Last updated June 17, 2022
1. OVERVIEW
This Hosting Agreement (this “Agreement”) is entered into by and between IMAGINATION DOO (Budva, Montenegro) entity (“Operator”) and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Operator’s Hosting services (the “Services”), and represents the entire agreement between you and Operator concerning the subject matter hereof.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Universal Terms Of Service Agreement, which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.
The terms “we”, “us” or “our” shall refer to Operator. 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 this Site. 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. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
2. DESCRIPTION OF SERVICES
We offer the following parts of Hosting Services:
Providing access to the ERPHY software account hosted on the erphy.me website (“Website”). In this case, all users use the same server capacities (processor, database, RAM, disk space), separate access to which is controlled by the Operator’s software.
Web Hosting of sites (“Web Hosting”). Your site is placed within one or more servers and resources are shared between many customers on the same servers; however, your site is given a unique domain name (DNS). During the site order procedure, the user specifies the desired 3rd level domain name. Further, you can change this name to a 2nd level domain name by contacting the Operator’s technical support (a fee may be charged for this service).
All rights to the third level domain belong to the Operator. We reserve the right to refuse your chosen name without explanation.
3. LIMITATIONS; ACCOUNT TERMINATION
The Operator does not own its own servers, and provides its services on leased servers of third-party providers. The Operator is not responsible for any malfunctions on the servers of third-party providers, from which it rents servers, resulting in failures in the operation of the Operator’s software.
The customer understands that the site hosted by us, as well as all its components (modules), due to the technical features of its generation, cannot be transferred from our servers to another hosting.
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 server names assigned to you in connection with Services. We will not transfer your website to another provider. If you fail to move your website or server content off our servers prior to cancellation, then all such content will be deleted and we will not be able to provide a copy of such content.
Free Products Credits. Upon termination of the Services, all free products provided as part of the Services will be cancelled or revoked.
4. YOUR OBLIGATIONS
Abusive Activities. You acknowledge and agree that you may not use our servers and your website as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and we reserve the right to remove sites containing information about hacking or links to such information. Use of your website as an anonymous gateway is prohibited. We prohibit the use of software or scripts run on our servers that cause the server to load beyond a reasonable level, as determined by us. You agree that we reserve the right to remove your website 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 websites associated with your hosting account may be removed if one website is in violation of this Agreement. In addition to the General Rules of Conduct listed in our Universal Terms of Service, you agree not to engage in unacceptable use of the Services, which includes, without limitation, use of the Services to:
(1) disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious;
(2) attempt to mislead any person as to the identity, source or origin of any communication;
(3) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization;
(4) engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any of our policies.
Storage and Security. You shall be solely responsible for undertaking measures to:
(1) prevent any loss or damage to your website or server content;
(2) maintain independent archival and backup copies of your website or server content; and
(3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
Operator’s backup service runs at least once a week and overwrites any of our previous backups. Only two weeks of backups are stored in the remote server. Operator is not responsible for files and/or data residing on your account. You agree to take full responsibility for all files and data transferred and to maintain all appropriate backup of files and data stored on Operator’s 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 Operator Services in any way that shall impair the functioning or operation of it or any equipment used to operate it.
Data Protection and Security. You shall be solely responsible and liable for compliance with applicable privacy and personal data protection requirements (including, but not limited to requirements laid down by General Data Protection Regulation (EU) 2016/679) (GDPR), which may be applicable to any personal information, data or content collect through, stored or otherwise processed in relation to Hosting Services on your website content.
You shall at all times remain data controller of any such personal data without any liability of whatsoever nature to Operator.
You will not provide us any personal information with respect to Your clients, visitors, end-users. You acknowledge that Operator may in certain limited cases have access to information and communications systems for the purposes set forth in this Agreement. However, in cases of such limited access Operator will not become controller, processor, sub-processor or receiver of any such data.
Without limitations to the generality of the foregoing, you shall be solely responsible for installation of organizational and technical security measures sufficiently protecting personal data stored or processed on your website. Consequently, you will be solely responsible for all and any data breaches, incidents and similar violations pertaining to such data, unless such data breach has occurred solely due to technical failures, malfunction or errors of the servers and resources, which Operator has expressly warranted to secure to You and assume liability for such failures, malfunction or errors.
In case, disregarding our understanding that Operator does not act as processor of any data or information hosted, stored or housed in the servers, User Content or in relation to Hosting Services, certain limited personal data processing activities are found to be carried out by Operator, the following data processing clauses shall apply:
(1) Operator shall process personal data only according to your documented written instructions or only as mandatorily required by law;
(2) make best efforts to implement reasonably available technical and organisational measures in order to ensure that personal data processing carried out complies with the requirements of GDPR and personal data protection legislation as regards security of processed personal data; you understand that the fact that available technical and organisational measures will be implemented in itself does not guarantee full and complete security, safety and integrity of personal data;
(3) upon your request, Operator will take reasonable measures to discontinue data processing after expiry of the Agreement and, if required by you and unless otherwise provided in applicable legislation, take reasonable measures to erase or in any other way make inaccessible and unusable or return to you all available personal data;
(4) you shall undertake to ensure that personal data are collected and processed lawfully, are accurate, relevant and adequate, and that your instructions to Operator are lawful, accurate, relevant, comply with the GDPR and personal data protection legislation; you shall notify data subjects of their data processing and transfer to Operator in accordance with the requirements of GDPR and personal data protection legislation;
(5) you grant Operator with a general authorisation to engage sub-processors and service providers in the processing of personal data controlled by the you;
(6) overall responsibility of Operator hereunder shall be limited to the amount of remuneration for the last 6 (six) months paid to Operator for the services under the Agreement.
Website/Server Content. You shall be solely responsible for providing, updating, uploading and maintaining your website and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. 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 content of your hosted product. Your website or server content shall also include any registered domain names provided by you or registered on behalf of you in connection with the Services.
5. PROVISIONS SPECIFIC TO WEB HOSTING
Storage and Plan Limits. All Hosting plans have limitations:
For ERPHY account on Website – Amount of resources, such as: websites, branches, user accounts, products or services, file storage size, counterparties, net traffic (no more 200 Gb/month).
Website/Server Content. Your website may not include any of the following content:
(1) image hosting scripts that allow an anonymous user to upload an image for display on another website (similar to Photobucket or Tinypic);
(2) banner ad services for display on other websites or devices (commercial banner ad rotation);
(3) file dump/mirror scripts that allow an anonymous user to upload a file for other to download (similar to rapidshare);
(4) commercial audio streaming (more than one or two streams);
(5) push button mail scripts that allow the user to specify recipient email addresses;
(6) anonymous or bulk SMS gateways;
(7) backups of content from another computer or website;
(8) Bittorrent trackers; or
(9) any script or plugin that causes a degradation in the performance of our server or network environment.
6. PAYMENTS AND LIMITATIONS
6a. Website and Web Hosting
Payment for services for access to the Website and for Web Hosting is as follows:
i. You replenish the internal account on the Website in any way available for receiving funds by the Operator (these ways are listed in the Terms And Conditions at chapter 4. “FEES AND PAYMENT”).
ii. A part of the funds is deducted from your internal daily account in equal installments, depending on the plan and the number of additional options. Also, one-time money can be debited from the account to pay for the additional services you ordered.
A detailed write-off funds report is available in the Subscription module of the ERPHY software.
If the funds on your account run out, your plan will automatically be changed to the plan with type “free”. In this case, funds will no more deducted, but the limits of the tariff plan may be exceeded.
If the plan limitations on some resources are exceeded, you agree to remove the resources of exeeded parameters. Until do this, you will not be able to create new resources for which the limits have been exceeded. In the case if account won’t be replenished in 7 days, the operator has the right to remove resources that exceed the free tariff plan at his discretion.
7. DELETING OF HOSTING SEERVICES
You can delete any part of Hosting Services.
7.1 Website
You can delete your Website independently through the interface of ERPHY.
8. 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 hosting 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) causes beyond our control or that are not reasonably foreseeable, including, but not limited to, DDOS attacks and IP blacklists; and
(3) outages related to the reliability of certain programming environments;
(4) interference with internet connectivity at the customer’s ISP;
(5) interference with internet connectivity that occurs on one of the routes which is the connectivity path from the customer to our server;
(6) browser caching or DNS issues;
(7) your fault or negligence;
(8) interference caused by other parties;
(9) violation of our Terms and Conditions
(10) Any malfunctions on the servers of third-party providers, from which Operator rents servers, resulting in failures in the operation of the Operator’s software.
Claims for the failure of the guarantee above can be claimed within a maximum of 30 days after the interruption occurred.
9. MONEY BACK GUARANTEE
Products and Services available for refunds are described in our Terms and conditions, under paragraph “CANCELLATION”.
10. THIRD PARTY SOFTWARE
Definition. “Third Party Software” means any software or application developed and owned by a third party provider that we may contract with from time to time.
Operating Software.
We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. 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. We may provide your personal information to third-party providers as required to provide the Third-Party Software. 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).
11. 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.
12. DEFINITIONS; CONFLICTS
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.
