TERMS OF SERVICE – OPENVSERVERS

1. Subjects and Object

1.1. These general conditions, hereinafter GC, are legally intended to govern the terms and conditions for our services, hereinafter referred by OPENVSERVERS, and the subscriber to the services, hereinafter called the CLIENT.

1.2. Attached, the CLIENT, before subscribing to any service has access to the specific conditions of the service.

1.3. Upon confirmation of the subscription form, the CLIENT expressly accepts, without reservation or limitation, all and any of the present clauses, including the clauses attached to the specific conditions of the service.

1.4. Payment for the subscription of a new service or the renewal of an existing service by the CLIENT also represents acceptance, without reservations or limitations of all and any of the present clauses, including the clauses attached to the specific conditions of the service.

2. Conditions of Service Delivery

2.1. OPENVSERVERS provide any services identified on the subscription form within the agreed period with the CLIENT.

2.2. The CLIENT acknowledges and further agrees that OPENVSERVERS cannot guarantee the security of the information transmitted or sent through any communication networks used (e.g., internet, phone, fax).

2.3. OPENVSERVERS undertakes to keep confidential all data, content, information, and elements disclosed and provided by the CLIENT in connection with the execution of the GC, regardless of the support in which they are saved and without prejudice to the provisions on the use of personal data.

2.4. It is the sole responsibility of the CLIENT to ensure that the equipment, operating systems or computer programs used are suitable for the use of any services.

3. Restrictions

3.1. The CLIENT cannot attempt by any means to destroy or cause damage to any servers or services.

3.2. OPENVSERVERS forbids any material related to pedophilia and any other content deemed illegal and punishable under the laws of the Portuguese Republic on any services.

3.3. Should the CLIENT violate, in some way the stipulated in the above subparagraphs: 3.1., and 3.2., OPENVSERVERS reserves the right to immediately suspend or terminate the service in question without any obligation to provide a notice or a refund.

3.4. In addition to the legally recognized authorities, between the parties, the CLIENT accepts OPENVSERVERS to be considered the sole arbitrator responsible for evaluating what is or is not considered a violation of the above subparagraphs: 3.1., 3.2., and 3.3.

4. Obligations

4.1. The CLIENT must provide OPENVSERVERS with any information reasonably necessary to ensure the maintenance and proper provision of any services.

4.2. The CLIENT must refrain from any conduct that may go against what is stated as forbidden in the above subparagraph: 3.1., and 3.2.

4.3. The CLIENT must keep duly updated all contact details, especially those used for billing purposes and abuse notifications.

4.4. The CLIENT shall ensure and protect, under all circumstances, the confidentiality of any credentials of any services provided by OPENVSERVERS, specifically refraining from disclosing them to third parties - that are not supposed to access or does not have authorization to access any services - and not operating under conditions that could allow an unauthorized third party to copy or decode credentials.

4.5. The CLIENT is responsible for ensuring compliance of these GC whenever authorized third parties access any services.

4.6. The CLIENT accepts to be identified whenever accesses services using the provided credentials assigned by OPENVSERVERS.

4.7. The CLIENT agrees to have current backup copies of all data stored on the server or service at all times. These backup copies shall not be saved on the same server, service or datacenter.

5. Responsibilities

5.1. The CLIENT acknowledges and accepts:

The billing policy that is published on OPENVSERVERS page.
The support policy that is published on OPENVSERVERS page.
The privacy policy that is published on OPENVSERVERS page.
The spam policy that is published on OPENVSERVERS page.
The refund policy that is published on OPENVSERVERS page.
The cookie policy that is published on OPENVSERVERS page.
The impossibility of ensuring continuous use without interruption and utterly free from unauthorized use.
Any server may be unable to operate, and this may lead to a breakdown of services and loss of data or information.

5.2. OPENVSERVERS shall not be obliged to:

monitor or check any of the CLIENT websites or servers for possible legal violations.
monitor or check any of the CLIENT data or content for possible legal violations.
monitor the information that the CLIENT transmits or stores for possible legal violations.

5.3. The CLIENT is ultimately responsible for any content, information or data hosted on the subscribed services.

5.4. OPENVSERVERS is not required to configure, provide, install or maintain any service not explicitly mentioned in the service proposal.

5.5. OPENVSERVERS disclaims any obligation to provide assistance or any technical support and clarification to the customers of the CLIENT, since the service is provided to the CLIENT.

5.6. All communications by OPENVSERVERS may be sent to the CLIENT by electronic means (e.g., email).

5.7. OPENVSERVERS is authorized to list the CLIENT as a referenced customer without being obliged to pay a refund or any compensation.

6. General Guarantees of Performance

6.1. The servers located in the datacenters of OPENVSERVERS are connected to the internet over a complex network infrastructure.

Data traffic is routed over different active and passive network components (routers, switches, and other devices), which have a maximum data throughput. Therefore data throughput capacities can be limited for particular servers at particular points and not be equal to the maximum allowed data throughput of the respective switch-port.

Unless otherwise agreed, OPENVSERVERS cannot give a guarantee for the amount of actually available bandwidth for individual servers, but makes available bandwidth depending on the technical capability of the datacenter, taking into account obligations towards other customers.

6.2. The CLIENT can use the servers of OPENVSERVERS for a manageable amount of different applications and use various software programs for any purpose, at their discretion.

Because of this, millions of different configurations are possible. The sheer diversity of these options does not permit the provider to give guarantees for the usability and compatibility of servers for a specific purpose.

Except for the specifications made in the description of the offer, OPENVSERVERS cannot give guarantees for the actual network resources available for individual shared web hosting packages and Virtual Servers (VPS).

Rather, OPENVSERVERS makes available resources depending on technical possibilities, taking into account obligations towards other customers.

7. Indemnifications

7.1. OPENVSERVERS cannot be held liable for any losses (direct, indirect or consequential), except as laid down by law.

7.2. OPENVSERVERS cannot be held liable for any losses or damage caused by the misuse of credentials (usernames and passwords). The CLIENT is the only responsible for any credentials, as stipulated in the above subparagraph: 4.5., and 4.6.

7.3. Any damages, losses or loss of future earnings that may result from inadequate service delivery, even if it is the responsibility of OPENVSERVERS are not reimbursable to the CLIENT, customers of the client, or any other third party.

7.4. OPENVSERVERS cannot be liable for any dispute in which the CLIENT is a party against any third party due to the direct or indirect use of the service. Also, OPENVSERVERS shall not be liable for any irregularities arising from the use of domain names.

7.5. OPENVSERVERS shall not be liable for any claims made by third parties that the domain names registered (or the registration of which has been requested) by OPENVSERVERS violate or breach any rules or restrictions imposed by law regarding the registration of brands or companies.

7.6. OPENVSERVERS disclaims any liability if at any time, at its discretion, it discloses information necessary to comply with any law, regulation, court order or public order and, in whole or in part, edits, refuses to put online or removes any data, content or information of the CLIENT or the customers of the CLIENT.

7.7. OPENVSERVERS shall not be liable under these GC, or in extra-contractual terms, for any loss or damage (including loss or damage arising naturally in the course of events) including, without limitation, loss of future earnings, loss of reputation, or any other financial loss or damage related to:

Any acts, omissions, failures or delays occurring without negligence or willful misconduct on the part of OPENVSERVERS, or when the proper provision of the service is subject to influence by external circumstances beyond OPENVSERVERS control;
Fail to register or failure of servers for reasons of force majeure.

7.8. Under the law, the CLIENT agrees to indemnify and compensate OPENVSERVERS for any possible damage caused by any violation of the GC and any other content deemed illegal and punishable under the laws of Lisbon.

7.9. Under the law, the CLIENT agrees to indemnify and compensate OPENVSERVERS from any possible claims of third parties based on deficiencies regarding the web site’s content.

7.10. Under the law, the CLIENT agrees to indemnify and compensate OPENVSERVERS against any third party claims arising from any illegal action by the CLIENT or from errors in the information provided by the latter.

7.11. OPENVSERVERS does not intend to limit the liabilities imposed by any Law or any other liability which under the law cannot be limited. However, any possible indemnification for liabilities is limited up to 1 EUR or the minimal amount acceptable by law.

8. Amendments

8.1. The CLIENT cannot submit any changes to the content of these GC.

8.2. OPENVSERVERS reserves the right to submit changes to the contents of these GC at any time, notifying the CLIENT by email.

8.3. The amendment referred to in 8.2 is considered as approved and shall take effect for services subscribed or renewed.

8.4. For subscribed services taking more than one month to renew, the amendment referred to in 8.2 is considered as approved, unless the CLIENT objects to it within four weeks after receiving the amendment notification. OPENVSERVERS shall commit itself to advise the CLIENT of the consequences of a neglected objection.

9. Law and Jurisdiction

9.1. Communications:

For purposes of citation in legal action, specifically, to fulfill financial obligations arising from any subscriptions, the CLIENT agree it will be used the address indicated on the online/customer area subscription form.
OPENVSERVERS may refuse to provide any service or subscription to a CLIENT without being obliged to justify such refusal.

9.2. OPENVSERVERS shall not be subject to any obligation to monitor the information that the CLIENT transmits or stores through its intermediation, nor can it be liable for it.

9.3. The interim solution to settle any dispute shall be laid down and governed by the substantive laws of the Portugu. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this GC.

9.4. The resolution of disputes between the parties involved that cannot be resolved amicably shall take place at a court of competent jurisdiction at the place of OPENVSERVERS.

9.5. Any controversy or claim arising out of or relating to these GC, the formation of these GC or the breach of these GC, including any claim based upon an alleged tort, shall be governed by the laws of the State of Delaware.

9.6. The provision of the service is governed by these GC and other applicable laws of the State of Delaware.

10. Final Provisions

10.1. If any provision of these GC is held to be invalid or becomes invalid or if there are omissions in these GC that require rectification, the remaining provisions of the GC shall remain in full force and effect.

10.2. The invalid provision or omission in these GC shall be replaced by a provision which comes closest to the intention of both parties as would have been agreed by both parties had they knowledge of such issues in advance.