Party Definitions and Introductory Terms
The operative parties referred to in this Agreement are defined as follows:
The use of the services provided by Caprico Ltd. (hereafter referred to as “HokoCloud”), located at Agiou Andreou 339, Office 108, 3035 Limassol, Cyprus.
HokoCloud is the publisher and operator of www.hokocloud.com (the “Site”) whereby HokoCloud makes certain technology services (the “Services”) available. For purposes of this Agreement, when “Site” or “Services” are referenced, such reference includes all hardware, software, and network resources necessary to provide said Site and/or Service.
When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Vultr. Additionally, when the terms “the Site” or “Site” are used, these terms refer to any site published by Us, unless a site is specifically exempt from this policy.
You, the Client – As Our Client and the user of the Site or Services, this Agreement will refer to You through any second-person pronouns, such as “Your,” “Yours,” etc.
PLEASE READ THE FOLLOWING SERVICES TERMS AND CONDITIONS. BY SUBSCRIBING TO HOKOCLOUD’s SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (the “AGREEMENT”). YOU SHOULD PRINT-OUT OR OTHERWISE SAVE A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT SUBSCRIBE TO HOKOCLOUD’s SERVICES. HOKOCLOUD AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY USE OF HOKOCLOUD’s SERVICES SHALL CONSTITUTE AN ACT OF ACCEPTANCE OF THE CURRENT SERVICES TERMS AND CONDITIONS.
Incorporations by reference
Although this Agreement represents the primary terms and conditions of service for HokoCloud’s Services, additional guidelines and rules are hereby incorporated by reference. For Clients residing outside the EEA, the documents which can be found on Our Site, and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
– Our Acceptable Use Policy
For Clients residing in the EEA, the document(s) that can be found on Our Site, and which are specifically incorporated by reference and therefore part and parcel of this Agreement, are the following:
– Our Acceptable Use Policy
Clients residing in the EEA are invited to read our GDPR Privacy Notice before registering for the Services.
1.1 At the time of initial registration, You will select from the list of available Services the service plan(s) to which You wish to subscribe. All subscriptions to Services are subject to formal acceptance by HokoCloud. Your subscription to the Services will be deemed accepted by Hokocloud when HokoCloud delivers a confirmation of the subscription to You. HokoCloud reserves the right to refuse to provide You with any Service for any reason. Notwithstanding Our Uptime Guarantee found in Section 17 of this Agreement, HokoCloud also reserves the right to interrupt access to the Services to perform regular and emergency maintenance as needed. You may order additional Services at any time, provided that You agree to pay the then-current fees for such additional Services. All additional Services shall be considered “Services” hereunder. All Services provided are subject to availability and to all of the terms and conditions of this Agreement.
1.2.1 Our Social Trading Features Services assists You in testing, evaluating and selecting your investment strategy by providing You with detailed account information, trading history, risk profile and other pertinent information You should consider before electing to copy a specific account. In doing so, You should bear in mind all aspects and factors including, but not limited to, the risk nature of the copied account and Your investment objectives.
1.2.2 In making a decision to Replicate a specific trader or traders and strategies, You have considered your entire financial situation including financial commitments and you understand that using Social Trading Features is highly speculative and that you could sustain significant losses. Please note that we are unable to provide any guarantee as to the performance of any particular account or strategy. For further information in connection with the risks associated with our Service see Section below.
1.2.3 Without derogating from the generality of the foregoing, You have reviewed and acknowledge the Risks Associated with Social Trading Features as more fully described herein, including but not limited to, automated trading instructions whereby the opening and closing of trades will happen in your account without your manual intervention.
1.2.4 You further authorize HokoCloud to provide replications on any and all transactions and/or positions undertaken by the trader and/or strategy you chose to Replicate, including without limitation, Replication, stop replication and/or pause replicating another trader and/or strategy and setting limits to any position. These actions are done automatically once initiated by you and do not require any prior consultation, consent or approval of ongoing activity/copied trades. You hereby confirm that you acknowledge that at any time, upon your sole discretion, you can stop, pause, restrict and/or limit any Replication activity performed by you via our Websites. You remain, at all times, solely responsible for both monitoring and selecting and assessing: (a) the suitability of the copied accounts; and (ii) the overall performance of the copied trader, account, and/or strategy.
1.2.6 HokoCloud shall continue to be committed to exercising reasonable endeavors to monitor the performance of copied trader, account and/or strategy, against parameters established by it, which may include, risk behavior, profitability, drawdown and any other parameters deemed relevant by HokoCloud and to stock and/or block any trader, account and/or strategy from being copied.
1.2.5 The provision of Social Trading Features and/or our Trade Replication services does not constitute investment advice on our part. You are using the Social Trading Features at your own risk and HokoCloud and its affiliates, employees, clients and agents will not be liable for any losses that you may sustain as a result of your using such features. Neither any replicated trader, account and/or strategy guarantees the future performance of your Account, any specific level of performance, the success of any investment strategy or the success of our overall management of the Account. Investment strategies are subject to various market, currency, economic, political and business risks. Investment decisions may not be profitable and may result in the loss of your entire investment. Past performance is not a guarantee or prediction of future performance.
1.2.7 To the maximum extent permissible under the applicable law, neither we nor any of our affiliates will be liable for (a) any loss arising from adhering to your written or oral instructions, (b) any loss that you may suffer by reason of any decision made or other action taken by an account elected to be copied by You or (c) specifically any loss arising from any investment decision made or other action taken or omitted in good faith by any replicated account, strategy and/or portfolio. Nothing in these Terms and Conditions will waive or limit any rights that you may have under any applicable laws which may not be waived or limited.
2. REVISIONS TO USER AGREEMENT
This Agreement contains the complete and entire terms and conditions that apply to Your use of HokoCloud’s Services (as defined below). HokoCloud may modify the terms of this Agreement, including the Fees (as defined below) at any time.
2.1 From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
2.2 We agree that if We change anything in this Agreement, We will change the “last modified date” at the top of this Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed.
2.3 Should You wish to terminate this Agreement due to any revisions made by Us, You must do so in writing via the cancellation form within thirty (30) days of the “last modified” date described above. Your continued use of the Services after the effective date of any such notice constitutes Your acceptance of such changes.
2.4 Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
3. DURATION OF AGREEMENT AND CANCELLATION POLICY
3.1 The Initial Term shall begin upon confirmation of Your order or commencement of the Services to You and receipt of lawful funds. The term’s length is chosen by You and shall be indicated when You order Our Services. This Agreement may not be terminated by You during the Initial Term (and any renewals thereof) except in the event of a breach by HokoCloud. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein.
3.2 Hokocloud may also terminate this Agreement in its sole discretion at any time for any reason or no reason. (“Termination without Cause”). In such case, Hokocloud will provide You with thirty (30) days written notice before the discontinuation of Services.
3.3 If Hokocloud cancels this Agreement pursuant to any of the terms outlined in this Agreement, with the exception of Termination without Cause pursuant to paragraph 3.2, HokoCloud shall not refund to You any fees paid or prepaid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that Hokocloud terminates the Agreement for cause, all prepaid hosting fees will be forfeited and are not refundable. The termination of this Agreement does not relieve You of Your obligation to pay any Fees accrued or payable to Hokocloud.com prior to the effective date of termination of this Agreement.
3.4 In addition to Hokocloud’s right to terminate this Agreement provided elsewhere in this Agreement, Hokocloud may terminate this Agreement effective immediately if, based on Hokocloud’s sole judgment, it determines that You or any of Your end-users: (a) have breached the Acceptable Use Policy (“AUP”) as described in Section 12 of this Agreement, and incorporated herein, (b) have infringed or violated any intellectual property right or privacy or publicity right of a third party, (c) have not complied with any applicable law, statute or regulation, or (d) have uploaded, published or disseminated any images, text, graphics, code or video which Hokocloud considered illegal or high risk, in its discretion. Nothing contained in this Agreement is intended to, or shall, impose any duty or obligation upon HokoCloud to monitor or review Your Content or the content of Your end-users at any time. You remain solely responsible for Your Content, and any liability generated therefrom.
3.5 The termination of this Agreement will terminate Your access to the Services and Your license to the Host Materials (as defined in Section 5.2 of this Agreement). HokoCloud shall not be liable to You or to any third party for termination of the Services permitted under this agreement. Upon termination of this Agreement, HokoCloud reserves the right to maintain copies of Your data files and records for archival purposes, but does not undertake any obligation to do so. HokoCloud reserves the right to impose an early termination charge for all Services terminated prior to the last day of the billing cycle.
3.6 If either party cancels or terminates this Agreement for any reason, You shall be solely responsible for making all necessary arrangements for securing a replacement host and moving all electronic data, graphics, images, video or text to the new service provider. Upon termination of this Agreement, provisions that by their nature would be expected to survive termination shall survive and remain in full force and effect in accordance with their terms.
4. ACCOUNT SET UP
4.1 When You register for the Services, You will choose a login (email) and password. You may use the Services or modify Your data and content only through such user ID and password. You are entirely responsible for maintaining the confidentiality of Your user ID and password and for any and all activities which occur using those credentials. You agree to immediately notify Us of any unauthorized use of Your account or any other breach of security known to You.
4.2 You must provide Us with a primary email address that is checked regularly and frequently. All notices and communications between Us will be sent to the email address You provide, and You are therefore required to keep this address current or notify Us if Your address changes. You should notify Us if any of Your contact and/or billing information changes so that We may update Your account. It is also Your responsibility to make sure that Our domain(s), hokocloud.com, are not included in any spam block lists used by You or Your mail provider.
4.3 Providing false or inaccurate contact information of any kind may result in the Termination for Cause of Your account per Section 3 of this Agreement.
5. INTELLECTUAL PROPERTY RIGHTS
All Services provided by HokoCloud may only be used for lawful purposes.
5.1 As between You and Hokocloud, Hokocloud acknowledges that it claims no proprietary rights in or to the content (including without limitation, text, software, expert advisors, indicators, algorithms and graphics) supplied by You for use on Your server (“Your Content”). You hereby grant to HokoCloud a non-exclusive, worldwide and royalty-free license to copy, make derivative works, display, perform, use, broadcast and transmit on and via the Internet Your Content, solely for the benefit of You and to enable HokoCloud to perform its obligations hereunder.
5.2 In connection with the performance of the Services and at the sole discretion of Hokocloud, HokoCloud may (but is not obligated to) provide You with certain materials, including, without limitation, computer software (in object code or source code form), data, documentation or information developed or provided by HokoCloud or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to You, and other know-how, methodologies, equipment, and processes used by Hokocloud to provide You with the Services (“Host Materials”). Subject to the terms and conditions of this Agreement, HokoCloud hereby grants You a limited, revocable, non-transferable, non-exclusive license to use the Host Materials solely in connection with the Services. This license terminates when this Agreement terminates. As between You and HokoCloud, You acknowledge and agree that HokoCloud owns all right, title, and interest or otherwise has acquired all applicable licenses for the Host Materials, and all copyright, trade secret, patent, trademark and other intellectual property rights therein. Any use of the Host Materials after termination of this Agreement is not licensed and strictly prohibited. You agree that You will not upload, transmit, reproduce, distribute or in any way exploit any Host Materials obtained through the Services without first obtaining the express written permission to do so from Hokocloud.
5.3 This Agreement does not constitute a license to use HokoCloud’s trade names, service marks or any other trade insignia. Any use of any of Hokocloud’s trade names, service marks or any other trade insignia is strictly prohibited, absent Hokocloud’s prior written consent.
5.4 If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, or if We are required to file an ICANN complaint against You in order to bring about the transfer of an offending URL to Us from You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages, or in order to seek injunctive relief from You, or in order to file and prosecute an ICANN complaint.
5.5 You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
6. Risks Associated with Social Trading
Social Trading Features are associated with various risks and you are urged to carefully read and consider the following risks before utilizing our Social Trading Features:
6.1 Automated trading execution whereby trades are opened and closed in your account without your manual intervention.
6.2 In making a decision to Replicate a specific trader, account, portfolio and/or strategy, You have considered your entire financial situation including financial commitments and you understand that using Social Trading Features is highly speculative and that you could sustain significant losses.
6.3 Social Trading Features are provided by Us solely for informational purposes. We and our affiliates and their employees and agents are not investment or financial advisers. IF YOU MAKE INVESTMENT DECISIONS IN RELIANCE ON INFORMATION WHICH IS AVAILABLE ON OUR WEBSITES OR AS A RESULT OF THE USE OF THE SOCIAL TRADING FEATURES, YOU DO SO AT YOUR OWN RISK AND CAPRICO LTD AND ITS AFFILIATES, THEIR EMPLOYEES AND ITS AGENTS WILL NOT BE LIABLE FOR ANY LOSSES THAT YOU MAY SUSTAIN.
6.4 YOU SHOULD NOT MAKE ANY INVESTMENT DECISION WITHOUT FIRST CONDUCTING YOUR OWN RESEARCH. YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR DETERMINING WHETHER ANY INVESTMENT, OR STRATEGY, OR ANY OTHER PRODUCT OR SERVICE IS APPROPRIATE OR SUITABLE FOR YOU BASED ON YOUR INVESTMENT OBJECTIVES AND PERSONAL AND FINANCIAL SITUATION.
6.5. If You place additional trades in your account or You modify or cancel an order generated by a Social Trading Feature You may achieve a materially different result than the user that You copied. Cash-out and withdrawal by the replicated trader may also generate a materially different result than the user that You copied as it may affect the replication proportions.
6.6 Any past performance of our users, risk score, statistics and any other information with respect to users appearing on our websites and applications are not indicative of future results and should be considered as hypothetical as more fully described below. It is important to understand that risk scores, statistical information and historical performance are not a guarantee of future performance. NO REPRESENTATION OR GUARANTEE IS BEING MADE THAT ANY ACCOUNT WILL OR IS LIKELY TO ACHIEVE PROFITS OR LOSSES SIMILAR TO THOSE SHOWN AND/OR THAT A RISK SCORE OF A COPIED USER SHALL NOT IN FACT BE HIGHER. When reviewing the Content, portfolio, financial performance information, opinions or advice of another registered user, You should not assume that the user is unbiased, independent or qualified to provide financial information or opinions.
6.7 PAST PERFORMANCE AND/OR RISK SCORES SHOULD BE CONSIDERED AS HYPOTHETICAL PERFORMANCE RESULTS. HYPOTHETICAL PERFORMANCE RESULTS HAVE MANY INHERENT LIMITATIONS. NO REPRESENTATION OR GUARANTEE IS BEING MADE THAT ANY ACCOUNT WILL OR IS LIKELY TO ACHIEVE PROFITS OR LOSSES SIMILAR TO THE PAST PERFORMANCE OR RISK SCORE SHOWN. THE ACTUAL PERCENTAGE GAINS/LOSSES EXPERIENCED BY INVESTORS WILL VARY DEPENDING ON MANY FACTORS, INCLUDING BUT NOT LIMITED TO: STARTING ACCOUNT BALANCES (DEPOSITS AND WITHDRAWALS), MARKET BEHAVIOR, MINIMUM TRADE SIZE, THE INVESTOR’S ACCOUNT SETTINGS AND THE ACTUAL PERFORMANCE OF THE REPLICATED USER.
6.8 NO ASPECT OF THE INFORMATION AND/OR SOCIAL TRADING FEATURE PROVIDED AND/OR MADE AVAILABLE ON OUR WEBSITES IS INTENDED TO PROVIDE, OR SHOULD BE CONSTRUED AS PROVIDING, ANY INVESTMENT, TAX OR OTHER FINANCIAL RELATED ADVICE OF ANY KIND. YOU SHOULD NOT CONSIDER ANY SUCH CONTENT AND/OR ANY SUCH FEATURE TO BE A SUBSTITUTE FOR PROFESSIONAL FINANCIAL AND/OR INVESTMENT ADVICE. IF YOU CHOOSE TO ENGAGE IN TRANSACTIONS BASED ON CONTENT ON THE WEBSITE AND/OR ELECT TO REPLICATE SPECIFIC TRADERS AND/OR TRADES, THEN SUCH DECISIONS AND TRANSACTIONS AND ANY CONSEQUENCES FLOWING THEREFROM ARE YOUR SOLE RESPONSIBILITY. WHILE INDIVIDUAL PARTICIPANTS MAY OFFER INVESTMENT ADVICE OR OPINIONS AND/OR EFFECT A TRANSACTION WHICH MAY BE SUBSEQUENTLY COPIED BY OTHER TRADERS, SUCH ADVICE, OPINIONS OR TRADES AMOUNT TO NOTHING MORE THAN EXCHANGES BETWEEN PERSONS WHO MAY BE ANONYMOUS OR UNIDENTIFIABLE OR SIMPLY THE EXECUTION OF A TRADE BY SUCH TRADERS. CAPRICO LTD AND ITS AFFILIATES DO NOT PROVIDE INVESTMENT ADVICE DIRECTLY, INDIRECTLY, IMPLICITLY, OR IN ANY MANNER WHATSOEVER BY MAKING SUCH INFORMATION AND/OR FEATURES AVAILABLE TO YOU. YOU SHOULD USE ANY INFORMATION GATHERED FROM HERE AND/OR UTILIZE THE SOCIAL TRADING FEATURES ONLY AS A STARTING POINT FOR YOUR OWN INDEPENDENT RESEARCH AND INVESTMENT DECISION MAKING.
7. CONTENT AND ACCEPTABLE USE POLICY
7.1 You agree to comply with HokoCloud’s Acceptable Use Policy (“AUP”), which policy is hereby incorporated by reference as an indispensable part of this Agreement. HokoCloud reserves the right to modify the AUP at any time by posting the modified policy on its web site. You agree to monitor the Hokocloud.com home page for any changes to the AUP. Your continued use of the Services after the effective date of any changes to the AUP constitutes Your manifestation of intent to be bound by such changes. HokoCloud may, at its sole discretion, immediately terminate Your access to the Services, or this Agreement, if Your conduct violates the AUP, or if any of Your end users’ conduct violates the AUP.
8. ZERO TOLERANCE SPAM POLICY
8.1 You agree to comply with HokoCloud’s Anti-Spam Policy and which is hereby incorporated by reference as an indispensable part of this Agreement. Use of HokoCloud’s services for any illegal spam activities is strictly prohibited.
9.1 Payment for Services is due in advance of the time period for which such payment covers. Services can be billed on an automatic and recurring basis unless and until you follow HokoCloud’s cancellation procedure set forth in this Agreement.
9.2 Unless separately negotiated by You and Us, and confirmed by separate written agreement, the initial and recurring Fees for the Services selected by You shall be as provided in the initial on-line order form. All set-up fees and special programming fees are non-refundable. Fees for Services are payable in advance. Failure to make payment of Fees for Services when due may result in the suspension or termination of Services.
9.3 At the time of registration, You must select a payment method. HokoCloud reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. If You do not pay all Fees when due, Your account will be deemed past due. For any past due Fees, HokoCloud will charge You interest at one and one-half percent (1.5%) or the highest rate allowed by applicable law, whichever is lower, per month of the unpaid amount, until paid.
9.4 You agree to pay any and all taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. HokoCloud is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. If HokoCloud should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, HokoCloud will invoice You for the difference between payments received and the Fees due.
9.5 You also agree to pay all attorney and collection fees arising from HokoCloud’s efforts to collect any past due Fees. If you cancel any Service prior to the expiration of the pre-paid Fees, You understand and agree that HokoCloud will not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees.
9.6 Coupons and Discount Codes – From time to time, HokoCloud may offer coupons or other discount codes which may be used when signing up for hosting with Us. Coupons and discount codes are for first-time customers of HokoCloud and must be used at the time of Your initial purchase with Us – they may not be applied after Your service with Us has already been initiated. Unless expressly provided, such coupons and discount codes may not be used toward upgrades to Your account. Any account We deem to be attempting unauthorized coupon or discount code use may be subject to Termination for Cause.
10. BACK UPS & DATA LOSS
10.1 You agree that Your use of HokoCloud’s Services is at Your own risk, and that HokoCloud is not liable for any data loss in connection with its Services. You are solely responsible for creating backups of Your Content. If, during Our own routine maintenance, We do create a backup of Your Content which You later request Us to restore to Your account, We cannot guarantee that we will be able to do so, or that Your Content will be unharmed as a result of the initial data loss or the subsequent restore procedure. To that end, We highly recommend that You establish Your own routine backup procedure and that You periodically test restoring files from Your backup media to ensure that You are making viable backups.
10.2 Should you wish for HokoCloud to provide you with routine backup service, in addition to the Services provided under this Agreement please contact Us. We offer many different backup solutions as an add-on service to Our regular Services, and all such services are provided through a separate, written agreement.
11. RESOURCE USAGE & SECURITY
11.1 HokoCloud does not impose hard set limits on each account’s system resources. We do not actively disable accounts until they greatly exceed an acceptable level of usage. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc. HokoCloud will advise You of a temporary block placed on any account found to be consuming an inordinate amount of system resources, to the point of degrading overall system performance.
11.2 Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from the Site and/or Materials. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage Our Services and Site or any communications on it. If You do not adhere to this provision of this Agreement, in addition to monetary damages and other remedies available to HokoCloud, You hereby agree to pay liquidated damages of $5000.00 plus any and all fees associated with recovery of these damages, including attorneys’ fees and costs.
11.3 SECURITY Any violation of the security to the Site and/or Services is prohibited and may result in criminal and civil liability. Unauthorized Access of the servers used to provide the Site, Services, and/or Materials (the “Servers”) is strictly prohibited and is a violation of this Agreement and the AUP of this Agreement. You agree not to engage in such activity or to attempt to breach the Servers for the purpose of altering or manipulating the hardware and software, compromising the Servers, or for any other unauthorized use commonly known as “hacking.” In addition, You are prohibited from the following:
– Any form of unauthorized access to or use of data, systems or networks, including the Site and/or Services;
– Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network;
– Unauthorized interference with service to any user, host or network;
– Introducing a malicious program into the network or server (e.g. viruses and worms), including the Site and/or Services;
– Circumventing user authentication or security of any host, network or account;
– Using an account with another provider to promote Your site with Us in an abusive manner.
– Utilizing Our Services for the purpose of compromising the security or tampering with system resources or accounts on computers at Our site or any other site.
In the event You are involved in any violation of system security, We reserve the right to release information about You to system administrators at other sites in order to assist in resolving security incidents, and We shall also cooperate with any law enforcement agency investigating a criminal violation of system or network security. Additionally, any violation of these security provisions may, at Our sole discretion, be grounds for Termination for Cause of Your account per Section 3 of this Agreement.
11.4 BANDWIDTH USAGE Your monthly bandwidth allowance is determined by the specific package for which You sign up, as per our fair use policy. If Your account exceeds Your monthly allowance, You will be charged an overage fee. Bandwidth utilization in excess of instance allocation is charged at $0.01 per GB in North American and Western European locations. Due to higher regional costs, Singapore and Tokyo (Japan) overage is priced at $0.025 per GB and Sydney (Australia) overage is priced at $0.05 per GB.
11.5 FAIR USE POLICY We provide specific Services to our Clients and define normal, fair, and reasonable use in terms of our HokoCloud Virtual Private Servers as a use that is consistent throughout any given billing period. We expect regular usage patterns from individual component machines and the client solution as a whole. Should we at our sole discretion determine a Client is not using this Service as defined under this Fair Use Policy, we may take actions to mitigate negative impact to Service delivery systems including but not limited to the following:
– Rate-limit the data the Client may send and/or receive from the individual machine to the entire solution level
– Adjust pricing to a standard bandwidth rate (market-dependent)
– Suspend or terminate Service to any or all Client machines
12. UPTIME GUARANTEE
12.1 HokoCloud will offer You a Service Level Agreement (“SLA”) guaranteeing certain availability of Our Services. If applicable, the terms of any such SLA were separately negotiated between You and Us, and such SLA, if any, is hereby incorporated by reference as an indispensable part of this Agreement.
To be eligible for any credits to Your account, You must follow the specific procedures set forth in the SLA for notifying Us of Your desire for credits. You understand and agree that the failure to follow the procedure in the SLA within three (3) days of the triggering event will result in Your waiver of any right to receive credits
13. INDEMNIFICATION AND LIMITATION OF LIABILITY
13.1 YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE, AND ANY PUBLICATIONS, PRESENTATIONS, FINANCIAL TRADING INFORMATION, PRICING DATA, TRADE DATA, PERFORMANCE INFORMATION, BLOGS, POSTINGS, OR OTHER INFORMATION, CONTENT, SERVICES AND MATERIALS CONTAINED IN, ACCESSED VIA, OR DESCRIBED ON OUR WEBSITE, IS AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION, CONTENT, SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
13.2 TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND USE OF OUR WEBSITES OR THE INFORMATION, CONTENT, MATERIALS OR SERVICES ON OR ACCESSED VIA OUR WEBSITES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE. NEITHER THE WEBSITE, NOR ANY INFORMATION, CONTENT, MATERIALS, OR SERVICES AVAILABLE VIA THE SITE, CONSTITUTES OR IS INTENDED TO CONSTITUTE, OR SHOULD BE CONSTRUED AS, A SOLICITATION OR ANY OFFER TO BUY AN INTEREST IN ANY SECURITY, INVESTMENT ADVICE OR A RECOMMENDATION OR PROMOTION OF ANY TRANSACTION OR OTHER FINANCIAL PRODUCT, INVESTMENT MANAGER, OR TRADING OR INVESTMENT STRATEGY. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SITE IS ACCURATE, COMPLETE, RELIABLE OR CURRENT AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM YOUR RELIANCE ON ANY ASPECT OF THE SITE. FURTHER, WE MAKE NO REPRESENTATIONS AND WARRANTIES THAT OUR WEBSITES WILL BE UNINTERRUPTED, SECURED, OR FREE OF ERRORS OR VIRUSES, OR OTHER HARMFUL COMPONENTS.
13.3 IN NO EVENT SHALL WE OR OUR AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF CAPRICO LTD. OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE OR IMPROPER USE OF OUR WEBSITES, ANY INFORMATION POSTED ON OUR WEBSITES BY ITS USERS, OR ANY OTHER INFORMATION, CONTENT, MATERIALS OR SERVICES AVAILABLE ON OUR WEBSITES (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE.
13.4 IN ANY EVENT, AND NOTWITHSTANDING, THE MAXIMUM LIABILITY THAT YOU MAY CLAIM FROM US FOR ANY REASON SHALL BE NO MORE THAN THE MONTHLY LICENSE COST FOR THE TRADE REPLICATION OR SERVER.
13.5 You agree to defend, indemnify, and hold HokoCloud’s and its Affiliates harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach of Your covenants under this Agreement; (b) Your use of the Services; (c) any defamatory, libelous or illegal material contained within Your Content or Your information and data; (d) any claim or contention that Your Content or Your information and data infringes any third party’s patent, copyright or other intellectual property rights or violates any third party’s rights of privacy or publicity; (e) any third party’s access or use of Your Content or Your information and data; (f) any violation of the applicable Acceptable Use Policy. In the event of a claim under this section, Hokocloud shall be permitted to select legal counsel to provide a defense to such claim. HokoCloud reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from You, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of HokoCloud, which shall not be unreasonably withheld.
14. NO WARRANTIES
14.1 YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. HOKOCLOUD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OTHER THAN AS SET FORTH ABOVE, HOKOCLOUD MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES HOKOCLOUD MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ANY STATEMENTS MADE REGARDING SUCH MATTERS IN PROMOTIONAL MATERIALS SHALL BE CONSIDERED ADVERTISING REFERENCES, AND NOT WARRANTIES. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
14.2 HOKOCLOUD MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO YOU THAT ARE NOT PART OF THE SERVICES (“THIRD-PARTY SERVICES”). HOKOCLOUD HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE THIRD-PARTY.
14.3 HOKOCLOUD MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
14.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HOKOCLOUD OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON HOKOCLOUD’S WEBSITE.