Last revision: October 25, 2022
This Agreement is a contract between you and CubeSoft Communications and applies to the use of the Hosting service "Hosting Services" and any related products and services (collectively the "Service").
In this Agreement, "you", "your" and "client" and "user" refers to any person or entity using the Hosting service. Unless otherwise stated, "CubeSoft", "we" and "our" will refer collectively to CubeSoft Communications Inc. and its affiliates, directors, employees, agents and contractors. All references to a "credit card" include Visa, MasterCard and American Express branded credit and debit cards.
By clicking "I AGREE" or renewing your Hosting service, you agree to the terms and conditions of this Agreement. You further agree that this Agreement forms a legally binding contract between you and CubeSoft, and that this Agreement constitutes "a writing signed by You" under any applicable law or regulation.
CubeSoft provides managed hosting services, where you have all the benefits
of a dedicated server, but CubeSoft manages the installation and regular
updating of the operating system and software library of the server for you.
We will deploy our proprietary server-side components along with
the latest stable versions of open-source software packages in order to
deliver a hosting service with commercial-grade performance and reliability.
We will back up your data once per day and allow you to request
a copy of the backed-up data at any time.
Depending on which hosting package you choose, we may provide you with a dedicated IP address and allow you to point one or any number of domain names to your Account. We will make our Domain Name Servers (DNS) available to you, if you choose to use them. CubeSoft will handle basic system administration tasks including backing up all databases daily to a text format, checking available storage space, checking memory, disk I/O and other types of resource utilization. We will monitor your server for availability. Our system administrators will be automatically notified of any interruption of service and if such an interruption occurs, will work to resolve it.
CubeSoft also monitors network traffic and performs DoS/DDoS attack mitigation when such attacks occur. With the help of security researchers, we scan for security vulnerabilities and will notify you if your software (or third-party software which you use) has a security vulnerability. We will do our best to help you quickly patch any vulnerability in your server software.
CubeSoft will also help you configure your e-mail service, provide you with spam filtering technology, and help you resolve any problem related to e-mail delivery or e-mail server reputation for e-mail sent to/from any of your domain names. We will also help you resolve any problems related to public e-mail mailing lists if you use them.
You agree to a
month(s) contract, beginning upon the
initial CubeSoft-Client transaction.
month(s) payment will be due upon time of
This agreement will automatically renew for successive
month(s) periods unless cancelled in writing prior to the renewal date.
If you choose the postal payment method, you must send CubeSoft the due amount by mail by check or international / certified money order. If you choose to pay using PayPal, you must follow the link provided by CubeSoft to create a PayPal subscription. If you choose to pay by credit card, CubeSoft will charge your credit card and send you a receipt by e-mail. CubeSoft will make printable receipts available at any time from the "Preferences / Contact and Billing Information" section of the Control Panel. If you wish to discontinue the Service prior to the end of the billing cycle, you can request a credit at any time for the unused pre-paid service period.
CubeSoft shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client. The Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
Although we are willing to help you transferring any domain names,
CubeSoft does not provide domain registration services and will not
handle the registration of domain names.
The management of active domain names can be done using the
interface provided by your domain name registrar.
You agree to provide CubeSoft with material and data in a condition that is "server-ready", which is in a form requiring no additional manipulation on the part of CubeSoft, who shall make no effort to validate this information for content, correctness or usability. Use of the Hosting service requires a certain level of knowledge in the use of Internet languages, protocols, and software. This level of knowledge varies depending on your anticipated use of CubeSoft servers. Although we are willing to provide helpful technical support to the best of our ability, you agree that it is not the obligation of CubeSoft to provide this knowledge or customer support outside the defined Hosting service of CubeSoft.
CubeSoft makes no warranties or representation of any kind, whether expressed or implied for the Hosting service it is providing. CubeSoft also disclaims any warranty of merchantability or fitness for particular purposes and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of CubeSoft is at the Client's own risk, and CubeSoft specifically denies any responsibility for the accuracy or quality of information obtained through its services.
CubeSoft expressly limits its damages to the Client for any non-accessibility time or other down time to the pro rata monthly charge during the system unavailability. CubeSoft specifically denies any responsibilites for any damages arising as a consequence of such unavailability.
You warrant that you have the right to use the applicable trademarks, if any.
CubeSoft makes no representations, warranties or assurances that your device, software or any other type of equipment will be compatible with the Hosting service.
You certify that you are at least 18 years of age.
Electronic forums such as mailing lists, Web-based forums and comment
sections all have expectations regarding subject area and appropriate
etiquette for posting content. Users of these forums should be considerate
of the expectations and sensitivities of others on the network when posting
materal for electronic distribution. The network resources of CubeSoft
may not be used to impersonate another person or misrepresent authorization
to act on behalf of others or CubeSoft staff. All messages transmitted
via CubeSoft servers should correctly identify the sender. Users may not
alter the attribution or origin in electronic mail messages or posting.
Users must not attempt to undermine the security or integrity of computing
systems or network and must not attempt to gain unauthorized access.
In addition, the use of unsolicited bulk email ("spam") for advertising, promotion or other purposes is not permitted. This applies both to e-mail sent from any CubeSoft server and to e-mail sent from other servers making reference to a website on a CubeSoft server.
You acknowledge and agree that as a normal course of business, although a last resort, it may be necessary for us to migrate accounts between different servers. As a result, even if you have a dedicated IP number, you may be assigned a different IP number if we are unable to transfer the IP address to the new server. We will notify you by e-mail if a change in your dedicated IP address is needed.
This agreement may be terminated by either party. Not withstanding the above,
CubeSoft may terminate Service under this agreement at any time, without
penalty, if you fail to comply with the terms of this agreement.
Prior to termination of your Services, you are responsible for moving your Web site or 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 cancellation, we will delete all such content and we will not be able to provide a copy of such content.
Client expressly agrees that use of CubeSoft servers is at Client's sole
risk. Neither CubeSoft, its employees, affiliates, agents, third party
information providers, merchants licensers or the like, warrant that the
CubeSoft service will not be interrupted or error free; nor do they make any
warranty as to the results that may be obtained from the use of the server
service or as to the accuracy, reliability or content of any information
service or merchandise contained in or provided through the Service, unless
otherwise expressly stated in this agreement.
UNDER NO CIRCUMSTANCES, SHALL CUBESOFT, ITS OFFICES, AGENTS OR ANY ONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING CUBESOFT SERVER SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE CUBESOFT SERVER SERVICE; OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD OR COMMUNICATION FAILURE. CLIENT HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT ON CUBESOFT SERVER SERVICE.
Client may only use CubeSoft servers for lawful purposes. Transmission of any material in violation of any Federal, State or local regulation is prohibited.
Attorney Fees and Expenses: Client agrees that it shall defend, indentify, save and hold CubeSoft harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney fees, asserted against CubeSoft, its agents, its customers, servants, officers and employees, that may arise or result from any Service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless CubeSoft against liabilities arising out of (i) any injury to person or property caused by any products sold or otherwise distributed in connection with CubeSoft servers; (ii) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (iii) copyright infringement and (iv) any defective product which Client sold on CubeSoft servers.
IRRESPECTIVE OF ANY LAW TO THE CONTRARY, YOU MUST PROVIDE NOTICE TO CUBESOFT, PURSUANT TO THE PROCEDURES SET FORTH IN THIS SECTION, OF ANY CLAIM WITHIN ONE YEAR OF ITS ACCRUAL OR YOUR CLAIM SHALL BE WAIVED AND TIME-BARRED.
Should you and CubeSoft have a Dispute (as defined below), CubeSoft is
committed to engaging with you to resolve it. Therefore, for any Dispute
that arises between you and CubeSoft, the parties agree that they will
first make a good faith effort to resolve it informally. This informal
dispute resolution process is a condition precedent to commencing any
formal proceeding in arbitration or small claims court. The parties
agree that any relevant limitations period and filing fee or other
deadlines will be tolled while the parties engage in this process.
For your Disputes with CubeSoft, you must first send your name, address, telephone number, e-mail address, and sufficient information for CubeSoft to identify any transaction at issue; a detailed description of your Dispute; and the nature and basis of your claims and the relief sought, along with the calculation you used (the "Notice") to the following e-mail address: email@example.com, or in writing at the address:
You and CubeSoft agree that any and all controversies, disputes, demands,
counts, claims, or causes of action between you and the Company, or the
Company's employees, agents, affiliates, subsidiaries, successors,
representatives, or assigns ("Dispute(s)"), shall be resolved through
binding and confidential arbitration, except that you or the Company
may elect to have a Dispute heard in small claims court if it qualifies
for hearing by such a court, provided that an action in small claims
may only seek individualized relief and so long as the action remains
in that court and is not removed or appealed to a court of general
jurisdiction. If the limitations on a small claims court proceeding are
deemed unenforceable for any reason, it shall be severed from this
agreement and the parties may not elect to proceed in small claims court,
and the dispute shall be heard in arbitration. In addition, each party
retains the right to seek injunctive or other equitable relief in a court
of competent jurisdiction to prevent the actual or threatened infringement,
misappropriation, or violation of a party's copyrights, trademarks, trade
secrets, patents, or other intellectual property rights. "Dispute" shall
be interpreted broadly and shall also include all Disputes that arose
before your agreement to these Terms, and which arise after the
termination of this agreement. Notwithstanding the foregoing, issues
related to the scope, validity, and/or enforceability of this arbitration
agreement are for a court to decide.
There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court. YOU ACKNOWLEDGE AND AGREE THAT, APART FROM THE NARROW EXCEPTIONS ABOVE, YOU AND CUBESOFT ARE EACH WAIVING YOUR RIGHTS TO SUE IN COURT, INCLUDING RIGHTS TO RECEIVE A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. the arbitrator may not award relief for or against anyone who is not a party to the arbitration proceeding. Further, unless both you and CubeSoft agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. If a court determines that public injunctive relief may not be waived and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that the particular claim for public injunctive relief shall be severed and stayed pending arbitration of the remaining claims. If this specific paragraph is found to be unenforceable, then the entirety of this arbitration provision (except for the jury trial waiver) shall be null and void.
Arbitration shall be subject to the Federal Arbitration Act and federal arbitration law, and shall be conducted by Judicial Arbitration Mediation Services, Inc. ("JAMS") pursuant to the JAMS Streamlined Arbitration Rules & Procedures (the "JAMS Rules") as modified by this arbitration agreement. The JAMS Rules, including instructions for bringing arbitration, are available on its website at www.jamsadr.com/rules-streamlined-arbitration. If JAMS is unable or unwilling to administer a proceeding under this arbitration provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this arbitration provision as written and applying the selected arbitration organization's consumer rules. When initiating arbitration, you shall personally certify to CubeSoft and to JAMS that you are a party to this arbitration agreement and provide a copy or link to it. You shall also personally certify that you have complied with the pre-dispute resolution process detailed above. You agree that you shall personally participate, along with your counsel if represented, in the initial conference with the arbitrator unless the parties agree otherwise.
CubeSoft will pay its arbitration costs as required by JAMS rules, and in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, and you have complied with the pre-dispute resolution process outlined above, CubeSoft will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. Each side shall pay their own attorneys' fees, costs, and arbitration fees unless the arbitrator finds, among other grounds, (1) that either the substance of a claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), or (2) the claim(s) at issue permit the prevailing party to be reimbursed its fees and litigation costs, and in such instances, the fees and costs awarded shall be determined by the arbitrator consistent with applicable law and with the JAMS Rules. The arbitrator may consider whether a party had previously offered full relief to the other party or whether the proceeding is part of multiple case filings. The provisions of Federal Rule of Civil Procedure 68 shall be applied by the arbitrator. The arbitrator shall be bound by these Terms as any court would be. The arbitrator shall issue a reasoned, detailed decision explaining the essential findings and conclusions on which the award is based. The arbitration award shall be binding only as to the parties. The arbitration may consider rulings in other arbitrations involving other claimants, but an arbitrator's ruling will not be binding in proceedings involving different claimants.
The arbitration may be conducted by telephone, based on written submissions, or in person at a mutually agreed-upon location convenient for you. You agree to appear at an initial conference with the arbitrator and at any hearing, along with your counsel if you are represented. If fifty (50) or more claimants submit Notices raising similar claims and they are represented by the same or coordinated counsel, you understand and agree to the following provisions: (1) you agree that the adjudication of your Dispute may be delayed; (2) you agree that your counsel will negotiate in good faith with CubeSoft to determine a reasonable staged bellwether process involving a subset of demands not to exceed fifty (50) at a time, each of which shall be adjudicated on an individual basis; (3) only after each of the arbitrations that proceed are adjudicated or otherwise resolved shall the next set of staged proceedings commence; (4) your Dispute shall not be filed or considered properly filed in arbitration and filing fees shall not be due and owing until it is selected for inclusion in this continuously staged, reasonable bellwether process. This process shall continue until all the claimants' claims are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for your claim from the time of initiation with JAMS until the time your Dispute is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing of arbitration demands against CubeSoft.
As referenced above, this dispute resolution section shall be governed by the Federal Arbitration Act. It shall survive any termination or cancellation of these Terms. Any amendments to this dispute resolution section shall be prospective only and shall not affect any pending Dispute for which CubeSoft has notice or pending arbitration proceeding.
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CUBESOFT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW.
These Terms may be updated by CubeSoft at any time without prior notice. By continuing to be enrolled in CubeSoft's Hosting service, you agree to any changes.
This instrument constitutes the entire agreement between the parties, and represents the complete and entire understanding of the parties with respect to the subject matter of this agreement. This instrument supersedes any other agreement or understanding between the parties, whether written or oral. In the event that any term or provision of this instrument is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this instrument and the agreement which it evidences, shall remain in full force and effect.