PLEASE READ THIS AGREEMENT CAREFULLY.
This Agreement (“Agreement“) sets forth the terms and conditions of your use of the SkyScale GPU Compute Cloud services (the “Services“), and represents the entire agreement between you and SkyScale concerning the subject matter hereof and is made effective as of the date of acceptance.
Use of the service signifies you are accepting this Agreement and are stating that the information contained within is accurate and has been reviewed by you, the customer. Your acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, and any other agreements or policies that are expressly incorporated herein.
The terms “We”, “Us” or “Our” shall refer to SkyScale. The terms “You”, “Your”, “User” or “Customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to the SkyScale Website (www.skyscale.com). Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
DESCRIPTION OF SERVICES
All Services are pre-paid. Lease start date is not reserved until credit card is aauthorized. Credit Card is not charged until commencement of lease period. Reservation cancellation policy is stated in Section 3. We offer varying plans of GPU Compute Cloud Services:
Dedicated Server. If you purchase time on a Dedicated Server, an entire server is reserved exclusively for your usage. You will have exclusive rights to your server’s bandwidth, memory, and storage space, and your server’s computational performance will not be affected by the usage patterns of other customers.
You are solely responsible for reviewing the functionality of uploaded applications and data content in the SkyScale hosted location.
Professional Services. If we determine that any support request falls outside the scope of your service plan, you can request custom support services (“Professional Services“) on a thirty (30) minute incremental basis for a fee, or on a per service basis, which we will quote to you before providing the custom support service. If you elect to use our Professional Services, we reserve the right to charge any or all of the fees for such Services prior to the commencement of any work being performed. Professional Services fees are non-refundable. In the event you request that we install any Third Party Software (defined below) not provided as part of the Services, you represent and warrant that (1) you have the right to use and install the Third Party Software, (2) you have paid the applicable licensing fees for the Third Party Software, and (3) the Third Party Software does not and shall not infringe on the intellectual property rights of any other person or entity. You also agree to defend, indemnify and hold harmless us and our employees, officers and directors for, from and against any and all claims brought against us and our employees, officers or directors by a third party alleging the Third Party Software is not being used lawfully or that it infringes a third party’s right, patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys’ fees that a court awards and any settlements incurred by us in connection with any such claims. You must, within three days of any Professional Services delivery, notify us if there are any issues with the Professional Services. We are not responsible for and will not provide assistance with any issue(s) that arise beyond the three days of any Professional Services.
Reservations for future lease resources are committed through credit card authorization. The full service cost is charged to the authorized credit card at the start of the lease period. If the reservation is cancelled less than two weeks from the committed start date a 20% cancellation fee will be charged. The reservation may not be cancelled less than 2 days prior to committed start date.
Migration of Servers. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. As a result, you may be assigned or re-assigned a different IP address. We do not warrant that you will be able to consistently maintain your given IP address.
Termination of Services. You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you in connection with Services. Prior to termination of the Services, you are responsible for moving your applications or server content off our servers. We will not transfer your server content to another provider. If you fail to move your server content off our servers prior to termination, then all such content will be deleted and we will not be able to provide a copy of such content.
Acceptable Use Policy. You acknowledge and agree to the following acceptable use policy. Your use of SkyScale servers must not include or engage in any of the following: • Constitute, promote, facilitate, or permit gambling.• Include, promote or facilitate child pornography or other illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, harassing or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.• Engage in deceptive practices such as posing as another service for the purposes of phishing or pharming.• Distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or any malicious or harmful code.• Violate, misappropriate, or infringe the rights of any third party.• Constitute or facilitate the illegal export of any controlled or otherwise restricted items, including without limitation, software, algorithms, or other data that is subject to export laws.• Compromise the security of or tamper with system resources or accounts on POD or other systems by distributing or using tools designed to compromise security (viruses, password guessing programs, cracking tools, network probing tools, etc.)• Engage in, promote or facilitate digital currency mining. SkyScale reserves the right to investigate suspected violations of this Acceptable Use Policy. Network Connections. You may make network connections from SkyScale to servers hosted by yourself or a third party only with the permission and authorization of the destination hosts or networks. You may not make any external network connections for the following purposes:• Unauthorized probes and port scans for vulnerabilities.• Unauthorized penetration tests or traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any systems.• Web crawling.• Unauthorized network monitoring or packet capture.• Create forged or non-standard protocol headers, such as altering source addresses, etc.• Flooding.• Denial of Service (DoS) of any kind. In addition, you may not operate network services related to POD that include any of the following:• Open proxies.• Open mail relays.• Open and recursive domain name servers.
You agree that we reserve the right to remove your applications temporarily or permanently from our servers if you are in violation of this Agreement and/or there are activities that threaten the stability of our network. You acknowledge and agree that all applications and servers associated with your account may be removed if one server is in violation of this Agreement.
Storage and Security. You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your applications or server content; (2) maintain independent archival and backup copies of your applications or server content; and (3) ensure the security, confidentiality and integrity of all your applications or server content transmitted through or stored on our servers.
Our servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
Server Content. You shall be solely responsible for providing, updating, uploading and maintaining your server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your server. You acknowledge and agree that in the course of providing you with technical assistance, it may be necessary for our support staff to modify, alter or remove the contents of your dedicated server.
PROVISIONS SPECIFIC TO DEDICATED SERVERS
The Dedicated Server will come configured with one of the standard configurations selected by You. We may install a limited number of additional applications (“Supported Applications“) or modify the standard configuration (“Configuration Add-Ons“) of your server at your request and subsequent purchase of Professional Services. We will provide the primary (administrator) username, authentication credentials, and access information to You, at which point You will take over the management and additional configuration of the Dedicated Server. We will not be responsible for content, customization, or any other activities associated with the Supported Application, including any repair of the Supported Application should it stop working. We shall limit technical support of an inoperable Supported Application to restoring said Supported Application to its original state (fresh installation, with no data or customization).
Configuration Add-Ons. We offer multiple configuration options (“Configuration Add-Ons“) for an extra fee. The specific Configuration Add-Ons available depend on which dedicated server configuration you purchase. You acknowledge and agree that installing a Configuration Add-On may require additional provisioning time, may require us to install Third Party Software (defined below), third party hardware or internally developed custom software to your server, and, in some cases, may limit the versions of Third Party Software available for use with your server. Third Party Software, third party hardware and internally developed customer software will not be supported by us.
SERVICE UPTIME GUARANTEE
We offer a Service uptime guarantee of 99.5% (“Service Uptime Guarantee“) of available time per month. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 5% of your monthly fee for that month. The credit may be used only for the purchase of further products and services from us, and is exclusive of any applicable taxes. The Service Uptime Guarantee does not apply to service interruptions caused by: (1) periodic scheduled maintenance or repairs we may undertake from time to time; (2) interruptions caused by you from custom scripting, coding or the installation of third-party applications; (3) causes beyond our control or that are not reasonably foreseeable; and (4) outages related to the reliability of certain programming environments.
There are no refunds of any payments made.
THIRD PARTY SOFTWARE
“Third Party Software” means any software or application not developed or owned by Us.
The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services, unless it is owned by You. We may provide your personal information to third-party providers if it is required to be provided to the Third-Party Software vendors. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third-party providers (or their affiliates or suppliers).
TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
This Agreement and any actions arising out of it shall be governed and construed in accordance with the laws of the United States of America and the State of California without reference to its conflicts of law provisions, and specifically excludes the United Nations Convention for the International Sale of Goods.
You are responsible for all customs, duties, taxes, provisions and laws of your state or country of origin relating to access to our Services.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.