TDS, Terms and Conditions of Service.
1. Eligibility and registration
1.1. Before using our Websites and Services, the CUSTOMER, must ensure that such use complies with all applicable laws, rules and regulations. Your right to access the Websites and Services is revoked to the extent that such use is prohibited or to the extent that our provision conflicts with any applicable law, rule or regulation. The CUSTOMER is responsible for making these decisions before using the Websites and Services.
1.2. In order to access the Websites and the Services, the CUSTOMER represents and warrants that (i) it is 18 years of age or older; or (ii) it has sufficient legal consent, permission and capacity to use the Websites and the Services in the applicable jurisdiction(s) as determined by the CUSTOMER.
1.3. To access the Services and some features of the Websites, you must register for a customer account ("Account"). When you register for your Account, you may be asked to provide SW Hosting with certain information about the CUSTOMER, such as your name, email address and a valid form of payment, and you may also provide optional information about the CUSTOMER on a voluntary basis. The account information, as well as the use and disclosure thereof, are subject to the Privacy Policy and the Data Processing Agreement.
1.3.1. In the event that any clause of this CDS is declared null and void, the other clauses shall remain in force and shall be interpreted taking into account the will of the parties and the same purpose of these conditions.
1.3.2. It is not technically possible that the CUSTOMER can formalize any type of contracting with SW Hosting through our websites without the acceptance of the CDS.
1.3.3.3. At the time of activation of your Customer Account, under a secure environment, the public IP of access of the user, the date and the exact time of the transaction, along with the data necessary to validate the legality of the acceptance of these CDS will be recorded.
1.3.4. The CUSTOMER agrees at all times to provide real data to SW Hosting, being solely and exclusively responsible for the falsification of such data.
1.3.5. The CUSTOMER authorizes SW Hosting to block the service covered by this contract in case of detection of falsity in the data provided or in any payment system that the CUSTOMER has used during the time of activation.
1.3.6. SW Hosting may not exercise any of the rights and powers conferred in this CDS, which does not imply in any case the waiver thereof, unless expressly acknowledged by SW Hosting.
1.4. SW Hosting may, in its sole discretion, refuse to provide or continue to provide the Websites and Services to any person or entity and change the eligibility criteria at any time, including if the CUSTOMER does not comply with the Terms of Service. SW Hosting reserves the right to deactivate, cancel, prevent access, disable services and/or delete any Account or access to the Websites and Services at any time in its sole discretion.
2. SW Hosting's Proprietary Rights
2.1. As between the CUSTOMER and SW Hosting, the Websites and the Services are owned and/or provided by SW Hosting. The names, logos, trademarks, trade dress, arrangements, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services and all other elements of the Websites and Services ("Materials") provided by us are protected by intellectual property and other laws. All Materials included in the Websites and Services are the property of SW Hosting or its third party licensors. CUSTOMER may only use the Websites and Services as expressly authorized by us and as set forth in these Terms of Service. CUSTOMER shall respect and maintain all intellectual property notices, information and restrictions contained in the Websites and Services. SW Hosting reserves all rights in the Websites and Services that are not expressly granted in these Terms of Service.
2.2. If you choose to provide information and suggestions regarding problems or proposed modifications or improvements to the Websites and Services ("Feedback"), you hereby grant to SW Hosting an unrestricted, perpetual, irrevocable, non-exclusive, fully paid-up and royalty-free right to exploit the Feedback in any manner and for any purpose, including improving the Websites and Services and creating other products and services.
2.3. The CUSTOMER authorizes SW Hosting to include its name, logos and trademarks in our promotional and marketing materials and communications.
2.4. Some of the Materials provided by SW Hosting are licensed under one or more open source, Creative Commons or similar licenses (collectively, "Open Source Licenses"). Nothing in this CDS prevents, restricts or is intended to prevent or restrict CUSTOMER from obtaining such Materials under the applicable Open Source Licenses or to limit their use under such Open Source Licenses.
2.5. Subject to your full and continued compliance with this CDS and our rights hereunder, SW Hosting grants you a limited, non-exclusive, non-transferable, non-sublicensable, non-sublicensable and revocable license to access and use the Websites and/or the Services as described in and subject to this CDS.
3. Content of the Services
3.1. Our Services allow you to provide us with source code, files, software, processes, interfaces, data, data, text, configurations, media or other information for storage, hosting or processing by the Services (your "Services Content").
3.2. Subject to this CDS, by providing your Services Content through the Services, the CUSTOMER grants SW Hosting a license to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your Services Content solely for the purpose of providing the CUSTOMER with the Services.
3.3. As between the CUSTOMER and SW Hosting, the CUSTOMER retains any copyright and other proprietary rights it may have in its Services Content.
3.4. Some of our Services allow third parties to access, use or contribute to your Services Content, including through resale, their own products and services, or public-facing websites, applications, interfaces and other manifestations of your Services Content. These other users are collectively defined as your "End Users" for purposes of these Terms of Service. For clarity, "End Users" in this context includes all other users, regardless of whether they are intermediary parties, End Users of other End Users or the like. The CUSTOMER is responsible for its End Users' compliance with these CDS.
3.5. The CUSTOMER is solely responsible for the Content of its Services, End Users and any activity of its End Users, and agrees that SW Hosting is not and shall not be in any way responsible for the Content of its Services, End Users and/or the activity of its End Users. By providing its Services Content through the Services, the CUSTOMER affirms, represents and warrants that:
3.5.1. Its Services Content, and the CUSTOMER's or its End Users' use of its Services Content, will not violate these Terms of Service (including the PUA) or any applicable laws, regulations, rules or third party rights;
3.5.2. The CUSTOMER is solely responsible for the development, moderation, operation, maintenance, support and use of its Services Content, even when its Services Content is contributed by its End Users;
3.5.3. The Content of its Services and the use that the CUSTOMER or its End Users, make thereof, does not infringe, violate or misappropriate any third party rights, including copyrights, trademarks, patents, trade secrets, moral rights, privacy rights, rights of publicity or any other intellectual property or proprietary rights; (ii) libels, defames, defames, libels or invades any other person's right of privacy, publicity or other proprietary rights; or (iii) causes SW Hosting to violate any law, regulation, rule or third party rights.
3.5.4. Except for specific Services provided to you under these Terms of Service or other express contract, the CUSTOMER, is solely responsible for the technical performance of the Content of its Services, including on behalf of its End Users.
3.6. CUSTOMER is responsible for properly configuring and using the Services and for taking its own measures to maintain adequate security, protection and backup of its Services Content, which may include the use of encryption technology to protect such Content from unauthorized access and routine archiving of such Content. SW Hosting does not undertake to maintain any retention or backup of the Content of its Services. CUSTOMER is solely responsible for the integrity, preservation and backup of its Services Content, regardless of whether its use of the Services includes a SW Hosting backup feature or functionality, and to the fullest extent permitted by law, SW Hosting shall have no liability for any loss of data, unavailability, or other consequences related to the foregoing.
3.7. When purchasing the Services, the CUSTOMER may specify the geographic region and jurisdiction in which the Content of its Services will be stored. The CUSTOMER consents to the storage of its Services Content in, and the transfer of its Services Content to, the geographic region and jurisdiction the CUSTOMER selects. Unless otherwise agreed in writing between the CUSTOMER and SW Hosting, the CUSTOMER agrees that SW Hosting may transfer and store its Services Content in other geographic regions or jurisdictions at its sole discretion. CUSTOMER represents and warrants that such storage and transfer are properly consented to by CUSTOMER and permitted in accordance with applicable laws, regulations, rules and third party rights.
4. Use of SWPanel
4.1. SW Hosting, offers SWPanel to the CUSTOMER in its free mode, as a communication tool between the CUSTOMER and SW Hosting, as a communication channel, as a zone of access to the Technical Support Area and the Administrative and Financial Area of SW Hosting.
4.2. SW Hosting offers the CUSTOMER, in addition to other versions of SWPanel different from the free one.
4.2.1 The CUSTOMER may have other modalities of use/activation of SWPanel that are subject to the contracting/acquisition of licenses and monthly fees by the CUSTOMER. These modalities will be presented as options to the CUSTOMER. During the contracting/activation process of any of these modalities, the CUSTOMER will be notified of the exact and detailed license costs.
4.3. All the SWPanel use and rental costs, as well as its conditions of use, are permanently published, and the CUSTOMER may file, print and consult them.
4.4. The use of SWPanel is established on the basis of good practice and good faith. Its use under different conditions, authorizes SW Hosting to block access to it, in order to preserve the integrity of SWPanel and other customers.
4.5. Assignment and rights of SWPanel.
4.5.1. SW Hosting assigns the use of SWPanel to the CUSTOMER. At no time SW Hosting assigns to the CUSTOMER rights to the property, source code and image of SWPanel.
4.5.2. SW Hosting allows you to customize SWPanel to be used by customers or users in Reseller mode. The use of SWPanel to manage your users may result in license costs that will be notified to you at all times and are published on the SW Hosting websites.
4.6. Responsibilities of SW Hosting on SWPanel.
4.6.1. SW Hosting offers to the CUSTOMER, SWPanel as a means and tool for service management, in order to provide a more intuitive layer to facilitate such actions. At no time, SW Hosting is responsible for misuse or mismanagement on your part and causing malfunction of SWPanel.
4.6.2. SW Hosting can not be responsible for the proper functioning of the management layer of SWPanel, in all those services in which the CUSTOMER has the "administrator or root" access, or has full control. In this case, SW Hosting reserves the right to (i) NOT offer SWPanel as a management tool; (ii) decline any responsibility for the operation of SWPanel on the customer's services if the customer has manipulated or modified them.
4.6.3. SW Hosting is not responsible for any misuse by you, or any of your customers or users, of SWPanel.
4.7. Your Responsibilities for SWPanel.
4.7.1. The CUSTOMER agrees to preserve the integrity and security of the private area of customers or SWPanel, provided by SW Hosting and to prevent misuse, alteration, reproduction, illicit dissemination or use contrary to the instructions issued by SW Hosting. Also, the CUSTOMER agrees to discontinue such use immediately and to notify SW Hosting any incidence of misuse that may be detected. If such conduct persists, SW Hosting may suspend the license to use SWPanel to the CUSTOMER, in addition to communicating to the relevant authorities such incidents.
4.7.2. The CUSTOMER is solely responsible for the use of SWPanel and each of the services or actions performed through it.
4.7.3. The CUSTOMER understands and accepts these CDS on SWPanel, also accepts that if, from any of the actions that the CUSTOMER performs through it, costs are derived, the CUSTOMER is obliged to pay such costs as detailed in this contract, billing and payment section.
4.7.4. The CUSTOMER is solely responsible for the actions that may be performed by any of its customers or users when it assigns SWPanel, for which it accepts such responsibility.
4.8. Ownership of SWPanel.
4.8.1. SWPanel and all revisions and versions thereof, past and future, are the property of SW Hosting.
4.8.2. The domain and SSL secure certificates www.swpanel.com and all its variants, and aggregations including version numbers, registered by SW Hosting, are the property of SW Hosting.
4.8.3. SW Hosting in no case assigns ownership or exploitation rights of this private area to the CUSTOMER or third parties, beyond those permitted by the licenses that the CUSTOMER acquires in SWPanel services.
5. Rules of conduct
5.1. You must use the Websites and the Services in accordance with our PUA, which is incorporated by reference. Accordingly, any use of the Websites and Services in violation of the PUA will constitute a breach of these Terms of Service.
5.2. The CUSTOMER is solely responsible for the activity that occurs on its Account, regardless of whether the activities are performed by the CUSTOMER, its employees, any third party (including its contractors or agents), its End Users, its licensors or its customers.
5.3. The CUSTOMER is responsible for notifying its employees, agents and others associated with its use of the Websites and Services of the provisions of these Terms of Service, even when the terms of these Terms of Service are binding on them.
5.4. CUSTOMER shall not (directly or indirectly) (i) decipher, decompile, disassemble, reverse engineer or attempt to derive any source code or underlying ideas or algorithms from any part of the Websites or Services (including, without limitation, any applications), except to the limited extent that applicable laws specifically prohibit such restriction; (ii) modify, translate or create derivative works of any part of the Websites or Services; or (iii) copy, rent, lease, distribute or otherwise transfer any of the rights you receive under this TOS. You shall comply with all applicable local, state, national and international laws and regulations. To the extent that any portion of the Websites or Services is subject to Open Source Licenses, such Open Source Licenses shall apply irrespective of this section.
5.5. SW Hosting reserves the right to access, read, preserve and disclose any information that we deem reasonably necessary to (i) respond to any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations thereof; (iii) detect, prevent or otherwise address fraud, security or technical issues; (iv) respond to user requests for assistance; or (v) protect the rights, property or safety of SW Hosting, our users and the public. More information is available in our Compliance Guidelines.
5.6. The CUSTOMER shall use appropriate security protocols, such as establishing secure passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons entrusted with account access information. The CUSTOMER is solely responsible for any unauthorized access to its Account, and must notify SW Hosting immediately of any unauthorized access upon becoming aware of it.
5.7. The CUSTOMER shall notify SW Hosting if and when it becomes aware of any security incident or breach affecting the Websites or Services, including unauthorized access to its Account or Account credentials, and shall assist in any investigation or legal action taken by the authorities and/or SW Hosting, to investigate and cure the security incident or breach to the extent caused by its Account or its use of the Websites and Services. Our Data Processing Agreement includes more information about security incidents regarding certain personal data.
5.8. Applicable to customers of SW Hosting US, LLC:
5.8.1 The Services are subject to trade and economic sanctions maintained by the Office of Foreign Assets Control ("OFAC"). By accessing the Services, the CUSTOMER agrees to comply with these laws and regulations. Specifically, the CUSTOMER represents and warrants that it is not (i) located in any country subject to OFAC trade and economic sanctions, currently Cuba, Iran, North Korea, Syria and the Ukrainian region of Crimea; nor (ii) a person or entity on any U.S. list of prohibited parties, including: the Treasury Department's Specially Designated Nationals List ("SDN List") and Sectoral Sanctions List ("SSI List"). In addition, CUSTOMER agrees not to sell, export, re-export, transfer, divert or otherwise dispose of any services received from SW Hosting in contradiction of these laws and regulations. Failure to comply with these laws and regulations may result in the suspension or termination of your Account.
5.8.2. The CUSTOMER agrees to comply with all applicable export and import control laws and regulations in its use of the Services, and, in particular, shall not use the Services to export or re-export data or software without all required U.S. and foreign government licenses. CUSTOMER assumes all legal responsibility for any access to and use of the Services from outside the United States, with full understanding that such access or use may constitute an export of technology and technical data that may implicate export regulations and/or require an export license.
6. Payments, invoicing and economic conditions
6.1. CUSTOMER must provide current, complete and accurate information for its Account and Billing Information, and must promptly update all such information in the event of changes (such as a change in billing address, credit card number or credit card expiration date). You must promptly notify SW Hosting or our Payment Processors if your payment method is cancelled (for example, due to loss or theft) or otherwise becomes inoperative. Changes to such information can be made in your account settings.
6.2. By entering into these Terms of Service and using the Services, the CUSTOMER agrees to be billed on a recurring basis and to be billed automatically by SW Hosting or our Payment Processors using the Payment Methods the CUSTOMER selects at the time of billing. If your Payment Method or payment of fees is subject to other terms and conditions, as set forth on order forms, invoices or otherwise, then those other terms and conditions apply in addition to this CDS. You may also be billed an amount up to your current balance at any time to verify the accuracy of your account information. SW Hosting reserves the right to deactivate, cancel, prevent access, disable services and/or remove any Account or access to the Websites and Services at any time in our sole discretion, including for non-payment, late payment or failure to charge your Payment Methods at the time of billing.
6.3. CUSTOMER is responsible for any duties, customs fees, taxes, and penalties, fines, audits, interest and late payments related to its purchase of the Services, including, without limitation, national, state or local sales taxes, use taxes, value added taxes (VAT) and goods and services taxes (GST) (collectively, "Taxes"). Unless otherwise stated, our pricing policies do not include and are not discounted or enhanced for such Taxes. If we are required to collect or pay Taxes in connection with your purchase of Services, such Taxes will be billed to you as part of a billing process or collected at the time of purchase. In certain states, countries and territories, we may determine whether your purchase of Services is subject to certain Taxes, and if so, we may collect such Taxes and remit them to the appropriate taxing authority. If the CUSTOMER believes that a certain Tax is not applicable or that any amount should be withheld from payments you make to SW Hosting, you shall promptly provide, to SW Hosting, a tax certificate, a withholding receipt, a tax identifier (e.g., VAT number or TIN) or other appropriate proof, provided that such information is valid and sufficiently authorized by all relevant tax authorities. You shall also provide to SW Hosting, any tax identification information that is necessary to comply with our tax obligations, as determined by us from time to time. CUSTOMER shall be solely responsible for any misrepresentations or defaults caused by it in connection with Taxes, whether with respect to SW Hosting or other parties, including any penalties, fines, audits, interest, back payments or additional taxes associated with such misrepresentations or defaults.
6.4. Billing Systems.
6.4.1. SW Hosting will invoice the CUSTOMER for the costs of the Services for the contract period stipulated at the time it is formalized.
The following is the Billing Treatment according to the type of billing stipulated in the service:
6.4.1.1. Monthly or annual billing type:
6.4.1.1.1. SW Hosting will generate an invoice for the stipulated period at the time of commencement of such period. This period is always billed in advance.
6.4.1.1.2. At the end of the invoiced period, a new invoice will be issued for the new period, and so on.
6.4.1.2. Billing type by hours, minutes, or pay-per-use:
6.4.1.2.1. SW Hosting will issue a single monthly invoice in which the costs of all hours of service comprising it will be accumulated.
6.4.1.2.1.a. Consumption costs such as vCores, RAM memory, Disk space IPs, and those that are detailed in SWPanel as cost per consumption or pay per use add-ons will be invoiced on a periodly basis.
6.4.1.2.1.b. All those services/additions not billable by consumption and all those that are not detailed in pay-per-use mode in your SWPanel will be billed in advance period.
6.4.2. The billing periods of SW Hosting are monthly, and are calculated from the date of registration of the service so that an invoice is generated each month, in case of opting for the monthly payment mode, if another mode, such as the annual one, an invoice will be generated each year.
6.4.3. Invoice grouping mode on a single day of the month
6.4.3.1. If the CUSTOMER wishes, he can request the grouping of all his services in a single monthly invoice, which will be issued on the 25th of each month. SW Hosting reserves the right to accept or not this billing method depending on the history, seniority, types of services or solvency of the customer.
6.4.3.2. The activation of the billing grouping of all its services, as detailed in point 6.4.3.1, will imply that, at the time of contracting the service, a proportional adjustment will be generated so that the periods correspond to the 24th day at 23:59:59 hours of the month of issuance of the invoice.
6.4.3.3. SW Hosting will make, automatically, at the time of contracting, such adjustment, generating an additional item in the first invoice as "period adjustment cost", this value can be positive or negative depending on the type of adjustment and the payment method established in the service.
6.4.3.4. The formula used to calculate this adjustment is as follows:
6.4.3.4.1. End date of the first monthly period. The end date is always assumed to be the 24th day at 23:59:59 hours of the month. From now on FPP.
6.4.3.4.2. Date of contracting. Hereinafter FCS.
6.4.3.4.3. Monthly cost of the service and all add-ons and extensions. From now on CMS.
6.4.3.4.4. The unit of time measurement used is days.
6.4.3.4.5. The amount to be paid for adjustment in the period of registration is understood to be the result of the following formula. From now on IAA.
IAA = (FPP - FCS) * ((CMS) / 30)
6.5. SW Hosting will inform the customer at all times, by e-mail, with a copy of the messages in SWPanel, about the prices of all charges and penalties arising from non-payment or blocking of services.
6.6. SW Hosting reserves the right to update, downward or upward, any of the costs of the service or any of its complements, depending on market developments, changes in technology, updates of direct or indirect costs, increases in resources allocated to the service, or any reasonable variation in the service that involves additional investments by SW Hosting.
6.6.1. Any price changes will be published on SW Hosting's websites or SWPanel with a minimum of sufficient notice.
6.6.2. SW Hosting reserves the right to apply a correction factor to the costs of the Service or any of its add-ons in the event that you make unreasonable use thereof or that your use may affect SW Hosting or any of its other customers or violate the specifications of the PUA.
6.6.3. SW Hosting, with the intention of not harming you, will offer you the possibility of cancellation or change in the modality of the service, in case any modification or update in the prices is applied.
6.7. SW Hosting will invoice the costs arising in the excess use of the service or any of its add-ons in case the CUSTOMER makes abusive use, or make a higher consumption than established in the items of resources allocated to the service.
6.7.1. SW Hosting will provide the CUSTOMER, through SWPanel, the management and visualization of consumption and resources used of the service.
6.8. The fees stipulated for the service will be increased by the corresponding taxes as detailed in point 6.3.
6.9. Payment Systems.
6.9.1. Payment of the first invoice for the service must be paid in cash and through the systems available on the SW Hosting Websites at the time of the formalization of the activation of the service.
6.9.1.1. The activation of the service will take place at the time of payment validation.
6.9.2. SW Hosting will provide the CUSTOMER three different methods of payment for services depending on their customer history, country of billing services or their country of origin
6.9.2.a. SWPanel Credits
6.9.2.b. Direct credit card charge. Restricted to billing from EU.
6.9.2.c. Direct debit. Restricted to EU invoicing under SEPA regulations.
6.9.3. The CUSTOMER can request a change of payment method from his SWPanel.
6.9.3.1. The request to change the payment method must be authorized by the Administration department of SW Hosting. SW Hosting reserves the right to accept or not any change in the payment method of your Customer Account.
6.9.3.2. For SW Hosting's approval of any change of payment method, the following checks will be made.
6.9.3.2.a. Review of the active services in your Customer Account.
6.9.3.2.b. A financial and risk analysis of your Customer Account will be requested.
6.9.3.2.c. Solvency status of your Customer Account.
6.9.3.3. The CUSTOMER may not request a change of payment method in the following cases:
6.9.3.3.a. Existence of invoices pending payment or in circulation.
6.9.3.3.b. Negative balance in the SWPanel.
6.9.3.3.c. Services blocked due to non-payment situation.
6.9.4. Available payment methods.
6.9.4.1. Payment method by direct debit. Details of the payment rules associated with this method of payment.
6.9.4.1.a. SW Hosting will issue a receipt to your bank account indicated at the time of requesting payment by direct debit.
6.9.4.1.b. SW Hosting will offer the possibility of defining a specific day of payment, subject to a risk analysis.
6.9.4.1.c. SW Hosting will not accept a direct debit with a maturity of more than 30 days from the date of issuance of the invoice.
6.9.4.1.d. SW Hosting will not allow payments of recurring invoices for services by direct debit, if there are previous invoices pending payment.
6.9.4.1.1. Management of bank refunds.
6.9.4.1.1.a. The payment of a returned bill must be made, solely and exclusively, by bank transfer. SW Hosting will not remit a returned receipt and will not proceed again to the transfer of the same.
6.9.4.1.1.b. SW Hosting will apply a cost of #coste_devolucion_recibo# for each return of a receipt for expenses and collection management thereof. Not being, at any time, the return of such effect for reasons beyond the CUSTOMER, a mitigation of the collection of that amount.
6.9.4.1.1.c. All the amounts of surcharge will be increased with the VAT or taxes that correspond, as it is detailed in point 6.3.
6.9.4.1.1.d. The maximum time for payment of an unpaid bill shall never exceed one (1) day, otherwise, the procedure shall be as detailed in section 6 hereof.
6.9.4.1.1.e. SW Hosting reserves the right to vary and force a form of payment other than direct debit to a CUSTOMER, in case of repeated returns of the effects charged to that bank account.
6.9.4.2. Mode of payment by Direct Debit to credit card.
6.9.4.2.1. Payment by Direct Debit to credit card.
6.9.4.2.1.a. The CUSTOMER shall indicate a credit card in its SWPanel as the default card.
6.9.4.2.1.b. At the time of the selection of the default credit card, SW Hosting, will make a charge to verify that card.
6.9.4.2.1.c. At the time an invoice is generated, SW Hosting, will proceed to charge it immediately to the default card.
6.9.4.2.1.d. In case of non-acceptance of the charge on the credit card by default, SW Hosting will retry the charge 5 times, within a period of 1 hour each retry, stopping if the charge can be made.
6.9.4.2.1.e. If after 5 retries, the default credit card could not be charged, SW Hosting will automatically change the payment method to SWPanel Credits, activating the credit payment mode, as stipulated in section 6.9.4.3 hereof.
6.9.4.3. Payment mode by "SWPanel Credits".
6.9.4.3.1. Definition of SWPanel Credits:
6.9.4.3.1.a. SWPanel Credit means the balance deposited by the CUSTOMER as a provision of funds, in a virtual financial account located in its SWPanel.
6.9.4.3.1.b. SW Hosting provides a statement of all movements of your credit account through SWPanel.
6.9.4.3.2. SWPanel Credits Payment Policy
6.9.4.3.2.a. Payment using credits is made by way of balance discount. The CUSTOMER shall charge a balance in its SWPanel by (i) credit card (ii) bank transfer or (iii) third party payment processors active in its SWPanel.
6.9.4.3.2.b. SW Hosting will charge the amount corresponding to each invoice or service contracted.
6.9.4.3.2.c. If the available balance in your SWPanel virtual account is less than the amount of the new service to be contracted, you must add balance to your SWPanel, before being able to proceed with the contracting of the new service.
6.9.4.3.2.d. It is possible, depending on your customer history that, at the time of activation of any service, additional service module, add-on or upgrade, SWPanel may ask you, if necessary, to preload a balance in your Customer Account. If you are requested to do so, you will not be able to proceed with the activation until the balance has been preloaded.
6.9.4.3.2.e. Each time an invoice is generated for a service, the amount corresponding to the same will be deducted from the balance that your SWPanel has at that moment.
6.9.4.3.3. Negative balance situation in SWPanel credits
6.9.4.3.3.a. SW Hosting will notify you by e-mail, the situation of negative balance in your SWPanel account.
6.9.4.3.3.b. The CUSTOMER will be able to view the balance of your customer account through your SWPanel.
6.9.4.3.3.c. In case of a negative balance in its SWPanel, it will have a maximum time of five (5) days to regularize it by entering new money to SWPanel, otherwise it will proceed to the total blocking of the services, according to the conditions of section 6.12 of this CDS.
6.10. Third party payment processors.
6.10.1. At SW Hosting we use third party payment processors (the "Payment Processors") to facilitate payment to your Account. Payment processing may be subject to the terms, conditions and policies of the Payment Processors in addition to those present in this CDS. We are not responsible for the acts or omissions of the Payment Processors. CUSTOMER agrees to pay SW Hosting, through the Payment Processors or as otherwise agreed by SW Hosting, all sums for the Services you select or use at the applicable prices in accordance with our pricing and billing policies and hereby authorizes SW Hosting and the applicable Payment Processors to charge all such sums (including all applicable taxes) to the form(s) of payment specified or linked to your Customer Account.
6.11. Promotions or Credits.
6.11.1. We may offer Service credits from time to time, and any provision of such credits is governed by the disclosures, terms and policies relating to credits. CUSTOMER acknowledges and agrees that all credits, whether previously offered or otherwise, are revocable or subject to early expiration at any time and for any reason or no reason by SW Hosting, including for abuse, misrepresentation of Account information, unauthorized transfer or illegal conduct by CUSTOMER.
6.12. Unpaid Services Situation.
6.12.1. The non-payment by the CUSTOMER of the amount of one or more invoices shall be considered as non-payment of services.
6.12.1.a. By direct debit payment is considered non-payment, the return of the bank receipt issued by SW Hosting to the CUSTOMER from the due date of the invoice.
6.12.1.b. By payment by SWPanel Credits, the non-payment of the outstanding balance within a period not exceeding 5 days after notification of the negative balance.
6.12.1.c. By direct debit to credit card, if the amount of an invoice cannot be debited, the stipulations of point 6.9.4.2.1.e shall apply.
6.12.2. Surcharges and/or penalties for non-payment and blocking of services.
6.12.2.a. SW Hosting will apply a surcharge of #coste_desbloqueo_servicios# for the unblocking of the services in case they are blocked for non-payment as detailed in section 6.12.
6.12.2.b. All surcharge amounts shall be increased by the corresponding taxes, as stipulated in section 6.3.
6.12.3. The CUSTOMER authorizes SW Hosting to block, without prior notice, ALL services contracted by the CUSTOMER for non-payment of any invoice as a precautionary measure until the time of regularization of such non-payment situation.
6.12.3.a. SW Hosting will not generate more invoices of the (s) service (s) blocked for non-payment, until the time of its unblocking.
6.12.3.b. SW Hosting will not proceed to perform any action related to the blocked services during the process of blocking them, nor will it perform actions related to domain registration such as (i) registration, (ii) renewal, (iii) auto-renewals of existing domains and/or SSL certificates in the portfolio of your SWPanel. As well as any planned or timed action on any of the active services in your customer account.
6.12.3.c. The CUSTOMER shall bear all costs arising from the blocking of the contracted services.
6.12.3.d. At the moment of unblocking the services, the new service period will be invoiced in case the last one has expired.
6.12.4. Removal of Blocked Services.
6.12.4.a. After 30 calendar days after the blocking of the services for non-payment; SW Hosting will proceed to the total elimination of the services of your customer account, and all content associated with them.
6.12.4.b. SW Hosting will not provide means for the total or partial restoration of the content removed for non-payment of services.
6.13. Claiming for non-payment.
6.13.1. The CUSTOMER authorizes SW Hosting to make the claim of any unpaid invoice through legal channels enabled for this purpose.
6.13.2. Also, SW Hosting will include your data, as well as the detail of the debt, in a debt management service (ASNEF).
6.13.3. The CUSTOMER agrees to hold harmless SW Hosting from any liability arising (i) the blocking of services for non-payment, (ii) the removal of (the) service (s) and content.
7. Third Party Services
The Websites and Services may include links to third party websites, services or other resources on the Internet, and third party websites, services or other resources may also include links to our Websites and Services. When the CUSTOMER accesses third party resources on the Internet, it does so at its own risk. These third party resources are not under our control and, to the extent permitted by law, we are not responsible for the content, functions, accuracy, legality, suitability or any other aspect of such resources. The inclusion of any such links does not imply our endorsement or any association between SW Hosting and any third party. To the fullest extent permitted by law, we shall not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party resources. We also permit certain vendors to make available Vendor Offers on the SW Hosting Marketplace ("Vendors" and "Vendor Offers" are defined in the SW Hosting Marketplace Terms and Conditions). Use of any Vendor Offering may require CUSTOMER to agree to certain terms and conditions directly with the Vendor, and SW Hosting may not be a party to any such agreement. It is your responsibility to protect your system from risks such as viruses, worms, Trojan horses and other security risks that may be presented by the third party resources or Vendor Offerings described in this section.
8. Confidentiality and Beta Services
8.1. To the extent that CUSTOMER receives or possesses any non-public information from SW Hosting that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential, such information is our "Confidential Information" and must be handled in accordance with this CDS. Confidential Information includes, but is not limited to: (i) non-public information about our technology, customers, business plans, marketing and sales activities, finances, operations and other business information; and (ii) the existence and content of our discussions or negotiations with CUSTOMER regarding your Account and/or use of the Services. Confidential Information does not include any information that (i) is or becomes publicly available without violating these Terms of Service; (ii) can be shown by documentation to have been known to CUSTOMER at the time of receipt from SW Hosting; (iii) is received from a third party who has not acquired or disclosed the information by an unlawful or tortious act or in violation of the rights of SW Hosting or any third party; or (iv) can be shown by documentation to have been independently developed by CUSTOMER without reference to the Confidential Information.
8.2. CUSTOMER may not use the Confidential Information except in connection with its use of the Service as permitted in these Terms of Service or as separately authorized in a writing signed by SW Hosting. CUSTOMER agrees not to disclose the Confidential Information during the term of this CDS, after it ceases to use the Services and after this CDS ceases to apply. The CUSTOMER shall take all reasonable measures to prevent unauthorized disclosure or use of the Confidential Information, including at least the measures that the CUSTOMER takes to protect its own confidential information of a similar nature.
8.3. We may offer "beta" versions or features of the Services (each, a "Beta Service"). Any production or non-production candidate version of the Services or any other version of the Services designated as a beta or test version is considered a Beta Service under these CDS. SW Hosting will determine, in its sole discretion, the availability, duration, features and components of each Beta Service. If we permit you to use a Beta Service, CUSTOMER agrees that the information we provide to you in connection with the Beta Service is Confidential Information, and you specifically agree, in addition to the other requirements set forth in these CDS, not to: (i) use the Beta Service for benchmarking or performance testing or to publicly disseminate performance information or analysis from any source related to the Service; (ii) modify or create derivative works of the Beta Service or remove any product identification, proprietary, copyright or other notices contained in the Beta Service; or (iii) permit any other person to access or use the Beta Service. SW Hosting, in its sole discretion, will determine whether or not to continue to offer any Beta Service, and may discontinue offering any Beta Service at any time.
9. No Warranty
9.1. The Websites and the Services, including, without limitation, any content delivered as part thereof, are provided "as is" and on an "as available" basis. SW Hosting disclaims all warranties of any kind, whether express or implied, relating to the Websites and Services and all content delivered in connection therewith, including, but not limited to (i) any implied warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment or non-infringement; (ii) any warranty arising from course of dealing, usage or trade; (iii) or any warranty relating to availability, accuracy, error rate, system integrity or uninterrupted access. We do not warrant that (i) the Websites or the Services will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available on or through the Websites or the Services will be free of viruses or other harmful components; or (iv) the results of using the Websites or the Services will meet your requirements. The use that the CUSTOMER makes of the Websites and the Services is exclusively at its own risk.
To the extent permitted by law, we have no liability for the Sellers' Offers. Instead, if applicable, all limited warranties, disclaimer of warranty, limitations of liability and other specific provisions with respect to the Sellers' Offerings can be found in SW Hosting's Marketplace Terms and Conditions or, if applicable, the agreement between the CUSTOMER and the Seller.
9.2. SW Hosting is not responsible for the content that the CUSTOMER accesses through its use of the Websites, the Services or the content of other SW Hosting users or other third parties. To the extent permitted by applicable law, the CUSTOMER releases SW Hosting from all liability related to such content. CUSTOMER acknowledges and agrees that we make no representations regarding any content through the Websites or the content of other SW Hosting users or other third parties, and that we are not responsible for the accuracy, quality, legality, or other attributes of such content.
9.3. The limitations, exclusions and disclaimers in this Section 9 apply to the fullest extent permitted by law. SW Hosting does not disclaim any warranties or any other rights that SW Hosting is prohibited from disclaiming under applicable law.
10. Limitation of Liability
10.1. To the maximum extent permitted by law, in no event will we be liable to the CUSTOMER for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill or any other intangible loss) arising out of or in connection with your access or use, or your inability to access or use, the Websites and Services or any materials or content on the Websites and Services, whether based on warranty, contract, tort (including negligence), statute or any other legal theory, and whether or not we have been advised of the possibility of damage. To the extent permitted by law, the CUSTOMER agrees that SW Hosting, shall have no liability for data that may be destroyed, lost or otherwise inaccessible, whether because the CUSTOMER failed to back up its data or for any other reason.
10.2. Except as provided in Section 13 and to the extent permitted by law, our total liability to the CUSTOMER for all claims arising out of or relating to these Terms of Service or the Websites and Services, whether in contract, tort or otherwise, is limited, at most, to the amount you paid to SW Hosting for the Services in question in the month prior to the event or circumstance giving rise to the claim.
10.3. Each provision of these CDS that sets forth a limitation of liability, disclaimer of warranties or exclusion of damages is intended to allocate and allocates risk between the parties under these CDS. This allocation is an essential element of the basis of the negotiation between the CUSTOMER and SW Hosting. Each of these provisions is severable and independent of all other provisions of these Terms of Service. The limitations of this section shall apply even if any limited remedy fails of its essential purpose.
10.4. SW Hosting will not accept, nor be liable, in any case, for damages to persons or entities other than the CUSTOMER, or persons or entities to which SW Hosting does not issue an invoice on a regular basis or do not have a CDS established and in force with SW Hosting.
10.5. The responsibility of SW Hosting is limited solely and exclusively to the CUSTOMER, and ends at the time that the CUSTOMER cursa low service since this CDS is extinguished.
11. Indemnification
To the fullest extent permitted by law, CUSTOMER is responsible for its use of the Websites and Services, and shall defend, indemnify and hold harmless SW Hosting and our employees, officers, directors, agents, contractors and representatives from all liabilities, claims and expenses, including reasonable attorneys' fees and costs, arising out of or related to Content on its Services, User Content, your End Users, or your access to or use of the Websites and Services, including your breach of these Terms of Service or applicable law, willful misconduct, negligence, illegal activity, breach of security or data, unauthorized access to or use of your Account, or violation of the rights of a third party, including any intellectual property, confidentiality, proprietary or privacy rights. SW Hosting reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, without limiting its indemnification obligations with respect to such matter, in which event CUSTOMER shall use its best efforts to cooperate with SW Hosting in the defense of the matter at its own expense.
12. Duration and termination
12.1. Duration of the service agreement.
12.1.1. There is no minimum duration established in the activation of services.
12.1.1.a. SW Hosting and the CUSTOMER may agree on a minimum duration of the service, as a compensatory measure to SW Hosting on discounts, promotions, commercial attention, or offers that have been applied at the time of proceeding with the hiring of the service.
12.1.1.b. The cost resulting from the bonus agreed with the CUSTOMER, as indicated in point from now on will be CBP (Cost of Bonus Agreed).
12.1.1.c. If this agreed minimum duration exists, it will be reflected in your SWPanel.
12.1.1.d. Failure to comply with the agreed minimum duration shall be considered as early termination.
12.1.2. The service shall be renewed tacitly and indefinitely for periods equal to the established billing method, unless a cancellation request has been made.
12.1.2.a. From SWPanel, the CUSTOMER may deactivate, if he/she wishes, the automatic renewal of the service.
12.1.2.b. The deactivation of the automatic renewal, will imply that the system will proceed to process the cancellation at the end of the billing period of the service for which the non-renewal has been requested.
12.1.2.c. In the services based on pay-per-use, at the time of cancellation or non-renewal of the service, an invoice could be issued for the resources used by the CUSTOMER until the date of cancellation of the service. In this case such invoice is payable by the CUSTOMER because it corresponds to the period in which the services were active, and prior to the date of cancellation.
12.1.3. . Definition of the cancellation of the service
12.1.3.1. The cancellation of the service shall always be done through the SWPanel.
12.1.3.2. SW Hosting will not accept service cancellations that are not made through SWPanel.
12.1.3.3. SW Hosting will continue billing the service until the CUSTOMER does not cancel or cancel the service as stipulated in point 12.1.3.1.
12.2. Termination.
12.2.1. Although SW Hosting prefers to provide advance notice of termination, SW Hosting reserves the right, in our sole discretion, to terminate your access to all or any part of the Websites and/or Services at any time, with or without notice, effective immediately. Such termination may result in immediate forfeiture and destruction of data associated with your Account. Except as otherwise set forth in this CDS or as expressly agreed between the parties, any and all fees paid to SW Hosting are non-refundable and any and all fees owed to SW Hosting at the time of such termination shall be immediately due and payable. Upon termination, any and all rights granted to you in these CDS shall immediately terminate, and you must also immediately discontinue all use of the Websites and/or the Services. All provisions of this CDS which by their nature should survive termination shall survive termination shall survive termination.
13. Dispute Resolution and Arbitration
13.1. SW Hosting provides the CUSTOMER with an SLA specifying how the quality of the service provided is to be measured and analyzed.
You can consult the SLAs that are also included in this CDS.
13.2. SW Hostig also determines in this SLA, how the breach of the service provided shall be assessed by you and what shall be the compensations that SW hosting shall give you in case of this breach.
13.3. The CUSTOMER agrees that at no time will claim more than the compensation stipulated in the SLA, and that such compensation may never exceed the monthly price that the CUSTOMER pays for the service.
13.4. The CUSTOMER expressly waives the use of any arbitration court or any court of law to file a claim against SW hosting for the provision of services related to this SLA.
13.5. Any claim that the CUSTOMER makes by any means beyond that stipulated in SLA, shall be considered invalid claim and does not bind SW Hosting to any kind of performance.
13.6. The CUSTOMER and SW Hosting agree that each may not bring claims against the other.
13.7. If any part of this Section 13 is found to be unenforceable, then that part shall be null and void and the remainder of this Section 13 shall remain reasonably in effect. In such event, if Section 13 cannot reasonably remain in effect as a whole, CUSTOMER and SW Hosting agree that the exclusive jurisdiction and venue described in Section 14.4 shall govern any action arising out of or relating to this CDS.
14. Miscellaneous Provisions
14.1. Updates and Modifications. SW Hosting reserves the right to update, change or otherwise modify this CDS at any time in SW Hosting's sole discretion. If SW Hosting updates this CDS, SW Hosting may provide notice of such updates by, for example, sending an email notification to the email address listed in your Account and/or updating the "Last Updated" date at the top of this CDS. Updates will be effective on the date specified in the notice. If you continue to access or use the Websites or the Services after the date specified in the notice or updated CDS, you are agreeing to accept and be bound by the updated CDS and all terms incorporated therein. If you do not agree to the updated CDS, you may no longer use the Websites or the Services and your sole and exclusive remedy is to deactivate your Account and stop using the Websites and/or the Services.
14.2. General. This CDS, including all documents expressly incorporated by reference, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, relating to its subject matter. The use of section headings in these Terms of Service is for convenience only and shall have no impact on the interpretation of any provision. Any use of the singular shall be reasonably construed as if it also included the plural, and vice versa. If not specified, any use of "including" or "as" shall be construed as "including but not limited to". If any part of these Terms of Service is held invalid or unenforceable, the unenforceable portion shall be enforced to the maximum extent possible, and the remaining portions shall remain in full force and effect. Our failure to enforce any provision shall not affect our right to enforce it at any later time, nor shall our waiver of any breach or default of this CDS, or any provision of this CDS, constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
14.3. Assignment. CUSTOMER may not assign, transfer or delegate these CDS or any of its rights and obligations hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign, transfer or delegate these CDS or our rights and obligations hereunder without notice or consent. Subject to this section, these CDS shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns, and any assignment or transfer in violation of this section shall be void.
14.4. Applicable Law. These Terms of Service and any disputes relating to them (including Section 13) are governed by Spanish law, without regard to principles of conflict of laws. Subject to Section 13, the CUSTOMER and SW Hosting submit to the personal and exclusive jurisdiction of the courts of Spain province of Girona, for the resolution of any claim or legal proceeding permitted under these CDS.
14.5. Notifications.
14.5.1. The CUSTOMER must send notices by e-mail to
[email protected].
14.5.2. The CUSTOMER agrees to receive our electronic notifications, which will be sent by email to the email address associated with its Account. Notifications will be effective on the date of acknowledgement of receipt or, in the case of email, at the time of sending. The CUSTOMER is responsible for ensuring that the email address associated with its Account is correct and up to date. Any email notification we send to that email address will be effective when sent, whether or not the CUSTOMER receives the email.
14.6. Consent to Electronic Communications. By using the Websites and/or the Services, CUSTOMER consents to receive certain electronic communications from us as described in our Privacy Policy. Please read SW Hosting's Privacy Policy to learn more about our electronic communication practices. CUSTOMER agrees that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
14.7. Notice to California Residents. If you are a resident of California, pursuant to California Civil Code Section 1789.3, you may contact the Claims Assistance Unit of the Consumer Services Division of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd. Market Blvd, Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 to resolve a complaint or receive further information about your use of the Websites or the Services.
14.8. Relationship of the Parties. The parties are independent contractors. These Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has any authority to bind the other.
14.9. Force Majeure. SW Hosting shall not be liable for any failure to comply with the terms of this CDS to the extent SW Hosting is prevented from performing as a result of any act or event occurring beyond SW Hosting's reasonable control, including, without limitation, acts of God, war, riot or disturbance, strikes, any action by a governmental entity, weather, quarantine, fire, flood, earthquake, explosion, utility or telecommunications outages, Internet disruption, epidemic, pandemic or any unforeseen change in circumstances, or any other cause beyond our reasonable control.
14.10. Absence of third party beneficiaries. These CDS do not create any third party beneficiary rights in any person or entity other than the CUSTOMER.
15. Notifications about services
15.1. SW Hosting will notify, on a regular basis, information or actions required to be performed by the CUSTOMER
15.1.a. via email, to the email account that the customer has indicated in the SWPanel or at the time of registration as such.
15.1.b. and shall leave a digital copy of such notification in the CUSTOMER's SWPanel so that it can be consulted by the CUSTOMER at any time.
15.2.2. Modification of the notifications by the CUSTOMER
15.2.1. The CUSTOMER, using SWPanel, may disable, modify or redirect to other email accounts, any notification that SW Hosting may send.
15.2.2.2. If desired, the CUSTOMER may even disable ALL notifications from SW Hosting, accepting the risk that this implies for the proper functioning of the services and compliance with this DCS.
15.2.3. The CUSTOMER may disable, modify or redirect important notifications that may prevent him from complying with this CSD, in this case, the CUSTOMER is not exempted from the content of such notifications.
15.3. The CUSTOMER understands and accepts as formal means of notification those indicated in point 15.1, not being able to claim to SW Hosting other systems or means of notification other than those set out in this point 15.1 of the CDS.
15.4. SW Hosting has no obligation to notify the CUSTOMER, beyond the system stipulated in point 15.1 of this CDS.
16. Right of withdrawal applicable to EU consumers.
Directive 2011/83/EU on consumer rights ("Consumer Rights Directive" - DDC) establishes a module covering the right of withdrawal, according to which consumers have the right to withdraw from contracts concluded at a distance and off-premises contracts. For more detailed information on the provisions of the Consumer Rights Directive, please consult Module 1 or the European Commission Guidance Document which is available in all official languages of the EU2.
16.1. The CUSTOMER has the right to withdraw from this contract within 14 calendar days without giving any reason.
16.2. The withdrawal period shall expire 14 calendar days after the day of conclusion of the contract.
16.3. The said directive provides for the following exceptions or cases in which the right of withdrawal shall not be applicable:
16.3.1. Provision of services, once the service has been fully performed, when the performance has begun, with the prior express consent of the consumer and user and with the acknowledgment by him that he is aware that, once the contract has been fully performed by the entrepreneur, he will have lost his right of withdrawal.
16.3.2. Supply of goods made to the consumer's specifications or clearly personalized.
