Terms of Service

 

This Terms of Service Agreement (Agreement) is between FortSpace (“we” “us” “our”) and the individual or entity to whom FortSpace provides services (Customer, you, your). This Agreement consists of this Terms of Service Agreement, the Acceptable Use Policy (AUP), the Privacy Policy, the Service Level Agreement (SLA) and any other Agreements which reference this Agreement. The Incorporated Agreements are incorporated into this Agreement by reference. You are responsible for including these provisions in your agreements with your customers and users (End Users), and for all acts of your End Users under this Agreement.

 

The Effective Date of this Agreement is the date of account activation through the registration form (Order Form). The Order Form is completed by Customer online when signing up for Services (as that term is defined in this Agreement). The Term of this Agreement is set out on the web page describing the Services (Term). Customer consents to be bound by this Agreement by submitting the Order Form. Customer consents to any revisions to this Agreement or Incorporated Agreements by continuing to use the Services.

 

 

1 – Services

FortSpace’s web site sets out the technical specifications, term and pricing for the services it provides to Customer. Throughout this Agreement and Incorporated Agreements these are referred to as “Services.” Certain aspects of the Services may be provided by third parties. If it is necessary to identify these aspects separately in this Agreement, they are referred to as “Third Party Services.”

 

Customer’s use of the Services must not exceed that of similarly situated customers (Fair Use). If Customer’s use of the Services exceeds the Fair Use threshold, FortSpace will notify Customer by email. Customer will have 2 days from the date on which Customer exceeds Fair Use to modify its use of the Services so as not to exceed Fair Use. If Customer fails to take this action, FortSpace  may assess Customer additional fees based on the costs associated with Customer’s acts. FortSpace may also terminate this Agreement, or suspend the Services, if by exceeding Fair Use Customer endangers FortSpace’s network or its ability to provide Services to other customers. To the extent that Customer’s use of the Services exceeds the Fair Use threshold, and this use endangers FortSpace’s ability to provide services to other customer, or its network in general, FortSpace may take action to mitigate this disruption without prior notice to Customer.

 

The following provisions govern certain Services:

 

 

1.1 – Configuration

Customer is solely responsible for determining whether FortSpace’s services and hardware configurations are suitable for Customer’s intended use.

 

 

1.2 – IP Addresses

FortSpace provides Customers with one IP address (Static IP) per virtual machine. FortSpace will use reasonable efforts to provide advance notice to Customer prior to any change of a Static IP. Static IPs provided by FortSpace may not be transferred or assigned by Customer. Static IPs are governed by the terms and conditions imposed on FortSpace by ARIN, RIPE or APNIC. Customer may not terminate this Agreement should a change of either ARIN’s or RIPE’s or APNIC’s rules and regulations alter this provision of the Agreement.

 

 

2 – Back Up

You are solely responsible for the preservation of your Content which you save onto its virtual server. FORTSPACE SHALL HAVE NO RESPONSIBILITY TO PRESERVE DATA. FORTSPACE SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF CUSTOMER FAILURE TO BACKUP THEIR DATA OR FOR ANY OTHER REASON.

 

 

3 – Fraud Prevention and Security Screening

FortSpace uses multiple technologies to screen orders for fraud. Each request for new or additional Services is subject to fraud screening. FortSpace is not obligated to provide the Services to Customer unless and until the information Customer provides to FortSpace satisfies FortSpace’s fraud prevention controls. Should Customer fail to satisfy FortSpace’s fraud controls, Customer may remain responsible for Third Party Services ordered. FortSpace is not responsible, and Customer agrees to hold FortSpace harmless from, any liability or damage that Customer or any third party may sustain, should Customer fail to meet the criteria of the fraud prevention controls.

 

FortSpace uses industry standard methods to secure the Services and its network. Customer is required to cooperate with FortSpace’s efforts to maintain this security. Customer is also required to report security deficiencies, viruses, and other network issues to FortSpace.

 

If, in our sole discretion, we determine that our Services have been compromised by a security breach (Breach), we shall provide you with notice of the Breach within 24 hours after such determination (Breach Notification). It may be necessary to suspend the Services to cure, mitigate and investigate the Breach. We shall not be liable for any loss Customer may incur as a result of such suspension. The information contained in the Breach Notification may be of a preliminary and unconfirmed nature, and you rely on it at your own risk. All information you receive in connection with the Breach, including the Breach Notification, is confidential. We both agree to cooperate in investigating the Breach, but if our cooperation requires an inordinate expenditure of time and resources or we are asked to participate in a government investigation, we may be required to bill you at our standard consulting fees.

 

 

4 – Ownership

Customer is required to provide the contact information set out in the Order Form and in FortSpace’s control panel (Customer Information). Customer warrants that the Customer Information is accurate and up to date. We will use the Customer Information to determine ownership of the Services. If there is a dispute concerning ownership of the Services, we may freeze Customer’s account until such time as the dispute is resolved by the parties.

 

If aspects of the Services are administered by Customer on behalf of another person or entity, Customer warrants that it will administer these Services in good faith. Customer further agrees to indemnify FortSpace against all losses and liabilities sustained by FortSpace should Customer administer the account in ways that are adverse to End Users and result in any claim against FortSpace.

 

 

5 – Fees

The Fees for a particular Service are set out on the Order Form of each individual Service (Fees). Fees are guaranteed for the current Term. Should FortSpace change the Fees during the Term, such changes will not take effect until the beginning of the next Renewal Term. From time to time, FortSpace may offer special promotions with regard to the Fees. These promotions are specifically targeted, do not apply to previously ordered Services, and, depending upon their terms, may not apply to all Customers or Services introduced or added by customer in the future.

 

FortSpace is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by FortSpace. Currency exchange settlements will be based on agreements between you and the your credit card provider.

 

Fees will be charged to the payment method as Customer sets out in the Customer Information. Fees are due as set out in the Order Form. It is Customer’s responsibility to ensure that their Customer Information is up to date and will not be declined. If FortSpace does not receive undisputed Fees when charged (Payment Default), Customer’s entire account will be suspended. During the time Customer’s account is suspended because of a Payment Default, various features of the Services may not be available. FortSpace is not responsible for any damages caused by an account suspended due to a Payment Default.

 

5.1 – Security

The security of your personally identifiable information is important to us. When you enter sensitive information (such as credit card number) on our registration or order forms and account management interfaces, we encrypt that information using secure socket layer technology (SSL).

 

 

5.2 – Fee Disputes

The Bill Dispute Notice must contain sufficient detail to allow FortSpace to identify the basis and reasons for the dispute. If the Bill Dispute Notice is received by FortSpace after the date a Fee is due, Customer has waived the right to dispute the Fee. FortSpace will use reasonable efforts to investigate the dispute within 30 days of its actual receipt of the Bill Dispute Notice. FortSpace will respond to the Bill Dispute Notice in writing. If FortSpace finds that a particular Fee was charged in error, FortSpace will credit Customer’s account within 30 days. If FortSpace disagrees with the Bill Dispute Notice, the parties agree that for a period of 60 days, they will work in good faith to resolve the dispute. If the parties fail to agree to resolve the dispute, the parties are entitled to exercise their rights under this Agreement or at law. During the time following FortSpace’s actual receipt of a Bill Dispute Notice, all undisputed Fees for Services must be paid when due. Customer agrees to waive its right to withhold Fees during a bill dispute, and/or to set off other Fees due against those in dispute.

 

 

6 – Term

The Term for a particular Service is set out on the Order Form. Upon expiration of the Term, the Order will renew for the period of the prior Term (Renewal Term), and subsequently renew at the end of each Renewal Term unless terminated as provided in this Agreement.

 

 

7 – Termination

FortSpace may terminate this Agreement, or an aspect of the Services covered by this Agreement, by providing the Customer with written notice of termination. Customer may terminate this Agreement, or an aspect of the Services by this Agreement, by logging into their Control Panel and/or using the Help Desk to submit cancellation request details to the FortSpace Billing Department. This notice must be delivered at least 7 days prior to the expiration of the Term.

 

Either Customer or FortSpace may terminate this Agreement, or an aspect of the Services covered by this Agreement, by providing the other with written notice of material breach. The party against whom material breach is alleged shall have 10 calendar days to correct the material breach. However, if the material breach is incapable of cure that aspect of the Services affected by the material breach, may be terminated immediately. Our decision to stop offering any Third Party Services shall not be considered a material breach.

 

FortSpace may suspend or terminate this Agreement, or particular aspects of the Services covered by this Agreement, at FortSpace’s sole and exclusive discretion, if:

 

7.1 FortSpace receives a complaint that Customer has violated this Agreement, or any Incorporated Agreements, and Customer has not complied with FortSpace’s recommended course of action;

 

7.2 a Third Party ceases making aspects of the Services available to FortSpace, or continuing to provide the Services becomes commercially unreasonable; and/or

 

7.3 a beta Program ends.

 

 

8 – Warranties

 

8.1 – Mutual Warranties

Customer and FortSpace each agree that they have the requisite authority to enter into this Agreement, and that neither is prohibited from entering into it.

 

 

8.2 – FortSpace Warranties

FortSpace warrants that it will use reasonable efforts to deliver the Services to Customer as set out on the web page describing the Services upon the Effective Date.

 

 

8.3 – Customer Warranties

Customer represents and warrant to FortSpace that: (i) Customer has the experience and knowledge necessary to use the Services; (ii) Customer understands and appreciates the risks inherent to Customer and Customer’s business that come from accessing the Internet; (iii) Customer will provide FortSpace with material that may be implemented by FortSpace to provide the Services without extra effort on FortSpace’s part; (iv) Customer has sufficient knowledge about administering, designing and operating the functions facilitated by the Services to take advantage of the Services; (v) in entering into this Agreement, and performing the obligations set out in it, Customer will not violate any applicable laws and regulations; (vi) Customer owns, or has a license to use, all materials transmitted using the Services, or placed on FortSpace’s servers; and (vii) Customer will pass through the terms of FortSpace’s Acceptable Use Policy to End Users, and will be bound to End Users by a contract that is no less restrictive than this Agreement.

 

 

9 – Disclaimers

THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS, AND WITH ALL FAULTS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 8.2, FORTSPACE HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES, EITHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND TITLE. FORTSPACE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ADVICE GIVEN IN A COMMUNITY FORUM IS RELIABLE, ACCURATE OR WILL NOT DAMAGE CUSTOMER. FORTSPACE IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER, OR STORED BY CUSTOMER OR AN END USER VIA THE SERVICES PROVIDED BY FORTSPACE. FORTSPACE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY FORTSPACE. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO FORTSPACE SHALL BE PASSED THROUGH TO CUSTOMER, NOR SHALL CUSTOMER CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.

 

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

 

 

10 – Limitation of Liability

IN NO EVENT WILL FORTSPACE’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY FORTSPACE FROM CUSTOMER FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM “FORTSPACE” SHALL BE INTERPRETED TO INCLUDE FORTSPACE’S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH FORTSPACE.

 

CUSTOMER AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WILL NOT, UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD FORTSPACE OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY CUSTOMER, ANY OF CUSTOMER’S END USERS, OR ANY OTHER THIRD PARTY. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, AND APPLY EVEN IF FORTSPACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; CUSTOMER AGREES THAT IN THOSE JURISDICTIONS, FORTSPACE’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

 

 

11 – Indemnification

FortSpace shall indemnify and hold Customer harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against Customer so far as it is based on a claim that a Service infringes any issued patent. This indemnification provision is expressly limited to parts of the Service that are fully owned by FortSpace. It does not extend to third party products or services, including Third Party Services, even if incorporated into the Service. This paragraph will be conditioned on Customer notifying FortSpace promptly in writing of the claim and giving FortSpace full authority, information, and assistance for the defense and settlement of that claim.

 

Customer shall have the right to participate in the defense of the claim at Customer’s expense. If such claim has occurred, or in FortSpace’s opinion is likely to occur, Customer agrees to permit FortSpace, at its option and expense, either to: (i) procure for Customer the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate FortSpace’s obligations (and Customer’s rights) under this Agreement with regard to such Service and refund to Customer the price originally paid by Customer to FortSpace for the Service, or the Fee actually received by FortSpace from Customer for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.

 

Customer agrees to indemnify, defend and hold harmless FortSpace and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer’s use of the Services or an End User or visitor’s use of the Services through Customer; (ii) any violation by Customer, an End User, or visitor to Customer’s site, of any of FortSpace’s policies; (iii) any breach of any of Customer’s representations, warranties or covenants contained in this Agreement; (iv) any acts or omissions by Customer; and/or (v) any posts by Customer in the Community Forum. The terms of this section shall survive any termination of this Agreement.

 

 

12 – Intellectual Property

 

12.1 – FortSpace’s Intellectual Property

FortSpace, or its third party vendors, retains ownership of all intellectual property rights in the Services. FortSpace grants to Customer a non-exclusive, non-transferable, worldwide, royalty-free license to use the intellectual property provided by FortSpace solely to access and use the Services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out herein, this license does not grant any additional rights to Customer. All right, title and interest in FortSpace’s intellectual property, or that of its third party vendors, shall remain with FortSpace or its licensors. Customer is not permitted to circumvent any devices designed to protect FortSpace’s, or its licensor’s, ownership interests in the intellectual property provided to Customer. In addition, Customer may not reverse engineer this intellectual property.

 

All information you provide to FortSpace in the course of our support and administration of the Services shall be owned by FortSpace. You waive and assign any right, title and interest you may have in the intellectual property contained in this information and shall cooperate with us in securing our rights.

 

Any license provided to Customer is provided with “RESTRICTED RIGHTS” applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, or duplication.

 

 

12.2 – Customer’s Intellectual Property

Customer grants to FortSpace, and, if required, FortSpace’s third party vendors, a non-exclusive, non-transferable, worldwide, royalty-free license to use Customer’s intellectual property (or that of its third party vendors and/or End Users) for the limited purpose of providing the Services to Customer. This license terminates upon termination or expiration of this Agreement. Except for the license rights granted herein, this license does not grant any additional rights to FortSpace. All right, title and interest in Customer’s intellectual property, or that of its third party vendors, shall remain with Customer or its licensors. FortSpace is not permitted to circumvent any code designed to protect Customer’s, or its licensor’s, ownership interests in the intellectual property provided to FortSpace. In addition, FortSpace may not reverse engineer this intellectual property.

 

 

12.3 – Licenses Customer is Required to Have

Other than as set out in paragraph 12.1 above, Customer is solely responsible for obtaining all licenses and other intellectual property rights necessary to use the Services (Third Party Licenses). Upon written request, Customer agrees to provide FortSpace with reasonable assurances that it has received the Third Party Licenses, including, but not limited to, written copies of the Third Party License.

 

 

13 – Miscellaneous

 

13.1 – Force Majeure

Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, failures of beta products, or other circumstances beyond its reasonable control. Other than failures of beta products, the obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. Other than failures of beta products, the party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than 10 days from the beginning of the event. For beta products, FortSpace shall have no liability or notice requirement whatsoever.

 

 

13.2 – Governing Law and Jurisdiction, Statute of Limitations

The parties agree that all disputes shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region (HKSAR). The parties agree that the courts or Hong Kong shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this Agreement or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the court set out above, and agree that they shall not contest notice from that court.

 

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of FortSpace services or the Terms of Service must be filed within one year after such claim or be forever barred.

 

 

13.3 – No Waiver.

No waiver of rights under this Agreement, or any FortSpace policy, or other agreement between Customer and FortSpace, shall constitute a subsequent waiver of this or any other right under this Agreement.

 

 

13.4 – Assignment

This Agreement may be assigned by FortSpace. It may not be assigned by Customer. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties

 

 

13.5 – Severability

In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.

 

 

13.6 – No Agency

This Agreement does not create any agency, partnership, joint venture, or franchise relationship between the parties. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. The parties are independent contractors.

 

 

13.7 – Survival

The provisions of paragraphs 1, 9, 10, 11, 13.1, 13.3, 13.4, 13.5, 13.6, and 13.8 will survive the expiration of this Agreement or its termination for any reason.

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