Acceptance of Terms of Service
- The Agreement
The terms and conditions set forth herein constitute the full and complete agreement between the Customer or user (hereinafter “you” or “customer”) and Vyon, LLC (hereinafter “VyonCloud”). By using VyonCloud consulting services, online services, websites, cloud services, or any other products or services of VyonCloud (together the “VyonCloud Services”), you agree to be bound by the terms of this Agreement for use of VyonCloud Services both past and present. The terms contained herein supersede and replace any other agreement or negotiation between you and VyonCloud, whether oral, written or otherwise, including any statements made to you by any representative of VyonCloud at any time with the sole exception of agreements physically signed by managing partners of VyonCloud and delivered by hand, mail, or FAX.
If you are entering into this Agreement on behalf of a legal entity, such as the company you work for, you warrant and represent to us that you have the legal authority to bind that entity to this Agreement. You and VyonCloud are the only parties to this Agreement referred to singularly as a “Party” and collectively as the “Parties”. There is no provision of this Agreement that provides any person or entity that is not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
- VyonCloud’s Obligations
VyonCloud will provide to you the Services and Support subject to the terms and conditions of Agreement. VyonCloud will comply with all laws applicable to its provision of the Services.
- Customer’s Obligations and Acceptable Use
3.1 General. You agree to do each of the following: (i) comply with applicable law and the terms and conditions of the Agreement, (ii) pay the fees for the Services when due, (iii) cooperate with VyonCloud’s reasonable investigation of service outages and any suspected breach of the Agreement.
3.2 Customer Data Security.
3.2.1 Customer Data is and at all times shall remain your exclusive property and shall remain in your exclusive care, custody, and control. VyonCloud does not have knowledge of the Customer Data you, or your end-user(s), store on the Hosted System, including the content, quantity, value or use of the data. You are solely responsible for: determining the suitability of the Services as adequate for the type of Customer Data stored by you or your end-user(s) on the Hosted System or otherwise processed by you or your end user(s) through your use of the Services; use of the Hosted System and the Services by any of your employees, Affiliates, or other users which you authorize or who gains access to the Hosted System or Services as the result of your failure to utilize reasonable security precautions in light of your use of the Services; and taking all reasonable steps to mitigate the risks inherent in transmitting Customer Data to and from and while stored on the Hosted System using the Services, including any Customer Data loss or corruption.
3.2.2 Reasonable security precautions shall include: encrypting any Personal Data; any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4); “protected health information” as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103; and other regulated financial, health or sensitive data, transmitted to and from and while stored on the Hosted System, maintaining a backup of Customer Data, designating authorized users under your account and limiting access of login credentials associated with your account.
3.2.3 You agree to immediately notify VyonCloud of any unauthorized use of your Services or account or of any other breach of security. You also agree to cooperate with VyonCloud’s reasonable investigation of security-related breaches.
To reiterate, you agree that:
- you will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government;
- you will not take any action which encourages or consists of any threat or harm of any kind to any person or property;
- you will not make or attempt any unauthorized access to any VyonCloud Services or accounts or Hosted Data of any VyonCloud customer or disclose any such information without authorization;
- you will not attempt to install or run any executable software not installed by VyonCloud on any VyonCloud cloud hosting system without prior written authorization from VyonCloud;
- you will not make any inappropriate, illegal or otherwise prohibited communication to any Newsgroup, Mailing List, Chat Facility, or other Internet Forum;
- you will not transmit any unsolicited commercial or bulk email, will not engage in any activity known or considered to be “spamming” or “Mail Bombing,” and you will not carry out any “denial of service” attacks on any other website or Internet service;
- you will not engage in any activity of any kind that causes harm to minors or to perform any activity which is likely to cause such harm;
- you will not infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
- your payment for Services used by a third party does not constitute your ownership of that party’s data and that you will provide a copy of that party’s data to that party on their written request as soon as practicable after receipt of such request;
- you will not undertake any action which is harmful or potentially harmful to VyonCloud or its infrastructure.
3.2.4. Service Level Guarantees under the Agreement: Limitations on Credits.
- Notwithstanding anything in this Agreement to the contrary, the maximum total credit for any calendar month for failure to meet Service Level Guarantees under the Agreement, including all guarantees, shall not exceed one hundred percent (100%) of your monthly recurring fee for the affected cloud Services. Credits that would be available but for any limitation on credits will not be carried forward to future months.
- You are not entitled to a credit under any Service Level Agreement for downtime or outages resulting from Maintenance. For purposes of the Agreement, Maintenance shall mean: Scheduled maintenance – repairs, modifications, or upgrades announced at least seventy-two (72) hours in advance; Scheduled customer maintenance – maintenance of your configuration that you request and that we schedule with you in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades; Emergency maintenance – critical unforeseen maintenance needed for the security or performance of your configuration or VyonCloud’s network.
- You are not entitled to a credit under any Service Level Agreement for downtime or outages resulting from external factors or circumstances outside of our control, including denial of service attacks, virus attacks, hacking attempts and spikes in network traffic, internet routing issues or application utilization; a change which you effect or request which results in downtime or outages or interferes with our ability to provide the Services; deficiencies, bugs or errors in your application, application code, data structures, system software, operating system, or any vendor supplied patches; any unsupported third party products or third party services (or their interaction with the Services) i.e. Internet Service Providers (ISP); any action we take which we reasonably believe is necessary to protect you, the VyonCloud network or our other customers.
- You are not entitled to a credit under any Service Level Agreement if you are in breach of your Agreement with VyonCloud (including your payment obligations to VyonCloud) at the time of the occurrence of the event giving rise to the credit until you have cured the breach. You are not entitled to a credit if the event would not have occurred but for your breach of your Agreement with VyonCloud or your misuse of the Services.
- You must request a credit in writing via email at email@example.com within thirty (30) days following the occurrence of the event giving rise to the credit. If the claim is approved, the credit will be applied during the next billing cycle following approval. You must show that your use of the Service was adversely affected in some way as a result of the downtime or outage to be eligible for the credit.
- For the purpose of determining whether a credit is due, time periods will be measured from the initial start of an online support chat or if you contact us by telephone to request support, we will open a ticket. If you contact us by phone, there may be a delay between the time of the call and the time we open a ticket.
4. Data Backup
VyonCloud shall provide daily backups of Customer Data stored for a period of 15 days, and offsite backups utilizing file versions for a total of 10 file versions offsite backups utilize a third party provider such as iDrive Backups. You are responsible for verifying the integrity of your Hosted Data Backups at least every 90 days. VyonCloud will locate and restore Customer Data within a period of 48 hours. For an additional charge, you may also request emergency service, within 8 hours of restore time.
5. Software License Agreements
You agree to comply with software license agreements for software that you lease through VyonCloud, such as Microsoft Office and Microsoft Windows Operating System, and will pay for all use of any such applications.
You agree to comply with software license agreements for all software that you use with VyonCloud but do not lease through VyonCloud, herein called “Manufacturer Licensed Software”. Manufacturer Licensed Software includes but is not limited to Intuit, Sage, Drake, Walter Kluwer and Microsoft Volume Licensed software.
You attest that you are the legal owner of all license information that you have provided or will provide to VyonCloud.
You grant VyonCloud the right to signal your acceptance of license agreements for Manufacturer Licensed Software. You agree that such license agreements are strictly between you and the software manufacturer and that VyonCloud has the right to signal acceptance, including your acceptance, of such software license agreements. You understand and accept that it is your sole responsibility to ensure that your use of Manufacturer Licensed Software with VyonCloud is in compliance with all software license agreements.
You understand and agree that VyonCloud is not offering Manufacturer Licensed Software on an application service provider or time-sharing basis, but rather leases the platform on which you use such software. You agree that the relationship of VyonCloud to such software license agreements is that of a consultant who maintains computers or other devices that are either leased or owned by you.
You grant VyonCloud the right to share with the software manufacturer of Manufacturer Licensed Software your respective license information including all license-related keys and numbers for all Manufacturer Licensed Software and all related services provided by the software manufacturer.
6. Ownership of Intellectual Property
VyonCloud Services make use of intellectual property of VyonCloud including but not limited to VyonCloud tools and technologies for infrastructure configuration, system virtualization, and customer service. You acknowledge that all right and title to any such VyonCloud property shall remain the sole property of VyonCloud and that you have no right, title or interest therein. You agree to receive written authorization from VyonCloud before performing any security analysis of any VyonCloud service. You agree not to attempt to reproduce, reverse engineer, decompile, or disassemble any VyonCloud service and you agree that any derivative work is the sole property of VyonCloud.
7. Privacy and Confidentiality
You are solely responsible for ensuring that your login information is utilized only by you. Your responsibility includes ensuring the secrecy and strength of your passwords. VyonCloud shall have no liability resulting from the unauthorized use of your login information. If you use weak passwords or do not change your password frequently, you increase the risk of your password being discovered by unauthorized parties. If login information is lost, stolen, or used by unauthorized parties or if you believe that your Hosted Data has been accessed by unauthorized parties, it is your responsibility to notify VyonCloud to request the login information be reset or unauthorized access otherwise be prevented. VyonCloud will use commercially reasonable efforts to effect such requests as soon as practicable after their receipt.
The Customer is responsible for its modems, computers, operating systems and connection devices (hereinafter referred to as “Customer’s Equipment”) necessary for connecting to the Internet through which Customer can access the Cloud Hosting Services provided by VyonCloud. Customer is also responsible for all IT Support involving Customer’s equipment. VyonCloud does not provide any computer, modem, or any other equipment or system for Customer to connect to the Internet. On occasion, VyonCloud will provide IT Consulting Services and Support involving the Customer’s equipment for a specified fee.
8. Term/Subscription of Services
You should understand that the frequency period for cloud hosting services is on a monthly reoccurring basis.
For monthly services, the initial term of this Agreement shall be one (1) calendar month. You hereby authorize VyonCloud to charge subscription fees on a recurring basis each month via the credit card or debit card which you have provided to VyonCloud. At the commencement of the term, VyonCloud will collect your credit card or ACH information on the Payment Authorization Form signed by you.
Rate changes. VyonCloud reserves the right to amend or change the subscription fees and charges with notice to Customer of no less than thirty (30) days before the effective date.
Credit card/Bank Draft. VyonCloud accepts most major credit cards (e.g. American Express, Visa, MasterCard, and Discover) and Automated Clearing House (ACH) transfers for payment. At the commencement of the term, VyonCloud will collect your credit card or ACH information on the Payment Authorization Form signed by you. All payments by credit card or ACH that result in a denial of charges are subject to a 15% finance charge, and if not paid within 15 days of notification by VyonCloud are subject to disconnection of services. Upon 30 days of non-payment, all past due and unpaid balances are subject to collection through collection agencies. In the event of such collection action, Customers are liable for costs of collection including but not limited to attorney’s fees, court costs, and collection agency fees. Once an account has been submitted to a collection agency for collection, such account shall additionally be subject to a $50.00 collection fee which shall be paid by Customer prior to reactivation of the account.
For accounting inquiries, contact the VyonCloud Accounting Department at firstname.lastname@example.org. Unless otherwise provided by law or in connection with any particular offer, all charges, and fees by VyonCloud are nonrefundable. In addition, account reactivation may require several business days.
For any reason set forth herein or in the event that you breach any term of this agreement, VyonCloud may suspend or terminate your account by deactivating any access to any information contained on the VyonCloud servers related to your account. Suspension hereunder shall specifically include the disabling of your access to VyonCloud Services or any access to information or data related to your account. Subscription/Service charges will continue to accrue on suspended accounts and you continue to remain responsible for the payment of any such charges during the period of suspension. VyonCloud reserves the right to terminate your account forthwith and without notice for any breach of this Agreement.
This Agreement and all of its terms shall remain in full force and effect until terminated. Termination shall include the removal of any and all of your information from the VyonCloud servers. Such information or data may be made available to you by VyonCloud after any such termination. Renewal of this Agreement may be terminated at any time by you with a fifteen (15) day written notice.
VyonCloud may terminate this Agreement immediately and without further notice for cause. Cause for immediate termination exists (a) if any payment for VyonCloud Services is more than fifteen (15) days overdue, (b) in case of any material breach of any of the provisions of this Agreement that is not cured within ten (10) days of the breaching party receiving notice thereof from the non-breaching party, or (c) any breach of the provisions of the ACCEPTABLE USE section of this Agreement.
If your use of the Services is paid for by or through a third party, you understand and agree that the third party has the right to have your account suspended or terminated at any time for any or no reason and that their failure to pay for services that you use could result in termination or suspension of your access to the services and/or your hosted data.
In the event of any termination under this TERMINATION section, any service fees paid in advance beyond the next renewal date following the notice period under that section may be refunded to you.
At VyonCloud’s discretion, VyonCloud may terminate this agreement for any reason, at any time with a 30-day written email notice.
Any notice under this Agreement, given by VyonCloud to you, shall be in the form of email, fax or mailed to the mailing address provided by you to VyonCloud at the commencement of this Agreement or as VyonCloud is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email, fax or mailing address.
You warrant that the email, fax and/or mailing address information you have provided to VyonCloud is and will remain accurate. You agree that you will inform VyonCloud at email@example.com of any changes to it within 15 days.
Any notice under this Agreement given by you to VyonCloud shall be via email at firstname.lastname@example.org or telephone at 602-247-7008 or FAX at 602-247-7009 or mail at 23460 N. 19th Ave, Phoenix, AZ 85027. Notice to VyonCloud by email, fax or mail is deemed sufficient only upon confirmation from VyonCloud by email or FAX or registered mail receipt. Notice given by you to cancel service shall be via a service cancellation request form that shall be provided by VyonCloud upon request from you via email at email@example.com or telephone at 602-247-7008.
11. Warranties; Limitations of Liability
VyonCloud makes every reasonable effort to maintain operation of the VyonCloud Services. However, because many events and circumstances are beyond the control of VyonCloud, VyonCloud does not in any way warrant or otherwise guarantee the availability of the VyonCloud system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues due to the active or passive negligence of VyonCloud. VyonCloud may, at its sole discretion, limit or deny access to its servers, if, in the judgment of VyonCloud, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the VyonCloud servers.
All VyonCloud services are provided to you on an “as is” basis, and without any warranty of any kind, whether express or implied, including, but without limitation, any implied warranty of merchantability, or fitness for a particular purpose.
Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. With the exception of the content found on VyonCloud websites, VyonCloud has no control over information contained on the Internet. VyonCloud, therefore, accepts no responsibility for any information which you may receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. VyonCloud provides no warrantee for any goods or services which you obtain over the Internet, nor the compatibility of any such services with the VyonCloud system.
You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of illegal use of VyonCloud Services without regard to whether or not the material claimed to have been infringing is later found to be illegal.
You agree to fully defend and indemnify and hold harmless VyonCloud, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of VyonCloud in any way related to your use of the VyonCloud Services or any portion thereof.
You agree to fully defend and indemnify and hold harmless VyonCloud, its officers, directors, agents, resellers, and employees, in their official and personal capacities, of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorney fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the VyonCloud Services or any portion thereof. Choice of counsel remains exclusively that of VyonCloud.
13. Force Majeure/Withdrawal from Business
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
In addition to any event of force majeure as described in the foregoing paragraph, VyonCloud may also terminate this Agreement in the event that VyonCloud elects, at its sole discretion, to cease doing business in the United States and/or Canada for economic reasons or for any other reason whatsoever. Customers who, at the time VyonCloud ceases doing business in the United States and/or Canada, are taking advantage of any VyonCloud offer for free services or any other services that were intended to go beyond the date of cessation (hereinafter, the “Prepaid Services”), may not recover any damages from VyonCloud (or any of its affiliated entities) in the event that they incur costs and expenses related to the cessation of the Prepaid Services, nor do such customers have, nor may they bring, any claim for repayment of such costs and expenses, including without limitation, fees paid to other cloud hosting services for the balance of time remaining with respect to any VyonCloud offer of Prepaid Services. Customers receiving Prepaid Services at the time of cessation of business shall be entitled to a reimbursement of their Prepaid Service fees, if any.
This agreement and the rights hereunder is not assignable or transferable except that VyonCloud may freely assign any or all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of VyonCloud, or to any affiliated company or successor in interest of VyonCloud. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by VyonCloud to any other party, VyonCloud will notify you within ninety (90) days and, excepting assignment solely of rights of resale of VyonCloud Services, you have the right to terminate this Agreement by giving notice thereof in writing to VyonCloud and any such termination shall become effective thirty (30) days after the receipt of such notice by VyonCloud.
15. Choice of Law
This Agreement shall be interpreted under the laws of the State of Arizona, without regard to any conflict of law provisions.
If you provide any third parties with information, including but not limited to web content, printed advertising, and electronic advertising, that directly links or refers to VyonCloud Services, said information must identify those services as “Provided by VyonCloud” and, if on a web page, such identification must also link to www.vyoncloud.com.
Notwithstanding the above, all users of VyonCloud Services are a party to this Agreement and agree to the above with respect to any intermediary if using VyonCloud through such.
17. No Agency
Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between VyonCloud and you.
VyonCloud may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the VyonCloud website in place of the old. Each and every such amendment shall become effective immediately for users of VyonCloud Services including but not limited to all pre-existing and future accounts. It is your responsibility to periodically check the VyonCloud website for updates of this Agreement.
Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
Because VyonCloud backs up Hosted Data, VyonCloud may from time to time delete QuickBooks backup files (QBB) from the system. If you need to retain these files, it is your responsibility to transfer them off of the system.
Any rights not otherwise expressly granted by this Agreement are reserved by VyonCloud.
In the case of non-payment for any reason, Vyon LLC reserves the right to immediately bar the User’s access to the Services.
By checking I agree to the Terms of Service, I certify that the individual and/or entity procuring these services online is the end user and is in full compliance with the rules and regulations promulgated by the Office of United States, Department of Treasury – Office of Foreign Assets Control.
©2016 VyonCloud, LLC. — Revised September 20, 2016.