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Agreement Information
Terms and Conditions

Last Update: December 9th, 2010

These Terms of Service (posted on www.nephoscale.com) represent part of an agreement (this/the “Agreement”) between Silicon Valley Web Hosting, Inc., a California subchapter S corporation d/b/a NephoScale (“we” or “NephoScale”) and the Customer who orders NephoScale services (“you” or “Customer”) and, if applicable, the company or other legal entity you represent (collectively, “You”). When we use the term “Agreement” in any of the Order Form (“Order”), Terms of Service (“TOS”), Acceptable Use Policy (“AUP”), Privacy Policy, or Service Level Agreement (“SLA”) we are referring collectively to all of them.

You agree to be bound by the terms and conditions of this agreement. If you are entering into this agreement on behalf of a company, or other legal entity, you represent that you have the legal authority to bind the legal entity to this agreement. These policies and terms may be modified by NephoScale from time to time. It is your responsibility to check the NephoScale website regularly for changes to this agreement. Your continued use of the NephoScale Website, Portal, API, or Services after such changes constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these changes do not access the NephoScale Website, Portal, API, or Services.

In addition to these Terms of Service, the Agreement consists of the following:
• Acceptable Use Policy posted on http://www.nephoscale.com/use-policy
• Service Level Agreement posted on http://www.nephoscale.com/service-level-agreement
• Privacy Policy posted on http://www.nephoscale.com/privacy-policy
• Order Form (online or written)

Sections within the “Universal” list of terms states the general terms applicable to all Cloud Services, and the sections within the “Per Service” terms will apply only if you elect to purchase the particular services described in those sections.

Terms of Service – Universal:
1. Services
2. Customer Conduct
3. Access to Services
4. Term
5. Payments
6. Fees and Fee Increases
7. Service Level Agreements
8. Termination
9. Suspension
10. Data Access
11. IP Addresses and DNS Services
12. Downtime, Maintenance and Security
13. Intellectual Property
14. Force Majeure
15. Import and Export Compliance
16. Confidentiality
17. Representations and Warranties; Disclaimers; Limitations of Liability
18. Indemnification
19. Notices
20. Assignments
21. Lawsuits
22. Trademarks
23. Miscellaneous Provisions

Terms of Service – Per Service
24. NephoScale Cloud Servers
25. NephoScale Dedicated Servers
26. NephoScale Cloud Storage
27. NephoScale Free Cloud Starter Package

1. SERVICES

The services covered by this Agreement are those that NephoScale and its affiliates (referred to together herein as “we” or “us”) make available for a fee. In addition to cloud servers, dedicated servers, and cloud storage; services may include consulting, professional services, or software. Once NephoScale accepts you’re Order, and subject to these Terms of Service, NephoScale agrees to provide the Services.

You may only use the Services to store, retrieve, query, serve, and execute Your Content that is owned, licensed or lawfully obtained by you. “Your Content” includes any “Company Content”. As part of the Services, you may be allowed to use certain software (including related documentation) provided by us or third party licensors. This software is neither sold nor distributed to you and you may use it solely as part of the Services. You may not transfer it outside the Services without specific authorization to do so.

You must comply with the current technical documentation, and developer guides, applicable to the Services as posted by us and updated by us from time to time on the NephoScale website. In addition, if you create technology that works with a Service, you must comply with the current technical documentation, and developer guides, applicable to that Service as posted by us and updated by us from time to time on the NephoScale website.
We may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that we remove content without prior notice, we will provide prompt notice to you unless prohibited by law.

2. CUSTOMER CONDUCT

You agree to:
(i) Comply with applicable law and the NephoScale Acceptable Use Policy.
(ii) Pay when due the fees for the Services.
(iii) Use reasonable security precautions in your use of the Services.
(iv) Cooperate with Nephoscale’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement.
(v) Immediately notify NephoScale of any unauthorized use of your account or any other breach of security.

3. ACCESS TO SERVICES

You may access the Services via the online Portal, or via a NephoScale Application Programming Interface or API. NephoScale may modify its portal or APIs from time to time, or may migrate to new API’s.

4. TERM

The term of this agreement (“Term”) will begin once you agree to the terms and conditions of this agreement by clicking the “Accept” button in the online order form and completing your NephoScale account online sign up process, or by signing a written order form.

5. PAYMENT

We may specify the manner in which you will pay any fees. All payments will be made in US Dollars. All amounts payable by you under this agreement must be made without deduction or withholding. NephoScale may suspend all services if our charges to your credit card are rejected for any reason.

Customer must pay for Service based upon one of the following billing models:
(i) Usage Based Hourly: Your renewal term is hourly. Your billing cycle is semi-monthly. Your billing cycle begins the day you create a NephoScale account. These services are billed on or around your billing cycle renewal date for service usage in the previous semi-monthly period of your billing cycle.
(ii) Usage Based Monthly: Your renewal term is monthly. Your billing cycle is monthly. Your billing cycle begins the day you create a NephoScale account. These services are billed on or around your billing cycle renewal date for service usage in the previous monthly period of your billing cycle.
(iii) Prepaid Monthly: Your renewal term is monthly. Your billing cycle is monthly. Your billing cycle begins the day you create a NephoScale account. These services are billed on or around your billing cycle renewal date for services to be provided in the following monthly period of your billing cycle. Customer is responsible for paying any overage charges from previous month’s billing cycle on your billing cycle renewal date. Additional services or upgrades made during the billing cycle will be prorated as necessary to allow for immediate payment of prepaid services for the current billing cycle.
(iv) Prepaid Annual: Your renewal term is annual. Your billing cycle is monthly. Your billing cycle begins the day you create a NephoScale account. These prepaid services are billed on or around your annual term renewal date, which is you’re billing cycle date 12 calendar months following the first billing cycle date which follows the date service begins. Subsequent renewal terms for these services are billed on or around your billing cycle renewal date for services to be provided in the following 12 month period. Customer is responsible for paying any overage charges from previous month’s billing cycle on your billing cycle renewal date. Additional services or upgrades made during the billing cycle will be prorated as necessary to allow for immediate payment of prepaid services for the remainder of the current annual term.

6. FEES AND FEE INCREASES

NephoScale will charge your credit card as follows: (i) for prepaid recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees such as fees for: membership, set-up, overage, or compute or storage usage fees – on or around the first day of the billing cycle that follows the month that the fees are incurred. Unless otherwise agreed in the Order, your billing cycle will begin on the date that your NephoScale account is created.

NephoScale may charge interest on late payments at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any payment is overdue by more than thirty (30) days, and NephoScale brings a legal action to collect, or engages a collection agency, you must also pay NephoScale’s reasonable costs of collection, including attorney fees and court costs. All fees will be charged in US Dollars. Any “credit” that we may owe you, such as a credit for failure to meet a service level guarantee, will be applied to fees due from you for services, and will not be paid to you as a refund. Charges that are not disputed within thirty (30) days of the date charged are concluded to be accurate. You must provide NephoScale with accurate information to help determine if any tax is due with respect to the Services provided to you, and if NephoScale is required by law to collect taxes on the services provided to you, you must pay NephoScale the amount of the tax that is due, or provide satisfactory evidence of your exemption from the tax.
We may increase or add new fees for any existing Service, by giving you 30 days advance notice. Such notice will be posted on the NephoScale website on the Service detail page for the affected Service. You agree that you are responsible for checking the NephoScale website each month to confirm whether there are any new fees and the dates they take effect.

If you are under a month-to-month contract, then we may increase existing fees at any time on thirty (30) days advance written notice. If the initial term of your Agreement is longer than one month, or if you have a membership pricing plan, then we may increase your fees effective as of the first day of the renewal term that first begins thirty (30) days from the day of our written notice of a fee increase.

7. SERVICE LEVEL AGREEMENT

The Service Level Agreement listed below is part of this Agreement for the Services you are purchasing:
• Service Level Agreement posted on http://www.nephoscale.com/service-level-agreement

8. TERMINATION

This agreement will continue until terminated by either party according to the requirements set forth in section 8.
The customer can cancel by thirty (30) day written notice claiming a breach of this agreement on the part of NephoScale if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
The customer can terminate the agreement for reasons of convenience. If the customer has a usage based plan, termination will take effect on the day notice is issued. If the customer has a usage based membership plan the prepaid membership installment is non-refundable. If the customer has a month to month prepaid plan notice of termination for convenience cancellation requests must be made no later than 30 days prior to the renewal date of the service. If this deadline is not met, payment will be required for the following term’s service. All Customer cancellations must be made through the NephoScale customer portal, and NephoScale cancellations are to be made in writing to the primary contact email address associated with the account.

We may immediately terminate the Agreement for breach on written notice if:
(v) We discover that the information you provided to us about yourself, or your proposed use of the Services, was materially inaccurate or fraudulent.
(vi) If you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer.
(vii) Your payment of any invoiced amount is overdue, and you do not pay the overdue amount within seven (7) days of our written notice.
(viii) You attempt a denial of service attack on any of the Services.
(ix) You seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services poses a security or service risk to us, to any user of services offered by us, or may subject us or any third party to liability, damages or danger.
(x) You otherwise use the Services in a way that disrupts or threatens the Services.
(xi) You are in default of your payment obligations hereunder and there is an unusual spike or increase in your use of the Services.
(xii) You use any of the NephoScale Content other than as expressly permitted herein.
(xiii) We receive notice or we otherwise determine, in our sole discretion, that you may be using NephoScale services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party.
(xiv) We determine, in our sole discretion, that our provision of any of the services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.

9. SUSPENSION
We may suspend your Services without liability if:
(i) We reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement.
(ii) We discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past.
(iii) You don’t cooperate with our reasonable investigation of any suspected violation of the Agreement.
(iv) We reasonably believe that your Services have been accessed or manipulated by a third party without your consent.

If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150 per cloud server, dedicated server, or 1TB storage) upon reinstatement of the Services.
We may suspend your right to use any or all Paid Services, or terminate this Agreement in its entirety and cease providing all Services to you, for any reason or for no reason, at our discretion at any time by providing you sixty (60) days’ advance notice.

10. DATA ACCESS

You will not have access to your data stored on any NephoScale systems during a suspension or following termination.

Although the NephoScale service may be used as a backup service, we encourage you to maintain at least one additional current copy of your programs and data stored on the NephoScale network somewhere other than on the NephoScale network.

NephoScale is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from NephoScale’s failure to take reasonable security precautions. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.

11. IP ADDRESSES AND DNS SERVICES

Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses assigned to you by NephoScale in connection with Services; this includes pointing the DNS for your domain name(s) away from NephoScale Services.

12. DOWNTIME, MAINTENANCE, AND SECURITY

NephoScale may interrupt Service to perform maintenance on NephoScale equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. NephoScale will exercise reasonable efforts to inform Customer before interrupting Service and to repair the Service promptly. Without limitation to Section 17, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Outage. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension in accordance with the notice provisions set forth in Section 19 and to post updates on the NephoScale website regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so. NephoScale is not required to reimburse any expenses Customer incurs for troubleshooting or repair, including without limitation expenses for outside consultants.

Customer is responsible for maintaining security and for maintaining patches (unless the related service is under a managed services contract), except to the extent NephoScale specifically accepts such responsibility by listing such service features in the Customer’s Order (subject to the limitations of liability in Section 17 and elsewhere in this Agreement). NephoScale is not responsible for providing physical access to or copies of software, data, or content stored on NephoScale’s equipment under any circumstances and is not required to provide network access (i.) after any termination or suspension of Customer’s Service or (ii.) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access.

13. OWNERSHIP OF INTELLECTUAL PROPERTY

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 NephoScale during the performance of the Services shall belong to NephoScale unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.

Other than the limited use and access rights expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to the Services any other technology and software that we provide or use to provide the Services. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest, or rights, in the Services or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement.
Other than the rights and interests expressly set forth in this Agreement you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to Your Content. We will not disclose Your Content, except: (i) if you expressly authorize us to do in connection with your use of the Services; or (ii) as necessary to provide the Services to you, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas or court orders.

14. FORCE MAJEURE

Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the web hosting industry.

15. RIGHTS RELATING TO US GOVERNMENT EXPORT MATTERS

All Services provided to the U.S. Government are provided under the commercial license rights and restrictions generally applicable under this Agreement.

You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom NephoScale is legally prohibited to provide the Services. You shall, in connection with your use of the Services, comply with all applicable import, export and re-export control laws and regulations of any country, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, Council Regulation (EC) No 428/2009 on the control of exports of dual-use items and technology, and country-specific economic sanctions programs or embargoes adopted against countries or individuals under any applicable national or international legislation, including any measures implemented by the U.S. Office of Foreign Assets Control.

16. CONFIDENTIALITY

Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) 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 General Terms and Conditions.
(ii) To law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law as required by law; or
(iii) In response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.

17. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS; LIMITATIONS OF LIABILITY

NephoScale makes no express or implied warranties, including without limitation representations and warranties of title, non-infringement, merchantability, fitness for a particular purpose, quiet enjoyment, satisfactory quality, freedom from interruption, errors, software bugs, computer viruses, worms, and other operating problems, and implied warranties arising from course of dealing or course of performance. Some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages, and, as such, some portion of the above limitation may not apply to Customer. In such jurisdictions, NephoScale liability is limited to the greatest extent permitted by law.

Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct. The dollar credits stated in the Service Level Agreement are your sole and exclusive remedy for unavailability of the Services. Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from NephoScale ‘s negligence, the maximum aggregate monetary liability of NephoScale and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim.

Under no circumstances will NephoScale be responsible for any loss or damage, including personal injury or death, resulting from anyone’s use of the website, any content posted on the website or transmitted to users, or any interactions between users of the website, whether online or offline. You expressly acknowledge and agree that your use of NephoScale is at your sole risk. To the maximum extent permitted by the law, NephoScale does not warrant or make any representations regarding the use or the results of the website in terms of correctness, accuracy reliability or otherwise, NephoScale shall have no liability for any interruptions in the use of the website. NephoScale cannot guarantee and does not promise any specific results from use of the website or services. The NephoScale website and content are provided “AS-IS”. NephoScale services are provided, except to the extent specifically provided in the SLA, “AS-IS” and on an “AS-AVAILABLE” basis. The Service is provided

You represent and warrant that you will not use the Services and/or your application and your content:
(i) In a manner that infringes, violates or misappropriates any rights of us or any third party
(ii) To engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN SPAM Act of 2003
(iii) In any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or
(iv) In a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.

18. INDEMNIFICATION

You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (ii) Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services.

We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.

19. NOTICES

Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., updates to the AUP, notices of pricing changes, etc.) will be posted on the NephoScale website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Services or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to your NephoScale portal account after the time that the notice is posted.

20. ASSIGNMENT

You may not assign the Agreement without NephoScale’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of a business, and we may transfer your Confidential Information as part of any such transaction. NephoScale may use third party service providers to perform all or any part of the Services, but NephoScale remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if NephoScale performed the Services itself.

21. GOVERNING LAW AND LAWSUITS

If there is any dispute about or involving the Agreement, you agree that the dispute will be governed by the laws of the State of California without regard to its conflict of law provisions. You also agree to the exclusive jurisdiction and venue of the courts of the state and federal courts of Santa Clara County, California and waive all defenses of lack of personal jurisdiction and forum non conveniens. You agree that you will not bring or participate in any class action lawsuit against NephoScale or any of its employees or affiliates. Any cause of action by you with respect to the Agreement must be instituted within one (1) year after the cause of action arose or be forever waived and barred.

If you choose to access our site or other services, you agree to do so subject to the internal laws of the State of California. You are in the best position to know whether your use of our site or other services may be prohibited or restricted by local laws in your location, and therefore are responsible for compliance with any such laws.
You further acknowledge that our rights in NephoScale are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.

22. TRADEMARKS

“Trademarks” refers to any names, marks, brands, logos, designs, slogans, trademarks, services marks and other designations NephoScale uses in connection with its products or services. NephoScale makes no claim of ownership to the trademarks of any service provider (the “Vendor”) whose products are listed on the Web Site, including any goodwill that arises from the use of those trademarks.

23. MISCALLANEOUS PROVISIONS

If Customer has a Usage Based Service Plan pursuant to Section 5 (i), such amended version of this Agreement will become effective 30 days after being posted to the NephoScale website (the end of the “Notice Period”), and Customer’s continued use of the Service after the Notice Period will confirm consent to such amended version. If Customer has a Prepaid Plan pursuant to Section 5 (ii), such amended version of this Agreement will become effective upon the first to occur, after the Notice Period, of: (i) the start of Customer’s next prepayment period; or (ii) the next time Customer and NephoScale add to, or upgrade, the the Customer’s Service. Notwithstanding the foregoing, revisions to the AUP, SLA, or Privacy Policy will become effective once they are posted to the NephoScale website. NephoScale may accept or reject any Order you submit in its sole discretion. NephoScale’s provisioning of the Services described in an Order shall be NephoScale’s acceptance of the Order. The Terms of Service incorporated in the latest Order posted on the effective date of the latest Order will govern the entire account.

Pursuant to 47 U.S.C. Section 230(d), NephoScale hereby notifies Customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors, and information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms. If Customer is a consumer (despite the prohibition in Subsection 1(a) above), NephoScale hereby provides Customer with the following notice, pursuant to California Civil Code Section 1789.3: (i) to resolve any complaint regarding the Service or receive any further information regarding the Service, Customer should contact NephoScale at the contact points provided on NephoScale’s website under “Contact Us”; and (ii) California consumers may be entitled to pursue complaints regarding the Service by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at 1625 North Market Blvd., Suite N-112, Sacramento, CA 95834, or by phone at 800-952-5210.

NephoScale makes no guaranty of confidentiality or privacy of any communication or information transmitted on the NephoScale website, any website linked to the NephoScale website, or within the NephoScale customer portal. NephoScale will not be liable for any privacy of email addresses, registration and identification information, disk space, communications, confidential or trade secret information, or any other content stored on NephoScale’s equipment, transmitted over networks accessed by the NephoScale’s website, portal, services, or API, or otherwise connected with the use of the NephoScale’s website, portal, services, or API.

You acknowledge that you cannot verify all information provided by online merchants and other third parties, and errors in gathering or reporting such information may occur due to the large volume of merchants with many different products and services, NephoScale does not represent or warrant that the information accessible via our services is always accurate, complete or current, and shall not be liable for or responsible to honor (or to cause any merchant to honor) any erroneous information regarding the price, description and availability of, or any discounts, offers, promotions and coupons relating to, any product or service offerings available through the use of our services or through any other services. Furthermore, due to the dynamic nature of the marketplace, all information regarding such matters is subject to change without notice. NephoScale shall not have any liability, or responsibility, to you for any loss, damage, expense, or injury you may sustain through your use if any third party products or services. Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.

24. NEPHOSCALE CLOUD SERVERS

The billing model for this service is Usage Based Hourly. Renewal term is hourly and the billing cycle is monthly. You pay for only for what you use, and there is no minimum fee, and you may cancel the service at any time.
You are responsible for keeping the validity of your licenses up to date and following the license terms of any software you operate.

In using Microsoft software as part of the Services, you may be allowed to use certain software developed and owned by Microsoft Corporation or its licensors. This software is neither sold nor distributed to you and you may use it solely as part of the Services. You may not transfer it outside the Services. Microsoft software support is not provided in connection with the Services.

With NephoScale Cloud Server Membership Hourly Pricing plans you may identify NephoScale Cloud Servers as subject to Membership Hourly Pricing and payment terms as stated on the NephoScale Cloud Server page on the NephoScale website. You may identify a NephoScale Cloud Server as an Hourly Membership Cloud Server by calling to the Purchasing API (the “API Call”). In the API Call you must designate an instance type and quantity for the applicable NephoScale Cloud Server(s). We may change NephoScale Cloud Server Pricing at any time but price changes will not apply to previously purchased NephoScale Cloud Server(s).

If Microsoft increases the license fees it charges for Windows, we may make a corresponding increase to the per-hour usage rate for NephoScale Cloud Servers with Windows. Any increase in the per-hour usage rate for NephoScale Cloud Servers with Windows will be made between December 1 and January 31, and we will provide 30 days’ notice. If this happens, you may: (a) continue to use your NephoScale Cloud Server(s) with Windows with the new per-hour usage price; (b) convert your NephoScale Cloud Server(s) with Windows to comparable NephoScale Cloud Server(s) with Linux; or terminate your NephoScale Cloud Server(s) with Windows and receive a pro-rated refund of the prepaid membership fee you paid for the terminated NephoScale Cloud Server Usage Based Hourly Membership with Windows. We may terminate the NephoScale Cloud Server Usage Based Hourly Membership Pricing program at any time. NephoScale Cloud Server Usage Based Hourly Memberships are nontransferable and all amounts paid in connection with the NephoScale Cloud Server Usage Based Hourly Membership are nonrefundable, except that if we terminate the Agreement other than for cause, terminate an individual NephoScale Cloud Server Usage Based Hourly Membership type, or terminate the NephoScale Cloud Server Usage Based Hourly Membership Pricing program, we will refund you a pro-rated portion of any prepaid membership fee paid in connection with any previously designated NephoScale Cloud Server Usage Based Hourly Membership. In addition to being subject to NephoScale Cloud Server Usage Based Hourly Membership Pricing, NephoScale Cloud Server Usage Based Hourly Memberships are subject to all data transfer and other fees applicable under the Agreement.

25. NEPHOSCALE ON-DEMAND DEDICATED SERVERS

The billing model for this service is Prepaid Monthly or Prepaid Annual. Renewal term is monthly, or annual, and the billing cycle is monthly. You may cancel the service at any time; however charges for the terms’ service in which the cancellation is made will be due in full. Cancellation requests can be made up to 30 days prior to the term renewal date for the service to avoid charges for the following term. If this deadline is not met, payment will be required for the following terms’ service. Confirmation receipt of cancellation will be sent to you within 12 hours of the cancellation notice being received by NephoScale through the NephoScale portal. If you do not receive confirmation, your account is not cancelled. To avoid being responsible for payment for continuing service charges it is your responsibility to check to make sure that you received confirmation from us through the NephoScale portal that your service has been cancelled. You are responsible for all charges until you receive confirmation within the NephoScale portal of your service cancellation. All service cancellations must be processed via the NephoScale portal. At the end of an annual term the renewal term will transition to month to month and the prepaid monthly, unless prior notice
You are responsible for keeping the validity of your licenses up to date and following the license terms of any software you operate.

In using Microsoft software as part of the Services, you may be allowed to use certain software developed and owned by Microsoft Corporation or its licensors. This software is neither sold nor distributed to you and you may use it solely as part of the Services. You may not transfer it outside the Services. Microsoft software support is not provided in connection with the Services.

If Microsoft increases the license fees it charges for Microsoft, we may make a corresponding increase to the per-month price for Microsoft software licenses associated with both NephoScale Prepaid Monthly and Prepaid Annual Dedicated Servers with Microsoft. Any increase in the per-month price for NephoScale Dedicated Servers with associated Microsoft licenses will be made between December 1 and January 31, and we will provide 30 days’ notice. If this happens, you may: (a) continue to use your NephoScale Dedicated Server Microsoft license(s) with the new per-month price; (b) convert your NephoScale Dedicated Server(s) with associated Microsoft licenses to comparable NephoScale Dedicated Server(s) with Linux; or terminate your NephoScale Dedicated Server(s) with associated Microsoft licenses and receive a pro-rated refund of any prepaid fees you paid for the terminated NephoScale Dedicated Server Prepaid Monthly or Prepaid Annual servers with associated Microsoft licenses. We may terminate the NephoScale Prepaid Monthly or Prepaid Annual Dedicated Server Pricing programs at any time. NephoScale Prepaid Monthly and Prepaid Annual Dedicated Server(s) are nontransferable and all amounts paid in connection with the NephoScale Prepaid Monthly or Prepaid Annual Dedicated Server(s) are nonrefundable, except that if we terminate the Agreement other than for cause, terminate an individual NephoScale Dedicated Prepaid Monthly or Prepaid Annual Server type, or terminate the NephoScale Prepaid Monthly or Prepaid Annual Dedicated Server Pricing program, we will refund you a pro-rated portion of any prepaid fee paid in connection with any previously designated NephoScale Prepaid Monthly or Prepaid Annual Dedicated Server. In addition to being subject to NephoScale Dedicated Prepaid Monthly or Prepaid Annual Server Pricing, NephoScale Prepaid Monthly or Prepaid Annual Dedicated Servers are subject to all data transfer and other fees applicable under the Agreement.

26. NEPHOSCALE CLOUD STORAGE

The billing model for this service is Usage Based Monthly. Renewal term is monthly and the billing cycle is monthly. You pay for only for what you use, and there is no minimum fee. You may cancel at any time; however charges for the billing cycle in which you cancel service will be based upon the maximum amount of storage space used at any time during that billing cycle. Usage charges are based upon the maximum amount of storage space used at any time during the previous billing cycle.

Cancellation requests can be made up to 30 days prior to the billing cycle renewal date for the service to avoid charges for the following month. If this deadline is not met, payment will be required for the following month’s service. Confirmation receipt of cancellation will be sent to you within 12 hours of the cancellation notice being received by NephoScale through the NephoScale portal. If you do not receive confirmation, the service is not cancelled. To avoid being responsible for payment for continuing service charges it is your responsibility to check to make sure that you received confirmation from us through the NephoScale portal that your service has been cancelled. You are responsible for all charges until you receive confirmation within the NephoScale portal of your service cancellation. All service cancellations must be processed via the NephoScale portal. There are no Data Transfer charges for data transferred in-to NephoScale Cloud Storage. There are Data Transfer charges for data transferred out-of NephoScale Cloud Storage. There is no Data Transfer charge for data transferred between NephoScale Cloud or Dedicated Server(s) and NephoScale Cloud Storage.

27. NEPHOSCALE FREE CLOUD STARTER PACKAGE

When a user signs up for the free cloud starter package they must enter a valid credit card. A user that signs up for a Free Cloud Starter Package they will be allowed to instantiate a 256MB NephoScale cloud server instance for free for a period of 12 months and receive a free allotment of cloud server transfer. The user will also be allowed to instantiate one slice of NephoScale object-based cloud storage, with up to 1GB of free storage, for a period of 12 months and will also receive free allotments of transfer and PUT/GET requests for connectivity to host destinations outside the NephoScale network. Offer expires 1 year (12 months) after customer sign-up date. After expiration, customer pays standard usage rates for all items. The 256MB cloud server instance will be billed at $.03/hr after expiration if the customer does not shut off the server. The Free cloud server instance and cloud storage slice are not entitled to any SLA credits. When a customer cancels their NephoScale Free Starter Package, because cloud servers and cloud storage are both usage based services, termination will take effect on the day notice is issued. Technical Support is not included with the NephoScale Free Cloud Starter Package. Submitting support requests (tickets) through the customer portal regarding questions about documentation, system bugs, and recommended improvements are encouraged however.

The following items are included with the NephoScale Free Starter Package:
• 750 hours of a .25GB RAM/10GB Storage cloud server instance per month (core count not specified)
• 10GB of inbound internet transfer to cloud server instance per month
• 10GB of outbound internet transfer to cloud server instance per month
• 1GB of data store in object-based cloud storage per month
• 10,000 GET requests in object-base cloud storage per month
• 1,000 PUT requests in object-based cloud storage per month
• 1GB of inbound internet transfer to object-based cloud storage per month
• 1GB of outbound internet transfer to object-based cloud storage per month

NephoScale Acceptable Use Policy


This Acceptable Use Policy (AUP) describes prohibited uses of the services offered by NephoScale and its affiliates. Your services may be suspended or terminated for violation of this AUP. Together with the Terms of Service, this AUP forms a binding agreement between NephoScale and Customer hereafter considered “The Service Agreement”. If the individual who submits an order does so on behalf of a company, or other legal entity, the individual represents that he or she has the authority to bind the entity to the Agreement. All users of NephoScale's services: those who access some of our Services, or Websites, but do not have accounts, as well as those who pay a service fee to subscribe to NephoScale Services, must comply with this AUP (Acceptable Use Policy) and our TOS (Terms of Service).  Use of NephoScale Service constitutes acceptance and agreement to NephoScale AUP and TOS.

We do not routinely monitor the activity of accounts except for measurements of system utilization and the preparation of billing records. However, we will respond appropriately if we become aware of inappropriate use of our service.

You may not use a NephoScale service in any manner that which NephoScale determines, at its sole discretion, to be unlawful, indecent or objectionable. For purposes of this policy, "material" refers to all forms of communications including narrative descriptions, graphics (including photographs, illustrations, images, drawings, logos), executable programs, video recordings, and audio recordings.

If a NephoScale account is used to violate our AUP or TOS, we reserve the right to terminate the associated service(s) without notice. Our failure to enforce this policy, for whatever reason, shall not be construed as a waiver of our right to do so at any time.

If you have any questions regarding this policy, please contact us at abuse@NephoScale.com

This AUP will be revised from time to time. A Customer’s (hereafter known as "Subscribers"), or users, use of NephoScale's services after changes to the AUP are posted on the NephoScale web site, www.NephoScale.com, will constitute the Subscriber's acceptance of any new or additional terms of the AUP resulting from those changes.

As the Subscriber, or operator, of a service located on the NephoScale network, all activity that is a result of using our services, or takes place within a Compute service (i.e. dedicated server or cloud server) or cloud storage node, is your responsibility. NephoScale reserves the right to refuse and terminate services for any reason, without notice.

Because NephoScale cannot monitor or censor content on the Internet, and will not attempt to do so, NephoScale cannot accept any responsibility for injury to its subscribers resulting from inaccurate, unsuitable, offensive or illegal Internet communications.

Service Security: All Compute (i.e. dedicated server or cloud server) and Cloud Storage security is maintained by the Subscriber, or operator, and it is his or her responsibility to maintain all software, security rules, and access lists to ensure all aspects of compute and storage security are properly maintained. Compute or Storage resources that are compromised in any extent are considered to be in direct violation of this AUP.

DDOS Attacks: In the event that a compute or storage service is attacked and causes connectivity issues to the overall network, the following actions can take place:

A.) All network addresses associated with the compute or storage service can be null routed and blocked at the routing perimeter of the affected network for an indefinite amount of time- ‘semi-permanent' null routes is a practice here as well, when necessary.

B.) Compute or storage services can be disabled for a "timeout" period set forth by the network administrators. Timeout periods disable the service and stop the flow of traffic to and from the service. The period for timeout down is determined by our network administrators, based upon the severity of the attack taking place.

C.) Compute or storage services cancellation can take place if it is determined the overall operations of this Compute or Storage service will likely cause perpetual network disruption that is unknown or determined as harmful to other clients on the NephoScale network.

Bulk Email: or, the sending of unsolicited bulk and/or commercial information over the Internet. This is not only harmful because of its negative impact on consumer attitudes toward NephoScale, but also because it can overload NephoScale's network and disrupt service to NephoScale's subscribers.

In the event that bulk transmissions of unsolicited mail are sent either by the Subscriber, via the Subscriber's Compute or Storage services, and/or advertising products or services provided by the Subscriber or by one of the Subscriber's accounts, NephoScale reserves the right to have the offending account, source engine of transmission, or entire Compute or Storage service itself, removed from our network.

If your services, one of the accounts located on one your services, or IP range(s) associated with any of your services are found to have been listed on any of the RBL lists provided by SPAM blocking organizations, we will take action in having these listings removed, which may include having accounts and/or Compute or Storage services deactivated or cancelled, as to be determined by our Abuse Department. Full cooperation is expected from the Subscriber in having these listings removed, as to prevent any of the abovementioned actions.

The CAN SPAM law of 2003 will not be used as a guideline in determining the legitimacy of mailing practices. Instead, our internal policies will be used in regards to this issue, so that our network is protected against being blocked by RBL listings. If you would like further information concerning this, or would like to inquire as to the legitimacy of your mailing list, please contact abuse@NephoScale.com.

IRC/Shell Servers: Use of the NephoScale service for IRC/Shell/Bot related activities is unacceptable. Compute or Storage services continuously running a risk of supporting IRC daemons or eggdrops will be disabled and cancelled from our network.

Bit Torrents/P2P Protocols: Bit Torrent software and P2P protocol software are not permitted on our network. Compute or Storage services continuously running a risk of supporting these types of services will be disabled and cancelled from our network.

Intellectual Property Violations: Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy and patents held by individuals, corporations or other entities is strictly prohibited. Also, engaging in activity that violates privacy, publicity or other personal rights of others is prohibited. NephoScale is required by law to remove or block access to Subscriber content, upon receipt of a proper notice of copyright infringement. It is also NephoScale's policy to terminate the privileges of Subscribers who commit repeat violations of copyright laws.

Obscene Speech or Materials: Using NephoScale's network to advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material is prohibited. NephoScale is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography immediately hosted within or being transmitted through its network.

Defamatory or Abusive Language: Using NephoScale's network as a means to transmit or post negative, defamatory, harassing, abusive or threatening language is prohibited.

Forging of Headers: Forging or misrepresenting message headers, whether in whole or in part, to mask the originator of the message; is not allowed on NephoScale's network.

Illegal or Unauthorized Access to Other Computers or Networks: Accessing, illegally or without authorization, computers, accounts, services, or networks belonging to another party, or attempting to penetrate security measures of another individual's, or Subscribers, services (often known as "hacking"), is strictly prohibited. Also, any activity that may be used as a precursor to an attempted system or service penetration (i.e., port scan, stealth scan or other information-gathering activity) will not be allowed.

Distribution of Internet Viruses, Worms, Trojan Horses or Other Destructive Activities: Distributing information regarding the creation of and/or sending Internet viruses, worms, Trojan horses, ICMP assaults or other flooding mediums, mail-bombing or the launching of denial of service attacks are strictly prohibited. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service or equipment are not allowed.

Facilitation a Violation of this AUP: Advertising, transmitting or otherwise making available any software, program, product or service that is designed to violate this AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mail-bombing, denial of service attacks and piracy of software is prohibited.

Export Control Violations: Exporting encryption software over the Internet or otherwise, to points outside the United States is prohibited.

Other Illegal Activities: Engaging in activities that are determined to be illegal, including, but not limited to, advertising, transmitting or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards and pirating software is prohibited.

Other Activities: Engaging in activities, whether lawful or unlawful, that NephoScale determines to be harmful to its subscribers, operations, reputation, goodwill, or customer relations, is strictly prohibited.

The responsibility for avoiding harmful activities just described rests primarily with the subscriber.

NephoScale is also aware that many of its subscribers are themselves providers of Internet services, and that information reaching NephoScale's facilities from those subscribers may have originated from a customer of the subscriber or from yet another third party. NephoScale does not require its subscribers who offer Internet services to monitor or censor transmissions or web sites created by customers of its subscribers. NephoScale reserves the right to directly take action against a customer of its subscribers. Also, NephoScale may take action against the NephoScale subscriber because of activities of a customer of the subscriber, even though the action may affect other customers of the subscriber. Similarly, NephoScale anticipates that subscribers who offer Internet services will cooperate with NephoScale in any corrective or preventive action that NephoScale deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of NephoScale policy.

NephoScale will not intentionally monitor private electronic mail messages sent or receive by its subscribers, unless required to do so by law, governmental authority, or when public safety is at stake. NephoScale may, however, monitor any aspect of service electronically to determine that its facilities are operating satisfactorily. Also, NephoScale may disclose information, including, but not limited to, information concerning a subscriber, a transmission made using our network, or a web site, in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or governmental request. NephoScale assumes no obligation to inform the subscriber that subscriber information has been provided and, in some cases, may be prohibited by law from giving such notice. Finally, NephoScale may disclose subscriber information or information transmitted over its network where necessary to protect NephoScale and others from harm, or where such disclosure is necessary to the proper operation of the system. However, NephoScale will never sell information to other services or outside companies.

NephoScale expects that its subscribers who provide Internet services to others will comply fully with all applicable laws concerning the privacy of online communications. A subscriber's failure to comply with those laws will violate NephoScale policy.

NephoScale wishes to emphasize that, in acknowledging the AUP and TOS, subscribers indemnify NephoScale for any violation of the Service Agreement, law, or NephoScale policy resulting in loss to NephoScale or the bringing of any claim against NephoScale by any third party.

Any complaints about a subscriber's violation of this AUP should be sent to abuse@NephoScale.com immediately.

REPORTING VIOLATIONS OF NephoScale AUP

NephoScale requests that anyone who believes that there is a violation of this AUP direct the information to the Abuse Department at abuse@NephoScale.com.

REVISIONS TO THIS ACCEPTABLE USE POLICY

NephoScale reserves the right to revise, amend, or modify this AUP, our TOS, and our other policies and agreements at any time and in any manner.

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