Terms of Service
Last updated: November 1, 2019
These Terms govern your access to and use of WP in the Cloud, WPinTheCloud.com, and Eclectic Electric, Inc. (hereinafter, “WP in the Cloud”, “WPinTheCloud.com”, “Eclectic”, “we”, “us”, or “our”) products and services (collectively, “Services”) as well as all content. These Terms also govern visitors’ access to and use of any websites that use our Services, such as websites operated by our users.
Throughout these Terms, “you”, “your”, or “Client” applies to individuals and entities that purchase, access or use our Services. If you are an individual using our Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity to the Agreement and that by using our Service(s), you are accepting the Agreement on behalf of that entity.
“Account” refers to your account with us that includes the Services you subscribe to.
“Account Owner” refers to the person identified in WP in the Cloud’s records as the owner of the WP in the Cloud Account.
“Cloud Services” refers to third-party services that provide additional capabilities to the functionality of your website. These services include, but are not limited to, website monitoring, outbound SMTP email services, DNS (domain name system) services, cloud storage, and source code repository services.
“Service Plan” refers to a WP in the Cloud paid hosting plan that includes the use of specific resources including, but not limited to, virtual central processing units, network bandwidth, disk space, outbound emails, and data transfer.
“Services” collectively refers to all of the products and services WP in the Cloud offers and provides, including, but not limited to the installation, maintenance and repair of one or more Virtual Servers.
“Virtual Server” refers to a virtual machine hosted in a cloud platform owned and managed by one of the leading cloud providers including, but not limited to, Amazon Web Services, Microsoft Azure, and Google Cloud.
“WordPress” refers to the open-source software used to create websites.
WP in the Cloud provides fully managed hosting services for clients. The WP in the Cloud platform is designed solely for hosting websites that use WordPress and WordPress compatible plugins and themes.
You acknowledge that we engage third parties to provide elements of the Services. Should any third-party service encounter issues that affect our Services, we will make a best effort to resolve these issues as soon as possible and reserve the right to replace one third party service with another similar service.
You agree to use Services according to the terms in General Representations and Warranty in this agreement along with our User Guidelines.
3. Your Account
Where use of the Services requires an account, you agree to provide us with complete and accurate information when you register for an account including your and the company’s full legal name. You will be solely responsible and liable for any activity that occurs under your username. You are responsible for keeping your account information up-to-date and for keeping your password secure.
You are responsible for maintaining the security of your account and its hosted website, store, or other content. You are fully responsible for all activities that occur under your account and any other actions taken in connection with the Services. You shall not share or misuse your access credentials. You must immediately notify us of any unauthorized uses of your account or website, or of any other breach of security. We will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
When you create an Account, we consider that to be an inquiry about our products and services, which means that we may contact you to share more details about what we have to offer. Don’t worry — if you aren’t interested in learning more, you can opt out of the marketing communication, whether it’s an email, phone call, or text message.
4. Minimum Age Requirements
Our Services are not directed to children. Access to and use of our Services is only for those 18 years of age and older. If you are younger than 18, you may not register for or use the Services. Any person who registers as a user or provides their personal information to the Services represents that they are 18 years of age or older.
5. Client Content
We have not reviewed, and cannot review, all of the content (such as, but not limited to, text, photo, video, audio, code, computer software, items for sale, or other materials) posted to our Services by users or anyone else (“Content”) and are not responsible for any use or effects of such Content.
We do not endorse any Content or represent that Content is accurate, useful, or non-harmful. Content could be offensive, indecent, or objectionable; include technical inaccuracies, typographical mistakes, or other errors; or violate or infringe the privacy, publicity rights, intellectual property rights (see Copyright Infringement and DMCA Policy in this Agreement to submit copyright complaints), or other proprietary rights of third parties.
If you post Content, comment on a website, or otherwise make (or allow any third party to make) Content available on the Services, you are entirely responsible for the Content, and any harm resulting from, that Content or your conduct.
We disclaim any responsibility for any harm resulting from anyone’s use, purchase, or downloading of Content. If you access or use any Content, you are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
We are not a party to, and will have no responsibility or liability for, any communications, transactions, interactions, or disputes between you and the provider of any Content.
Please note that additional third-party terms and conditions may apply to the downloading, copying, purchase, or use of Content.
We also have not reviewed, and cannot review, all the material, including computer software, made available through the websites and web pages that link to, or are linked from, WP in the Cloud, your website, or our other Services. For example:
- We do not have any control over those websites and are not responsible for their contents or their use.
- The existence of a link to or from one of the Services does not represent or imply that we endorse such website.
You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
We disclaim any responsibility for any harm resulting from your or a third-party website.
6. Fees, Payment, and Renewal
Fees for Paid Services. Some of the Services are offered for a fee, such as a WP in the Cloud Service Plan (“Paid Service”). By using a Paid Service, you agree to pay the specified fees and fees associated with any add-on features. Depending on the Paid Service, there may be a one-time fee or recurring fees. For recurring fees, we’ll bill or charge you in regular automatically renewing intervals (such as monthly, annually, or biennially), on a pre-pay basis until you cancel, which you can do at any time by contacting customer service.
Taxes. To the extent permitted by law, or unless explicitly stated otherwise, all fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees, or charges now in force or enacted in the future (“Taxes”). You are responsible for payment of all applicable Taxes relating to your use of our Services, your payments, or your purchases. If we are obligated to pay or collect Taxes on the Fees you’ve paid or will pay, you are responsible for such Taxes, and we may collect payment for such Taxes.
Fee Changes. We may change our fees at any time or start charging fees for Services that were previously free. When applicable, we may give you advance notice of the fee changes. If you don’t agree with the fee changes, you must cancel your Paid Service.
Refunds. While you may cancel a Paid Service at any time, refunds are issued in our sole discretion, unless otherwise required by applicable law.
Payment. If your payment fails or if Paid Services are otherwise not paid for or paid for on time, we may immediately cancel or revoke your access to the Paid Services. If you contact your bank or credit card company to decline or reverse the charge of fees for Paid Services, we may revoke your access to our Services in general.
Automatic Renewal. The day you purchase a Paid Service serves as the official anniversary day, (“Billing Date”). For example, if you purchase a Paid Service on March 12, 2019, your Billing Date would be the 12th day of each subsequent month if purchasing a monthly subscription, or March 12 of each subsequent year if purchasing a yearly subscription. To ensure uninterrupted service, recurring Paid Services are automatically renewed on a monthly or annual basis. Unless you cancel a Paid Service before the end of the applicable subscription period, it will automatically renew, and you authorize us to invoice you or use any payment mechanism we have on record for you to collect the then-applicable subscription fee (as well as any Taxes). By default, your Paid Services will be renewed for the same interval of time as your original subscription period. We may charge your account up to seven days before the Billing Date for the next subscription period. It is your responsibility to make sure you check your email (including any spam or other filters) in order to receive any reminder email we send to you in advance of renewal.
You are responsible for ensuring that the Payment Method on file is up to date at all times and that your WP in the Cloud account balance is kept current. If the Payment Method for the WP in the Cloud Account is a credit or debit card, WP in the Cloud and/or our payment processor may store the credit or debit card in a database for future renewals.
Cancelling Automatic Renewal. You can cancel your Paid Services by contacting us by telephone or email.
7. General Representation and Warranty
You represent and warrant that your use of the Services:
- Will be in strict accordance with these Terms;
- Will comply with all applicable laws and regulations (including, without limitation, all applicable laws regarding online conduct and acceptable content, privacy, data protection, and the transmission of technical data exported from the United States or the country in which you reside);
- Will not use the Services for any unlawful purposes, to publish illegal content, or in furtherance of illegal activities;
- Will not infringe or misappropriate the intellectual property rights of any third party;
- Will not disclose sensitive personal information of others;
- Will not be used to send spam or bulk unsolicited messages;
- Will not interfere with, disrupt, or attack any service or network; and
- Will not be used to create, distribute, or enable material that is – or that facilitates or operates in conjunction with – malware, spyware, adware, or other malicious programs or code.
Any Content that, in our judgment, is questionable or that is found to breach any section of this Agreement, or any law to which WP in the Cloud is subject, to any degree, may be removed from our servers (or otherwise disabled), in our sole discretion, with or without notice and without obligation. Your WP in the Cloud account may also be suspended or closed in any such case.
Spam includes, but is not limited to, the sending of unsolicited bulk email, often in abundance. We don’t allow spamming on our systems.
Limits of Use. Your Service Plan may meter or limit the use of network resources. If your Service Plan is unmetered for a specific network resource, and your use of that resource exceeds the use of the resource by WP in the Cloud customers subscribed to the same Service Plan, we may require that you move to a metered plan. If your Service Plan specifies a maximum use of a specific resource and you exceed that limit, we may suggest an alternate Service Plan. If you refuse to change to the suggested Service Plan, we may limit your use of that network resource.
8. WP in the Cloud Service Terms
Management Service. WP in the Cloud provides managed hosting services to ensure your Virtual Server, WordPress software, and other software provide a functional website.
Access. You grant us access to the Virtual Server, website database and its contents, third party services required to run your website, and all data stored on WP in the Cloud managed systems for the purpose of ongoing management and backup services. In order to address security vulnerabilities, we may update or upgrade the software and configuration for your Virtual Server software and website software.
HTTPS. We include HTTPS on all WP in the Cloud managed websites by default, including those using custom domains, via Let’s Encrypt or other similar service. By signing up and using a custom domain on your WP in the Cloud hosted website, you authorize us to act on the domain name registrant’s behalf (by requesting the necessary certificates, for example) for the sole purpose of providing HTTPS on your website.
Backup service. WP in the Cloud makes a daily backup of your WordPress content (e.g., your WordPress database and uploads, as well as some additional files.
You are solely responsible for all of your ecommerce activities, including managing subscriptions for your website, managing your store, all applicable taxes and fees, compliance with the Payment Card Industry Data Security Standard (PCI DSS), and compliance with any applicable laws (such as those relating to automatic renewal).
You should use your best judgment when setting up your website store, operating your store, processing payments, and selling items. For example, you may not want to accept check payments if you are not comfortable sharing your mailing address with a customer, or you may want to publish payment and return policies.
Tax Calculations. You are responsible for payment of all applicable Taxes relating to your ecommerce activities. You must collect, report, and/or pay the correct amounts to the appropriate authorities if applicable, and if needed, inform your customers about any Taxes they may be required to pay and issue appropriate invoices. We recommend that you consult with a tax professional for your specific tax situation when assessing the correct tax rates you should charge.
If we are obligated to pay or collect Taxes on your ecommerce activities, you are responsible for such Taxes, and we may collect payment for such Taxes.
Shipping. You are solely responsible for compliance with all applicable rules and regulations, including domestic and international shipping and customs regulations and those of the relevant mailing service.
Customers. You should use your best judgment when establishing and managing your website’s subscriptions or collecting payments, setting expectations appropriately, and fulfilling any commitments you’ve made. We are not involved in your relationships or transactions with any customer or potential customer.
You are responsible for resolving all support questions, comments, and complaints, including refunds, chargebacks, or pricing questions. You should provide contact information so that customers may contact you with questions or complaints.
You are responsible for delivering items sold to your customers, and for fulfilling all promises, representations, or warranties you make to them in connection with a sale, payment, or website subscription.
10. Copyright Infringement and DMCA Policy
As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others. If you believe that material located on or associated with a WP in the Cloud product or service violates your copyright, per the requirements of the Digital Millennium Copyright Act (“DMCA”), send your complaint to our designated agent located at: Eclectic Electric, Inc., 29160 Heathercliff Rd. #6208, Malibu, CA 90265, ATTN: DMCA Complaint, Email: [email protected], Phone: +1 310-589-3945.
We may terminate an Account, under appropriate circumstances, if the Account or Account Owner are repeat infringers of the copyrights or other intellectual property rights of WP in the Cloud or others. In the case of such termination, we will have no obligation to provide a refund of any amounts previously paid to us.
11. Intellectual Property
The Agreement does not transfer from us to you any or our or third-party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with us. WP in the Cloud, WPinTheCloud.com, the WP in the Cloud logo, Eclectic Electric, and all other trademarks, service marks, graphics, and logos used in connection with WP in the Cloud, are trademarks or registered trademarks of Eclectic Electric, Inc. Other trademarks, service marks, graphics, and logos used in connection with our Services may be the trademarks of other third parties. Your use of the Services grants you no right or license to reproduce or otherwise use any Eclectic or third-party trademarks.
12. Third Party Services
In using the Services, you may enable, ask us to install, or use services, products, software (like themes or plugins), embeds, or applications developed by a third party or yourself (“Third Party Services”) on your website. If you use any Third Party Services, you understand that:
- Third Party Services are not vetted, endorsed, or controlled by WP in the Cloud.
- Any use of a Third Party Service is at your own risk, and we shall not be responsible or liable to anyone for Third Party Services.
- Your use is solely between you and the respective third party (“Third Party”) and will be governed by the Third Party’s terms and policies. It is your responsibility to review the Third Party’s terms and policies before using a Third Party Service.
Third Party Services may not work appropriately with your website, and we may not be able to provide support for issues caused by a Third Party Service.
If you have questions or concerns about how a Third Party Service operates, or need support, please contact the Third Party directly.
In rare cases, we may at our discretion, suspend, disable, or remove Third Party Services from your account or website.
We are constantly updating the Services and that means sometimes we change the legal terms under which the Services are offered. These Terms may only be modified by a written amendment signed by an authorized executive of Eclectic, or by our posting of a revised version. If we make changes that are material, we will let you know by posting on one of our blogs, or by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period after which the new terms will take effect. If you disagree with our changes, then you should stop using the Services within the designated notice period, or once the changes become effective. Your continued use of our Services will be subject to the new terms. However, any dispute that arose before the changes shall be governed by the Terms (including the binding individual arbitration clause) that were in place when the dispute arose.
We may terminate your access to all or any part of our Services at any time, with or without cause, with or without notice, effective immediately. We have the right (though not the obligation) to, in our sole discretion, (i) refuse or remove any content that, in our reasonable opinion, violates any WP in the Cloud policy or is in any way harmful or objectionable, (ii) ask you to make some adjustments, restrict the resources your website uses, or terminate the Services, if we believe your website’s storage or bandwidth usage is excessive or burdens our systems, or (iii) terminate or deny access to and use of any of the Services to any individual or entity for any reason. We will have no obligation to provide a refund of any amounts previously paid.
If you wish to terminate the Agreement or your WP in the Cloud account, you may simply discontinue using our Services, or, if you are using a Paid Service, you may cancel at any time, subject to the Fees, Payment, and Renewal section in these Terms.
All provisions of the Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
15. Disclaimer of Warranties
Our Services are provided “as is.” Eclectic and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Eclectic, nor its suppliers and licensors, makes any warranty that the Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Services at your own discretion and risk.
16. Jurisdiction and Applicable Law.
Except to the extent any applicable law provides otherwise, the Agreement and any access to or use of the Services will be governed by the laws of the state of California, U.S.A., excluding its conflict of law provisions. The proper venue for any disputes arising out of or relating to the Agreement and any access to or use of our Services will be the state and federal courts located in Los Angeles County, California.
17. Arbitration Agreement
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under the Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Los Angeles County, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce the Agreement shall be entitled to costs and attorneys’ fees.
18. Limitation of Liability
In no event will Eclectic, its owners, employees, officers, directors, agents, contractors, affiliates, or its suppliers or licensors, be liable with respect to any subject matter of the Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed $50 or the fees paid by you to Eclectic under the Agreement during the twelve (12) month period prior to the cause of action, whichever is greater. Eclectic shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
You agree to indemnify and hold harmless Eclectic, its contractors, and its licensors, and their respective directors, officers, employees, contractors, agents and licensors from and against any and all losses, liabilities, demands, damages, costs, claims, and expenses, including attorneys’ fees, arising out of or related to your use of our Services, including but not limited to your violation of the Agreement, Content that you post, services you provide, and any ecommerce activities conducted through your or another user’s website.
20. US Economic Sanctions
You expressly represent and warrant that your use of the Services and/or associated services and products is not contrary to applicable U.S. Sanctions. Such use is prohibited, and we reserve the right to terminate accounts or access of those in the event of a breach of this condition.
These Terms were originally written in English (US). We may translate these terms into other languages. In the event of a conflict between a translated version of these Terms and the English version, the English version will control.