Kyup Terms of Service Agreement

The following Terms of Service (Terms or Agreement) together with our Website Terms of Use, Privacy Policy, Acceptable Use Policy (AUP) and DMCA Policy apply to all services provided by Kyup Inc. (Kyup, we, us, our) to you. By purchasing services from us you agree to these terms of service. Certain provisions of the Terms may not apply to you based on your Order. These Terms, together with any Order(s), represent the entire agreement relating to the Services and supersede any agreements previously entered into between you and Kyup. Any other contract provisions imposed by you on your own order forms or otherwise are expressly excluded.

We may alter these Terms at any time without notification to you. If an amendment results in a material change to the Terms, we will notify you of this change by posting a notice in your User Area. Your sole remedy in the event that you do not agree to those amendments is to terminate your services, as described in paragraph 5, within 10 business days of the date of the amendment. Only a Kyup officer may alter these Terms. No agent of, or person employed by or under contract with, Kyup has any authority to alter or vary the Terms in any way. No oral explanation or oral information given by any party shall alter the interpretation of the Terms.

In addition to these Terms, all domain name registrations are subject to the terms and conditions of any registrar Kyup may use to fulfill the Order and the rules and regulations of the relevant registrar. As a condition of this TOS, you agree to be bound by the rules and regulations and dispute resolution policies applicable to each domain name applied for on your behalf. Details of these terms and conditions are available here: ICANN Policy.

1. General Terms & Conditions

You will conform to the standards and acceptable use policies of Kyup, as set out in our AUP.

You are responsible for obtaining any licenses or permissions from public authorities that are required to upload the contents of your site or the web activity undertaken by you.

Your personal information is treated in accordance with our Privacy Policy, which is available on our website.

You will receive a password to be used when you log into your User Area and/or container. You are solely responsible for all passwords, and you shall keep all passwords confidential and take security measures to prevent any unauthorized person from gaining access to your passwords.

You have no ownership of, or proprietary rights in, any Equipment.

We will provide an IP address to you for each container in your account. You will have no ownership of this IP address. It may only be used by you while using the Services, and may not be transferred. Upon Termination of the Terms, or a particular Service, your right to use an IP address will end. IP addresses are recycled.

The Services are provided to you as configured for our standard customer. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your hardware, software and any other items you deem necessary to use the Services must be compatible with the Services. We are not obligated to modify the Services to accommodate your use. If your use of the Services damages the Services or Equipment, you will be charged for any repairs we need to make to the Services or Equipment. We may suspend your use of the Services until we determine whether your use of the Services has damaged the Services or Equipment.

The Services are provided on as is basis. The hardware configurations may vary across data centers and may result in different performance. We may replace your host server hardware, transfer it from one datacenter to another, or modify certain software configurations when deemed necessary by the company.

The proprietary and third party software we provide for you to use as part of our service is provided on as is basis and you bear all responsibility for using it.

Service Level Agreement (SLA)

Our Service Level Agreement (SLA) sets out the hosting performance you can expect from us. The SLA is your sole and exclusive remedy for our failure to provide the Services to you. We will provide you with a 99.99% Uptime SLA for our Cloud Container Services. The time during which your Services were down will be credited back to your account at the hourly rate incurred. The SLA credit should be requested by you within 30 days of an SLA event via our ticketing system.

Container Resources, Scaling

Our virtual containers offer you full flexibility regarding resource usage. RAM, CPU, Space and Bandwidth can be adjusted to your needs within the minimum and maximum resource usage limits displayed on our Pricing page and the container Launch page in your User Area. Resource scaling options are available for set up in your user Area. Unused bandwidth may not be carried over from month-to-month.

Distributions, Stacks, Application

We currently offer you a choice of certain distributions, stacks or applications to be provisioned with the launch of a new container free of charge. These are offered as an additional service and you are under no obligation to use any.

Backups

Back Up Services are provided as is and are subject to all warranty disclaimers and limitations of liability set out herein. Our Backup Services should be set up for each container separately and are subject to additional fees as described on the Backups setup page. By purchasing services from us, including Back Up Services, you agree that you will maintain your own set of backups independent of those we maintain.

2. Registration, Account, Orders

You may register for an account with Kyup free of charge. Registration for an account grants you access to the User Area and our Services as described in the Terms.

You must be over the age of 18 at the time you register for an account with us.

We will request that you provide valid personal and credit card information before launching your first container with Kyup. This information is stored in you Client profile and you agree to keep it up to date.

The launch of a new container from your account (Order) shall be deemed an offer by you to buy the Services from Kyup subject to the Terms. No Order shall be deemed to be accepted by us until we provision your container. The date on which we provide notice to you that the container is provisioned is the Effective Date of this contract.

All Registrations, Accounts and Orders will be reviewed by us to determine if they meet our financial, security and other reasonable criteria (Fraud Screen). You may receive notice that your Registration or Order has been rejected because it fails to pass our Fraud Screen. Unless otherwise specified, we are unable to provide additional information about the reasons for a particular Order failure to pass the Fraud Screen. Orders that fail our Fraud Screen will not be accepted and Service will not be provided.

We are under no obligation to deliver any Services in addition to those advertised on our website.

You shall provide to Kyup, at your cost, any information, resources or facilities reasonably requested by us for the delivery of the Services and, where necessary, ensure that your employees, contractors and other suppliers cooperate fully and promptly with Kyup.

Any instructions supplied by you to Kyup must be complete, accurate and clearly legible. We reserve the right to charge for any costs and any additional work incurred by us due to any failure by you to comply with this provision and shall not be liable for any errors caused by such failure.

3. Ownership Of Your Account

Your contact information is set out in the 'My Account' section in the User Area.

If you, on behalf of another person or entity, create an account, you warrant that you will administer the account in good faith, and indemnify us against all losses and liabilities sustained by us should you administer the account in ways that are adverse to End User and result in any claim against us.

For avoidance of doubt, the individual or entity set out in the Client Information 'My Account' section of the User Area is considered by us to be the owner of the account and all associated services (Account Owner), except Third party services purchased through Kyup, that are subject to additional terms and conditions. If you are the Account Owner and are administering the account on behalf of a third party, you agree to administer this account in their best interests and indemnify us, pursuant to paragraph 10, should an individual or entity claim that they own the account, or content, or that your administration has not, or is not, in their interest.  Domain names are owned as set out in applicable ICANN rules.  If you purchase a domain name on behalf of a third party, and a dispute arises regarding your administration of that domain name, you agree to pay all registration fees during the time the dispute is pending.  The individual or entity paying for the Services is not considered to be the owner. It is your obligation to ensure that you correctly indicate ownership of your account. If there is a dispute about ownership, the account will be locked until the parties to the dispute agree on a resolution, or until the matter is resolved judicially.

4. Payment

Kyup Services are available on a pay as you go basis. All fees listed on our website apply for monthly usage of resources unless explicitly stated otherwise. Fees accumulated for your account are due when you reach your balance limit or at the end of each calendar month, whichever occurs sooner.

The default account balance limit is set to $50. We reserve the right to change that limit based on your account activity and our financial needs. Notifications for change to the default balance limit will appear in your User Area.

Invoices are due immediately upon receipt. We reserve the right to suspend the Services until payment is made. Time for payment is of the essence. Domain name registration Fees must be paid in full at the time of purchase.

All fees listed on our website are net of applicable taxes. You are responsible for all taxes and fees levied on the Services.

We will charge your card on file automatically for any fees that are due. In case an automatic charge fails and you fail to pay your balance due, we will make additional attempts to charge your credit card(s). We will attempt to charge the primary credit card on file first. Should the primary credit card fail, we will retry billing other credit cards on file in the order listed in your User Area. 

The primary card on file is specified by You, but we reserve the right to make an alternative credit card primary if the current primary card is not active for some reason or fails a billing charge or an AVS check.

We are not responsible for your data or domain name if Services are terminated because your credit cards on file have expired or are no longer valid for any reason.

Our obligation to provide the Services is contingent on your payment of the Fees by the Due Date. You are responsible for keeping at least one current credit card on file. It is your responsibility to ensure that we receive payment of the Fees. Should the Services be suspended, for any reason, Fees will continue to accrue. Set up and domain name registration charges are not refundable for any reason.

We are pleased to provide you with a statement of account in your User Area. This statement is based on our records and, to ensure accounting consistency, we cannot alter the information in our records.

If you believe there is an error on your bill, you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute. If you contact your credit card company, prior to notifying us of the dispute, and initiate a "chargeback" based on this dispute, we will charge you an investigation and processing fee. This fee compensates us for the investigation your credit card issuer requires us to conduct in order to demonstrate our right to payment. All of your Services may be suspended during bill disputes. To reactivate your Services, you must pay the Fees due.

Our SLA sets out your rights in case of disruption of the Services. Should the Services be disrupted, you may request a Credit through your User Area, or by calling our customer service representatives. This Credit is our only obligation, and your only remedy, in the case of a disruption of the Services.

If you do not re-register your domain name(s), Kyup may choose to register the domain name. At that time the title in, and ownership of, this domain name will vest in Kyup. We may sell this domain name without restriction as if the full legal and beneficial owner. Unpaid domain names may become the property of Kyup.

Unless stated otherwise $ refers to USD. All future amounts payable by you shall be charged in the same currency as your initial order.

5. Termination & Cancellation

Termination by Either Party

Either party may terminate the Terms upon written notice to the other if one party materially breaches any of these terms and the breaching party fails to correct the breach within 10 days following the other party's written notice, or immediately if the breach is incapable of cure.

Termination by Kyup

We may terminate this TOS if (i) you fail to pay any sums due to Kyup as they fall due; (ii) in our reasonable opinion, you do not have sufficient technical expertise to use the Services without excessive ongoing technical support; (iii) we determine in good faith that this service has become impractical or unfeasible for any technical, legal, regulatory or other reason; or (iv) you violate the Terms or any agreement incorporated by reference.

We may terminate a particular Order, or aspect of the Services, if a Third Party ceases to make components of them available to us, or if providing them to you becomes cost prohibitive.

Termination by You

You may terminate the Services through the User Area by destroying your container(s). Termination of one container/service does not constitute termination of all services unless all active services on the account are terminated. Termination of a container will result in termination of any additional services associated with that container.

Once you terminate all active services on your account, we will review your account balance and will issue a refund on any unused pre-paid amounts. Refunds are issued through the same payment method that was originally used to purchase the Services. We are not responsible for delays to refunds caused by processing institutions or expiration of the original payment method.

You acknowledge and agree that your domain name registration is subject to suspension, cancellation, transfer or modification pursuant to the terms of any rules or policies applicable to your domain name registration, including, but not limited to: (i) the UDRP; (ii) any ICANN adopted policy; (iii) any registrar (including Kyup) or registry administrator procedures; or (iv) any other ccTLD registry administrator procedures.

6. Technical Support

Our technical support is provided via the Support section in your User Area. Your initial request for technical support must originate here. Technical support is provided on an as is, as available basis. If your request for technical support exceeds that of similarly situated customers, or is based on your lack of sophistication, we may charge you additional support fees. We will inform you, and receive your consent, prior to charging you for technical support. If you request technical support, you agree that we may have full access to your equipment, account, and any and all items accessible to us based on your request. While we will use reasonable efforts to provide technical support to you, all support is provided as is, and is subject to the disclaimers of warranties and limitation of liability set out herein. We retain the right to refuse to provide technical support to you if your use of technical support exceeds that of similarly situated customers, or if you are verbally abusive to our employees or contractors.

It is your obligation to perform and store a back up of your data and files from each container prior to requesting technical support and agreeing to any technical interference or operation provided by Kyup. In the event that you are not satisfied with the outcome of any technical action, it shall be your obligation to restore your files and data from your own back up.

7. Intellectual Property Rights & Other Consents

We retain ownership of all intellectual property rights in the Services and we grant to you a limited license to the Services to access and use them. All trademarks, product names and company names or logos used by us are Kyup's property or the property of their respective owners. No permission is given by Kyup to you or an affiliate to use any such trademarks, product names, company names, logos or titles, and you acknowledge that such use is an infringement of the owner's rights.

If we have not provided a license for you to use software as part of the Services, you agree to procure appropriate licenses to use all "Required Licenses." "Required Licenses" means any licenses, consents or approvals required to use software, hardware and other items installed on the Equipment, or whose use is facilitated by the Service. You agree to provide us with copies of the Required Licenses promptly following our written request.

You are solely responsible for obtaining all intellectual property rights in the intellectual property of others, including, but not limited to, clearances and/or other consents and authorizations necessary to use the names, marks or other materials which are used by you in, or transmitted via, the Services (Objects). On becoming aware of any dispute between you and any other individual or organization regarding the Objects, we reserve the right, at our sole discretion and without notice or liability to you, to cease any further use of such Objects including, without limitation, deleting or suspending them from our computer systems and/or to make appropriate representations or provide information to any relevant authority or interested party.

Unless otherwise set out in the Terms, you own all right, title and interest to the information you place on our servers pursuant to the Services. If you submit feedback to us in the form of trouble tickets or in another similar fashion, we shall have the right to use that information to improve our business processes. You have no right to any intellectual property that is based on an improvement to our business based on this feedback information.

8. Representations & Warranties

You represent and warrant that (i) you have the experience and knowledge necessary to use the Services; (ii) you and your End Users understand and appreciate the risks inherent to you, your business and your person that come from accessing the Internet; (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Services necessary to take advantage of the Services; (iv) you will not violate any applicable laws and/or regulations in your use of the Services; (v) you own all intellectual property rights in, or have a license to use, any information you provide to us necessary for us to perform the Services, or to any information transmitted by us through the Services; (vi) you will make back-up copies of all information in a location independent of ours, and will not use our Back Up Services as your sole back up; and (vi) you will pass through the contents of these Terms, and any agreements incorporated by reference, to your End Users.

WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) ARE PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.

9. Limitation Of Liability

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THESE TERMS OR UNDER ANY OTHER DOCUMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE 3 MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU AGREE THAT IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

10. Indemnity

We shall indemnify and hold you harmless from, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Services infringe any issued U.S. patent or registered copyright. This indemnification provision is expressly limited to aspects of the Services that are fully owned by us. It does not extend to products or services provided by third parties even if incorporated into the Services. This paragraph will be conditioned on your notifying us promptly in writing of the claim and giving us full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in our opinion is likely to occur, you agree to permit us, at our option and expense, either to: (i) procure for you the right to continue using the Services; (ii) replace an individual component of the Services with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Services, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate our obligations (and your rights) under this TOS with regard to such Service and refund to you the price originally paid by you to us for the Service, or the Fee actually received by us from you for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based. This shall be your only remedy, and our only obligation to you, should a third party allege that the Services infringe any issued U.S. patent or registered copyright.

You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to: (i) your use of the Services; (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in these Terms; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of the Terms of Service. For the purpose of this paragraph only, the term "you" as set out in subparagraphs (i) through (iv) includes you, End Users, visitors to your website, and users of your products or services, the use of which is facilitated by us.

11. Certain Information

Both we and you undertake not to disclose to a third party any confidential information which we or you receive relating to the contents or performance of the Terms, unless necessary for a party to perform their obligations under the Terms, the Services or the other's business in general, and shall procure that each of its directors and employees shall not do so, except with the prior consent in writing of the other, as required by law, or to the extent to which that information is publicly available or already known to the receiving party at the date of receipt, other than through any unauthorized disclosure by any person.

Without prejudice to this paragraph, we shall be entitled to mention your name as a client of Kyup and the name(s) of products which Kyup provides to you with your prior consent.

If a law or regulation compels disclosure of information we have about you, we are required to respond. Unless notifying you is prohibited by the law, or a reasonable interpretation of that law, we will use reasonable efforts to contact the account owner as set out in our records. We are not required to respond to demands by you that we provide information about your account as part of your litigation. If we agree to do so, we will charge you administrative hourly fee for each hour we spend responding to your request. You will also be charged the fees we are charged by our attorneys in responding to your request.

12. Notices

Any notice to be given by either party to the other may be sent by either email, support ticket, fax or recorded delivery to the address of the other party as appearing in the Terms or such other address as such party may from time to time have communicated to the other in writing. In addition, we may communicate with you using the Support ticketing system facilitated by our User Area. Notices of support tickets opened on behalf of the company are sent to you by email and shall be deemed received upon confirmation of receipt.

You are required to provide notices to us about the Services through the User Area. We will provide notices to you using the information you provide to us in the "My Details" section and the Notices section of the User Area. We have no responsibility for misdirected notices based on your failure to provide correct information.

Termination notices must be provided to us as set out in paragraph 5.

Legal Notices to us, which are effective only upon acknowledged receipt, shall be provided to us as follows:

Kyup Inc.
901 N. Pitt Street, Suite 325
Alexandria, VA 22314
Email: abuse@kyup.com

With a copy, which shall not constitute notice, to:

W. David Snead, P.C.
Attention: Kyup Legal Notices.
P.O. Box 48010
Washington, D.C.  20002
Facsimile: +1-202-318-4089

13. Resolution Of Disputes & Choice Of Law

Any dispute, controversy or claim arising under the Terms shall be resolved in accordance with the procedures set forth in this Section.

In the event of a dispute between the Parties relating to this TOS, each of the parties shall appoint a designated representative who has authority to settle the dispute and who is at the "C" level or above. This appointment will take place no later than 5 business days after the initial request for dispute resolution. The designated representatives shall meet as often as they reasonably deem necessary in order to discuss the dispute and negotiate in good faith in an effort to resolve the dispute. The specific format for such discussions will be left to the discretion of the designated representatives; however, all reasonable requests for relevant information made by one party to the other shall be honored. If the parties are unable to resolve issues related to a dispute within 30 days after a party's request is made, the dispute shall be submitted for arbitration. The arbitration shall take place in Houston, Texas, pursuant to the commercial arbitration rules of the American Arbitration Association. The dispute shall be heard by a single arbitrator who has experience in the field of web hosting. The arbitrator shall not be entitled to award punitive damages or attorneys' fees.

If the procedures set out in the previous paragraph fail, the parties agree that all disputes shall be brought before the U.S. District Court for the District of Columbia (District Court). If the District Court may not consider the dispute, all disputes shall be brought before the Superior Court of the District of Columbia located in Washington, D.C. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of the Terms or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of the Terms shall be governed by the substantive law of the District of Columbia, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.

14. Miscellaneous

If any provision of the Terms or part thereof shall be void for whatever reason, the offending words shall be deemed deleted, and the remaining provisions shall continue in full force and effect.

Your rights and obligations under the Terms are personal to you, and you shall not assign, lease, charge, sub-license, or otherwise transfer such rights and obligations in whole or in part.

We reserve the right to sub-contract any of the work required to fulfill the Services and to assign the Terms.

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

Any delay or forbearance by either party in enforcing any provisions of the Terms or any of its rights hereunder shall not be construed as a waiver of such provision or right thereafter to enforce the same.

Paragraph headings have been included in the Terms for convenience only and shall not be considered part of, or be used in interpreting, the Terms.

The Terms do not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.

Last Update: 30 June, 2014