Terms Of Service, Last Updated 01/08/2013


FluidRhino, LLC (herein referred to as "FluidRhino") agrees to provide services to the Subscriber, subject to the following Terms of Service. Use of FluidRhino's service constitutes acceptance and agreement to FluidRhino's Terms of Service.

FluidRhino reserves the right to modify the Terms of Service without notice.

 

1. Eligibility

You may use our services, provided that you are of legal age to form a biding contract and are not barred from receiving such services under the laws of the United States or other jurisdictions. In order to access our services, you are required to provide current and factual identification, contact, and other information as part of the registration process. You are responsible for the confidentiality of your account information and for all activities that occur under your account. You are solely responsible for all content within your account. You agree to immediately notify FluidRhino of any unauthorized use of your account or any other breach of security. FluidRhino will not be liable for any loss or damage as a result of your failure to provide us with accurate information or to keep your account secure.


2. Acceptable Use Policy

Lawful use of the Network

In using the Network, Users will comply with, and refrain from violations of, all applicable provisions of the United States Code, and the Code of Federal Regulations, including but not limited to those statutes forbidding: (a) distribution of child pornography, (b) forgery, identity theft, misdirection or interference with electronic communications, (c) invasion of privacy, (d) violations of the CANSPAM Act, (e) collection of excessive user data from children, or other improper data collection activities, (f) securities violations, wire fraud, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. Users will also comply with the affirmative requirements of law governing Network use, including but not limited to: (a) disclosure requirements, including those regarding notification of security breaches, (b) records maintenance for regulated industries, and (c) financial institution safeguards.

Agreed Use of Allotted Network Resources

Users shall not use any method to circumvent the provisions of the terms of service, or to obtain services in excess of those for which they contract with FluidRhino. Users shall use only those IP addresses that are assigned to them by FluidRhino, and shall not use any IP addresses outside of their assigned range. Users shall not use any mechanism to exceed the amount of Network resources assigned to them, or to conceal such activities.

Injurious Code

Users may not use the Network to distribute, receive communications or data gleaned from, or execute any action directed by any type of injurious code, including but not limited to: (a) trojans, (b) key loggers, (c) viruses, (d) malware, (e) botnets, (f) denial of service attacks, (g) flood or mail bombs, or (h) logic bombs.

Email Violations

In addition to being forbidden from performing any acts made illegal by the CAN-SPAM Act, Users may not send bulk email utilizing their Network resources unless they maintain a double-authorized list of subscribed members including IP addresses and relevant contact information, along with following guidelines for including removal links with all sent emails according to the CAN-SPAM act. Users are forbidden from taking any action that would result in their IP addresses, or any IP address associated with FluidRhino or other Users, being placed on the Spamhaus.org blacklist.

Restrictions

You agree that you will NOT use FluidRhino's services to: violate any applicable state or federal law and regulation, including, but not limited to, any copyright, trademark, patent, anti-piracy, or other intellectual property law or regulation, or encourage or enable others to violate any such law or regulation. FluidRhino does not prohibit the use of distributed, peer to peer network services such as Tor. FluidRhino also does not prohibit the use of IRC(Internet relay chat) servers. FluidRhino routinely monitor the network communications of customers as a normal business practice. However, customers are responsible for the contents of network traffic exiting their service. Any usage that prompts the receipt of abuse complains pertaining to violation of United States and/or international copyright law must be promptly discontinued to avoid service cancellation for violation of these terms.

Violation of Copyright, Trademark, Patent or Trade Secret

Users may not use Network resources in violation of the copyrights, trademarks, patents or trade secrets of third parties, nor shall they utilize the Network to publish such materials in a manner that would expose them to public view in violation of the restrictions of law. The provisions of the DMCA will apply to issues presented by allegations of copyright violations by third parties. FluidRhino will, in appropriate circumstances, terminate the accounts of repeat infringers.

Other Violations

The foregoing enumeration of violate acts is not meant to be exclusive, and FluidRhino provides notice hereby that it has and will exercise its authority to take whatever action is necessary to protect the Network, Users, and third parties from acts that would be inimical to the purposes of this AUP as set forth above.

Acts of Sub-Users

Users are responsible for the acts of others utilizing their Network access, and will be held responsible for violations of this AUP by their sub-users or persons who gain access to the Network using the User's access codes. Any activity that a User is prohibited from performing by this AUP is equally prohibited to anyone using the Network-access of the User. Accordingly, Users agree to take the following actions to control the activities of those who connect to the Network by any means.

Access Code Protection

Users will utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins, passwords, and verifying the trustworthiness of persons who are entrusted with account access information.

Notification Regarding the AUP

Users will notify all persons who receive Network-access of the provisions of this AUP, and will inform them that its terms are binding upon them.

Remedial Action

Users will notify FluidRhino if and when they learn of any security breaches regarding the Network, and will aid in any investigation or legal action that is taken by authorities and/or FluidRhino to cure the security breach.

Remedies for Violations

FluidRhino may take any of the following appropriate actions to remedy violations of this AUP:

Service Suspension or Termination

FluidRhino may suspend or terminate any account without refund by a User that violates the provisions of this AUP, as FluidRhino may deem appropriate to the circumstances of the violation. FluidRhino will provide prior notice of the intent to suspend or terminate service if the provision of notice will not, in FluidRhino's judgment, run counter to the purposes of the AUP.

Uptime Guarantee

FluidRhino providers a 99.9% uptime guarantee on all FluidRhino hardware, and on network connectivity. In any given month, if your FluidRhino service is down for more than 0.1%, you may request a pro-rated credit for the down-time. The uptime guarantee does not cover maintenance periods, or any other circumstances beyond our control that hinder access to your service, such as: Network conditions across the internet (outside of our network), such as between the user's ISP and our data center, DDoS or other attacks on our servers, problems with the user's network, browser or DNS caching issues. All users will be notified of maintenance downtimes.

Bandwidth Exceeding

At any time if the User exceeds their allotted bandwidth restriction their Services will be suspended until the beginning of the next month, or their plan is upgraded.

User data

FluidRhino is not responsible for any files which are lost or deleted. Customers are responsible for maintaing their own backups on their own personal computers. FluidRhino does not provide any sort of compensation for lost or incomplete data in the event of hardware failure.

Refund

FluidRhino agrees to offer a full refund within 7 days from which the account was originally activated for their virtual private server service. A refund will not be included for ordered third party licensed software, ie: cPanel, Softaculous, or web domain registration fees. This refund is VOID if your account violates our Terms of Service.


3. Master Service Agreement

Term

The term of this Agreement shall be monthly, to commence on the date that the User sign-ups electronically for service by creating an account with an email address. Fees are billed by FluidRhino on a monthly billing cycle commencing on the first of each month, ending on the last day of the month.

Invoicing Policies

All invoices are denominated, and User must pay, in U.S. Dollars. User will be billed on or around the first of each month, with payment due no later than the 10 days past the invoice date. Current rates for using the Services may be obtained on our website at www.fluidrhino.com. FluidRhino reserves the right to change fees, surcharges, monthly membership fees or to institute new fees at any time.

Arrearages

Payments not made within ten (10) days of invoicing will be deemed in arrears. For accounts in arrears. If any amount is more than ten days overdue, FluidRhino may suspend service and bring legal action to collect the full amount due, including any attorney's fees and costs.

Suspension for Nonpayment

FluidRhino may suspend some or all Services to User for failure to make timely payment.

User Duties

User will: Provide and maintain accurate personal and business identifying information, including Social Security Numbers, EIN Numbers, names, addresses, telephone numbers, and email addresses. Utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins, passwords, verifying the trustworthiness of persons who are entrusted with account access information, and notifying FluidRhino if and when any security breaches involving data hosted or stored at FluidRhino occurs. Make full and timely payment of fees for services as selected pursuant to the terms of service. Provide FluidRhino with accurate information relevant to assessing fees. Comply with the terms of this agreement, including the requirements of the terms of service, AUP, and Privacy Policy.

Disclaimers and Waiver of Liability

FluidRhino DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES PROVIDED HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING HARDWARE, SOFTWARE, OR SERVICES, NOR THE STATEMENT OR CONDUCT OF ANY AGENT OF FluidRhino, SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. USER ACKNOWLEDGES THAT HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN. USER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST FluidRhino ARISING OUT OF USER'S PURCHASE OR USE OF THE SOFTWARE, OR ANY CONDUCT OF FluidRhino's OFFICERS, EMPLOYEES, OR AGENTS. FluidRhino SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO USER OR ANY THIRD PARTY IN ANY AMOUNT, OR FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF FluidRhino HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. NO DISCLOSURE BY FluidRhino's OFFICERS, EMPLOYEES, OR AGENTS, SHALL BE MADE A CAUSE OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL FluidRhino's AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, UNDER STATUTE, OR OTHERWISE, EXCEED THE AMOUNT OF ONE (1) MONTH OF SERVICE PROVIDED PURSUANT TO THIS AGREEMENT. USER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT FluidRhino WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS.

Confidentiality

User shall keep confidential any Confidential Information to which it is given access, and shall cooperate with FluidRhino's efforts to maintain the confidentiality thereof. User shall not publish to third parties or distribute information or documentation that FluidRhino provides for purposes of operating and maintaining its systems, including material contained in estimates, invoices, work orders, or other such materials.

Export

User shall comply with all applicable export and import control laws and regulations in its use of FluidRhino Services, and, in particular, User shall not utilize FluidRhino Services to export or re-export Data or Software without all required United States and foreign government licenses. User assumes full legal responsibility for any access and use of FluidRhino Services from outside the United States, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license, and represents that, should such a license be required, it shall be User's responsibility to obtain the same, and in the event of any breach of this duty resulting in legal claims against FluidRhino, User shall defend and hold Licensor harmless from all claims and damages arising therefrom.

Indemnification

User shall defend, indemnify and hold harmless FluidRhino its affiliates, agents, employees, and licensors(including the third part services providers) from any and all claims or causes of action arising out of User's misuse of FluidRhino Services. The customer agrees to pay any damages awarded against FluidRhino, plus all costs and reasonable attorney's fees.

Termination

Either party may terminate this Agreement if the other party fails to cure a material breach of the terms of this Agreement within thirty (30) days after receiving notice thereof. In the event FluidRhino terminates this Agreement for User's material breach, any amounts owed to FluidRhino hereunder before such termination will be immediately due and payable, any and all rights granted to user this Agreement will immediately be cancelled, and User shall promptly discontinue all use of the Services, relinquish any Confidential Information in User's possession or control. If FluiDrhino determines that User's failure to abide by the terms and conditions of this Agreement may give rise to unlawful consequences or cause an immediate risk of damage to FluidRhino, other Users, or third parties, FluidRhino may terminate this Agreement on less than thirty (30) days notice.

Legal Compliance

FluidRhino may suspend or terminate Services and this Agreement immediately upon receipt of any lawfully issued notice from a court having jurisdiction over FluidRhino, alleging the use of the Services to accomplish violations of law, pending the resolution of the relevant court proceeding. When subjected to lawful process requiring disclosure, FluidRhino may disclose the User's identity and contact information, and FluidRhino shall not be liable for damages or results thereof, and User agrees not to bring any action or claim against FluidRhino for such disclosure.

Force Majeure

FluidRhino and its affiliates, agents, employees, or licensors (including third party service providers) shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, ware, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.

Survival

All terms of this Agreement, which by their nature are intended to survive termination of this Agreement, shall so survive.

Choice of Law, Venue, Consent to Email Service and Waiver of Hague Convention Service Formalities

Any claim arising under this Agreement shall be construed in accordance with the substantive and procedural laws of the State of Kentucky, without regard to principles of conflict of laws. User consents to the jurisdiction of the State of Kentucky.