When Accepted by Ceygate Inc., the Order submitted by the Customer creates a contract between the Customer and Ceygate Inc., consisting of the Order, the applicable Service Description and these Terms of Service. An Order is “ Accepted ” by Ceygate Inc. when (i) with respect to Orders submitted online, Ceygate Inc. provides Services in response to the Order or bills the Customer for payment and (ii) with respect to Orders reduced to writing and signed on an approved Ceygate Inc. form, when an authorized representative of Ceygate Inc. executes and delivers such form signed by Customer.
- Ceygate Inc. will provide, and Customer will purchase and pay for, the Services specified in the Order for the service fees specified in the Order and the applicable Service Description (the “ Service Fees ”).
- In connection with any Hosting Services, Customer will not use storage space in excess of the storage limits established for the Services in the Service Descriptions, plus any storage space purchased by Customer. If Customer uses storage space in excess of such amounts, Ceygate Inc. may, without limiting its other rights or remedies, assess Customer with additional fees.
In connection with any Hosting Services, if Customer’s actual bandwidth usage in any month exceeds the limit in the Service Description, Customer will pay Ceygate Inc. such additional fees as may be specified in the Service Description.
Customer will pay to Ceygate Inc. the Service Fees in the manner set forth in the Order. Ceygate Inc. may increase the Service Fees (i) in the manner permitted in the Service Description and (ii) at any time on or after expiration of the Initial Term by providing ten (10) days prior written notice thereof to Customer. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Ceygate Inc.’s net income). All such taxes will be added to Ceygate Inc.‘s invoices for the Service Fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Service Fees and related charges shall be due and payable within 30 days after the date of the invoice. If any invoice is not paid within 45 days after the date of the invoice, Ceygate Inc. may charge Customer a late fee of $15 for such invoice; in addition any amounts payable to Ceygate Inc. not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
- If Ceygate Inc. collects any payment due at law or through an attorney at law or under advice there from or through a collection agency, or if Ceygate Inc. prevails in any action to which the Customer and Ceygate Inc. are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Ceygate Inc.‘s reasonable attorneys’ fees. If any Customer payment is returned for insufficient funds Ceygate Inc. will impose a processing charge of $25. If more two or more Customer payments are returned for insufficient funds in any 6-month period, Ceygate Inc. in its sole discretion may require alternative payment methods for all future Customer payments including, without limitation, credit card, money order, or cashier’s check.
Hosting Services will commence on the Effective Date indicated in the Order and continue for the duration of the Initial Term. Thereafter, the Order will automatically renew for successive one month periods unless the Order is terminated earlier in accordance with its terms or either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.
- Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events:(i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets.
- Ceygate Inc. may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable or (ii) immediately by giving written notice to Customer, if Ceygate Inc. determines in good faith that Customer’s use of the Customer Website or the Customer Content violates the Acceptable Use Policy.
- Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 3(d), 4, 8, 10, 11, 13 and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Ceygate Inc. may be entitled.
With respect to Non-Prepaid Plans, within 30 days after the termination of this Agreement, Customer will pay the Termination Charge to Ceygate Inc. unless (i) Ceygate Inc. terminated the Order under Section 3(c) or (ii) Customer terminated the Order under Section 3(b). With respect to Prepaid Plans, Customer will pay the Termination Charge as provided in the Service Description. The parties agree that the Termination Charge constitutes consideration for Ceygate Inc.’s time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain. If Customer terminates the Order in accordance with Section 3(b), or if Ceygate Inc. terminates the Order under Sections 3(c)(i) or 12(c), Ceygate Inc. shall return to Customer, and Customer shall accept, as Customer’s sole and exclusive remedy for Ceygate Inc.’s breach of the Order, any Service Fees paid in advance by Customer hereunder attributable to Services not yet rendered as of the date of termination.Customer’s Representations and Warranties.
- Customer hereby grants to Ceygate Inc. a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order:(a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and (b) make archival or back-up copies of the Customer Content and the Customer Website. Except for the rights expressly granted above, Ceygate Inc. is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
Ceygate Inc.’s Acceptable Use Policy.
Customer will abide by, and utilize the Services and the Customer Website only in accordance with, the Acceptable Use Policy (the “Acceptable Use Policy ”) that Ceygate Inc. posts on its Website, as such Acceptable Use Policy may be changed by Ceygate Inc. from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Customer shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access Ceygate Inc.’s Website to determine if Ceygate Inc. has made any changes thereto.
Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Website.
- Customer will cooperate fully with Ceygate Inc. in connection with Ceygate Inc.’s performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer’s performance of its obligations under this Agreement will extend the time for Ceygate Inc.‘s performance of its obligations that depend on Customer’s performance on a-day-to-day basis. Customer will notify Ceygate Inc. of any change in Customer’s mailing address, telephone, e-mail or other contact information.
- Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Customer Website and any goods or services described therein, as well as any rules, terms or conditions of use.
- Customer will provide Ceygate Inc. with a registered domain name for the Customer Website, or, upon Customer’s request and subject to Ceygate Inc.’s Domain Name Registration Terms and Conditions https://www.eglobaldomains.com ), the provisions of which are incorporated herein by this reference, Ceygate Inc. will register an Internet domain name on behalf of Customer.
- Because the Hosting Services permit Customer to electronically transmit or upload content directly to the Customer Website, Customer shall be fully responsible for uploading all content to the Customer Website and supplementing, modifying and updating the Customer Website. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Website are compatible with the hardware and software used by Ceygate Inc. to provide the Hosting Services, as the same may be changed by Ceygate Inc. from time to time. Specifications for the hardware and software used by Ceygate Inc. to provide the Hosting Services will be available on Ceygate Inc.’s Website. Customer shall periodically access Ceygate Inc.’s Website to determine if Ceygate Inc. has made any changes thereto. Ceygate Inc. shall not be responsible for any damages to the Customer Content, the Customer Website or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Website to be compatible with the hardware and software used by Ceygate Inc. to provide the Hosting Services.
- Unless the applicable Service Description provides otherwise, Customer is solely responsible for making back-up copies of the Customer Website and Customer Content.
Ceygate Inc. hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable Ceygate Inc. Technology solely for the purpose of accessing and using the Services. Customer may not use the Ceygate Inc. Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Ceygate Inc. to Customer any Ceygate Inc. Technology, and all rights, titles and interests in and to the Ceygate Inc. Technology shall remain solely with Ceygate Inc; Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Ceygate Inc. Technology.
- Ceygate Inc.’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Ceygate Inc. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Ceygate Inc; Ceygate Inc. shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Ceygate Inc. to Customer. Ceygate Inc. may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.
- Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to Ceygate Inc. relating to the Services will be treated as being non-confidential and non-proprietary. Ceygate Inc. may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
Ceygate Inc. represents and warrants to Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by Ceygate Inc. generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Ceygate Inc. within 30 days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Ceygate Inc.’s sole obligation, for breach of the foregoing warranties shall be for Ceygate Inc., at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly Service Fees pro-rated by the number of hours in which the Services have been interrupted. Ceygate Inc. may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
- Ceygate Inc. extends an unconditional money-back guarantee to Customer during the first thirty (30) calendar days of the Initial Term (“30-Day Guarantee”). The 30-Day Guarantee is only available on Plans with a 2 years Initial Term and shall begin upon completion of the setup of the Customer’s Plan. In order to avail itself of the 30-Day Guarantee, Customer must notify Ceygate Inc. by faxing a request with an authorized signature to 94 11 2910749. Within thirty (30) days of receipt, all Services shall be terminated and any fees paid shall promptly be credited to the Customer’s credit card or returned by check.
- Ceygate Inc. represents and warrants to Customer that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by Ceygate Inc. generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Ceygate Inc. within 30 days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Ceygate Inc.‘s sole obligation, for breach of the foregoing warranties shall be for Ceygate Inc., at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted. Ceygate Inc. may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
- The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of Ceygate Inc.’s reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer’s equipment or any third-party equipment not within the sole control of Ceygate Inc.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, CEYGATE INC. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND CEYGATE INC. HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. CEYGATE INC. DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Customer shall defend, indemnify and hold harmless Ceygate Inc., its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “Ceygate Inc. Indemnities”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Ceygate Inc. Indemnities may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content, the Customer Website or any End User’s use of the Customer Content or the Customer Website, (iii) violation by Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Customer’s domain names, the Customer Website, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by Ceygate Inc., (v) claims or actions by third parties relating to or arising out of Customer’s use of the Services, and (vi) any failure of the Customer Content or any aspect of the Customer Website to be compatible with the hardware or software used by Ceygate Inc. to provide the Services, including any damage to Ceygate Inc.’s servers or other hardware caused thereby.
Subject to Section 10, Ceygate Inc. shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Services infringe any United States patent, copyright or trademark existing on the Effective Date, or that Ceygate Inc. has knowingly misappropriated any trade secret or other intellectual property right of any other Person, including any losses, damages or expenses arising from any such claim or suit. Customer agrees to cooperate with and assist Ceygate Inc. in the defense or settlement of any such claim or suit. Customer shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation or assistance requested by Ceygate Inc., but Ceygate Inc. will not be liable for any costs or expenses incurred without its prior written authorization.
- If an injunction, decree or judgment is, or Ceygate Inc. believes in its sole discretion is likely to be, entered providing that Customer may not use the Services as contemplated in this Agreement without violating the intellectual property rights of a third party, Ceygate Inc. may, at its sole option and expense, either (i) procure for Customer the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate this Agreement upon written notice to Customer.
- Notwithstanding Section 12(a), Ceygate Inc. assumes no liability for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by Ceygate Inc. in writing, (iii) the Customer Content, the Customer Website or any content, data or information provided or supplied by an End User, or (iv) Customer’s use of any third-party software provided hereunder. THE FOREGOING DEFENSE AND INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY AND OBLIGATION OF CEYGATE INC., AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES PROVIDED HEREUNDER.
Each party will not, without the prior written consent of the other party, use or disclose to any Person any Proprietary Information of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 13(b), each party will (i) treat the Proprietary Information of the other party as secret and confidential, (ii) limit access to the Proprietary Information of the party to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of the other party to any other Person without the prior written consent of the other party.
- Notwithstanding Section 13(a), the following shall not be considered Proprietary Information:(i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.
- Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law, and, without prejudice to any other remedy available to the other party, shall entitle the other party to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Proprietary Information of the other party (including all copies thereof) in its possession or control.
- During the term of this Agreement and for two years following expiration or termination of this Agreement, Customer will not, directly or indirectly, solicit or recruit the services of any employee of Ceygate Inc. performing services under this Agreement, while such employee is employed by Ceygate Inc. and for a period of six months after such employee has left the employment of Ceygate Inc.
Independent Contractor. Ceygate Inc. and Customer are independent contractors and nothing contained in this Agreement places Ceygate Inc. and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Georgia, except that all arbitration and related proceedings conducted pursuant to Section 15(c) below, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this Agreement THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 15(C) BELOW must be brought in a Georgia state or Federal Court located in Fulton County, Georgia, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.
- Mandatory Arbitration . Notwithstanding Section 15(b) above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by Resolutions Resources Corp. of Atlanta, Georgia (or such other recognized provider of arbitration services agreed upon by both parties) before a single arbitrator, appointed in accordance with such rules. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Atlanta , Georgia . Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
- Headings . The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Ceygate Inc., the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Ceygate Inc. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Ceygate Inc. in its sole discretion, which modifications will be effective upon posting to Ceygate Inc.’s website.
- Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
- Notices .All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Ceygate Inc. may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in Ceygate Inc.’s billing records.
- Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof
- Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Ceygate Inc. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Ceygate Inc. may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
- Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Ceygate Inc.’s records of such execution shall be presumed accurate unless proven otherwise.
- Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
- Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside US in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by US government and any country or organization of nations within whose jurisdiction Customer operates or does business.
- Marketing. Customer agrees that during the term of this Agreement Ceygate Inc. may publicly refer to Customer, orally and in writing, as a customer of Ceygate Inc. Any other public reference to Customer by Ceygate Inc. requires the written consent of Customer.
“ Agreement ” means each contract created between Ceygate Inc. and Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service.
- “ Customer Content ” means all data, graphics, text, names, marks, logos, hypertext links to other Websites and other information incorporated in, transmitted through or published or displayed on the Customer Website.
- “ Customer Website ” means Customer’s site on the World Wide Web portion of the Internet that Ceygate Inc. hosts under this Agreement.
- “ End User ” means any Person who accesses or uses the Customer Website via the Internet.
- “ Ceygate Inc. Technology ” means Ceygate Inc.’s proprietary technology, including, without limitation, Ceygate Inc. services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Ceygate Inc. or licensed to Ceygate Inc. from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Ceygate Inc. Technology conceived, reduced to practice or developed during the term of this Agreement by either party.
- “ Person ” means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.
- “ Proprietary Information” means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.
- “ Order ” means the Order submitted by the Customer to Ceygate
Inc.for Services, whether such Order is submitted online through Ceygate Inc.’s Website or on a written Order form.
- “Prepaid Plan” means Hosting Service provided by Ceygate Inc. to Customer where the Order provides that the Customer must pay for the Hosting Service in advance for the Initial Term. “Non-Prepaid Plan” means any Hosting Service provided by Ceygate Inc. to Customer that is not a Prepaid Plan.
- “Termination Charge” means, with respect to Non-Prepaid Customers only, as of any date of calculation, an amount equal to one hundred percent (100%) of the fees that would become due over the balance of the then-current Term.
- “Terms of Service” means these Terms of Service, as the same may be modified, altered or amended from time to time by Ceygate Inc.
- “Service” means either Hosting Service or Optional Service. “Hosting Service” means the Service provided by Ceygate Inc. in response to an Order whereby Ceygate Inc. provides the Customer with specified connectivity, storage space and bandwidth for the hosting of a Customer Website as more particularly described in the applicable Service Description. “Optional Service ” means any additional Service (other than Hosting Service) Ceygate Inc. may provide in response to an Order, as more particularly described in the applicable Service Description.
- “Service Description” means the applicable documents made available by Ceygate Inc. to Customer to describe the applicable Services at the time the Order is accepted by ceygate Inc.
- “Term” means the duration of any Agreement between Ceygate Inc. and Customer. With respect to Hosting Services, the “Initial Term” is the initial term specified in the Order and the Term continues beyond the Initial Term for any renewal period as specified in Section 3.With respect to Optional Services, the “Term” begins when Ceygate Inc. accepts the Order and ends on the first to occur of (i) Ceygate Inc.’s completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.