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1. This Hosting Services
Agreement ("Agreement"), is the controlling document for all
Customer’s purchase and use of all Hosting Services and facilities,
including but not limited to Web Hosting Services, Dedicated Server
Hosting Services, Managed Dedicated Server Service, Disaster
Recovery Services, Data Backup Services, Virtual Datacenter Services,
Mail Server Services and the Server Colocation Hosting Services (collectively,
the "Services"), as described in the online Order Form or
Manual Order Form, that Customer executes and Cgest S.A., Rua do
Passal, 13, 4700-076 Braga, Portugal, (“Cgest”)
accepts. Customer must accept the terms of this Agreement in order
to use the Services. Cgest may, at its sole discretion, modify any
of the terms and conditions contained in this Agreement and any
policy or guideline incorporated by reference. All modifications to
this agreement and related agreements are effective upon posting of
the revisions on the Cgest Web site (the "Site"). Customer’s
continued use of the Services subsequent to Cgest's posting of any
modifications will be considered as Customer’s acceptance of the
modifications.
2. Cgest has no control
over, and accepts no responsibility for, the content of the
information passing through Cgest’s host or colocated computers, (the
“Cgest Network”). EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11
BELOW, Cgest (a) MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESSED
OR IMPLIED, FOR THE SERVICES AND EQUIPMENT IT IS PROVIDING, AND (b)
DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT
OR FITNESS FOR A PARTICULAR PURPOSE. Use of any information obtained
via the Cgest Network is at Customer’s own risk. Cgest specifically
denies any responsibility for the accuracy or quality of information
obtained through its services. Cgest shall not be liable for any
delay or failure in performance due to Force Majeure, which shall
include without limitation acts of God, labor disputes, change in
law, regulation or government policy, riots, war, fire, epidemics,
acts or omissions of vendors or suppliers, equipment failures,
transportation difficulties, or other occurrences which are beyond
Cgest’s reasonable control.
3. The Cgest Acceptable
Use Policy (“Use Policy") states the general policies and
procedures for use of the Services. Cgest’s Customer Privacy
Statement (“Privacy Statement”) describes how Cgest collects,
stores, processes and uses information associated with Customer’s
use of the Services. The Use Policy and the Privacy Statement are
posted within the Cgest Web site located at http://www.cgest.com (or
such other location as Cgest may specify) and may be updated from
time-to-time. CUSTOMER SHOULD CAREFULLY READ THE USE POLICY. BY
USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THE
USE POLICY AND ANY MODIFICATION OF THE USE POLICY. Cgest MAY
TERMINATE CUSTOMER’S ACCOUNT FOR ANY VIOLATION OF THE USE POLICY OR
THIS AGREEMENT.
4. It is the
responsibility of the customer that all material and data placed on
Cgest’s hosting equipment be in a "server-ready" condition,
requiring no additional action by Cgest. Cgest will make no effort
to validate any customer information for content, correctness or
usability as the customer will have direct access to accomplish
these actions. Customer must have the necessary knowledge to create
and maintain a Web site or additional skills required for the
services being used. Cgest can provide this knowledge or customer
support outside of the Services if desired by the customer.
5. Customer agrees that
they will not exceed the bandwidth, storage, or E-mail usage limits
as specified in the online Order Form or Manual Order Form. If
Customer exceeds any agreed upon bandwidth, storage, or E-mail usage
limits, Cgest may, in its sole discretion, assess Customer with
additional charges, suspend the Service if such action violates our
Use Policy, or terminate this Agreement if required. If Cgest elects
to take any corrective action, Cgest will not refund any prepaid
fees. Customer’s use of Customer’s account and access to it is
Customer’s responsibility.
6. Cgest assumes no
responsibility for any encrypted data that is sent to, collected on,
or retrieved from any Cgest server or equipment. The technology used
to encrypt data being transmitted to or from Cgest’s servers will be
licensed from a third party and Cgest makes no claims or warranties
regarding the viability, integrity, or robustness of the encryption
used. Further, Cgest is not responsible for the success or failure
of the Secure Server to properly encrypt data. By using the Secure
Server, Customer assumes the risk that the encryption algorithm may
be broken so that the data being transmitted is visible to others.
Cgest assumes no responsibility for any commercial transactions
attempted or completed involving any Cgest service or third party
software and other products and services designed to enable such
transactions used by Customer. Customer’s rights and obligations
with respect thereto are subject solely to any agreement(s) between
Customer and third party.
7. NEITHER PARTY SHALL
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT
OR THE SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY
SUCH DAMAGES FOR LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES,
MISDELIVERIES OR SERVICE INTERRUPTIONS. Notwithstanding anything to
the contrary stated in this Agreement, Customer’s sole remedies for
any claims relating to this service or the Cgest Services are set
forth in Section 11 below.
8. Any Internet Protocol
numbers (“IP Numbers”) assigned to Customer by Cgest in
connection with the services shall be used only in connection with
the service and are the sole property of Cgest. In the event
Customer discontinues use of the Services for any reason, or this
Agreement expires or is terminated for any reason, customer’s right
to use the IP Numbers shall terminate.
9. Cgest will invoice
the Setup Charge(s), if applicable, as part of the first monthly
billing. Billing of the Monthly Fee will commence when Cgest is
prepared to provide Customer password and login information,
enabling installations of Customer’s data files on the Cgest server,
or the Colocation server is connected to the Cgest Network. Customer
will pay all charges for Services in advance as agreed to on the
order form for the Services. If Customer chooses to pay by credit
card when registering for Services, Customer authorizes Cgest to
charge Customer’s credit or debit card to pay for any charges that
may apply to Customer’s account. Cgest may accumulate any
supplemental charges, as described in the Order Form, that Customer
incurs in Customer’s use of the Services ("Supplemental Charges")
until the charges exceed 5,00€ and then charge Customer’s card.
Customer must notify Cgest of any changes to Customer’s card account
(including, applicable account number or cancellation or expiration
of the account), Customer’s billing address, or any information that
may prohibit Cgest from charging Customer’s account. If Customer
chooses to be invoiced for Services, Cgest will send an invoice to
Customer for the Services for the period for which Customer has
registered for the Services. Cgest may also send periodic invoices
to Customer for any applicable Supplemental Charges associated with
Customer’s use of the Services or technical services provided at
customer’s request. Customer will pay to Cgest the amount indicated
in each invoice by the due date reflected on the invoice. Cgest
reserves the right to change the rates for Services by notifying
Customer 30 days in advance of the effective date of the change.
Services may be canceled only upon 30 days’ advance written notice.
10. If payment is
returned to Cgest unpaid, Customer is immediately in default and
subject to a returned payment charge of not less than 25,00€ from
Cgest. If Customer fails to pay any fees and taxes within 10 days
from the applicable due date for credit card or invoice payments,
Cgest will assess late charges equal to the lesser of 2.5% per month
or the maximum allowable under applicable law. Customer’s failure to
fully pay any fees and taxes within 10 days after the applicable due
date is a material breach of this Agreement, justifying Cgest in
suspension or termination of its Services and terminating this
Agreement for the services being provided. Such. interruption does
not relieve Customer of the obligation to pay the Monthly Fee. Only
a written request to terminate Customer’s service relieves Customer
of the obligation to pay the continuing Monthly Fee and any
subsequent billings. Accounts in default are subject to an interest
charge on the outstanding balance of the lesser of, 2.5% per month,
or the maximum rate permitted by law. If Cgest terminates for
Customer’s material breach, Customer must still pay past due fees
plus interest. Customer is responsible for any costs Cgest incurs in
enforcing collection, including reasonable attorneys' fees, court
costs, or collection agency fees. If Customer reinstates Services,
Customer must pay any fees associated with reinstating Services. In
the event of early cancellation of a Term Commitment, Customer will
be required to pay 75% of Cgest’s Monthly Fee for each month
remaining in the Term Commitment.
11. The Service Level
Agreement (“SLA”) for the services, which is made a part of
this Agreement, is set forth within Cgest’s web site located at
http://www.cgest.com (or such other location as Cgest may specify)
and may be updated from time-to-time. Cgest reserves the right to
amend the SLA from time to time, effective upon posting of the
revised SLA to the web site or other notice to Customer. Provided,
that in the event of any amendment resulting in a material reduction
of the SLA’s service levels or credits, Customer may terminate this
Agreement without penalty by providing Cgest written notice of
termination during the 30 days following posting of such amendment.
The SLA sets forth Customer’s sole remedies for any claim relating
to the services, including any failure to meet any guarantee set
forth in the SLA.
12. Cgest may, at its
sole discretion, investigate any reported violation of this
Agreement, or its policies or any complaints and take any action
that it deems appropriate and reasonable under the circumstance to
protect its systems, facilities, customers or third parties. Cgest
will not access or review the contents of any e-mail or similar
stored electronic communications except as required or permitted by
applicable law or legal process.
13. Cgest may restrict
or remove from its servers or any related equipment, or colocated
servers any content that violates this Agreement or related policies
or guidelines, or is otherwise objectionable or potentially
infringing on any third party's rights or that potentially violates
any laws or potentially exposes Cgest to civil or criminal liability
or public ridicule. If Cgest becomes aware that Customer has
possibly violated this Agreement, or any related policies or
guidelines, third party rights or laws, Cgest may immediately take
corrective action, as it deems appropriate. It is Cgest’s policy to
terminate repeat violators. Cgest will not refund to Customer any
fees Customer paid in advance of the corrective action.
14. To comply with
applicable laws and lawful governmental requests, Cgest may access
and disclose any information it considers necessary or appropriate,
to comply with such requests. Cgest may report any activity that it
suspects violates any law or regulation to appropriate law
enforcement officials, regulators, or other appropriate third
parties. To the extent any inconsistency exists between any terms of
Cgest’s Customer Privacy Statement and Cgest’s right to disclose
under this section, Cgest’s right to disclose under this section
will control.
15. Customer agrees to
release and hold harmless, and agrees to indemnify Cgest (and their
respective employees, directors and representatives) against any and
all claims, actions, proceedings, suits, liabilities, damages,
settlements, penalties, fines, costs or expenses (including,
reasonable attorneys' fees and other litigation expenses) incurred
by Cgest, arising out of or relating to any breach of this Agreement
or the related agreements referenced herein.
16. Customer represents
and warrants that he/she has full authority to enter into this
agreement and is at least 18 years of age. Customer further
represents it is not located in or associated with any country
subject to United States embargoes or listed on the United States
Treasury Departments list of specially designated nationals or
listed on the United States Commerce Department denied persons list
or entities list.
17. THE LAWS OF
PORTUGAL GOVERN THIS AGREEMENT, WITHOUT REFERENCE TO RULES GOVERNING
CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE
BROUGHT IN THE COURT OF BRAGA, PORTUGAL.
AGREED AND
ACCEPTED BY CUSTOMER:
Printed Name:
_________________________________________________________
Signature:
_________________________________________________________
Title:
_________________________________________________________
Company Name:
_________________________________________________________
Address:
_________________________________________________________
Telephone:
_________________________________________________________
Fax:
_________________________________________________________
E-Mail Address:
_________________________________________________________
Date:
_________________________________________________________
Please
send by Fax: +351
253 62 35 30
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