These Terms of Service (TOS) apply to the services AkaByte (we, us, or our) agrees to provide to you, and govern the rights and responsibilities between us and the entity purchasing or using those services (Customer, you or your). You agree to be bound by the TOS regardless of the way you have contracted with us. If you are purchasing the Services for a third party, you represent that you have the legal authority to bind that party to this TOS and that you will be responsible for their use of the Services. In that case, the terms Customer, you and you shall apply collectively to you and to the applicable third party. Both parties agree that our continued provision of the Services to you, and your continued use of those Services, represent agreement to be bound by the TOS.
We are a privately held corporation, incorporated at address via faustina 10,Camerano,60021,Italy. As a provider of web hosting services to customers all over the world, we have a responsibility to protect you (and each of our other customers), and to provide you (and them) with the best service possible. These Terms of Service are designed to ensure that our services remain of the utmost quality. Please read them very carefully before ordering and/or using our Services. By ordering and/or using our Services, you agree that (i) you have read and understand this TOS and (ii) you agree to be bound by this TOS. This TOS includes:
– Our AUP;
– Orders; and
– Any other documents that are incorporated into, attached to or specifically reference this TOS. We reserve the right to update the TOS from time to time.
We reserve the right to make changes to this TOS at any time without advance notice, though we will notify you of any such changes. Any changes shall take effect as of the date on which notice of such updates is posted to our website. Please contact us with any questions, comments, or concerns about any of our policies or this TOS.
1.1 The features and details of the services governed by this TOS are described on the product pages of our web site or any order form used to select the Services (Order) as of the Effective Date. We may modify the products and services we offer from time-to-time. Should the relevant product page change subsequent to the Effective Date, we have no obligation to modify the Services to reflect such a change. The services and products provided to you by us, as described on the relevant product pages, are referred to as the “Services.”
1.2 Certain aspects of the Services are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. We will use commercially reasonable efforts to inform you of those changes. You may terminate this agreement if such a change materially affects the Services.
2.1 The “Effective Date” of this TOS will be the date we initially provision the Services to you.
2.2 This TOS will begin on the Effective Date and continue for the term set out on Order (Initial Term). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (Renewal Term). If the Order does not contain an Initial Term, the Initial Term shall be one month.
3.1 Termination by Us
3.1.1. We may terminate the TOS and/or suspend or cancel any Services by providing written notice to you no later
than thirty days before the expiration of the Initial Term or any Renewal Term.
3.1.2. We reserve the right to immediately terminate this TOS, and suspend or cancel any Services: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay Fees when due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights.
3.1.3. We may also terminate this TOS upon the occurrence of a material breach, which has not been cured by you within ten days of your receipt of written notice of the breach. Notices of material breach must contain sufficient detail to allow you to identify the breach and attempt to take corrective action.
3.1.4. Written notice that we send to you shall be as described in Section 11 of this TOS.
3.2 Termination by You
3.2.1. You may terminate the TOS and/or suspend or cancel any Services by providing notice as described in
paragraph 3.2.3 to us no later than thirty days before the expiration of the Initial Term or any Renewal
3.2.2. You may terminate this TOS or cancel Services upon the occurrence of a material breach, which has not been cured by us within 10 days of our receipt of notice of the breach as described in paragraph 3.2.3. Notices of material breach must contain sufficient detail to allow us to identify the breach and attempt to take corrective action.
3.2.3. Notice that you send to us shall be:
18.104.22.168. By means of logging in to the AkaByte Client Portal, selecting Services that you wish to cancel (up to and including all Services, in the case of termination), and clicking “Request Cancellation.”
22.214.171.124. By means of creating a Billing Ticket via the AkaByte Client Portal and requesting cancellation.
3.2.4. Note that cancellation may take up to two (2) business days to be effective; provided that, if you use the cancellation tool in AkaByte Client Portal and select “immediately” as the timing of your cancellation, your services will be automatically cancelled as soon as you make the request. If you select “Next Due Date” as the timing of your cancellation, your services will be cancelled on the next Due Date.
3.2.5. If you are cancelling under our Money Back Guarantee and would like to request a full or partial refund, you must open a Billing Ticket on the AkaByte Client Portal. The refund process may take up to ten (10) business days, depending upon your payment method.
4.1 You are responsible for the fees and charges set out in your Order, or those fees and charges of which we otherwise notify you prior to billing you (Fees). The date on which Fees are due is the Due Date. If the Order does not set out a Due Date, the Fees will be due monthly. Setup fees associated with the opening of the Customer’s account, or future upgrades are one time fees; set up fees are not refundable for any reason. Fees for services are charged in advance and must be paid prior to the period during which services will be rendered, or within 3 days after the due date on the relevant invoice. Unless we are running a promotion, we will not discount the price or provide anything more or less than what the Customer signed up for, unless you upgrade your plan by speaking with an AkaByte customer service representative.
4.2 Our obligation to provide the Services is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Fees will be considered paid on the date your financial institution makes funds available to us. In the event of a delinquency for any reason, in addition to any other remedies we may have, a late fee of up to 10% of the delinquent amount may be applied to your account and must be paid (in addition to any arrearage) to bring your account current and prevent any further remedial action by us. Should your account be suspended for any reason other than our breach of this TOS, Fees will continue to accrue. To help you ensure timely payment of all Fees, as a courtesy to you, we have established the following invoicing schedule:
4.2.1. We will generate and send to you an invoice for the Services 10 days before the Due Date;
4.2.2. A reminder will be sent 3 days before the Due Date;
4.2.3. We will send you a first overdue reminder 1 day after the Due Date; and
4.2.4. We will send you a second overdue reminder 2 days after the Due Date.
4.3 If we suspend or terminate your use of the Services because you have violated this TOS, or any of the agreements, policies or regulations incorporated into it, we will not provide you with a refund or credit. Our Service Level Agreement does not apply to disruptions to your use of the Services because of such a violation. You agree to hold us harmless from any claims that such a disruption has caused damage to you or a third party, regardless of whether you informed us of the possibility of such damage.
4.4 If the Fees are not paid by your financial institution, your account will be considered delinquent. To reinstate your account if Services are suspended or canceled, you will be required to pay, depending on the reason for the delinquency: (i) interest as allowed by law and any late fee that we may assess; (ii) collection charges, including attorney’s fees; and/or (iii) any fees levied on us by our financial institution. You may also be required to pay, in our discretion, the amount of any fee that we incur in the event your financial institution does not honor payment.
4.5 You may choose to purchase certain products and services that are provided by other parties through us (Third Party Services). Fees for the Third Party Services may not appear on our invoices on the month on which they are delivered. You agree to pay for these Third Party Services regardless of the length of time elapsed between their delivery date and the date on which you are charged.
4.6 If you believe there is an error in your invoice, you must contact us in writing as provided in this TOS. Our obligation to consider your claim is contingent on your providing us with written notice of this dispute and including sufficient facts for us to investigate your claim. We must receive this notice at least five days prior to the Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet the Dispute Deadline. If we find that your claim is valid, we will credit your account on your next invoice.
5. Use of the Services
5.1 You must provide us with (and keep current) accurate contact information to allow us to contact you. This includes, but is not limited to, email addresses not based on the main domain of your account and telephone contacts. It is your responsibility to ensure that the email address on file is up to date at all times. We are not responsible for any claim, damages, fees, or otherwise as a result of an account being terminated or suspended due to inaccurate or unusable contact information. Providing false contact information of any kind may result in termination of your account. You can update your contact information at any time, using the AkaByte Client Portal or by opening a support ticket.
5.3 The Services are designed for lawful use only. It is your responsibility to fully understand and comply with all applicable laws.
5.4 Your use of the Services must be reasonable. You may not a) place excessive burdens on our systems, networks, and/or other resources, including without limitation our CPUs and servers; or b) interfere with the services we provide to other customers. You may not use excessive bandwidth. You agree that we may place restrictions on your use of the Services to the extent that they exceed the use of the Services by similarly-situated customers.
5.5 You agree to cooperate with us to facilitate your use of the Services. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is “server ready” and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Services.
5.6. Upon termination or expiration of the TOS, your account will be closed. We have no responsibility to forward email or other communications for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your email or other communications.
6. Licenses and Intellectual Property
6.1 We grant to you a non-exclusive, non-transferable, worldwide, royalty-free license to use technology provided by us solely to access and use the Services. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in our technology shall remain with us, or our licensors. You are not permitted to circumvent any devices designed to protect our ownership interests, or our licensor’s ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
6.2 You grant us, and any third parties used by us to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your customers, in conjunction with the Services. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you, or your licensors.
7. Your Representations and Warranty
7.1 You represent and warrant to us that: (i) you have the experience and knowledge necessary to use the Services; (ii) you will provide us with material that may be implemented by us to provide the Services without extra effort on our part; and/or (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service.
7.2 You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to us, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
8.1 ALL SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN THIS TOS, WE HAVE NOT, AND DO NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND TITLE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY FOR, THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY US. WE SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY US. NO WARRANTIES MADE BY THESE THIRD-PARTY ENTITIES TO US SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD-PARTY BENEFICIARY OF SUCH WARRANTIES.
8.2 THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM US, OUR EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
8.3 SOME JURISDICTIONS DO NOT ALLOW US TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, THE WARRANTY DISCLAIMER APPLIES TO THE GREATEST EXTENT ALLOWABLY BY APPLICABLE LAW.
9. Limitation of Liability
9.1 IN NO EVENT WILL OUR LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY US FROM YOU FOR THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERMS USED TO DESIGNATE US SHALL BE INTERPRETED TO INCLUDE OUR EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO CUSTOMER THROUGH US.
9.2 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 USE OF YOUR ACCOUNT; LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS 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. 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.
9.3 You acknowledge that it is your responsibility to keep back-up copies of your data. We are not responsible for any loss of data, for any reason. We are not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our network.
You agree to indemnify, defend and hold harmless us and 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), collectively “Claims,” 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 this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us. For the avoidance of doubt, Claims shall expressly include processing or responding to a subpoena, Court Order, or other legal process received in connection with your use of the Services; any violation by you of any of our policies; any breach of any of your representations, warranties or covenants contained in this TOS; or any acts or omissions by you. We reserve the right to invoice you for any costs or expenses incurred in connection with such a Claim, including reasonable actual attorneys’ fee and/or time spent by our personnel to remedy the situation, and you agree to promptly pay any such invoice.
11.1 Notices will be sent to you at the address you provide to us through the AkaByte Client Portal at https://AkaByte.com. It is your obligation to ensure that we have the most current address for you.
11.2 Please refer to our website for contact information for most issues, including technical support and billing. Notices regarding this TOS and other policies should be directed to us at the address set out on our website, except as otherwise described in this TOS.
12. Force Majeure
Except for the obligation to pay monies due and owing, 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, failure of telecommunication carriers, or 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 less than ten days from the beginning of the event.
13. Choice of Law, Jurisdiction and Venue
The validity, interpretation, and performance of this TOS, and of the agreements and policies that apply to the Services, shall be exclusively controlled by and construed under Italian law. Any disputes shall be submitted to the competent Italian Court. If the Customer who is not acting in the exercise of an occupation or a business is not in agreement with this choice of court, then the Customer shall be entitled, within a period of 30 days after AkaByte invokes the choice of court, to opt for settlement of the dispute by the competent court according to the law. If any provision of this TOS and/or the agreements and policies governing the Services turns out to be void, it does not invalidate the entire agreement. In that case, the parties shall determine (a) new provision(s) which resemble(s) the intention of the original TOS and/or agreements and policies governing the Services as closely as legally possible. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
14. No Waiver
No waiver of rights under this TOS, or any policy of ours, and no agreement between us and you shall constitute a subsequent waiver of this or any other right under this TOS.
This TOS may be assigned by us. It may not be assigned by Customer. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this TOS shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this TOS is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this TOS by written notice to the other.
17. No Agency
This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and neither party shall, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
Sections 6-10 shall survive termination or expiration of this TOS, together with any other section the purpose of which suggests that such survival is intended.