Mighty Blue Cloud Technology INC (“Mighty Blue Cloud”) agrees to furnish services (“Services”) to its customer(s) (“Customer” or “Customers”), subject to the following Terms of Service (“TOS”).
The TOS herein shall govern any agreement or contract between Mighty Blue Cloud and its customer(s) (the “Customer”) (together referred to as “the Parties”) and shall constitute their agreement (the “Agreement”) together with any separate service contract. The Customer agrees and undertakes to hold Mighty Blue Cloud harmless for any actions taken by Mighty Blue Cloud pursuant to any provisions of the following TOS, even if such actions cause pecuniary losses and damages to the Customer.
Under the TOS, Mighty Blue Cloud and the Customer agree that Mighty Blue Cloud will provide services (“Services”) to the Customer and that in consideration of such services, the Customer agrees and consents to be subject to and to act in accordance with the TOS. The simple use of Mighty Blue Cloud’s Services by the Customer, without need for further agreement between the Parties, constitutes acceptance and agreement to comply with all applicable laws, TOS and Acceptable Use Policy (“AUP”).
The AUP may be changed from time to time, and without notice, at the sole discretion of Mighty Blue Cloud. The Customer understands and agrees that the present Agreement between the Parties shall not be terminated and that payment from the Customer to Mighty Blue Cloud for the Services shall not be stopped on the basis that the TOS or AUP are modified or changed in anyway by Mighty Blue Cloud. This Agreement shall be governed and construed in all respects in accordance with the laws of the province of British Columbia.
Nature of the Service and Fees
The nature of the Service as well as the initial charges and Service fees are detailed at the time of subscription by the Customer on the billing portal of Mighty Blue Cloud’s website. The Service fees detailed on the billing portal are subject to change depending on different factors such as the operations charges. Mighty Blue Cloud reserves the right to change the Service fees upon a thirty (30) day notice to the Customer.
MIGHTY BLUE CLOUD’S RIGHTS AND OBLIGATIONS
Provisioning Although Mighty Blue Cloud will make every reasonable effort to ensure that Service provisioning is done in the shortest possible time frame after the initial order request is made, the Customer understands and agrees that such time frame may be affected by any changes and settings requested by the Customer. Such time frame may also be delayed by any Security Check that Mighty Blue Cloud may, in its sole and absolute discretion, request the Customer to undergo.
Security Check Prior to providing Service to the Customer, Mighty Blue Cloud may request the Customer to undergo a Security Check. For the purpose of such Security Check, Mighty Blue Cloud may request any relevant documents from the Customer and request a conference call with the Customer. Should the Customer refuse to undergo the Security Check or should the results of such Security Check be unsatisfactory to Mighty Blue Cloud, for any reason whatsoever in Mighty Blue Cloud’s sole and absolute discretion, Mighty Blue Cloud reserves the right to terminate Service and to resiliate any agreement with such Customer. Mighty Blue Cloud further reserves the right to do a new Security Check of the Customer for any change of credit card or paypal account used to pay for Mighty Blue Cloud’s services.
Extent of Obligation Any and all obligations or duties that Mighty Blue Cloud may have towards the Customer is limited to an obligation of means and duty of reasonable care and shall under no circumstances be considered an obligation of result or an obligation of warranty.
Modification of Services Mighty Blue Cloud reserves the right to modify, discontinue, add, remove, re-price features or options from its Service. Mighty Blue Cloud undertakes to notify the Customer of such changes in a timely manner through its Billing Portal or by email.
Resiliation of the Agreement If the Customer is in breach of any of the terms herein or of the terms of the AUP, Mighty Blue Cloud reserves the right to resiliate the Agreement and terminate the Service at any time. Upon such resiliation or termination, the Customer will not receive any refund or credit for the Service that was paid for in advance. The Customer hereby agrees that Mighty Blue Cloud will not be liable for any such refund or credit.
Assignment of Rights
The Customer shall not transfer or assign any of its rights under the Agreement without the prior written consent from Mighty Blue Cloud. Mighty Blue Cloud may assign its rights in this Agreement at anytime without consent from or notice to the Customer. Mighty Blue Cloud reserves the right to unilaterally resiliate, in its sole and absolute discretion, the Customers’ rights under this contract at anytime without further obligation and without prior notice.
CUSTOMER’S RIGHTS AND OBLIGATIONS
Age Customer must be at least eighteen (18) years old to enter into a Service agreement with Mighty Blue Cloud.
Customer Information The Customer agrees and undertakes to provide Mighty Blue Cloud with accurate and up-to-date contact information such as Customer’s name, mailing address, email address, phone number where Customer can be reached during normal business hours, and any other relevant contact information. Customer also undertakes to notify Mighty Blue Cloud of any changes to this contact information, in a timely manner and to keep his or her contact information current and up-to date on the billing portal. If the information provided by Customer is misleading, inaccurate or false, Mighty Blue Cloud reserves the right to terminate Service to the Customer and to resiliate any agreement between Mighty Blue Cloud and the Customer.
Courteous Conduct The Customer and its employees undertake to be courteous in their communications and in their interactions with all of Mighty Blue Cloud’s employees. Mighty Blue Cloud has a zero tolerance policy for disrespectful or abusive conduct. Such conduct will result in the end of the communication with the Mighty Blue Cloud employee and potentially the immediate suspension of Service and termination of the Customer’s account.
Use of Service The Customer is responsible and liable for the use of Mighty Blue Cloud’s Service. The Customer is not only liable for its own use of the Service but also vicariously liable for the use by any person or entity that accesses the Service or Network through the Customer’s account.
License to Host The Customer hereby gives and grants to Mighty Blue Cloud the non-exclusive, royalty-free and worldwide right and license to host the Customer’s website and products for the whole term of the Agreement. Notwithstanding the preceding, Mighty Blue Cloud is under no duty to supervise or monitor the use of the license and shall assume no liability with regards to the license.
Security The Customer agrees and undertakes to make every reasonable effort to ensure the security of its services to its own customers in order to prevent unwanted access to the Mighty Blue Cloud Network. Should the Customer be aware of any security issue, it is the Customer’s obligation and responsibility to immediately notify Mighty Blue Cloud.
Storage and customer data The customer is solely responsible for his data hosted on Mighty Blue Cloud servers and bears the entire risk of loss even if the customer is currently using a Managed backup with Mighty Blue Cloud. Mighty Blue Cloud shall not bear any liability for the content of any Customer’s data or use of the Network.
Service Level Agreement (SLA) The customer is protected by Mighty Blue Cloud SLA and can refer to the document entitled “Service Level Agreement” available on Mighty Blue Cloud’s website.
PAYMENT AND BILLING
Initial and Monthly Fees Mighty Blue Cloud will start providing the Services to the Customer upon receipt by Mighty Blue Cloud of the payment of the initial charges agreed to by the Parties. Following the initial charges, the Services are paid prospectively each month, unless the Customer agreed to making prepayments. Payments for Services are due and payable on a monthly basis on the anniversary date of the commencement of Service. All accounts and services provided by Mighty Blue Cloud are subject to the applicable taxes in the jurisdiction where the service is provided, such taxes being payable in addition to any fee charged by Mighty Blue Cloud.
Additional Fees The use by the Customer of Mighty Blue Cloud’s bandwidth, Backup Storage (whether managed or unmanaged) and Virtual Resources such as Cloud Servers, in excess of what their Contract provides, will result in additional fees. Such fees, when incurred during an on-going month of Service will be due and payable on the following billing cycle. The same timeline for payment is applicable for any hourly rate, one time fee, late fees and administrative fees that may be due to Mighty Blue Cloud by the Customer. All overuse fees are available at here.
Payment Options The Customer may make payments in either of the following two ways:
a) By Credit Card: Upon the opening the Customer’s account, a credit card can be added on file. If the Customer so wishes, payments can be made automatically on the credit card every month. Payment by credit card is always made three (3) days before the due date. If the payment is declined for any reason, Mighty Blue Cloud will notify the Customer by email. In such case, the Customer shall provide a new method of payment to Mighty Blue Cloud no later than the due date.
b) Paypal and Wire Transfers are accepted methods of payments as well. Payment through either of these means shall be made before or on the due date.
Credit The Customer may only be eligible for a credit upon Mighty Blue Cloud’s failure to comply with the Server-Level Agreement (“SLA”) regarding the network uptime or the hardware replacement. This credit must be requested within thirty (30) days of Mighty Blue Cloud’s non-compliance with the SLA can only be applied to future services and is not redeemable in cash. The credit must be used within twelve (12) months, after which time the credit will be expired.
Fee for Declined Transactions The Customer agrees and undertakes to pay to Mighty Blue Cloud a $1,00 declination fee for each credit card transaction declined for any reason whatsoever.
Cancellation In order for the Customer to resiliate the Agreement, notice must be given to Mighty Blue Cloud’s billing department in writing no less than fifteen (15) days and no more than sixty (60) days before the monthly anniversary of the Agreement. Mighty Blue Cloud will not issue any credits for unused services.
Collection In the event that Mighty Blue Cloud determines, in its sole discretion, that an account is uncollectable, Mighty Blue Cloud may mandate an outside collection agency to collect such account.
Interest Accounts receivables will bear interest from the date payment is late, at a rate of 2% per month for a total compound interest rate of 24% per year.
Failure to Pay
Mighty Blue Cloud may temporarily deny service or terminate this Agreement upon the Customer’s failure to pay any charges when due. Such termination or denial will not relieve the Customer of its responsibility for the payment of all accrued charges, plus interests and any collection costs, which sums will remain payable to Mighty Blue Cloud. Furthermore, all charges for the initial remaining term of the Agreement not yet due and payable shall be accelerated and become due at the time of termination of this Agreement.
Non-Refundable Payments Payments to Mighty Blue Cloud are non-refundable. This includes without limitation, the one time setup fee and subsequent charges regardless of usage.
Disputes All overcharges or billing disputes must be reported to Mighty Blue Cloud within 30 days of the time the disputed invoice is issued.
Disputed Credit Card or Paypal Charge Should any charge disputed to a credit card issuer or to Paypal be, in Mighty Blue Cloud’s sole discretion, a valid charge under the provisions of the TOS and/or AUP, the Customer agrees to pay Mighty Blue Cloud an “Administrative Fee” of no less than $50 and no more than $150. Any Chargebacks done during the dispute or discussions with Mighty Blue Cloud will be considered a Failure to Pay and will be subject to the section entitled “Failure to Pay”.
The present section of the TOS is applicable in addition to any separate agreement describing and setting the terms of the Services in more details.
Term The Service is on a month to month basis unless otherwise agreed to by the Parties. The Service will be renewed automatically every month until Customer notifies Mighty Blue Cloud not to renew or to renew on a different basis.
Cloud Server, Cloud Backups, and Professional Services, Mighty Blue Cloud undertakes to provide the Customer with Network Access as well as any of the services listed on https://mightybluecloud.com. The Customer is however responsible for the configuration, installation and any other operation related to the setup of its server. Mighty Blue Cloud is available to offer support to the Customer for pre-approved softwares at its hourly rate found here.
Promotional Offers Any promotional offer that the Customer may benefit from remains contingent upon Mighty Blue Cloud achieving and maintaining its cost of service goals including but not limited to rates charged to company by its suppliers.
Mighty Blue Cloud provides 24/7 technical support to its Customers. The Technical support is limited to Mighty Blue Cloud’s specific area of expertise. Mighty Blue Cloud does not provide technical support for the Customer’s customers. Mighty Blue Cloud encourages technical support requests to be sent by e-mail at [email protected]
PENALTIES FOR DEFAULT
Additional Fees and Penalties
Interruption of Service In the event that the Customer is in default of payment of any sum owed to Mighty Blue Cloud for a period of seven (7) days or more, Mighty Blue Cloud reserves the right to interrupt Service to Customer without further notice, until payment is made. Several notices will be sent to the customer based on the following schedule:
1) on the following day the invoice is overdue: the customer is notified by email that his account is now overdue;
2) on the third day the invoice is overdue: the customer is notified by email that his account is now 3 days overdue;
3) on the fifth day the invoice is overdue: the customer will be contacted by email and/or phoned by a billing representative to inform him that his account is overdue for more than 5 days;
4) on the seventh day the invoice is overdue and no contact from the client has been received: the billing representative will send a 24 hour suspension notice.
Following the seventh day suspension notice, Mighty Blue Cloud reserves the right to interrupt Service to Customer without further notice, until payment is made. Mighty Blue Cloud further reserves the right to suspend or terminate the customer account and recycle the server(s) hosting the Customer’s account which can result in the destruction of some or all of the Customer’s data. Following or together with such recycling of the server(s), Mighty Blue Cloud may collect the due sum through any legal means such as but not limited to, the use of a collection agency. The Customer hereby acknowledges and agrees that any and all costs resulting or inherent to the collection process or legal proceedings (including without limitation attorney fees) will be payable to Mighty Blue Cloud by the Customer in addition to the sum which is the object of the collection. If the account is suspended, administration fees will be charged for the account’s reactivation.
Risk of Loss Although Mighty Blue Cloud will take every reasonable mean in order to ensure the safety and the security of its installations and Network, the Customer remains solely responsible for the safety and security of its data and services and bares all the risk of loss of data notwithstanding whether or not the Customer has subscribed to Mighty Blue Cloud’s “Managed Backup Plan.” The Customer hereby agrees to exonerate and hold Mighty Blue Cloud harmless for such loss of data. Under no circumstances does Mighty Blue Cloud offer the Customer any guarantee or warranty. Mighty Blue Cloud hereby specifically notifies the Customer that all its obligations towards the Customer are obligations of means, thereby explicitly denying and disclaiming any obligation of result or obligation of warranty.
Force Majeure Without limiting the extent of the limitations of liability already stated herein, Mighty Blue Cloud hereby explicitly makes known to the Customer that Mighty Blue Cloud does not undertake to remedy, indemnify or repair any injury or damage resulting from Force Majeure.
The Customer acknowledges that the Service provided is of such a nature that Service can be interrupted for many reasons other than the negligence of Mighty Blue Cloud and that damages resulting from any interruption of service are difficult to ascertain. Therefore, the Customer agrees that Mighty Blue Cloud shall not be liable for any damages arising from such interruptions. The Customer further acknowledges that Mighty Blue Cloud’s liability for its own negligence may not in any event exceed an amount equivalent to charges payable by the Customer for services during the period damages occurred. In no event shall Mighty Blue Cloud be liable for any special or consequential damages, loss or injury.
Disclaimer of Warranty
Mighty Blue Cloud shall not be liable for and Customer agrees and undertakes to hold Mighty Blue Cloud harmless for any damages the Customer’s business may suffer. Mighty Blue Cloud does not make any implied or explicit warranties for any parts of its services. Mighty Blue Cloud hereby denies and officially disclaims any implied or explicit warranty such as but not limited to: warranty against the loss of data, warranty of merchantability or warranty of specific purpose, etc. This disclaimer includes but is not limited to the loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Mighty Blue Cloud.
Content of Customer’s Date Mighty Blue Cloud shall under no circumstances be liable for any of its Customer’s content hosted on its servers and Network, such content’s legality and morality being the sole responsibility of the Customer.
IP Address Ownership Any grant of an Internet Protocol Address (“IP address”) to the Customer by Mighty Blue Cloud shall be considered as a limited license of use and shall in no way be considered an assignment of right of such IP address. The Customer’s use of the IP address is subject to any condition of use that Mighty Blue Cloud may impose, in its sole discretion, on such IP address. Mighty Blue Cloud shall maintain ownership and control of all Internet Protocol numbers and addresses that may be granted to the Customer by Mighty Blue Cloud. Mighty Blue Cloud reserves the right to change or remove from the Customer any and all such Internet Protocol numbers and addresses, for whatever reason, in its sole and absolute discretion. Mighty Blue Cloud’s allocation of IP addresses is limited by ARIN’s policies. Mighty Blue Cloud will periodically monitor and review IP address usage, and any use of the IP address(es) where name-based hosting could be used instead will lead to immediate revocation of the authorization to use said IP address(es).
System and Network Security
Users are prohibited from breaching or attempting to breach the security of the Network. Breach of any of Mighty Blue Cloud’s systems or the Network security may result in civil legal actions and criminal charges. Mighty Blue Cloud will investigate occurrences, which may involve such breaches and may involve, and cooperate with law enforcement authorities in prosecuting Customers or any other user(s) (“User”) who is/are involved in such breaches.
These breaches include, namely and without limitation, the following:
(a) Accessing data not intended for such User or logging into a server or account, which such User is not authorized to access;
(b) Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
(c) Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”;
(d) Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting;
(e) Taking any action in order to obtain services to which such User is not entitled.
No Duty to Monitor
Notwithstanding any provision of the foregoing, Mighty Blue Cloud is under no duty to monitor any Customer or user’s activities to determine if a breach of the AUP or of any of the provisions herein has occurred, nor does Mighty Blue Cloud assume any responsibility through the AUP or any of the provisions herein to monitor or police Internet-related activities.
Any User or Customer, which Mighty Blue Cloud determines to have breached any element of the AUP or of the provisions herein, shall receive a notice by e-mail warning them of the breach. Upon said notice, the service may be temporarily suspended, at Mighty Blue Cloud’s sole and absolute discretion, pending a written declaration from the Customer or the User, to refrain from committing any further breach.
Service may immediately be suspended, at Mighty Blue Cloud’s discretion, without notice and/or terminated upon the User or Customer committing a second breach. Mighty Blue Cloud has sole and absolute discretion to determine if such a breach occurred.
Suspension of Service and Deactivation of Account Mighty Blue Cloud reserves the right to suspend Network access to any Customer if in the judgment of the Mighty Blue Cloud Network administrators, the Customer’s server is the source or target of the breach of any of the terms of the AUP or for any other reason which Mighty Blue Cloud may determine. If inappropriate activity is detected, all services 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 and alerted regarding the activity. The customer will not be credited or refunded for the time the Customer’s machines were suspended or for any damages suffered by Customer for such suspension.
Mighty Blue Cloud wishes to emphasize that in agreeing to the AUP and TOS, the Customer will hold Mighty Blue Cloud harmless for any claim or law-suit brought against Mighty Blue Cloud resulting from any violation of the AUP or TOS by the Customer or the Customer’s client(s), affiliates, successors, mandatary, etc. As such, the Customer agrees and undertakes to indemnify Mighty Blue Cloud in an amount equal to any damages awarded against Mighty Blue Cloud, plus all costs and attorney’s fees.
VICARIOUS LIABILITY FOR THIRD PARTIES
Third Parties All Sub-Networks, resellers and servers of Mighty Blue Cloud must adhere to the present TOS and AUP. Failure to follow any term or condition will be grounds for immediate resiliation. The Customer is vicariously liable for the actions of its clients whom are expected to act according to the TOS.
Input, Views and Opinions
Mighty Blue Cloud does not endorse any input posted to the Network by anyone other than Mighty Blue Cloud itself. The views, opinions and comments of any one other than Mighty Blue Cloud should in no way be construed as coming from Mighty Blue Cloud and Mighty Blue Cloud shall be in no way responsible for any such input unless it is posted to the Network by Mighty Blue Cloud itself. Mighty Blue Cloud is not responsible for the content of any other websites linked to the Network; links are provided as Internet navigation tools only. Mighty Blue Cloud disclaims any responsibility for any inappropriate use of its Network by others and shall in no way be held liable for the conduct of any other person.
DISCLOSURE TO LAW ENFORCEMENT
The AUP specifically prohibits the use of our service for illegal activities. Therefore, the Customer agrees and consents that Mighty Blue Cloud may disclose any and all Customer information, including but not limited to, assigned IP numbers, account history, account use, etc. to any Canadian law enforcement agent/agency or police body delivering Mighty Blue Cloud with a court order, search warrant or other legally enforceable document forcing Mighty Blue Cloud to disclose such information without further consent from or notification to the Customer. In addition, following the delivery of such a legally enforceable document from a law enforcement agent/agency, Mighty Blue Cloud shall have the right, in its sole discretion, to terminate all service set forth in this Agreement without prior notice to the Customer.
As our Customers are ultimately responsible for the actions of their clients over the Network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
Severability It is hereby explicitly agreed by the Parties that the Agreement and the TOS shall not be declared invalid as a whole as a result of the invalidity of any one or more clauses of the Agreement and TOS. If any term or other provision of this Agreement or of the TOS is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and shall be construed consistent with the laws of the province of Quebec.
Failure to Act Mighty Blue Cloud’s failure to enforce its rights and penalties in the event of a breach or default, for whatever reason, shall not be construed as a waiver of its right to do so at any time.