Terms of Service

IMPORTANT NOTICE: *All Payments To the Company Are Non-Refundable*

GigeNETcloud / Cloud Communications. (“The Company”)agrees to furnish services to the Subscriber, subject to the following Terms of Service (TOS). Use of the Company Service constitutes acceptance and agreement to the Company’s Acceptable Usage Policy (AUP) as well as the Company’s Terms of Service (TOS). All provisions of this contract are subject to the Terms of Service (TOS) of the Company and Acceptable Usage Policy (AUP). The AUP may be changed from time-to-time at the discretion of the Company. Subscriber understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment. This Agreement shall be construed in all respects in accordance with the laws of the state of Illinois, county of Cook applicable to contracts enforceable in that state. Venue will be Cook County, Illinois.

1. Disclosure to Law Enforcement

The AUP specifically prohibits the use of our service for illegal activities. Therefore, Subscriber agrees that the Company may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition, the Company shall have the right to terminate all service set forth in this Agreement.

2. Service Rates

Subscriber acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Subscriber. Subscriber is aware that the Company may prospectively change the specified rates and charges from time-to-time. The promotional offer is contingent upon Company achieving and maintaining its cost of service goals including but not limited to rates charged to company by its suppliers.

3. Payment

Establishment of this service is dependent upon receipt by the Company of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month’s service.

4. Payments and Fees

Service will be interrupted on accounts that reach 5 days past due. Subject to company’s discretion, it may provide an additional 5 days, including the billing due date, to client, before initiating cancel. If you desire to cancel your account, please follow the proper procedure to do this as outlined in category #7 in this TOS.

5. Refund and Disputes

All payments to the Company are nonrefundable. This includes the one time setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred.

6. Failure to Pay

The Company may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable suspension and any collection fees.

7. Account Cancellation

Requests for canceling accounts must be submitted through the Cancellation Submit option in the GigeNET Cloud client portal and at least 15 days prior to the next service renewal. If cancellations are not submitted 15 days before the service renewal, you assume responsibility for the full amount.

8. Acknowledgments

Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of the Company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, subscriber agrees that the Company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of the Company. Subscriber further acknowledges that the Company’s liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall the Company be liable for any special or consequential damages, loss or injury.

9. Support Boundaries

9a. The Company, provides 24×7 technical support to our subscribers (except for few holidays and short company meetings when we close our center.) We limit our technical support to our area of expertise. The following is our guidelines when providing support: the Company provides support related to your server or virtual site physical functioning. The Company does not offer technical support for application specific issues such as cgi programming, html, or any other issue. The Company does not provide technical support for YOUR customers. If you can email, we encourage you to email support@gigenetcloud.com for assistance. If you are able to get online and have additional questions, the answers may be on our website; we encourage you to check there first. Lastly, the Help files in the program you are using may have the answer to your question so please investigate these resources before calling technical support.

9b. The Company offers leveled Support Management Plans. All support time outside of the scope allotted by client’s current Management Plan is billable at $150/hour.

10. SPAM and Unsolicited Commercial Email (UCE)

The Company takes a zero-tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that customers of the Company may not use or permit others to use our network to transact in UCE. Customers of the Company may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. In addition, it is not acceptable to transmit bulk email through remote SOCKS, HTTP or other similar proxies who in turn make a SMTP (TCP port 25) connection to the destination mail servers. This technique may result in account suspension or termination. Violations of this policy carry severe penalties, including termination of service. In order to prevent unnecessary blacklisting due to spam. we reserve the right to occasionally sample bulk email being sent from servers.

10a. Violation of the Company’s SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, the Company will initiate an immediate investigation (within 48 hours of notification). During the investigation, the Company may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, the Company may, at its sole discretion, restrict, suspend or terminate customer’s account. Further, the Company reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. The Company will notify law enforcement officials if the violation is believed to be a criminal offense.

10b. As our Customers are ultimately responsible for the actions of their clients over the the Company network, it is advisable that Customers develop a similar, or stricter, policy for their clients.

11. Abuse Services

Delisting blacklisted IPs is subject to $10.00 per delisting. Mail log cleanup is subject to $5.00 per hour of cleanup. If a security scan is run, cleanup of infected or malicious files is subject to $20.00 per cleanup.

12. Internet Relay Chat (IRC)

The Company does NOT ALLOW IRC to be run on any servers. There are no exceptions to this policy. Violation of this policy may result in account suspension and/or termination.

13. Open or “Anonymous” Proxy

The Company does not permit use of Open or “Anonymous” proxy servers. There are no exceptions to this policy. Violation of this policy may result in account suspension and/or termination. IMPORTANT NOTICE: **BEGINNING IMMEDIATELY**, anyone hosting websites or services on their server that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server immediately removed from our network. The server will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the server to confirm that all material has been COMPLETELY removed. Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second violation WILL be immediately and permanently removed from our network without notice.

14. Network

14a. IP Address Ownership: If the Company assigns Customer an Internet Protocol address for Customer’s use, the right to use that Internet Protocol address shall belong only to the Company, and Customer shall have no right to use that Internet Protocol address except as permitted by the Company in its sole discretion in connection with the Services, during the term of this Agreement. The Company shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by the Company, and the Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion. Our allocation of IP addresses is limited by ARIN’s new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting where possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.

14b. Bandwidth and Disk Usage: Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the “Agreed Usage”). The Company will monitor Customer’s bandwidth and disk usage. The Company shall have the right to take corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken is in the Company’s sole and absolute discretion. If the Company takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that a customer exceeds the included allocation, the Company may, at its sole discretion, collect a deposit, in an amount determined by the Company, against customer’s credit card on file with the Company.

14c. System and Network Security: Users are prohibited from violating or attempting to violate the security of the the Company Network. Violations of system or network security may result in civil or criminal liability. The Company will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:

15. Notification of Violation

15a. The Company is under no duty to look at each customer’s or user’s activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.

15b. First violation: Any User, which the Company determines to have violated any element of this Acceptable Use Policy, shall receive an email, warning them of the violation. The service may be subject at the Company’s discretion to a temporary suspension pending a User’s agreement in writing, to refrain from any further violations.

15c. Second Violation: Users that the Company determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.

15d. We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer’s network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.

16. Suspension of Service or Cancellation

The Company reserves the right to suspend network access to any customer if in the judgment of the the Company network administrators the customer’s server is the source or target of the violation of any of the other terms of the Aup or for any other reason which the Company chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer’s machines were suspended.

17. Amendments

The Company reserves the right to amend its policies at any time. All Sub-Networks, resellers and managed servers of the Company must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation. You will be held responsible for the actions of your clients in the matter described on these Terms and conditions. Therefore, it is in your best interest to implement a similar or stricter Terms and conditions or otherwise called Acceptable Terms of use policy.

18. Indemnification

The Company wishes to emphasize that in agreeing to the the Company Acceptable Use Policy (AUP) and Terms of Service (ToS), customer indemnifies the Company for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in loss to the Company or the bringing of any claim against the Company by any third-party. This means that if the Company is sued because of a customer’s or a customer of a customer’s activity, the customer will pay any damages awarded against the Company, plus all costs and attorney’s fees.

19. Miscellaneous Provisions

You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts are used, in that order of preference.

19a. A waiver by the Company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.

19b. Subscriber shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Subscriber. Company reserves right to cancel customers rights under this contract at anytime without further obligation.

19c. The Company takes no responsibility for any material input by others and not posted to the the Company Network by the Company. The Company is not responsible for the content of any other websites linked to the the Company Network; links are provided as Internet navigation tools only. The Company disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party’s violation of this policy.

19d. The Company is not responsible for any damages your business may suffer. The Company does not make implied or written warranties for any of our services. The Company denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by the Company.

20. Responsibility for Content

You, as the Company’s customer, are solely responsible for the content stored on and served by your the Company server.

21. Windows Servers

Requirements for using Microsoft software. Subscribers are prohibited from allowing more than five (5) authenticated users of the Microsoft Windows Server Operating Systems under Microsoft licensing terms and could create liability issues with Microsoft if violated. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on Software Products or that appear during the use of Software Products. Customer further agrees not to reverse engineer, decompile, or disassemble the Software Products. The Company may provide you access to other third party software and/or services (“Third Party Products “) through reseller relationships the Company has established with certain commercial vendors, including without limitation, Microsoft Corporation (“Third Party Vendors”). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by the Company and not by the Third Party Vendor. Neither the Company nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. Customer expressly acknowledges and agrees that use of third party products is at customer’s sole risk and such third party products are provided “as is” and without representation or warranty of any kind from the Company or any third party vendor, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, accuracy or completeness of responses or results, correspondence to description, or non-infringement of third party rights. To the maximum extent permitted by applicable law, neither the Company nor any third party vendor will be legally responsible for any damages, whether direct, indirect, or consequential, arising from the use or inability to use any third party product. Customer agrees to observe the terms of any license and/or applicable end user subscriber agreement for third party products and that customer shall be fully liable to third party vendors and the Company with respect to any improper use of such third party products or violation of license agreements with them and/or applicable end user subscriber agreements.

22. Denial of Service

We reserve the right to refuse service to anyone at any time for any reason.

23. Notification and Management of Customer Data Incidents

The Company maintains security incident management policies and procedures specified in the Security, Privacy, and Architecture Documentation and shall, notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including Personal Data, transmitted, stored or otherwise Processed by Digital Management Partners of which Digital Management Partners becomes aware (a “Customer Data Incident”). Digital Management Partners shall make reasonable efforts to identify the cause of such Customer Data Incident and take those steps as Digital Management Partners deems necessary and reasonable in order to remediate the cause of such a Customer Data Incident to the extent the remediation is within Digital Management Partners’ reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Customer’s Users.

24. LIMITATION OF LIABILITY; INDEMNIFICATION

THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH AN ORDER FORM (EXCLUDING EARLY TERMINATION CHARGES (AS DEFINED IN THE RELATED SUPPLEMENT)) IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES PAYABLE BY CUSTOMER DURING THE TERM SET FORTH THEREIN. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO CLAIMS OF CUSTOMER, WHETHER OCCASIONED BY ANY CONSTRUCTION, INSTALLATIONS, RELOCATIONS, SERVICE, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY COMPANY, OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA OR TECHNOLOGY.

Personal Data Processing Addendum

This Personal Data Processing Addendum (“PDPA”) addresses Personal Data Processing, privacy and cyber security obligations in addition to those expressed in the Terms as between Digital Management Partners and Customer for subscriptions to the Digital Management Partners Services and Platform. By agreeing to these Terms, Customer acknowledges that it and its Authorized Affiliates qualify as the “Controller” as defined under General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) to the extent that Digital Management Partners processes Personal Data in connection with Customer’s subscription to Platform. All capitalized terms not defined in this PDPA shall have the meaning set forth in the Terms. In the course of providing the Services to Customer pursuant to the Terms, Digital Management Partners may Process Personal Data on behalf of Customer and the Parties agree to comply with the following provisions with respect to any Personal Data.

1. Integration

This PDPA shall not replace any comparable or additional rights relating to Processing of Customer Data contained in the Terms.

2. Processing of Personal Data

Roles of the parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer is the Controller, Digital Management Partners is the Processor.

3. Digital Management Partners Personnel

3.1 Confidentiality. Digital Management Partners shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Digital Management Partners shall ensure that such confidentiality obligations survive the termination of the personal engagement.

3.2 Reliability. Digital Management Partners shall take commercially reasonable steps to ensure the reliability of any Digital Management Partners personnel engaged in the Processing of Personal Data.

3.3 Limitation of access. Digital Management Partners shall ensure that Digital Management Partners’ access to Personal Data is limited to the personnel performing Services in accordance with the Agreement.

3.4 Data protection officer. Members of the Digital Management Partners have appointed a data protection officer. The appointed person may be reached at DPO@GigeNET.com.

4. Rights of Data Subjects

Data subject request. Digital Management Partners shall, to the extent legally permitted, promptly notify Customer if Digital Management Partners receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the Processing, Digital Management Partners shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Digital Management Partners shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Digital Management Partners is legally permitted to do so and the response to such Data Subject Request is required under Data Protection Laws and Regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Digital Management Partners’ provision of such assistance.

5. Security

Controls for the protection of customer data. Digital Management Partners shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Customer Data), confidentiality and integrity of Customer Data, as set forth in the Security, Privacy and Architecture Documentation. Digital Management Partners regularly monitors compliance with these measures. Digital Management Partners will not materially decrease the overall security of the Services during a subscription term.

6. Deletion or Return of Customer Data

Digital Management Partners shall return Customer Data to Customer and, to the extent allowed by applicable law, delete Customer Data in accordance with the procedures and timeframes specified in the Security and Privacy Documentation.

7. European Specific Provisions

7.1 GDPR. With effect from 25 May 2018, Digital Management Partners will Process Personal Data in accordance with the GDPR requirements directly applicable to Digital Management Partners’ provision of its Services.

7.2 Data protection impact assessment. With effect from 25 May 2018, upon Customer’s request, Digital Management Partners shall provide Customer with reasonable cooperation and assistance needed to fulfill Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Digital Management Partners. Digital Management Partners shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to Section 11.2 of this PDPA, to the extent required under the GDPR.