Terms Of Service
As a customer you agree to comply with the following Terms Of Service when signing up for service or using our services.
1. Terms Of Service Agreement
Rose Web Services LLC, including all Rose Web Services LLC's subsidiaries, divisions, affiliates, contractors and all data sources and suppliers, (collectively
"Rose Web Services", "LinuxCloudVPS", "we", "us" or "our") thanks you for your business and is proud to be able to provide you with our services. These terms and conditions of service
Policy located at https://www.linuxcloudvps.com/dmca.htm, the Acceptable Use Policy located at https://www.linuxcloudvps.com/aup.html, the Service Level Agreement located at
https://www.linuxcloudvps.com/sla.html and the Cookies Policy located at https://www.linuxcloudvps.com/cookies.html,
the "Terms of Service" or "Agreement") govern your use of the Website and the services,
features, content or applications operated by LinuxCloudVPS (together with the Website, the "Services"), and provided to the Subscriber (the "Subscriber", "user", "sub-user", "you" or
Rose Web Services reserves the right, at any time and from time to time, to amend or to modify these Terms of Service without prior notice to you. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, you agree to be bound by such amended or modified Terms of Service. For this reason, we encourage you to frequently review the Terms of Service whenever you use the Services. If you do not agree to any change to these Terms of Services, then you must immediately stop using the Services.
SOME JURISDICTIONS HAVE CONSUMER PROTECTION AND OTHER LEGISLATION WHICH MAY APPLY TO THE SERVICES AND WHICH DO NOT ALLOW CERTAIN PROVISIONS SUCH AS LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN WARRANTIES, AMONG OTHERS. IF THIS IS THE CASE WITH YOU AND YOUR JURISDICTION, YOU ARE NOT ELIGIBLE TO SIGN UP AND USE OUR SERVICES.
2. Eligibility And Signup
2.1 The Services are not targeted towards, nor intended for use by, anyone under the age of 18. By using the Services, you represent and warrant that you are 18
years of age or older. If you are under the age of 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the
Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all
laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent
offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or
benefit of any third party.
2.2 We reserve the right to refuse, cancel, or suspend service at our sole discretion. All accounts terminated due to a violation of our Terms Of Service are subject to a processing fee equal to one (1) month's hosting fee for that account. Rose Web Services does not issue credits for outages incurred through service disablement resulting from Terms Of Service violations. Rose Web Services also reserves the right to refuse service to any person or organization for any reason. When Rose Web Services becomes aware of an alleged violation of its Terms Of Service, Rose Web Services will initiate an investigation. During the investigation, Rose Web Services may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, Rose Web Services may, at its sole discretion, restrict, suspend, or terminate a customer's web hosting account and/or pursue other civil remedies. If such violation is a criminal offense, Rose Web Services will notify the appropriate law enforcement authorities.
2.3 To sign up for the Services, you must register for an account on the Services (an "Account"). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use a name of another person with the intent to impersonate that person; (ii) use a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents), and for keeping your Account password secure. You may never use another person's user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state, provincial, territorial or other authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. You agree to provide accurate information in your registration and not to share your password with third parties. You agree not to impersonate another person or to select or use a name or password of another person. You agree to notify Rose Web Services promptly of any unauthorized use of your account and of any loss, theft or disclosure of your password. Failure to comply with these requirements shall constitute a breach of these Terms of Service and shall constitute grounds for immediate termination of your account and your right to use the services. ROSE WEB SERVICES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE AS A RESULT OF YOUR FAILURE TO PROVIDE US WITH ACCURATE INFORMATION OR TO KEEP YOUR ACCOUNT SECURE.
2.4 The Effective Date of an individual Service, is the date we begin the Ordering Process (Service Term). We use fraud detection programs. If during the Ordering Process your order is flagged as potentially fraudulent, it may not be processed. Until we notify you that the Service is available, you should not assume that your order has been processed.
2.5 Upon the expiration of an initial Service Term, that Service shall renew for a period of equal length unless one party has provided the other with a notice of termination.
3. Unacceptable Content
3.1 For purposes of these Terms of Service, the term "Content" includes, without limitation, information, data, text, written posts and comments, software,
scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, "Content" also includes
all User Content (as defined below).
3.2 All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively "User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
3.3 The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
3.4 Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, revocable, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
3.5 Due to the special system and network requirements of adult-oriented sites, pornography and sex-related websites, content and merchandising are prohibited. This includes sites that may infer sexual content or provide links to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet, or provide links to such sites. Other unacceptable content includes but is not limited to: crypto currency and other crypto/blockchain related sites, religious and religion related sites, political organization sites, sites promoting or discussing any domestic or international extremist political issues (terrorist, radical islamic, nazi, neo-nazi, anarchy, etc...), sites operating mainly as downloading gateways for illegal software or media, IRC related sites, gambling sites, sites promoting or offering pirated software or content, hacking or spamming software, media or other resources, sites containing disturbing, defamatory or offending pictures or other media, and any other site and/or content deemed to be unacceptable by Rose Web Services. We also do not allow any Game Servers, IRC servers, IRC bots and/or any IRC related software, public Proxy Servers and public VPNs on our infrastructure. Any other web sites that link to ones with unacceptable content will also be treated as unacceptable.
4. Code Of Conduct
4.1 As a condition of use, you promise not to use the Services for any purpose that is prohibited by these
Terms of Service. You are responsible for all of your activity in connection with the Services and the activity of any sub-user that uses your Account.
4.2 You agree that you will not transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that (i) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, offensive, profane, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion, (ii) you know is false, misleading, untruthful or inaccurate, (iii) constitutes unauthorized or unsolicited advertising, (iv) impersonates any person or entity, including any of our employees or representatives, or (v) includes anyone's identification documents or sensitive financial information.
4.3 You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or "spam" on the Services; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Website; (vi) harvest or scrape any Content from the Services; (vii) use the Services for high risk activities including but not limited to the operation of nuclear facilities, air traffic control, life support systems, or any other use where the failure of service could lead to death, personal injury, or environmental damage; or (viii) otherwise take any action in violation of our guidelines and policies.
4.4 You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
4.5 We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
4.6 Subscribers are restricted from registering multiple Accounts with the same billing details without first notifying Rose Web Services of that intent. Otherwise, Rose Web Services shall have the right to automatically flag such Accounts as fraudulent or abusive, and we may, without notification to the Subscriber of such Account, suspend the service of such Account or any other Account used by such Subscriber. The use of referral codes by multiple Accounts having the same billing profile is not allowed. Rose Web Services also reserves the right to terminate a Subscriber's Account if it is targeted by malicious activity from other parties.
4.8 The enumeration of violations in this Section 4 of these Terms of Service is not meant to be exclusive, and Rose Web Services provides notice hereby that it has and will exercise its authority to take whatever action is necessary to protect the Services, Subscribers, and third parties from acts that would be inimical to the purposes of this Section 4 of these Terms of Service.
LAWFUL USE OF THE NETWORK
4.9 In using the Services, Subscribers must comply with, and refrain from violations of, any right of any other person, entity, law, or contractual duty, including without limitation the laws of the United States and the laws of Missouri, and including without limitation those laws forbidding: (a) distribution of child pornography, (b) forgery, identity theft, misdirection or interference with electronic communications, (c) invasion of privacy, (d) unlawful sending of commercial electronic messages or other marketing or electronic communications, (e) collection of excessive user data from children, or other improper data collection activities, (f) securities violations, wire fraud, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. Subscribers will also comply with the affirmative requirements of law governing use of the Services, including but not limited to: (i) disclosure requirements, including those regarding notification of security breaches, (ii) records maintenance for regulated industries, and (iii) financial institution safeguards.
AGREED USE OF ALLOTTED NETWORK AND SERVER RESOURCES
4.10 Subscribers shall not use any method to circumvent the provisions of these Terms of Service, or to obtain Services in excess of those for which they contract with Rose Web Services. Subscribers shall use only those IP addresses that are assigned to them by Rose Web Services, and shall not use any IP addresses outside of their assigned range. Subscribers shall not use any mechanism to exceed the amount of resources assigned to them through the Services, or to conceal such activities. Any Service considered a threat to the normal operation of the server hardware will be immediately suspended. Repeat offenders will have their Services and Accounts permanently terminated. A "Reasonable Use" policy applies to data traffic on Shared and VPS Services. This means that if your use of the Web Hosting Services regularly generates more traffic than is customary for similarly situated customers, we may require you to modify your use of the Services so that they no longer exceed this standard. If you do not modify your use, we reserve the right to terminate your use of the Services and assess an Early Termination Fee.
4.11 Subscribers may not use the Services to distribute, receive communications or data gleaned from, or execute any action directed by any type of injurious code, including but not limited to: (i) trojans, (ii) key loggers, (iii) viruses, (iv) malware, (v) botnets, (vi) denial of service attacks, (vii) flood or mail bombs, (viii) logic bombs, or (ix) coin miners and other actions which Rose Web Services reserves the sole right to determine to be malicious in intent.
4.12 Subscribers shall not send bulk email utilizing their resources on the Services unless they route all outbound emails through a third party bulk email deliverability service. Subscribers shall comply with all laws regarding the sending of commercial electronic messages or other marketing or electronic communications. Subscribers are forbidden from taking any action that would result in their IP addresses, or any IP address associated with Rose Web Services or other Subscribers, being placed on the Spamhaus.org blacklist or any other IP or DNS blacklist. Rose Web Services reserves the sole and absolute right to determine whether an email violation has occurred.
INVASION OF PRIVACY, DEFAMATION, OR HARASSMENT
4.13 Subscribers may not use the Services in a manner that would violate the lawful privacy rights of any person, or to publish or republish defamatory or libelous statements, or to harass or embarrass, which shall be determined in Rose Web Services' sole and absolute discretion.
VIOLATION OF COPYRIGHT, TRADEMARK, PATENT OR TRADE SECRETS
4.14 Subscribers may not use the Services in violation of the copyrights, trademarks, patents or trade secrets of third parties, nor shall they utilize the Services to publish such materials in a manner that would expose them to public view in violation of the law. The provisions of the Digital Millennium Copyright Act of 1998 ("DMCA") (as required under 17 U.S.C. 512) and all other applicable international trademark, copyright, patent or other intellectual property laws will apply to issues presented by allegations of copyright violations by third parties. Rose Web Services will, in appropriate circumstances, terminate the accounts of repeat violators. If a third party believes that a Subscriber of Rose Web Services is violating its intellectual property rights, it should notify us by email to [email protected]. A notification should include information reasonably sufficient to permit Rose Web Services to locate the allegedly infringing material, such as the IP address or URL of the specific online location where the alleged infringement is occurring. Please see our DMCA Policy.
4.15 Subscriber shall comply with all applicable export and import control laws and regulations in its use of the Services, and, in particular, Subscriber shall not utilize the Services to export or re-export data or software without all required United States and foreign government licenses. Subscriber assumes full legal responsibility for any access and use of the Services from outside the United States, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license. Should such a license be required, it shall be Subscriber's responsibility to obtain the same, at Subscriber's sole cost and expense, and in the event of any breach of this duty resulting in legal claims against Rose Web Services, Subscriber shall defend, indemnify and hold Rose Web Services harmless from all claims and damages arising therefrom.
ACTS OF SUB-USERS
4.16 Subscribers are responsible for the acts of others utilizing their access to the Services, and will be held responsible for violations of the Services by their sub-users or persons who gain access to the Services using the Subscriber's access codes. Any activity that a Subscriber is prohibited from performing by these Terms of Services is equally prohibited to anyone using the access to the Services of the Subscriber.
ACCESS CODE PROTECTION
4.17 Subscribers shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information.
4.18 The Subscriber agrees to be solely responsible for the security and integrity of the server and/or hosting account. The Subscriber will take all necessary actions to keep the server and/or hosting account secure at all times, by updating all server services and software every time there is an update available, and by continuously monitoring and checking the server and/or hosting account for any possible security breaches. The Subscriber also understands and agrees that Rose Web Services is in no way responsible nor liable for the security and any possible security threats or breaches of Subscriber's server and/or hosting account.
NOTIFICATION REGARDING THESE TERMS OF SERVICE
4.19 Subscribers shall notify all persons who receive access to the Services of the provisions of these Terms of Service, and shall inform them that the terms of these Terms of Service are binding upon them.
4.20 Subscribers shall notify Rose Web Services if and when they learn of any security breaches regarding the Services, and shall aid in any investigation or legal action that is taken by authorities and/or Rose Web Services to cure the security breach.
5. Third Party Services
5.1 The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to
the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not
responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not
imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for
any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or
resource. It is your responsibility to protect your system from such items as viruses, worms, Trojan horses and other items of a destructive nature.
6. Payments And Billing
ACCEPTABLE PAYMENT METHODS
6.1 Rose Web Services accepts major credit cards, debit cards, and Paypal payments. Subscribers who choose to pay with PayPal will be strictly limited to a single Rose Web Services Account per PayPal account. Virtual credit cards and gift cards typically will not be accepted. Other forms of payment are not available. Please note that any payment terms presented to you in the process of using or signing up for paid Services are deemed part of this Agreement.
6.2 We use third-party payment processors (the "Payment Processors") to bill you through a payment account linked to your Account on the Services (your "Billing Account") for use of the paid Services. The processing of payments may be subject to the terms, conditions and privacy policies of the Payment Processors in addition to this Agreement. We are not responsible for errors by the Payment Processors. By choosing to use paid Services, you agree to pay us, through the Payment Processors, all charges at the prices then in effect for any use of such paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processors, to charge your chosen payment provider (your "Payment Method"). You agree to make payment using that selected Payment Method.
BILLING AND TERMS
6.3 The term of this Agreement shall be monthly or yearly, depending of your chosen preference during the checkout process, to commence on the date that the Subscriber signs up electronically for the Services by creating an Account with an email address. All invoices are denominated, and Subscriber must pay, in U.S. Dollars. The initial invoice is prorated until the end of the current billing cycle. If the sign up date is on or after the 25th of the month and the Subscriber chose to pay monthly, the initial invoice will include the prorated amount for the current month and the full amount for the next month. Subscribers are typically billed monthly on the first day of each month if paying monthly, or on the first day of the annual billing period when the annual payment is due, with payment due no later than seven (7) days past the invoice date. We will retry the charges several times during the 7 days past the invoice date, and will send you an email whenever such attempt has been unsuccessful. We will also send you multiple email reminders and warnings before your Service is suspended. All Subscribers with unpaid invoice(s) 7 days after the invoice due date will have their Service suspended, pending full payment of their balance. Subscribers with unpaid invoice(s) 30 days after the due date will have their Service(s) completely terminated and deleted. Once Service is terminated it is non-restorable and non-renewable as all data including any backups are permanently and irretrievably deleted. Subscribers are entirely responsible for the payment of all taxes, if any. Monthly fees and renewal fees will be billed at the rate agreed to at purchase. You may initiate a cancellation of the Services at any time by logging into the client area at https://secure.linuxcloudvps.com/. At cancellation, your Service is terminated and it is no longer restorable or renewable as all data including any backups are permanently and irretrievably deleted. Except in the case of subscription commitments you have agreed to, which shall be nonrefundable, as permitted by law, if you cancel, you agree that fees for the first month of Services and any start-up costs associated with setting up your Account ("Start-up Costs") shall be nonrefundable, as permitted by law. With the exception of any subscription commitments agreed by you, if you paid fees in advance for any period longer than one month, then you may, with the exception of fees for the first month of Services and any Start-up Costs, obtain a refund on a pro rata basis for the period remaining after you cancel.
6.4 Some of the paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT.
6.5 The Subscriber is entitled to Service refund if the cancellation and refund requests are made during the first 7 days from the date when the Service was provisioned. Additional items and services such as: domain registrations, domain transfers, SSL certificates and cPanel/WHM and other control panel licenses, are non-refundable. 6.6 YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSORS IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
7. Warranty Disclaimer
7.1 We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
1. which Subscribers gain access to the Services;
2. what Content you access via the Services; or
3. how you may interpret or use the Content.
7.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE US FROM ALL LIABILITY FOR YOU HAVING ACQUIRED OR NOT ACQUIRED CONTENT THROUGH THE SERVICES. WE MAKE NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, OR LEGALITY OF MATERIAL OR CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
7.3 THE SERVICES, INCLUDING WITHOUT LIMITATION ANY INFORMATION DELIVERED AS PART OF THE SERVICES, AND CONTENT ARE PROVIDED "AS IS", "AS AVAILABLE" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE WITH DATA, AVAILABILITY, ACCURACY, THAT YOU WILL HAVE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OUR WEBSITE OR THAT THE SERVICES ARE ERROR FREE AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. INFORMATION YOU REQUEST MAY NOT BE AVAILABLE OR MAY NOT BE PROVIDED, AND ROSE WEB SERVICES HAS NO LIABILITY FOR SUCH FAILURE. IN NO EVENT WILL ROSE WEB SERVICES WARRANT OR GUARANTEE THE CORRECTNESS, COMPREHENSIVENESS, COMPLETENESS, ACCURACY, TIMELINESS OF ANY INFORMATION, PRODUCTS, OR SERVICES ON THIS WEBSITE. THE INFORMATION, PRODUCTS, AND SERVICES AVAILABLE ON THE WEBSITE MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. THEREFORE, YOU AGREE THAT YOUR ACCESS TO AND USE OF OUR WEBSITE, PRODUCTS, SERVICES AND CONTENT ARE AT YOUR OWN RISK.
8. Limitation Of Liability
8.1 IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY,
NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL,
INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN
HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING
THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF ROSE WEB SERVICES HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. SUBSCRIBER ACKNOWLEDGES THAT THE
FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT ROSE WEB SERVICES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS.
SUBSCRIBER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST ROSE WEB SERVICES ARISING OUT OF SUBSCRIBER'S PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF ROSE WEB SERVICES' DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR
TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES. IN ADDITION, YOU AGREE THAT ROSE WEB SERVICES IS NOT RESPONSIBLE FOR ANY DATA COMPILED BY OUR SERVICES AND THAT
ROSE WEB SERVICES WILL NOT BE LIABLE, IN ANY MANNER, AS A RESULT OF YOUR EXPOSURE TO ANY DEFAMATORY, LIBELOUS, THREATENING, UNLAWFULLY HARASSING, OBSCENE OR OTHERWISE UNLAWFUL
CONTENT OR DATA. IN NO EVENT SHALL ROSE WEB SERVICES, OR ANY THIRD PARTY PROVIDER OF ANY COMPONENT OF THE SERVICES OR OF ANY INFORMATION DELIVERED AS PART OF THE SERVICES, BE LIABLE
TO YOU AND/OR ANY PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR
RELATED TO THE SERVICES, CONTENT, PRODUCTS, THE USE OR INABILITY TO USE THIS WEBSITE, OR ANY LINKED WEBSITE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, BUSINESS
INTERRUPTION, OR OTHER ECONOMIC LOSSES, LOSS OF PROGRAMS OR OTHER DATA, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF ROSE WEB SERVICES IS ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LIABILITY ASSOCIATED WITH ANY VIRUSES WHICH MAY INFECT YOUR COMPUTER EQUIPMENT.
SOME JURISDICTIONS LIMIT OR PROHIBIT THE FOREGOING LIMITATIONS, AND IN SUCH JURISDICTIONS YOU ARE NOT PERMITTED TO SIGN UP AND USE OUR SERVICES.
9. Data Backup
9.1 Subscriber is solely responsible for the preservation of Subscriber's data which Subscriber saves onto its virtual server (the "Data"). If hardware failure
and data loss occur, you are responsible for data restoration by providing your own backup copy of your data. Rose Web Services shall not be liable for loss of data under any
circumstance. EVEN WITH RESPECT TO DATA AS TO WHICH SUBSCRIBER CONTRACTS FOR BACKUP SERVICES PROVIDED BY ROSE WEB SERVICES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ROSE WEB
SERVICES SHALL HAVE NO RESPONSIBILITY TO PRESERVE DATA. ROSE WEB SERVICES SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF SUBSCRIBER'S FAILURE
TO BACKUP ITS DATA OR FOR ANY OTHER REASON. WE DO WEEKLY BACKUPS OF ALL VIRTUAL SERVER DATA TO OUR OWN BACKUP VAULTS FOR OUR OWN DISASTER RECOVERY PURPOSES, HOWEVER THESE BACKUPS
ARE NOT GUARANTEED TO BE AVAILABLE OR RECOVERABLE.
Subscriber agrees that Rose Web Services may include such Subscriber's name and trademarks in a list of Rose Web Services Subscribers, online or in promotional materials. Each
Subscriber also agrees that Rose Web Services may verbally reference such Subscriber as a Subscriber of the Services. Subscriber may opt out of the provisions in this Section 10.1
by e-mailing a request to [email protected].
11.1 YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US, OUR AFFILIATES, PARENTS, SUBSIDIARIES, ANY RELATED COMPANIES, LICENSORS AND PARTNERS, AND EACH OF OUR AND
THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, SUPPLIERS AND REPRESENTATIVES FROM ALL LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES,
THAT ARISE FROM OR RELATE TO YOUR (OR ANY THIRD PARTY USING YOUR ACCOUNT OR IDENTITY IN THE SERVICES) USE OR MISUSE OF, OR ACCESS TO, THE SERVICES, CONTENT, OR OTHERWISE FROM YOUR
USER CONTENT, VIOLATION OF THESE TERMS OF SERVICE OR OF ANY LAW, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. WE RESERVE THE RIGHT TO ASSUME
THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL ASSIST AND COOPERATE WITH US IN ASSERTING ANY AVAILABLE
12.1 Rose Web Services reserves the right, in our sole discretion, to terminate your access to all or any part of the Services at any time, with or without
notice, effective immediately, including but not limited to as a result of your violation of any of these Terms of Service or any law, or if you misuse system resources, such as, by
employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination may result in the forfeiture and destruction of information associated with
your Account. Rose Web Services may provide prior notice of the intent to terminate Services to you if such notice will not, in Rose Web Services' discretion, run counter to the
intents and purposes of these Terms of Service. Except as otherwise set forth hereunder, any and all fees paid hereunder are non-refundable and any and all fees owed to Rose Web
Services before such termination shall be immediately due and payable, including any liabilities that may have been incurred prior to termination such as Rose Web Services'
costs for collection (including attorneys' fees) of any such charges or other liabilities. Upon termination, any and all rights granted to Subscriber by this Agreement will
immediately be terminated, and Subscriber shall promptly discontinue all use of the Services. If you wish to terminate your Account, you may do so by following the instructions on
the Website or through the Services. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without
limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
13. Choice Of Law, Venue and Consent To Email Service
13.1 Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the State of Missouri, without regard to principles
of conflict of laws. Subject to Section 15 below, you agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the
exclusive jurisdiction and venue of the state and Federal courts of St. Louis County, Missouri. Subscriber consents to service of process via email at the email address(es) provided
by Subscriber, and waives any requirement under the Hague Convention or other judicial treaty requiring that legal process be translated into any language other than English.
14. Dispute Resolution
14.1 Mindful of the high cost of litigation, you and Rose Web Services agree to the following dispute resolution procedure: in the event of any controversy,
claim, action or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Services; (iv) the breach, enforcement, interpretation, or validity of this
Agreement; or (v) any other dispute between you and Rose Web Services ("Dispute"), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing
written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the
receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent (1) if to Rose Web Services LLC, 2977 Hwy K STE 252, Ofallon, MO 63368, USA or (2) if to
you at: your last-used billing address or the billing and/or shipping address in your Account information. Both you and Rose Web Services agree that this dispute resolution
procedure is a condition precedent that must be satisfied prior to initiating any arbitration or filing any claim against the other party.
15. Arbitration Agreement And Class Action Waiver
15.1 In the interest of resolving disputes between you and Rose Web Services in the most expedient and cost effective manner, you and Rose Web Services agree
that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral
arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same
damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in
contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND
AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ROSE WEB SERVICES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Despite the provisions of Section 15.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
15.3 Any arbitration between you and Rose Web Services will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Rose Web Services.
15.4 A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail ("Notice"). Rose Web Services' address for Notice is: Rose Web Services LLC, 2977 Hwy K STE 252, Ofallon, MO 63368, USA. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Rose Web Services LLC may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Rose Web Services must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Rose Web Services will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Rose Web Services in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.
15.5 If you commence arbitration in accordance with these Terms, Rose Web Services will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in St. Louis, Missouri, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Rose Web Services for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
15.6 YOU AND ROSE WEB SERVICES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Rose Web Services agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
15.7 If Rose Web Services makes any future change to this arbitration provision, other than a change to Rose Web Services' address for Notice, you may reject the change by sending us written notice within 30 days of the change to Rose Web Services' address for Notice, in which case your account with Rose Web Services will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.8 If Section 15.6 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to these Terms. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16. Miscellaneous Provisions
16.1 Neither you nor Rose Web Services shall be liable for nonperformance of the terms herein to the extent
that either you or Rose Web Services are prevented from performing as a result of any act or event which occurs and is beyond your or Rose Web Services' reasonable control,
including, without limitation, acts of God, war, unrest or riot, strikes, any action of a governmental entity, weather, quarantine, fire, flood, earthquake, explosion, utility or
telecommunications outages, Internet disturbance, or any unforeseen change in circumstances, or any other causes beyond either party's reasonable control. The party experiencing the
force majeure shall provide the other party with prompt written notice thereof and shall use reasonable efforts to remedy effects of such force majeure.
16.2 You are granted a limited, non-exclusive right to create a hypertext link to the Website found at https://www.linuxcloudvps.com; provided such link does not portray Rose Web Services and/or its affiliates or any of their respective products and services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked at any time. You may not use, frame or utilize framing techniques to enclose any Rose Web Services trademark, logo or other proprietary information, including the images found at the Website, the content of any text or the layout/design of any page or form contained on a page without Rose Web Services' express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Rose Web Services or any third party.
16.3 The Website contains many of the valuable trademarks, service marks, names, titles, logos, images, designs, copyrights and other proprietary materials owned, registered and used by Rose Web Services, Including but not limited to, the mark "LinuxCloudVPS". Rose Web Services and the Rose Web Services product names referenced in the Website are either trademarks, service marks or registered trademarks of Rose Web Services. Any unauthorized use of same is strictly prohibited and all rights in same are reserved by Rose Web Services. No use of any Rose Web Services trademark may be made by any third party without express written consent of Rose Web Services. Other products and company names mentioned in the Website may be the trademarks of their respective owners.
16.4 Elements of Rose Web Services' Website are protected by trade dress, trademark, unfair competition, and other laws and may not, unless otherwise permitted hereunder, be copied in whole or in part. No logo, graphic, or image from the Website may be copied or retransmitted without Rose Web Services' express written permission. The images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website are the property of Rose Web Services or its licensors and are protected by copyright, trademark and other laws. In addition to our rights in individual elements of the Website, Rose Web Services owns copyright or patent rights in the selection, coordination, arrangement and enhancement of any images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website.
16.5 This Agreement, including all related agreements and policies incorporated by reference herein, constitutes the entire agreement between the parties related to the subject matter hereof and supersedes any prior or contemporaneous agreement between the parties relating to the Services. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives. If any provision of this Agreement is prohibited by law or held to be unenforceable, that provision will be severed and the remaining provisions hereof shall not be affected such that this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. This Agreement may be signed electronically or, as set out above, your access and use of the Services will manifest your consent to this Agreement. These Terms of Service are personal to you, and are not assignable, transferable or sub-licensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation. All references to "laws," "rules," or "regulations" references any and all applicable laws, rules and regulations, whether domestic or foreign. Unless otherwise specified in these Terms of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to [email protected].