The following Terms of Service Agreement applies to all services provided by Moboware, Inc. This includes all services provided under the MacinCloud trademark. This Agreement is between Moboware, Inc. (Moboware) and you, or any entity you represent if you use Moboware on behalf of the entity. For purposes of this Agreement, “MacinCloud” and “Moboware” will be used interchangeably to refer to the legal entity Moboware, Inc.
By using MacinCloud services, you agree to the following Terms of Service Agreement (the Agreement). This Agreement takes effect when you click the “I Accept” check box presented with these terms or, if earlier, when you use any of the services provided by MacinCloud. You represent to MacinCloud that you are lawfully able to enter into contracts (e.g., you are NOT a minor). You also warrant that you are not legally barred from receiving MacinCloud’s services under U.S. Law. MacinCloud reserves the right to modify the Terms of Service Agreement without prior notice.
1. MacinCloud Services
You may access and use MacinCloud services in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of MacinCloud services.
1.2 Scope of Agreement
1.2.1: Third Party Software Utilized by MacinCloud
You acknowledge that MacinCloud utilizes Third Party software to enable the services provided to you through your MacinCloud account. You agree to act in accordance with any and all terms set forth by the Third Party software utilized by MacinCloud.
You further acknowledge that should MacinCloud’s ability to utilize its Third Party software become impaired, MacinCloud may not be able to provide its services to you. Should this happen, MacinCloud is not legally liable for any data loss or inconvenience you may experience.
1.2.2: Transferability of Rights
The rights extended to you by this Agreement are not transferable. You assume liability for any and all acts performed utilizing MacinCloud services under your account.
If you suspect that your MacinCloud account become compromised, you agree to immediately notify MacinCloud.
1.2.3: Where Your Rights Exist
You agree to exercise your rights under this Agreement only on a computer you own or control.
1.3 Consent to Use of Data
1.3.1: Diagnostic Purposes
You consent to MacinCloud’s use of data relating to how you utilize MacinCloud services. MacinCloud agrees to use this data for diagnostic purposes and to improve the user experience offered through MacinCloud. This data may include, but is not limited to: your Internet usage, your processor usage, your download speeds, your storage usage, etc.
1.3.2: Sale of Data or Content
MacinCloud agrees not to sell your data or content to any third party.
1.4 Law Enforcement
MacinCloud will comply with all legally valid court ordered warrants and subpoena requests.
2. Fees and Payment
2.1 All Sales Are Final
All sales are final. For subscription plans, MacinCloud will charge or debit your payment method at the beginning of your subscription, or, if applicable, at the end of your trial period. Billing will continue according to the cycle stated at the time of your order. All subscription plans are renewed automatically until cancellation. You may cancel at any time during your subscription according to MacinCloud’s “Cancellation and Refund Policy” stated below. You will not be notified in advance of impending renewals.
2.2 Pay-As-You-Go Plans
For Pay-As-You-Go plans, MacinCloud will charge or debit your payment according to the plan you have chosen. If your usage exceeds your prepaid amount, your account will be automatically recharged according to the plan you have chosen. Pay-As-You-Go purchases cannot be canceled or refunded. Pay-As-You-Go accounts and credits will expire if you do not log in to your MacInCloud server account for sixty (60) consecutive days. All expired accounts are subject to permanent removal from the server.
2.3 Academic Plans
For Academic plans, users who do not qualify, or who fail to submit the required academic status proof within three (3) calendar days from the initial subscription date will be charged the full price of the subscription plan automatically without prior notice.
2.4 Excess Usage
Login time exceeding your specified login time limit will be charged at one U.S. dollar ($1) per hour. Total login time is calculated daily by summing the user’s total logged in time during that day, and then rounding up to the next whole hour.
2.5 Cancellation and Refund Policy
You may cancel your subscription plan to prevent future charges at any time for any reason. You will be charged for any and all use prior to cancellation.
2.5.1 Credit Card Cancellation
If you selected ‘Credit Card’ as your subscription payment method, you can cancel the subscription by using the “Edit Account” link in your new account email. Alternatively, you can cancel the subscription by logging in to your web account and clicking the “Cancel” link on your “Subscription Dashboard” page (Member > Your Account > Subscription Dashboard).
2.5.2 Paypal™ Cancellation
If you selected ‘Paypal™’ as your subscription payment method, you can cancel the subscription through your personal Paypal™ account at Paypal.com.
In addition to the cancellation methods described under 4.4.1 and 4.4.2, you may also simply notify MacinCloud of your desire to cancel your subscription by emailing MacinCloud ([email protected]) or submitting a support ticket. Provide your cancellation request with your full name, Mac username, and email address to [email protected], or through the support ticket system (http://www.macincloud.com/help/new-ticket).
When you cancel, you cancel only future charges associated with your subscription. You may cancel at any time, but the cancellation will become effective at the end of your current billing period. You will not receive a refund for the current billing cycle. You will continue to have the same access to and benefits of your MacinCloud account for the remainder of the current billing period.
2.5.4 MacinCloud’s Discretion
MacinCloud reserves the right to issue refunds or credits at our sole discretion. If MacinCloud issues a refund or credit, you acknowledge that MacinCloud is under no obligation to issue the same or similar refund in the future.
3. Your Responsibilities
3.1 Your Content
You bear sole legal and other responsibilities for the development, content, operation, maintenance, and use of Your Content. Your Content includes anything you add to or change within your remote desktop accessed through your MacinCloud account. Your Content may include, but is not limited to: text files, media files, installed application files, compiled program files, emails, contact files, web browser history, system configuration files, operating system files, etc.
3.2 Bring Your Own Licenses Model
You agree to the MacinCloud Bring Your Own Software Licenses (BYOSL) model. Under this model, you agree to maintain any applicable licenses and to adhere to the license terms of any software you run while utilizing MacinCloud services. Specifically, with regard to the MacinCloud BYOSL model, you must purchase a software license for ALL the software you use or plan on using, which includes, but is not limited to, the operating system you plan to use. If you did not purchase the software license you are bringing to MacinCloud, you must be able to show that you are in rightful possession of the software license. If you are using software that is open source, a trial version, or a free version, you are responsible for adhering to any Terms of Service or End User License Agreement associated with that software.
MacinCloud reserves the right to ask for proof of your rightful possession of appropriate software licenses. MacinCloud also reserves the right to limit or terminate your access to MacinCloud services if it is found that you are not utilizing your software in accordance with the software licenses you bring under the MacinCloud BYOSL model.
If you do not Bring Your Own Software License for the software you use on MacinCloud, MacinCloud reserves the right to terminate your MacinCloud account and refuse you access to MacinCloud services.
3.3 Third Party Software Programs and Third Party Content
3.3.1 Use of Third Party Software Programs
MacinCloud services may provide you access to multiple Third Party Software Programs (SDKs, web browsers, OpenOffice, FTP clients, etc.). These Third Party Software Programs may be open source software or trial versions of commercially available software programs. MacinCloud anticipates that you will access additional Third Party Software Programs to meet your needs. You agree that your use of any and all Third Party Software Programs is at your own risk. You also agree that you alone are responsible for adhering to any and all terms associated with any and all Third Party Software Programs accessed while utilizing MacinCloud services.
3.3.2 Accessing Third Party Content
MacinCloud anticipates that you will access the Internet and other Third Party Content while utilizing MacinCloud services. Third Party Content may include, but is not limited to: website content, video game content, email and SMS content, etc. MacinCloud has no legal liability for any Third Party Content you encounter while utilizing MacinCloud services.
3.4 Unlawful Activity
You agree to abstain from all unlawful activity arising from the use of MacinCloud services. This includes, but is not limited to: intellectual property infringement, image misappropriation, hacking, fraud, phishing, or any other illegal or unlawful activity.
MacinCloud reserves the right to revoke your access to any and all MacinCloud services if it is suspected or discovered that any illegal or unlawful activities were perpetrated while utilizing MacinCloud services. MacinCloud likewise reserves the right to revoke your access to any and all MacinCloud services if it is suspected or discovered that any illegal or unlawful content is or has been stored under your MacinCloud account while utilizing MacinCloud services.
3.5 Software Developers
MacinCloud anticipates that MacinCloud services will be utilized for the purpose of software development, as well as for the purpose of providing other services (e.g., web hosting). You own all right, title, and interest in any source code, executables, software products, etc. developed by you.
MacinCloud is not responsible and has no legal liability for any software developed using MacinCloud services. MacinCloud is also not responsible and has no legal liablity for any services provided while utilizing MacinCloud services.
You agree not to include or reference MacinCloud in any End User License Agreement or Terms of Service Agreement between you and any user accessing your software or services.
You agree that you alone are responsible for any warranties or agreements associated with software developed utilizing MacinCloud services. You likewise agree that you alone are responsible for any warranties or agreements associated with services provided by you while utilizing MacinCloud services.
3.6 Problems With Your Account
You agree to immediately report to MacinCloud any problems or issues you may have with your MacinCloud account. You likewise agree to immediately report to MacinCloud any suspicious activity that occurs in conjunction with your MacinCloud account.
3.7 Trial Accounts
If you are utilizing MacinCloud services as part of a trial account offered by MacinCloud or a MacinCloud Affiliate, you acknowledge that, you are still responsible for the terms of this Agreement, in its entirety. Additionally, all trials are reserved for first time customers only and may be revoked or granted at the discretion of MacinCloud.
MacinCloud agrees to reasonably maintain the hardware that supports the services provided by MacinCloud. MacinCloud agrees to take reasonable precautions against system outages and data loss. MacinCloud also agrees to take reasonable steps to protect MacinCloud service users from security breaches.
You acknowledge and agree that despite MacinCloud’s reasonable efforts, it is impossible for MacinCloud to guard against all circumstances that may affect your access to, and usage of, MacinCloud services, or which may result in data loss. You agree that you are responsible for properly configuring and using any software accessed while utilizing MacinCloud services. You also agree that you are responsible for taking your own steps to maintain appropriate security, protection and backup of Your Content.
You agree to abstain from engaging in any activities while utilizing MacinCloud services that could compromise the security of the MacinCloud system architecture. Such activities include, but are not limited to: installing or utilizing any torrent clients or P2P software. You agree that if it is discovered that you are engaging in any activity that could reasonably be construed as a security risk, your MacinCloud account privileges may be terminated without notice.
MacinCloud anticipates the periodic need to upgrade its hardware and services. MacinCloud agrees to take reasonable steps to ensure the security of Your Content as well as uninterrupted access to MacinCloud services during these upgrades. MacinCloud agrees to take reasonable steps to notify you when the need to upgrade arises. You acknowledge that interruptions in your access to MacinCloud services may arise. You agree that Macincloud has no legal liability for of any kind, including loss of access or data you may experience as the result of an upgrade.
5. General Warranties
You agree and acknowledge the inherent risks that are associated with remote computing. You agree that you completely assume all of these risks and that MacinCloud is not legally liable to you for any reason, including but not limited to, data loss, content loss, revenue loss, business opportunity loss, profit loss, or any other loss you may experience in connection with MacinCloud services.
You will indemnify and hold harmless MacinCloud, MacinCloud’s Affiliates, and Licensors from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out your use of MacinCloud services.
MacinCloud is not liable for any delay or failure to perform under this Agreement where the delay or failure results from a cause beyond Macincloud’s reasonable control.
MacinCloud services are provided “as is.” MacinCloud, MacinCloud’s Affiliates, and Licensors make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding MacinCloud services including any warranty that MacinCloud services will be uninterrupted, error free or free of harmful components, or that any content, including your content or any Third Party Content, will be secure or not otherwise lost or damaged. Except to the extent prohibited by law, MacinCloud, MacinCloud’s Affiliates, and Licensors disclaim all warranties, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, and any warranties arising out of any course of dealing or usage of trade.
5.3 Limitations of Liability
MacinCloud, MacinCloud Affiliates, or Licensors will not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, goodwill, use or data), even if a party has been advised of the possibility of such damages. Further, neither MacinCloud nor any MacinCloud Affiliates or Licensors will be responsible for any compensation, reimbursement, or damages arising in connection with: your inability to use MacinCloud services; the cost of procurement of substitute goods or services; any investments, expenditures, or commitments by you in connection with this Agreement or your use of or access to MacinCloud services; or any unauthorized access to, alteration of, or the deletion, destruction, damages, loss or failure to store any of your content or other data.
5.4 MacinCloud Intellectual Property
You acknowledge that the marks associated with MacinCloud services (e.g., “MacInCloud”) are the intellectual property of MacinCloud. You likewise acknowledge that MacinCloud’s business structure and server setup include trade secrets, and other proprietary technology belonging to MacinCloud. You agree to take no action or attempt to reverse engineer MacinCloud technology. You agree not to infringe the intellectual property of MacinCloud. Such infringement may include, but is not limited to: using MacinCloud’s trademarks, reverse engineering MacinCloud’s business structure or server setup, infringing one or more of MacinCloud’s patents, etc.
5.5 Choice of Law Provisions
Should a dispute arise under this Agreement, you agree that this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws rules.