1. Services provided
- a. We will provide those services (the “Services”) requested by you in an order (“Order”) placed through the Website. Cherry Servers may accept or reject any Order. The terms of an Order shall control in the event of an inconsistency with the terms of this Agreement.
- b. All Services shall be subject to the terms and conditions of this Agreement.
- c. Cherry Servers hereby grants to you a limited, personal, non-exclusive, non-transferable license, for the duration of this Agreement, to access and use the Website as necessary and only for your use of the Services. You shall not reproduce or copy, in whole or in part, any portion of the Website or any other material made available to you by us, and shall return all such material to us at the conclusion or termination of this Agreement.
- d. Cherry Servers may, in its sole discretion, subcontract the provision of a Service or a portion of a Service to third parties or affiliates, provided that Cherry Servers will continue to be liable for the performance of such subcontractors under the terms of this Agreement.
- e. Cherry Servers will provide you with reasonable technical support. You may request support at firstname.lastname@example.org. We do not provide support for other applications and uses or for your end users (“End Users”). Cherry Servers’ performance obligations under this Agreement apply solely to you, and not to any End User or other third party.
- f. You may resell the Services. Your resale of the services is governed by the terms set forth at email@example.com.
- a. This Agreement is effective on the Effective Date and shall continue in effect indefinitely until terminated by a Party. Either Party may terminate the Agreement by notice in writing (including email) to the other Party, provided, however, that notwithstanding any such termination the Agreement shall remain in effect for the remaining term of any existing Order. If Cherry Servers deems it necessary to discontinue offering a particular Service provided under this Agreement during the term of an applicable Order, then Cherry Servers may terminate such Service upon thirty (30) days prior written notice to Customer.
3. Charges, billing and payment
- a. Recurring charges for Services will be invoiced in advance on a monthly, quarterly, semi-annual, annual, or bi-annual basis, as provided in the Order, and will be payable before the first day of the service term. Non-recurring and usage-based charges will be invoiced in arrears as specified in the Order.
- b. Your payment obligations will survive termination of this Agreement and any applicable Order. You may terminate an Order without any early termination penalty once you have paid the recurring charges for at least one half of the term of the Order, plus any non-recurring or usage-based charges.
- c. Customer shall remit all account balance additions by wire transfer, credit card, PayPal or other payment mechanism accepted by Cherry Servers. The processing of Customer credit card payments may be denied or discontinued by Cherry Servers, at any time, in its sole discretion.
- d. Customer is responsible for all charges incurred on his/her/its account. This responsibility includes charges resulting from the use, misuse, or abuse of the Service by third parties accessing the Services through Customer’s account, whether or not the unauthorized access is a result of Customer’s failure properly to secure the account or to maintain the secrecy of account login information.
- e. Unless otherwise stated in the Service Order or any applicable rate schedule on the Website, all applicable European Union (“EU”), national, state or local value added, use, sales, commercial, gross receipts, or other similar taxes, license fees and surcharges (each, a “Tax”), whether charged to or against Cherry Servers, will be billed separately to and payable by Customer. Customer will not withhold any taxes from any amounts due to Cherry Servers. If Customer claims that it should not have to pay one or more Taxes, it shall provide Cherry Servers with a copy of the applicable tax exemption certificate(s). If Cherry Servers does not collect one or more Taxes based on its receipt of a tax exemption certificate from Customer and a relevant taxing authority seeks to collect any such Tax, then, notwithstanding Cherry Servers’ prior acceptance of the certificate, Customer shall be liable for and indemnify Cherry Servers for all amounts incurred by Cherry Servers in resolving the claim, including the Taxes, any interest or penalties assessed thereon, and Cherry Servers’ reasonable expenses and attorney’s fees that result from any proceeding. Customer shall advise Cherry Servers immediately if Customer’s tax exemption status changes, and shall provide us with updated or renewal exemption documentation upon our request.
- f. Any billing dispute or request for a billing adjustment must be made in writing within thirty (30) days of the invoice date. Any such request must include detailed documentation to establish the basis for any adjustment. The parties shall negotiate in good faith to resolve the dispute. If the dispute is subsequently resolved in Customer’s favor, then any resulting amounts due to Customer shall be deposited to Customer’s account or applied as a credit against a subsequent Customer invoice.
- g. If Customer has not breached any terms of this Agreement, such Customer is eligible to request Cherry Servers to issue a refund for an Order within first thirty (30) days after such Order was placed. Cherry Servers commits to refund such Order within seven (7) days for an amount received in Euros, less any amount for set-up fees, non-standard servers or server components provided under a special Customer request or third party licenses. If Customer operates in different currency than Euros, the refunded amount will be converted to different currency with regard to the currency exchange rate of the day when such refund is issued.
4. Conditions of Service
- a. The Services are offered by Cherry Servers subject to their continued legal availability in any applicable jurisdiction. Cherry Servers may elect not to offer a Service in or to any particular jurisdiction, location or country, or may block a Service to or from any particular jurisdiction, location or country if we determine, in our sole discretion, that the continuation of such Service is not permitted or advisable.
- b. Cherry Servers reserves the right to amend this Agreement, including any terms or conditions, policies, or pricing on the Website that are incorporated by reference herein, at any time. All such modifications shall be effective upon posting them on the Website. By continuing to use the Service after the posting of such amendments or modifications, you agree to be bound by the amended Agreement.
5. Network modification and network maintenance
Cherry Servers reserves the right to modify its network, system configurations or routing configurations. Cherry Servers may, at its sole discretion and without liability, change or modify the features and functionalities of a Service or modify or replace any hardware or software in the network or in equipment used to deliver any Service provided that this does not have a material adverse effect on the Service.
- a. Cherry Servers may terminate this Agreement, any Service, or both, immediately if Customer (a) fails to make payment of any amount due under this Agreement within 3 days of the due date or (b) violates Section 10.
- b. Either Party may terminate this Agreement, any Service Order, or both, immediately on notice, if the other commits any other material breach of this Agreement and fails to remedy the breach within thirty days after receiving written notice of the breach.
- c. Cherry Servers may also, upon sending notice of Customer’s material breach of this Agreement or a Service Order: (a) cease accepting or processing orders for Service and suspend Service without prejudice to its right to terminate this Agreement or the Service; (b) cease providing all electronically and manually generated information and reports; or (c) collect from Customer any charges owed under this Agreement.
- d. In the event of termination by Cherry Servers under subsection (a) or (b) above, all future charges that would be payable under any outstanding Service Order shall become immediately due and payable.
- e. Customer acknowledges that in the event of termination of this Agreement or any applicable Service Order, Cherry Servers has no obligation to continue to provide Services to Customer. Customer further agrees that it will immediately effect an immediate transition of Services to another provider.
7. Arbitration of Disputes
- a. Any dispute arising out of this Agreement that cannot be resolved between the Parties, must be submitted to binding arbitration before a sole arbitrator in accordance with the commercial arbitration rules of the International Chamber of Commerce (“ICC”). The decision of the arbitrator shall be binding on all parties. The arbitration shall be conducted in English in London, England.
- b. Either Party may initiate an arbitration. A copy of the request for arbitration shall be provided to the other Party at the time it is filed.
- c. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms.
- d. The arbitrator will have no authority to award consequential, incidental, punitive, or exemplary damages, and Customer expressly waives any rights to seek any such damages. To the extent such damages may not be so waived, if the arbitrator decides to award such damages, they shall be limited to the total amount of Service charges previously paid by Customer hereunder. The cost of the arbitration, including the fees and expenses of the arbitrator, shall be shared equally by the Parties unless the arbitrator’s award provides otherwise. Unless applicable law provides otherwise, each Party pays its own expenses to participate in the arbitration, including attorneys’ fees and expenses for witnesses and production and presentation of evidence.
- e. Each dispute shall be decided on an individual case basis and shall not be consolidated in any action with the disputes or claims of other consumers or customers. Customer agrees that it shall not bring any dispute or claim as a class action or as a private attorney general, and not to act as a class representative or participate as a member of a class of claimants with respect to any dispute or claim relating to this Agreement or the Services. The Parties agree to waive any right to jury trial involving any claims or disputes under this Agreement.
- f. If any portion of this dispute resolution section is determined to be unenforceable, then the remainder shall be given full force and effect.
8. Acceptable use policy
You shall, and shall ensure that your End Users, use a Service only for lawful purposes and in a lawful manner, and subject to the express prohibitions set forth in this section. You are expressly prohibited from using any Service in a manner that would or in Cherry Servers’ reasonable judgment may (a) constitute or encourage conduct that is criminal in nature, (b) give rise to civil liability for you or us, (c) violate any applicable laws or regulations (including those related to the intellectual property rights of third parties), (d) enable you to avoid any obligation to pay for the Service, (e) interfere with, disrupt, access without permission or present a risk to a Service or to the network or equipment of Cherry Servers, its customers, its interconnected providers, or other third parties, (f) violate this Agreement or the policies of Cherry Servers, (g) gain unauthorized access to, or otherwise violate the security of Cherry Servers’ (or another party's) network, servers, computers, network control devices, software or data, or other part of a computer system or network, or (h) constitute an abusive or fraudulent use. Specific conduct that is prohibited under this policy includes, but is not limited to, spamming, sending unsolicited commercial email, hacking, dissemination of (i) child pornography or any other activity harmful to minors or (ii) deliberately offensive material, including any message or information that is or may be threatening, libelous, obscene, or harassing. You shall be responsible for any liabilities or obligations arising from your or your End Users’ use of a Service in violation of this section. We shall have the right to block or suspend the Service without notice to you or any liability for us in the event we reasonably determine that (i) you or your End Users are using the Service in a manner that violates or is contrary to this section, or (ii) your network or your server space leased from Cherry Servers are subject to a distributed denial of service (DDOS) attack or other type of attack that interferes with Services provided to other customers. If your or your end users’ actions have caused the Cherry Servers mail servers or IP address ranges to be placed on black hole lists and other mail filtering software systems used by companies on the internet, you will be assessed a 100 EURO administrative charge and fees of 100 EURO per hour for employee time incurred to contact list holders, remove any blocks and protect our mail servers and IP ranges.
9. Warranty and Limitation of Liability
- a. Warranty and disclaimer. Cherry servers warrants that it will perform services with reasonable skill and care and in a workmanlike manner and will use reasonable efforts to restore services in the case of failure. Cherry servers makes no other warranty or guarantee relating to the services, express or implied, under this agreement or otherwise, and cherry servers expressly disclaims all other warranties or conditions relating to the services, express or implied, including, but not limited to any implied warranties or conditions of merchantability, satisfactory quality, and/or fitness for a particular purpose. Customer’s sole remedy for failure of a service is the credits set forth in the service level agreement at https://www.cherryservers.com/service-level-agreement.
- b. Limitation of liability. In no event shall either party be liable for any indirect, incidental, special, consequential, punitive, reliance, or cover damages, including loss of profits, revenue, data, or use, incurred by either party or any third party, including any damages arising from any negligent act or inadvertent omission, whether in contract, tort or under law, even if that party has been advised of the possibility of such damages. Except for a breach of customer’s payment obligations hereunder, in no event shall either party be liable to the other party for direct damages in an amount in excess of €100,000 or the amount that cherry servers charged customer for services in the six months prior to the date when the claims first arose, whichever is less.
- c. Exclusion of liability. Regardless of the form of action (whether in contract, warranty, strict liability or tort, including, without limitation, negligence of any kind whether active or passive) cherry servers, its subcontractors or agents shall not be liable for any of the following, even if informed of their possibility: (a) third party claims against customer or cherry servers for damages arising from a data breach, (b) any delay, loss, damage or service failure attributable to any service, product or actions of any person, including but not limited to delay, loss, damage or service failure attributable to computer viruses, worms, computer sabotage, ‘denial of service’ attacks, dns spoofing attacks and/or other hacking attacks of a similar nature, or (c) interoperability of specific customer applications.
You shall indemnify and hold Cherry Servers, our affiliates and subsidiaries, employees, directors, officers and shareholders of the same harmless from and against all claims, losses or damages (including attorney’s fees and costs) in favor of any agency, person, firm or corporation, arising from or relating to (i) any personal injury or property damage in any way resulting from the acts of you, your End Users, employees or agents; (ii) any violation of Section 10 or any claim by a third party that the content, use and/or publication of information and communications transmitted by you or your End Users using the Services (“Content”) infringes upon the rights of such third party, regardless of the form of action, whether in contract, tort, warranty, or strict liability and whether in respect of copyright infringement or any manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material; or (viii) your failure to comply with applicable data breach or data protection legislation.
11. Force Majeure
Cherry Servers shall not be held responsible for any delay or failure in performance of a Service or any part of this Agreement to the extent such delay or failure is caused by: fire; flood; earthquake; the elements; lightning; explosion; war; act of terrorism; strike; embargo; labor dispute;; government requirement; civil or military authority; act of god or nature; inability to secure materials or transportation facilities; act or omission of carriers or suppliers (other than the Parties themselves); acts or failures to act of any governmental authority; computer viruses or worms; DDOS attacks, DNS spoofing attacks and/or other hacking attacks; or any other causes beyond its reasonable control.
12. Regulatory matters; Compliance with Laws.
- a. Customer represents and warrants that its services and the products, materials, data, and information used by Customer and its End Users in connection with the Services do not, and during the term of this Agreement will not, operate in any manner that violates any applicable EU, national, state, or local law or regulation. Customer will obtain all required licenses and permits, and will comply with any laws and regulations that may be applicable to its use and resale of the Services.
- b. Customer is solely responsible for the use, publication and content of information transmitted by it and its End Users via the Services.
- c. Customer shall perform its obligations under this Agreement in a commercially reasonable, ethical and professional manner and in accordance with applicable legal requirements, including without limitation, all laws and regulations regarding (i) data privacy, telemarketing, “slamming” or other inappropriate selling activities, and (ii) the export or diversion of goods to certain prohibited countries promulgated by the United States Government.
- d. If any foreign, federal, state, or local government, regulatory agency or governmental body, or a court of competent jurisdiction, issues a rule, regulation, law or order (“Regulatory Change”) which has the effect of materially increasing the cost to provide Services hereunder or canceling, changing, or superseding any term or provision of this Agreement, then this Agreement may be modified by Cherry Servers in such a way as is consistent with the form, intent and purpose of this Agreement and is necessary to (a) comply with such Regulatory Change, or (b) to pass on to you any additional charges or fees imposed by such Regulatory Change on Cherry Servers.
- e. Customer Data. The computer servers of Cherry Servers are located in Lithuania, a member of European Union. All Services are provided, and Customer and end user data is stored or processed, in the United States or Lithuania. Customer agrees that Cherry Servers may process personal data (for example, contact details) provided by Customer in connection with this Agreement (hereinafter, “Customer Data”) for the purpose of this Agreement and/or for purposes connected with the Service and/or business relationship between the Parties, consistent with applicable law and regulation. Customer confirms that it has obtained all necessary consents to such processing from the data subjects concerned.
13. Governing Law
- This Agreement shall be governed by the laws of New York, USA, without regard to its choice of law principles. Subject to Section 8, any action brought to enforce an arbitral award shall be brought in the state or federal courts located in New York.
- a. All notifications, requests, demands and other communications required or permitted under this Agreement (“Notices”) shall be in writing and addressed to the Customer at the email address provided and maintained as part of its contact information and to Cherry Servers at firstname.lastname@example.org@cherryservers.com or at the postal address: Tilzes 74, Siauliai, 78140, Lithuania. It is Customer's responsibility to promptly notify Cherry Servers of any change in its contact information.
- b. All Notices sent by email shall be considered received when a confirmation of the delivery is received by the sender.
- a. Assignment/Subcontracting. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other, which may not be unreasonably withheld, conditioned or delayed; except that Cherry Servers may freely (i) subcontract any of its duties or (ii) assign its right to receive payments hereunder or this Agreement or any portion thereof to an affiliated entity.
- b. Publicity. Neither Party will publish or use any advertising, sales promotions, press releases or other publicity which uses the name, logo, trademarks or service marks of the other without the prior written approval of the other.
- c. Binding Effect. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
- d. Survival. Termination of this Agreement shall not affect either Party's accrued rights or obligations under this Agreement as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after this Agreement has ended.
- e. Remedies. Except as may otherwise be provided herein, the assertion by a Party of any right or the obtaining of any remedy hereunder shall not preclude such Party from asserting or obtaining any other right or remedy, at law or in equity, hereunder.