Terms of Service
Welcome to Joyent! By accessing and using the Joyent Cloud Services (“Cloud Services”), you agree to the terms and conditions provided in this Terms of Service including all applicable Addendums for specific service offerings (“TOS”) and the policies and guidelines provided herein. This TOS constitutes an agreement between Joyent, Inc. (“Joyent”, “we”, “us”, or “our”) and you, as an individual, or the entity you represent. You represent that you are legally able to enter into agreements, that you are of legal age to do so, and if you are accepting this TOS on behalf of an entity, such as your company, you have all rights and authority to legally bind such entity. You further represent that you are not a person barred from receiving the Cloud Services under the laws of the United States (including export controls) or other applicable jurisdiction and your use of the Cloud Services will comply with the “Export Compliance and Excluded Data” section as provided below. Joyent reserves the right to modify the TOS from time to time without prior notice.
1. Cloud Services
Cloud Services means the Joyent services and products provided by Joyent to you under this TOS. Cloud Services do not include Third Party Software and Services, which is defined below.
2. You must maintain the confidentiality of your Joyent account information
You are responsible for maintaining the confidentiality of your account username and password, and you acknowledge and agree that you, and not Joyent, are responsible for all activities that occur under your account. You agree to immediately notify Joyent of any unauthorized use of your Joyent account, username or password.
3. You are responsible for your use of the Cloud Services
A. General. You, and not Joyent, are responsible for: (a) all information, data, text, software, music, sound, photographs, graphics, video, messages, files, attachments, or other materials (“Customer Content”) you provide to Joyent that is created, transmitted, stored, or displayed by, from, or within your account including content of your end user; (b) the technical operation of the Customer Content including maintaining compatibility with Joyent’s APIs for the Cloud Service; (c) the conduct of all users of your account and for any consequences of such conduct; and (d) the monitoring of any Customer Content you provide to Joyent in connection with your use of the Cloud Services. While Joyent reserves the right to monitor your Customer Content, we are under no obligation to do so.
B. DMCA. You are responsible for properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Customer Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.
C. Security. You are responsible for using reasonable security precautions to maintain appropriate security and protection of all of your Customer Content. To prevent unauthorized access, you should, for example, consider encryption technology.
D. Customer Content Preservation. You are responsible for the preservation of all of your Customer Content. You, and not Joyent, are responsible for backing-up Customer Content and any other content that you use with the Cloud Services. Best practices include routine archiving of Customer Content. Joyent is not obligated to retain any Customer Content after the termination of your access to the Cloud Services for any reason.
E. Your End User’s Use. You are responsible for your end users’ use of the Cloud Services and ensuring that such use is in compliance with the terms and conditions of the TOS and with applicable law. If you discover that an end user is in violation of this TOS or any applicable law, you will terminate such end user’s access to the Cloud Services immediately.
4. Your use of the Cloud Services must be lawful and is subject to certain restrictions
You shall use the Cloud Services only for purposes that are legal, proper and in accordance with the TOS and the Acceptable Use Policy (“AUP”), which can be found at: http://joyent.com/company/policies/cloud-hosting-acceptable-use-policy. Furthermore, you agree that you will not engage in any activity that interferes with or disrupts the Cloud Services, servers or networks connected to the Cloud Services.
You shall not: (i) access and/or use the Cloud Services if you are a direct competitor of Joyent, for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes, including in order to design, create or build a service or product that is competitive with the Cloud Services, or which uses ideas, features or functions that are similar to the Cloud Services; (ii) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon the Cloud Services on a stand-alone basis (for the avoidance of doubt, this subsection shall not be deemed to preclude you from offering services that use and rely upon the Cloud Services where your other products or services add substantial value as compared to the Cloud Services alone); (iii) interfere with or disrupt the integrity or performance of the Cloud Services; (iv) attempt to gain unauthorized access to the Cloud Services or any associated systems or networks; or (v) modify or make derivative works based upon the Cloud Services or any part thereof, or directly or indirectly disassemble, decompile, or otherwise reverse engineer the Cloud Services or any portion thereof.
5. Third Party Software and Services
In connection with your use of the Cloud Services, solely as a convenience for you and solely at your election, Joyent may make available to you the use of certain third party software and/or services (“Third Party Software and Services”). Joyent is not liable or responsible for claims, damages, losses or any other complaints arising out of or related to your use of such Third Party Software and Services. Your use of any Third Party Software and Services are subject to the terms and conditions directly between you and the applicable third party vendor and at your own risk. You hereby acknowledge that no purchase or license of any Third Party Software and Services is required to use the Cloud Services.
6. If you use the Cloud Services improperly, Joyent may suspend or terminate your access to the Cloud Services
We reserve the right to suspend or terminate your access to the Cloud Services if we determine (in our sole discretion) that you are in violation of the TOS, the AUP, or any applicable laws.
For example, we may suspend or terminate your access to the Cloud Services if your use of the Cloud Services: (i) poses a security risk to the Cloud Services or any third party, (ii) may be damaging to, or degrading of, Joyent's network integrity, (iii) may subject us, our affiliates, or any third party to legal liability, or (iv) may be fraudulent.
7. Fees and Billing
For the use of the Cloud Services, you shall pay us the applicable fees and charges in U.S. Dollars by payment methods that we authorize. If you are paying with a credit card, you hereby authorize Joyent to charge your credit card for any and all charges you may incur in connection with your use of the Cloud Services. An invoice is issued for those charges at the beginning of each calendar month. Joyent reserves the right to bill you more frequently for fees and charges for use of the Cloud Services if Joyent suspects that your account is at risk of non-payment or is fraudulent.
For Joyent’s Compute Service, you shall be charged in arrears for all billable instances during the previous calendar month. A compute instance is billable from the time it is provisioned, whether by you or by Joyent, until the time it is deleted. Unless and until you delete your compute instance, you shall continue to incur usage fees even if such compute instance is inactive.
For Network File System (“NFS”), you shall be charged in advance for the storage allocated to your NFS storage for the upcoming calendar month. NFS charges start on the date your NFS is provisioned by Joyent. Charges made to your NFS allocation during the calendar month will be reflected on your next invoice as a prorated charge or credit.
All payments must be made without setoffs, counterclaims, deductions or withholdings. Joyent shall not be responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by Joyent. If you choose to pay by credit card, currency exchange settlements shall be based on agreements between you and the provider of your credit card. Late payments hereunder will be subject to a monthly charge of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
All amounts payable to Joyent for Cloud Services are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, sale or use of the Cloud Services or otherwise arising out of the execution or performance of this TOS, and including without limitation, all sales, use, excise, import or export, value added, governmental permit fees, license fees, and customs; provided, however, that you shall have no liability for any net income, net worth or franchise taxes assessed on Joyent.
Joyent reserves the right to change its fees and charges for the Cloud Services at any time. Any such changes will be effective when such changes are posted on the Joyent website, unless we indicate otherwise. Similarly, we may introduce pricing and charges for new products, features or services at any time by posting on the Joyent website.
8. NO REFUNDS
All charges are non-refundable unless expressly stated otherwise, or otherwise provided by applicable law.
9. If you are delinquent on your payment, Joyent may suspend or terminate your access to the Cloud Services
We reserve the right to suspend or terminate your access to and use of the Cloud Services if you are delinquent on your account.
10. Your cancellation of Cloud Services
You may terminate your use of the Cloud Services at any time by following the procedures below:
As soon as you delete an instance or service, you will lose all Customer Content on that instance or service. As a reminder, you are responsible for backing up all Customer Content you use with the Cloud Services. Termination of the Cloud Services by you will not alter your obligations to pay all charges due to Joyent.
For Compute Service, you may cancel your service at any time by deleting your billable instances through the Joyent Cloud Portal (currently at: my.joyentcloud.com). Stopping an instance does not stop the incurring of your usage fees. You must delete the compute instance to stop incurring usage fees. The final charges for your compute instances will be included on the invoice issued at the beginning of the next calendar month.
For Network Storage (“NFS”), you may cancel your service by submitting a support request (currently at: help.joyent.com) to have your NFS share deleted. Your final invoice, issued at the beginning of the next calendar month, will include a prorated credit reflecting the cancellation.
11. Support Services
Premium Support Services are available to you if you elect to enroll and subject to the applicable terms and conditions in the support services policy.
12. Service Level Agreement (“SLA”)
Your use of the Cloud Services are subject to the terms and conditions of our SLA which can be found at: http://joyent.com/company/policies/cloud-hosting-service-level-agreement.
13. Modifications to and Discontinuation of Cloud Services:
A. Cloud Services. We may modify or discontinue the Cloud Services including adding, removing or changing features or functionality of the Cloud Services from time to time. We will make information available regarding any material change to or discontinuation of the Cloud Services. B. APIs. We may modify or discontinue any APIs to the Cloud Services from time to time. C. TOS, SLA, AUP and Policies. We reserve the right to modify the terms and conditions of our TOS, SLA and Policies (including, but not limited to, our Security and Privacy Policy and Acceptable Use Policy) from time to time. We will make information available regarding any material changes.
14. Intellectual Property Rights
The Cloud Services, including all Intellectual Property Rights therein and thereto, and any modification thereof, are and shall remain the exclusive property of Joyent and its licensors. You shall not take any action that jeopardizes Joyent’s or its licensors’ proprietary rights or acquire any right in the Cloud Services or Joyent’s Confidential Information, except the limited rights expressly granted in this TOS. “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (i) rights associated with works of authorship throughout the universe, including, but not limited to, all exclusive exploitation rights, copyrights, neighboring rights, moral rights and mask-works, (ii) trademark, trade dress, and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the universe.
You hereby grant to Joyent a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Cloud Services any suggestions, enhancement requests, recommendations or other feedback related to the Cloud Service TOS provided by you to Joyent.
15. Indemnification
You agree to hold harmless and indemnify Joyent, and its subsidiaries, affiliates, officers, agents, and employees, advertisers or partners, from and against any third party claim arising from or in any way related to Customer Content, your use of the Cloud Services, or violation of these TOS, AUP or any other actions connected with your use of the Cloud Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, settlements, litigation costs and reasonable attorneys’ fees, of every kind and nature. In such a case, Joyent will provide you with written notice of such claim, suit or action and reasonable assistance at your cost.
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE CLOUD SERVICES IS AT YOUR SOLE RISK. CLOUD SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ANY USE OF THE CLOUD SERVICES IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM USING THE CLOUD SERVICES. JOYENT MAKES NO, AND HERERBY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTE, AS TO THE CLOUD SERVICES OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED. JOYENT DOES NOT WARRANT THAT THE OPERATION OF THE CLOUD SERVICES WILL BE COMPLETELY SECURE, ERROR FREE OR UNINTERRUPTED, OR THAT ALL ERRORS WILL BE CORRECTED. YOU ASSUMES ALL RISK OF DELAYS OR INTERUPTIONS IN ACCESS TO OR USE OF THE CLOUD SERVICES RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS TO ACCESS THE CLOUD SERVICES, AND JOYENT SHALL HAVE NO LIABILITY FOR ANY SUCH DELAYS OR INTERUPTION.
17. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL JOYENT OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, OR FOR COST OF PROCURMENT OF SUBSITUTE SERVICES, ARISING OUT OF OR IN ANY WAY RELATED TO THIS TOS OR THE CLOUD SERVICES. SUCH LIMITATION ON DAMAGES INCLUDES, BUT IS NOT LIMITED TO, LOST GOODWILL, LOST PROFITS, LOSS OF DATA OR SOFTWARE OR WORK STOPPAGE, REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BROUGHT, EVEN IF JOYENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS TOS. JOYENT’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS TOS OR THE CLOUD SERVICES, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT YOU PAID TO JOYENT DIRECTLY ATTRIBUTABLE TO THE JOYENT CLOUD SERVICE PROVIDED UNDER THIS TOS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY UNDER THIS TOS. JOYENT SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY CUSTOMER CONTENT OR THIRD PARTY SOFTWARE. THE FOREGOING LIMITATION OF LIABILITY IS INDEPENDENT OF, AND SHALL NOT BE DEEMED TO MODIFY JOYENT’S OBLIGATION UNDER ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS TOS.
18. Export Compliance and Excluded Data
You acknowledge and agree that the Cloud Services are subject to applicable export control and trade sanctions laws, regulations, legislative and regulatory requirements, rules and licenses (collectively “export laws”), including without limit those of the U.S. (e.g., the sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (31 CFR Part 500 et seq.), the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) administered by the US Department of Commerce’s Bureau of Industry and Security (BIS), laws and regulations targeting proliferation activities, and the restricted persons lists maintained by the US Government including but not limited to the Denied Persons List, Unverified List, Entity List, Specially Designated Nationals List, Debarred List and Non-proliferation Sanctions). You agree to comply with these export laws and agree that you alone are responsible for ensuring compliance with export laws. In particular, but without limitation to the foregoing, you will not, and will obtain assurances that none of your affiliates, employees, contractors, agents or users will not, use, sell, resell, export, re-export, import dispose of, disclose or otherwise deal with the TOS, directly or indirectly, to any country, destination or person without first obtaining any required export license or other governmental, legislative or regulatory approval, and completing such formalities as may be required by the export laws. You further shall not do anything that would cause Joyent to be in breach of the export laws.
For clarity, you are solely responsible for compliance relating to the manner in which you choose to use the Cloud Services, including your transfer, processing and provisioning of your Customer Content or any other data, content or software to your end users and any control laws of the country in which the Cloud Services are rendered or received by you. Customer Content, software or any of your solution that you provide in connection with the Cloud Services will not (i) be classified or listed on the U.S. Munitions list; (ii) contain defense articles or defense services; or (iii) contain ITAR-related data (items (i) — (iii) collectively, the “Excluded Data”).
19. Notices
19.1. Notices to You. Notices by Joyent may be given to you under this TOS in any of the following manners: a) by sending notices to your email address registered with your Joyent account; b) by overnight courier, personal delivery, or registered or certified mail; or c) posting such notices on the Joyent website. Notices will be effective upon posting or when sent, as applicable.
19.2. Notices to Us. Notices by you to Joyent must be given in either of the following manners: a) by facsimile to (415) 788-3010; or b) by overnight courier, personal delivery, or registered or certified mail to: Joyent, Inc., Attn: TOS, One Embarcadero Center, 9th Floor, San Francisco, CA 94111. Notices are effective 3 business days after being sent.
20. Entire Agreement
This TOS, AUP, SLA and including any policies or amendments that may be presented to you from time to time constitute the entire agreement between you and Joyent and shall govern your use of the Cloud Services, including any prior (written or verbal) offers and statements.
21. Governing Law
The Terms of Service and the relationship between you and Joyent, solely relating to the delivery and use of the Cloud Services, shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Joyent agree to submit to the personal and exclusive jurisdiction of the courts located within the County of San Francisco, California.
22. Nature of Relationship
The Terms of Service do not create or imply any partnership, agency or joint venture between you and Joyent.
23. Feedback, Comments and Questions
We are always looking for ways to improve our services. If you have feedback, comments and/or questions regarding the Cloud Services, please feel free to contact us at:
Joyent, Inc. One Embarcadero Center, 9th Floor San Francisco, CA 94111
