Cloud service agreement

Updated

Feb 7, 2022

This cloud service ("Service") agreement ("Agreement") is a legal agreement between you (either an individual or an entity, "You" or "Your") and XenForo Limited ( "We", "Our" or "Us") for the use of the XenForo® Service. XenForo Limited reserves the right to modify the terms of this Agreement at any time.

By purchasing a subscription to the Service (or authorizing any other person to do so) You warrant that you are capable of entering into a binding legal agreement, that You have read and understand this Agreement and that You accept its terms and conditions. You acknowledge that this Agreement constitutes the complete statement of the agreement between You and XenForo Limited.

1. Grant and Scope of Service

Subject to the terms and conditions of this Agreement and the payment by You of the applicable fees for the Service, XenForo Limited grants You a single hosted installation of the XenForo software ("Software"), and the use of the necessary infrastructure to operate it within the specified limits of the selected Service plan. Service shall begin upon receipt of payment and shall recur monthly ("Service Period") until cancelled.

For the avoidance of doubt, nothing in this Agreement shall guarantee the availability of or access to the XenForo community (xenforo.com/community), content or files contained within, associated documentation, or the ability to communicate with any community members.

2. Rights

Your use of the Software is provided to You for use only under the terms and conditions of the Service. You acknowledge that all intellectual property rights, copyrights and trademarks in the Software belong to XenForo Limited and that You have no rights in, or to, the Software other than the right to use them in accordance with the terms of this Agreement.

All copies of the Software must contain the same proprietary notices that appear on and in the Software, including all copyright notices embedded in the Software, which must remain unaltered from the original and visible at all times, unless by specific prior arrangement with XenForo Limited.

3. Restrictions

This Service is provided to You alone. You may not attempt to redistribute the Software in whole or in part. You may not rent, lease, sell, assign, pledge, transfer or otherwise dispose of the Cloud Service or Software in any form, on a temporary or permanent basis, without the prior written consent of XenForo Limited.

For the avoidance of doubt, You are solely responsible for managing content posted using the Service ("Your Content").

You are solely responsible for ensuring that Your Content and Your use of the Service and Software complies with all applicable legislation and regulations, including but not limited to all applicable Data Protection and Privacy legislation.

You undertake to ensure that the Service is not used by You or others to engage in or promote: illegal activity; any activity that would violate the rights of third parties; defamation, discrimination, harassment, hatred or harm of third parties.

You may not use the Service in conjunction with any other software for which you do not have a valid license.

You hereby agree to indemnify Us from any loss or damage arising from Your breach of this provision.

4. Fees and Payment

By subscribing to the Service, You agree to pay the monthly or annual subscription fees for the Service and additional usage fees indicated for the relevant subscription plan. Payments will be charged on the subscription start date and will cover the use of the Service for the selected period.

Subscription fees are not refundable and are paid in advance.

Payment for Services will be made by a valid credit card accepted by XenForo Limited. You hereby authorize Us to charge your credit card for such amounts according to your service usage.

We reserve the right to change the payment terms and fees upon thirty (30) days prior written notice to you.

5. Termination

You may terminate the Service by notifying Us of your intention to cancel the Service prior to the commencement of the next Service Period. Your Service will continue to operate until the end of the Service Period and no refunds will be provided for unused periods.

XenForo Limited reserves the right to revoke Your access to use the Service should any of the terms of this Agreement be violated. In the event that We terminate Your Service for a violation of this Agreement, no refund will be granted.

A copy of Your Content may be requested within 60 days of the date of Service termination. This will take the form of a database backup and copies of any associated files such as media items and user avatars, which We will make available to You for download.

60 days after the date of Service termination, all copies of Your Content in Our possession will be irrevocably deleted.

6. Customer Data

It is Your responsibility to ensure that you provide XenForo Limited with accurate, complete and current contact information. A failure to do so may result in Your inability to access the Service Updates and services.

You must maintain the confidentiality and security of your customer credentials that allow You to access the XenForo.com customer area. Any communication received by XenForo Limited through the customer area shall be assumed to have originated from You or an agent acting on your behalf.

7. Service level

The Service shall be made available for at least 99% of each Service Period. Periodic down-time may be required for essential maintenance to Service infrastructure and software updates, but this shall be kept to the minimum possible.

Down-time or unavailability of the Service due to circumstances and issues beyond Our control shall not be counted towards the 99% uptime guarantee.

We will inform You in advance of any scheduled down-time likely to make the Service unavailable for a period of four hours or more.

Should the Service not meet 99% uptime during a single Service Period, You may request compensation in the form of a pro-rated credit for the time during which the Service was unavailable. This request must be made within the 30 days following the end of the affected Service Period.

Your Content will be backed up daily to services based in the EU to ensure the security of the data against loss. Backups are retained for 28 days after capture.

8. Exceeding subscription limits

It is Your responsibility when subscribing to the Service to select a plan that meets Your requirements.

During each Service Period, automated systems will monitor Your use of disk space and page views. These statistics will be recorded and may be reviewed in the customer area at xenforo.com.

Should Your use of disk space or page views exceed those specified by Your selected subscription plan, We will notify you of the overage and suggest an alternative plan.

Should Your usage exceed plan limits for two consecutive Service Periods, We will at the beginning of the third Service Period upgrade Your plan to the next available plan under which Your usage would not exceed limits.

9. Support

For the duration of your subscription to the Service, We shall provide You with support to respond to any problems ("Support") You are experiencing with the Service which result in it not complying with its description or the demonstration, as made available on Our website ("Problem").

You may notify Us of Problems via the website and We will use Our reasonable endeavours to respond to such Problems and provide a resolution to such Problems. For the avoidance of doubt, We do not warrant that We can provide resolution to Problems on an individual basis and resolution to Problems may be provided with the next Update.

10. Third-party Add-ons and Services

The Service is compatible with third-party add-ons and services ("Add-ons") which can be installed and upgraded exclusively through the Admin control panel in the Software.

It is Your responsibility to verify individual Add-ons’ compatibility with the Service and to obtain appropriate licenses for their use prior to installation. Should Your license for an Add-on become invalid (through refund, cancellation etc.), You must immediately remove the Add-on from the Service.

Your usage of Add-ons with the Service is reported to Us. We reserve the right to prevent installation of particular Add-ons at any time. Some Add-ons may be subject to review by Us before installation is permitted.

11. Data Protection

By providing hosted services to You and Your site visitors, We are a "Data Processor" as defined by data protection regulations including GDPR (EU Regulation 2016/679), UK GDPR (Data Protection Act 2018) and a "Service Provider" as defined by CCPA (California Consumer Privacy Act of 2018). We undertake to comply fully with our obligations under these laws.

By using the Service, You acknowledge that We will necessarily Process Your personal data and that of Your site visitors to Your website. We will not Process, use or disclose this data except as is required to provide the Service, or for internal administrative purposes except with your prior written agreement.

Should We receive a proper and correct request from an individual to disclose or modify data pertaining to that individual, We will work with You to satisfy this request as You comply with Your obligations under the applicable laws

We shall regularly review systems and processes to ensure the security of data against theft or loss. In the event of a breach of data security or a significant loss of data that can not be repaired, or a suspicion that such an event has occurred, We shall without undue delay notify You of the details of the event, and work with You to investigate the circumstances surrounding the event with a view to preventing future issues. We will not disclose the details of such events to third parties without Your prior written consent except as is required in law.

Questions relating to data protection issues, including requests for information, should be addressed in writing to support@xenforo.com.

12. Disclaimer of Warranties

The Service is provided on an "AS IS" basis, without warranty of any kind, including without limitation the warranties of merchantability, fitness for a particular purpose, and non-infringement.

You acknowledge that the Service has not been developed to meet Your individual requirements, and that it is therefore Your responsibility to ensure that the facilities and functions of the Service meet your requirements prior to purchase. You acknowledge that the Service may not be free of bugs or errors, and agree that the existence of errors shall not constitute a breach of this Agreement.

In the event that You subscribe to the Service as a consumer, nothing in this clause shall affect your statutory rights.

13. Limitation of Liability

Our liability for losses suffered by you, arising out of or in connection with this Service (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall be limited to the total amount paid for the Service during the twelve months immediately preceding the event.. We shall not be liable for indirect, incidental, or consequential damages of any kind, including loss of income or profits, loss of goodwill, loss of data, or the like. Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation.

This Agreement sets out the full extent of Your obligations and liabilities in respect of the supply of the Service. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on You except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the supply of the Service which might otherwise be implied into, or incorporated in, this Agreement, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

14. Indemnification

You agree to indemnify, defend, and hold harmless XenForo Limited and its officers, directors, agents, and employees from and against any and all demands, claims, losses and liabilities, including reasonable attorney's fees, arising out of or caused by You or Your visitors’ use of the Service. This obligation shall survive the termination of this Agreement.

15. Exceptions

Any deviations or exceptions to the terms of this Agreement must be agreed in writing with XenForo Limited.

16. Jurisdiction

This Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts. If an English Court judges any provision of this Agreement to be invalid, void, or unenforceable, the parties agree that the remaining provisions of this Agreement shall remain valid and enforceable.