 30 calendar days, then the credit that you may claim for any incident will be limited to the maximum of 100% of your fee for capacity used since the previous incident or 100% of your fee for capacity used during the previous 30 calendar days, whichever fee is lower.

To receive a credit, you must contact us at support@cloudsigma.com within 30 calendar days of the incident, specifying the start time, date and duration of the qualifying period which forms the basis of your claim and the amount of credit claimed. We will be the sole arbiter regarding the award of credit and our decision will be final and binding.

Limitations and Exemptions

The following items or situations are exempt from CloudSigma-DRF’s guarantees:

• Acts or omissions of you or your users;
• Software running within your virtual servers;
• Scheduled maintenance which we have announced at least 24 hours in advance;
• Factors outside our control, including but not limited to any force majeure events, failures, acts or omissions of our upstream providers or failures of the internet.
• Actions of third parties, including but not limited to security compromises, denial of service attacks and viruses provided CloudSigma-DRF makes reasonable efforts to keep its software and systems up to date;
• Violations of our Acceptable Use Policy;
• Any product currently in Beta as per our Terms of Service
• Law enforcement activity.

A user must be up to date with all payments and have sufficient pre-pay balance where appropriate to cover current usage levels to be eligible for the credits outlined in this Service Level Agreement. No credits will be extended if a user is delinquent on any payments or has insufficient balance to continue using CloudSigma-DRF services at usage levels during the qualifying claimed credit period for at least 10 calendar days.

The award of credit by CloudSigma-DRF to you as described in this Service Level Agreement will be the sole and exclusive remedy for unavailability or performance degradation of CloudSigma-DRF services. Credits will only be provided against future service and for the avoidance of doubt may not be exchanged for cash or other forms of payment.

Notwithstanding anything in this Service Level Agreement to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of your fee for the previous 30 calendar days. Credits beyond your fee for the previous 30 calendar days will not be carried forward for use against future fees.

This Service Level Agreement forms part of your Agreement with CloudSigma-DRF, along with the Acceptable Use Policy, and is subject to all the terms and conditions stated in these documents.

Last Updated: 29 August 2014
Copyright CLOUDSIGMA Inc, 2021.  All rights reserved.