Terms of Service

Winky Networks, LLC (“Winky” or “we” or “our” or “us”) is in the business of providing technology services, products, and/or solutions (“Service” or "Services"). By using Service, Winky and Client (“you” or “your” or "Clients") mutually agree to be bound by this Terms of Service Policy (“TOS”). This TOS shall be deemed in effect upon the processing of Client’s payment for any Service purchased. This TOS shall apply to all of Client’s customers and/or end users. It is your responsibility to include these provisions in the agreements with your customers. This TOS shall be in effect until terminated upon the mutual agreement of both parties or upon all Service being cancelled. This TOS is subject to change at any time, and all changes will be posted to this page. It is your responsibility to visit this page often to view changes to the TOS. The URL of this page is http://www.winky.net/tos. If you do not agree to the terms of this TOS, you cannot use Service. This TOS was last updated on September 9, 2010.

1. Contact and Billing Information
You agree to provide Winky with accurate contact and billing information including your name, address, email address, phone number, fax number and any other information that may be required to use Service. You agree to monitor your email regularly to ensure proper communication between Winky and Client. You agree to contact Winky in the event that any of your information needs to be updated.

2. Payment
Each Service purchased by Client shall be deemed established on the date Winky receives Client’s first payment for that Service (“Effective Date”). Recurring payments are charged monthly on the same calendar date that corresponds with the Effective Date ("Due Date"). If you purchase a Service on the 31st of a month, then recurring payments are due on the last day of each subsequent month.

You are required to pay your monthly Service charge by the Due Date each month in order to continue Service. In the event payment is not received by the Due Date, Winky shall offer Client a 7 day grace period during which Service will continue and no penalties will be assessed. If payment is not received within 7 calendar days following the Due Date, Client's Service shall be paused due to nonpayment. If Client wishes to resume Service after Service is paused due to nonpayment, Client shall be assessed a $15 late fee in addition to the outstanding monthly charge. If the outstanding payment and late fee is not received within 30 days following the Due Date, Client's Service shall be terminated, and all of Client’s systems and data shall be irrecoverably deleted.

If Client contacts Winky between the 7th and last day of the month following nonpayment and elects to store data until a future date, Client shall be charged a fee of $0.85/GB per month to store their data. The Due Date for data storage charges shall be governed by the same policy for regular Service charges. Client's Service shall remain paused during the entire data storage period and can only be resumed if Client brings the account to current status by paying all outstanding charges including late fees.

When paying by credit card, direct debit, or PayPal, Winky requires monthly Service charges to be paid automatically from the account on file on the Due Date of each month. Client shall be emailed invoices on a monthly basis. Accepted methods of payment are credit card, PayPal, wire transfer, direct debit, check and/or money order. Checks and money orders should be sent seven days or more prior to the Due Date to ensure timely delivery. If any payment method shall fail to process due to insufficient funds, Client will be responsible for all fees incurred by Winky associated to the failed transaction including bank fees, NSF fees, ACH draft fees or overdraft fees.

Along with the first payment, Client shall be required to furnish a copy of a valid form of identification (driver's license, passport, etc). The identification must be scanned and emailed to Winky. This is an extra security measure designed to prevent Client from using a stolen credit card or stolen identification to purchase Service. 3. Bill Disputes & Refunds
If you wish to dispute any charges on your statement, you must contact us to report the dispute. Winky and Client agree to work in good faith and with reasonable judgment in settling billing disputes. You must include sufficient evidence to support your claim. If we find that your dispute is valid, your statement will be adjusted accordingly. Disputes must be filed within 60 calendar days of the date of the statement in question. Out of courtesy, we ask that you contact Winky first before initiating a chargeback with your credit card company.

All payments to Winky are nonrefundable. This includes service fees, bandwidth charges, and any other charges for Service. Client shall not be entitled to any refunds, pro-rated or otherwise, in the event of cancellation of Service, or suspension of Service due to violation of this TOS.

4. Upgrade and Downgrade Service
You may upgrade or downgrade Service at any time by contacting Winky. Upgrades and downgrades include changing a system’s configuration (processors, RAM, storage & network) or adding/removing features to your Service. Upgrades and downgrades shall be implemented in a timely manner, and the new billing structure shall apply starting on the date the upgrade or downgrade is applied.

5. Pausing and Terminating Service
Client may pause Service at any time and resume at a later time. If Client wishes to pause Service, Client’s systems and data shall be suspended and stored in the same state left by Client until Client wishes to resume Service. Client agrees to pay $0.85/month per GigaByte of space that is required to store Client’s systems and data while Service is paused.

Either party may terminate Service by providing written notice to the other via postal mail, email or fax. Please include the name, address and account number of the account in question, and include the date in which you want Service terminated. If Client elects to cancel Service, Client shall not be entitled to any refunds, pro-rated or otherwise for unused monthly Service. Only an authorized account holder may cancel the account. Client agrees to pay all bandwidth overage charges, if applicable, that remain on the account at time of cancellation.

Winky reserves the right to terminate Service and/or terminate this TOS for violating any of our policies or for failure to make payment.

6. Backup
Winky will use reasonable efforts to protect and backup data for clients on a regular basis. However, Winky does not guarantee the existence, accuracy, or regularity of its backup services and, therefore, you are solely responsible for making back-up files in connection with your use of the Services. Winky strongly recommends that you perform your own backup on a regular basis, either to locally attached media or to an online backup destination. By using Service, you indemnify Winky of all damages resulting from your failure to backup data.

7. Bandwidth Usage and Charges for Metered Plans
For metered bandwidth plans, you agree that bandwidth usage shall not exceed the amount allotted for the Service you order. Winky shall monitor Client’s bandwidth usage and provide a usage report on each monthly statement. If Client’s bandwidth usage exceeds the amount allotted for Service ordered, Client agrees to pay $0.25 per GigaByte of bandwidth overage. Both incoming and outgoing traffic are measured in bandwidth usage. Bandwidth allocations cannot be transferred from one Service to another and cannot be carried over to future months.

8. VMware Tools
Client is notified that all Cloud Servers provided by Winky come pre-installed with VMware Tools. VMware Tools is necessary to implement certain advanced features and includes device drivers that improve performance. Removing VMware tools can cause slowed network capability, degraded performance, and system instability. Client agrees not to delete, disable, or corrupt VMware Tools on their servers. Client may update VMware Tools using the built-in updating function. Updates are released periodically by VMware, and a notification is given to the user. Failure to abide by these provisions may result in Service termination.

9. Guarantee
If you elect to cancel Service within 30 calendar days following the Effective Date, you will receive a refund for the unused portion of the first 30 calendar days.

If you purchase more than one Service, the guarantees for all additional Services shall expire 30 calendar days following the Effective Date of the first Service ordered.

To cancel Service and receive a refund for the unused portion, please contact us within the guarantee period.

10. Acceptable Uses
Client agrees to use Service provided by Winky in a legal manner. Client agrees not to use Service provided by Winky to engage in, or to facilitate, any illegal activity, including identity theft, fraud, electronic crime, scams, theft, sexual predation of minors, child pornography, torrenting, piracy, or unauthorized transmission of copyrighted material. Furthermore, you agree not to use Service to facilitate the transmission of SPAM, Unsolicited Commercial Email (UCE), viruses, worms, Trojan horses, malware, or spyware. Any transmission of illegally obtained intellectual material including videos, photos, music, and pirated software is strictly prohibited.

Client agrees to use Service in a reasonable and respectable manner. You may not place excessive burdens on our resources including CPU, memory, storage, and bandwidth. Excessive use of resources shall require Client to upgrade their Service to a higher capacity Service. Winky shall have the final say in what it deems to be an “excessive” use of Service.

Client agrees not to bypass, circumvent, defeat, or disable any security measures put into effect by Winky including firewalls, routers, gateways, servers, password protected accesses, or any other security measure for which Client does not have administrative privileges. You agree not to use Service to hack into, break into, cause harm to, violate the privacy of, or compromise the integrity of, any system or network for which client does not have ownership or administrative privileges. This includes accessing domains, folders, servers, and data that are not the property of Client.

Any violation of the Acceptable Uses shall be met with severe penalties, including, but not limited to, Service suspension/termination, civil penalties, and/or criminal penalties, if applicable. Any illegal activity may be reported to the authorities.

11. Licenses and Intellectual Property
All of the Services provided by Winky including the processes, methods and implementations used to deliver the Services are the exclusive property of Winky Networks, LLC. In addition, all of the information and materials available through Winky.net are the exclusive property of Winky Networks, LLC. Winky grants to Client a non-transferrable, non-exclusive, and royalty-free license to use Service provided by Winky Networks, LLC. This license shall expire upon the termination of the TOS between Winky and Client. You are not permitted to duplicate, resell, or reverse engineer any technology provided to you by Winky without written consent from Winky.

If client migrates his/her existing virtual machine to Winky’s hosted infrastructure, client is responsible for making sure all software including operating systems is properly licensed. Winky does not permit the illegal use of software on any of its systems.

12. Limited Liability & Indemnification
Client acknowledges that Service provided by Winky depends on numerous factors which are beyond Winky’s control. Some of these factors include availability of network connectivity provided by tier-1 and tier-2 carriers, continuous power provided by public utility, backup generators, and uninterruptible power supplies, security breaches committed by third parties, and the proper performance of computer and other electronic equipment. Client acknowledges that interruption of Service and/or loss of data and/or corruption of data can occur due to these factors, and that damages resulting from these factors are difficult to ascertain. Therefore, Client agrees that Winky shall not be held liable for any damages arising from the interruption or malfunction of Service due to factors beyond our control.

Client agrees that Winky’s liability for its own negligence shall never exceed an amount equal to the charges payable by Client for Service during the period of Service interruption. Client agrees that Winky shall not be liable for any special, incidental, and/or consequential damages. Client waives all rights to seek punitive damages and/or pain and suffering damages against Winky.

You agree that Winky shall have no liability, whatsoever, for damages caused by (1) content that you access from the Internet; (2) content that you store on our servers; (3) your inability to properly use or access the Service; (4) any security breaches committed by you and/or a third party; and/or (4) Client’s breach of this TOS. Winky makes no warranties, implied or written, for any of our Services. Winky denies any warranty or merchantability for a specific purpose.

You agree that you will not, under any circumstances, hold Winky Networks, LLC, its employees, its agents, its partners, and/or its affiliates, liable for any damages, losses, or injuries whatsoever. You agree to indemnify, defend, and hold harmless Winky and any affiliated parties from and against any damages, claims, losses, liabilities, demands, suits, actions, legal proceedings, and expenses related to (1) your use of the Service; (2) your breach of any Winky’s policies; and/or (3) any acts or omissions by you.

13. Force Majeure
You agree that Winky is not responsible for any damages, delays, loss of data, and/or loss of business incurred by Client due to fire, riot, strike, war, terrorism, vandalism, cybercrime, theft, natural disaster, delay of carriers and couriers, a breakdown in the chain of supply and/or any other occurrences beyond Winky’s reasonable control.

14. Disclaimers
The Service is provided as-is. Winky is not bound by, and will not honor, any warranties provided by third parties, even if the third party’s services are used in conjunction with Winky’s Service. No warranties made by a third party to Winky shall be passed through to Client. You shall not claim to be a beneficiary of any third party warranty. This disclaimer shall apply to any oral or written statements made by Winky, its employees, its affiliates, or third parties. Client agrees not to rely on such information.

15. Non-Waiver
No waiver of rights under this TOS, or any Winky policy, or agreement between Client and Winky shall constitute a subsequent waiver of this or any other right under this TOS.

16. No Agency
Neither this TOS nor any other agreement between Client and Winky shall constitute the creation of agency, employment, partnership, franchise, or joint venture between Client and Winky. Neither party has the right to enter into any agreement or obligation on behalf of the other.

17. Severability
If any of the terms of this TOS is found to be illegal or unenforceable by any court of law, such term(s) shall be deemed null and void. All remaining terms of this TOS shall remain in effect.

18. Assignment
This TOS may be assigned by Winky to another entity at Winky’s sole and absolute discretion. Under no circumstances shall this TOS be assigned by Client. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.

19. General Provisions
19.1 You represent you have the experience and knowledge to use Service, and you understand and abide by all of the terms of this TOS.
19.2 Winky reserves the right to refuse Service to anyone for any reason.
19.3 You are responsible for the way you use the Service and for all content stored on your systems.
19.4 Anything not stated in this TOS is subject to interpretation at Winky’s sole and absolute discretion.
19.5 California residents agree to pay all applicable taxes, if any shall apply.
19.6 This laws of the State of California shall prevail in enforcing and interpreting this TOS. All disputes shall be brought before a court in the County of Los Angeles, California, and this court shall have exclusive jurisdiction.

20. Survival
The following paragraphs shall survive the expiration or termination of this TOS: Introduction (first paragraph of TOS), 3, 10, 12, and 19.6.