MegaHostit Terms of Service

This agreement between 2817279 ONTARIO LTD., an Ontario limited liability company , and you ("You," "Your" or "Customer") consists of (a) these Terms of Service, (b) the Additional Terms (as defined below) and (c) any MegaHostit Order Form (as defined below), if applicable (collectively, this "Agreement"). This Agreement governs Your use of the MegaHostit Services (as defined below).

BY EXECUTING A MEGAHOSTIT ORDER FORM, CREATING AN ACCOUNT (AS DEFINED BELOW), USING MEGAHOSTIT SERVICES OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT, AND YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO MegaHostIt THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, IN WHICH CASE, THE TERM "CUSTOMER" WILL REFER TO SUCH ENTITY.

Customer may gain access to the MegaHostIt Services by (a) executing an MegaHostIt Order Form or (b) creating an online account at http://www.MegaHostIt.com/ (an "Account"), which includes and requires clicking a box indicating Customer's acceptance of this Agreement. If Customer elects to purchase access to the MegaHostIt Services through Customer's Account, Customer will, among other things, select the following from the options presented: (i) the applicable MegaHostIt Services; (ii) the Service Term (as defined below); and (iii) a payment plan and method.

MegaHostIt reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement (including the Additional Terms) and to impose new or additional rules, policies, terms, or conditions on Your use of the MegaHostIt Services. MegaHostIt will communicate changes to this Agreement by posting the new version of this Agreement on its website at www.MegaHostIt.com/terms-service.html or as otherwise determined by MegaHostIt in its sole discretion, at which time such updated Agreement will be immediately effective. Your continued use of any MegaHostIt Services after such notification of changes to this Agreement will constitute Your acceptance of any and all such changes. Notwithstanding the foregoing, MegaHostIt will notify You of any material changes to this Agreement.

  1. DEFINITIONS

    1. "Additional Terms" means the Service Specific Terms, the Support Policies, the Data Processing Agreement, the Privacy Policy, the Third Party Terms and any other terms and conditions disclosed to Customer in an MegaHostIt Order Form, if applicable, through Customer's Account or in connection with accessing any MegaHostIt Services, each of which are hereby incorporated by reference.
    2. "Applicable Law" means all applicable laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over MegaHostIt and Customer.
    3. "Documentation" means written, published information accessible at www.MegaHostIt.com/ as updated from time to time.
    4. "Infringement Claim" means any third party claim that the use by Customer solely of the MegaHostIt Services, as used as contemplated in this Agreement, infringes any patent, trademark or copyright of a third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of Customer's actions) under the laws of the United States.
    5. "Intellectual Property Rights" means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors' rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
    6. "Login Credentials" means any user IDs, passwords, authentication keys or security credentials that enable Customer's access to and management of the MegaHostIt Services.
    7. "MegaHostIt Order Form" means a written ordering document executed by an authorized representative of each of MegaHostIt and Customer that incorporates these Terms of Service by reference. The MegaHostIt Order Form will specify the MegaHostIt Services that Customer is purchasing, payment obligations related thereto and the duration of the Service Term.
    8. "MegaHostIt Partner" means a third party reseller or distributor authorized by MegaHostIt to sell MegaHostIt Services.
    9. "MegaHostIt Services" means MegaHostIt's services, a current list of which is located at www.MegaHostIt.com/.
    10. "Service Term" means the Initial Service Term (as defined below) plus any Renewal Term(s) (as defined below).
    11. "Support" means the support services provided by or on behalf of MegaHostIt for the applicable MegaHostIt Services purchased by Customer pursuant to an MegaHostIt Order Form or through Customer's Account, which are described in the Support Policies.
    12. "Third Party Product" means any non-MegaHostIt-branded products and services (including hardware) and non-MegaHostIt-licensed software products.
    13. "Updates" means any updates, enhancements, modifications, improvements, patches and/or upgrades to any MegaHostIt Services that MegaHostIt generally makes available to its customers for no additional charge.
    14. "Usage Data" means any and all information reflecting the access or use of the MegaHostIt Services by or on behalf of Users, including, but not limited to, visit-, session-, or stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing.
    15. "User Data" means all applications, files, data, information or other content uploaded to or published, displayed or backed up through the MegaHostIt Services by Customers, Users or MegaHostIt (when acting upon Customer's instructions as part of an MegaHostIt Service), excluding Usage Data.
    16. "Users" means any users that access Your content or that use the MegaHostIt Services under Customer's Login Credentials.
  2. ACCESS TO MegaHostIt SERVICES

    1. EVALUATION. If You access the MegaHostIt Services on an evaluation or beta basis (the "Evaluation Service"), then You may use the Evaluation Service only for evaluation purposes and for a period of thirty (30) calendar days, beginning on the date MegaHostIt provides Customer with Login Credentials, unless otherwise specified in writing by MegaHostIt (the "Evaluation Period"). Notwithstanding any other provision of this Agreement, MegaHostIt provides the Evaluation Service (i) free of charge and without Support and (ii) "AS IS" without indemnification or warranty of any kind but without prejudice to the statutory rights of consumers based in the EU. The Support Policies do not apply to the Evaluation Service. Also, certain features or services described in the Service Specific Terms may not be available for the Evaluation Service. Continued use of the MegaHostIt Services after the Evaluation Period requires that Customer (A) register for the applicable MegaHostIt Services through Customer's Account or by executing an MegaHostIt Order Form and (B) submit the applicable payment. Upon expiration of the Evaluation Period, You will not have access to the Evaluation Service or to any User Data therein.
    2. ACCESS TO MegaHostIt SERVICES. Customer may access and use the MegaHostIt Services for which it has registered (via an MegaHostIt Order Form or through Customer's Account) solely for its own benefit and only in accordance with this Agreement. As a condition to using the MegaHostIt Services, Customer must set up an authorized Account with Login Credentials. Customer will provide accurate and complete information in its Account and will update its information as necessary to keep it current. Customer may manage its Account through the MegaHostIt portal available at: www.MegaHostIt.com/. Customer is solely responsible for the security of its and its Users' Login Credentials. Customer will ensure that its Users do not share Login Credentials with others. Customer is responsible for any use that occurs under its Login Credentials, including any activities by Users. If Customer believes an unauthorized person has gained access to Login Credentials, Customer will notify MegaHostIt as soon as possible by contacting Customer Support via chat, phone or by email. Customer will ensure that Users comply with all terms and conditions of this Agreement and Customer remains responsible and liable for the acts and omissions of the Users. If Customer becomes aware of any violation by any User, Customer will immediately terminate that User's access to User Data.
    3. SUPPORT. Subject to the terms and conditions of this Agreement, MegaHostIt will provide support to Customer for the MegaHostIt Services in accordance with the then applicable Support Policy. Customer acknowledges that MegaHostIt is not responsible for technical issues that cannot be identified as being primarily caused by the MegaHostIt Services.
  3. ORDERING

    1. PURCHASES. Customer may purchase the right to access and use the MegaHostIt Services by executing an MegaHostIt Order Form or registering for the applicable MegaHostIt Services through Customer's Account. Purchase of the MegaHostIt Services includes access to any applicable Support during the Service Term.
    2. PURCHASE ORDER. Customer may elect to issue a purchase order to MegaHostIt or an MegaHostIt Partner, as applicable, by indicating its preference to do so on the applicable MegaHostIt Order Form. If Customer so elects to issue a purchase order, Customer must issue such purchase order to MegaHostIt or an MegaHostIt Partner within five (5) business days from the Effective Date of any MegaHostIt Order Form, or MegaHostIt shall have the option to cancel the MegaHostIt Order Form and its terms shall be null and void. Any additional or conflicting terms contained in any Customer purchase order, proposal or other document shall be deemed to be rejected by MegaHostIt without need of further notice of objection, even if such document is acknowledged or accepted by MegaHostIt, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon MegaHostIt.
    3. PAYMENT TERMS. Customer agrees to purchase the right to access and use the MegaHostIt Services for the prices set forth in the MegaHostIt Order Form or, if an MegaHostIt Order Form is not executed, as set forth in MegaHostIt's then-current applicable price list or as provided at checkout when registering for the applicable MegaHostIt Services through Customer's Account ("Fees"). If Customer purchases through an MegaHostIt Partner, all fees and other procurement and delivery terms will be agreed between Customer and the applicable MegaHostIt Partner. Customer will pay all invoices issued by MegaHostIt within thirty (30) calendar days of the date of the invoice or as otherwise set forth in an applicable MegaHostIt Order Form. Except as otherwise provided in this Agreement or as otherwise provided by Applicable Law, all Fees are non-cancelable and non-refundable. Unless otherwise set forth in an MegaHostIt Order Form, if applicable, or in the Service Specific Terms, all monthly or prepaid Fees will be due in advance and all Fees based on actual metered usage of an MegaHostIt Service will be due in arrears. If any payment is more than fifteen (15) calendar days late (including if payment is late due to a credit card chargeback or insufficient funds), MegaHostIt may, without limiting any remedies available to MegaHostIt: (i) terminate this Agreement and/or any applicable MegaHostIt Order Form; or (ii) suspend performance of or access to the applicable MegaHostIt Services, until payment is made current. Customer will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by Applicable Law. All Fees are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the MegaHostIt Services will be paid by Customer. MegaHostIt reserves the right to increase Fees at any time, although increases in Fees for MegaHostIt Services will not go into effect until the next renewal of the Service Term. EXCEPT AS REQUIRED BY APPLICABLE LAW OR AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MegaHostIt IS NOT OBLIGATED TO REFUND ANY FEES OR OTHER PAYMENTS ALREADY PAID, AND ANY CANCELLATION BY CUSTOMER WILL TAKE PLACE AT THE END OF THE APPLICABLE SERVICE TERM.
    4. PAYMENT METHOD. Customer will pay MegaHostIt in accordance with the payment method identified in an MegaHostIt Order Form or as established in Customer's Account, as applicable. All payment method options may include payment (i) by credit card, (ii) through an online account through a third-party provider, such as PayPal. By providing any such credit card, Customer authorizes MegaHostIt to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until Customer notifies MegaHostIt in writing or Customer updates Customer's Account with an alternative, authorized payment method. Customer will provide true, complete and accurate information with respect to the applicable method of payment and agrees to promptly contact MegaHostIt and to otherwise update Customer's Account if any such information needs to be updated. Customer will ensure that Customer has sufficient funds or credit (as applicable) associated with the selected method of payment. Customer understands that the amounts charged or debited may vary and that this authorization will remain in effect until the expiration or termination of this Agreement.
    5. EU CONSUMER POLICY. If You are a consumer based in the EU, You have the right to cancel this Agreement within fourteen (14) calendar days of the date on which You requested the MegaHostIt Services, without giving any reason. To exercise Your right to cancel, You must notify MegaHostIt of Your decision to cancel this Agreement by contacting Customer Support via MegaHostIt Manager or email directed to support channels. To meet the fourteen (14) calendar day deadline provided above, it is sufficient for You to send Your notification concerning the exercise of the right to cancel before the cancellation period has expired. If You cancel this Agreement, we will reimburse to You all payments received from You without undue delay and not later than fourteen (14) calendar days from the day on which we are informed about Your decision to cancel the Agreement. We will make the reimbursement using the same means of payment as You used for the initial transaction, unless You have expressly agreed otherwise; in any event, You will not incur any fees as a result of the reimbursement. If You are a consumer based in the EU and You have agreed to the MegaHostIt Services commencing immediately, You will be required to pay a pro-rated amount of the Fees applicable to the MegaHostIt Services You have requested based on the initial Fees You have paid for the MegaHostIt Services and the date on which You exercise Your statutory right to cancel the Agreement.
  4. CONFIDENTIALITY

    As used in this Agreement, "Confidential Information" means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either MegaHostIt or Customer (the "Disclosing Party") that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) calendar days of disclosure to the other party (the "Receiving Party"); provided, however, that a Disclosing Party's business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. MegaHostIt's Confidential Information includes, without limitation, the MegaHostIt Services, any information related thereto and the Login Credentials. Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is developed independently by the Receiving Party without use of any Confidential Information of the Disclosing Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither MegaHostIt nor Customer will disclose, or permit to be disclosed, the other party's Confidential Information directly or indirectly, to any third party without the other party's prior written consent. Both MegaHostIt and Customer will use commercially reasonable measures to protect the confidentiality and value of the other party's Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party's Confidential Information, in whole or in part: (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by Applicable Law (in which case each party will, if permitted by Applicable Law, provide the other with prior written notification thereof and use its reasonable efforts to minimize such disclosure to the extent permitted by Applicable Law). Both MegaHostIt and Customer agree to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Both MegaHostIt and Customer will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
  5. INTELLECTUAL PROPERTY

    1. OWNERSHIP. This Agreement contains a limited right to access and use the MegaHostIt Services during a Service Term, not a transfer of title to the MegaHostIt Services. All Intellectual Property Rights in the MegaHostIt Services belong exclusively to MegaHostIt and its licensors. Customer is granted no licenses of any kind to any Intellectual Property Rights other than as expressly granted herein. Customer will not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of MegaHostIt in and to the Intellectual Property Rights. Customer will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the MegaHostIt Services as delivered to Customer. Except as expressly authorized in this Agreement, You will not make any copies or duplicates of any MegaHostIt Services without the prior written permission of MegaHostIt. To the extent Customer provides any suggestions, comments or other feedback related to the MegaHostIt Services to MegaHostIt or its authorized third party agent(s) ("Feedback"), Customer hereby grants MegaHostIt a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to copy, display, distribute, perform, modify and otherwise use such Feedback or subject matter thereof in any way and without limitation.
    2. RESTRICTIONS. Except as otherwise expressly provided under this Agreement, Customer will have no right, and Customer specifically agrees not to: (i) transfer, assign, sublicense or resell the MegaHostIt Services to another person or entity, and Customer acknowledges that any attempted transfer, assignment, sublicense or resale will be void; (ii) make error corrections to, or otherwise modify or adapt, the MegaHostIt Services or create derivative works based upon the MegaHostIt Services, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the MegaHostIt Services to human-readable form, except to the extent otherwise expressly permitted under Applicable Law notwithstanding this restriction; (iv) disclose, provide or otherwise make available trade secrets contained within the MegaHostIt Services in any form, to any third party without the prior written consent of MegaHostIt; or (vi) use or access the MegaHostIt Services (A) to develop any software application or similar products and services, (B) to spam or distribute malware, (C) in a way that could harm the MegaHostIt Services or impair anyone else's use of it, (D) in a way intended to work around the MegaHostIt Services' technical limitations, recurring fees or usage limits, (E) to violate any rights of others, (F) to try to gain unauthorized access to, test the vulnerability of, or disrupt the MegaHostIt Services or any other service, device, data account or network or (G) in any application or situation where failure of the MegaHostIt Services could lead to the death or serious bodily injury of any person or to severe physical or environmental damage.
  6.  

    1. PROTECTED INFORMATION. You represent and warrant that You will not submit any unencrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any unencrypted personally identifiable information subject to regulatory protection under Applicable Law (collectively "Unencrypted Protected Information") to MegaHostIt, whether as part of the MegaHostIt Services or otherwise. You represent and warrant that You will not submit any encrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any encrypted personally identifiable information subject to regulatory protection under U.S. law (collectively "Encrypted Protected Information") to MegaHostIt, whether as part of the MegaHostIt Services or otherwise, unless we have entered into a Business Associate Agreement ("BAA").
  7. USER DATA

    1. USER DATA RIGHTS. As between Customer and MegaHostIt, Customer retains all right, title, and interest in the User Data, except for the limited license expressly granted by Customer to MegaHostIt in this Section 7. Customer hereby grants to MegaHostIt a royalty-free, fully paid up, worldwide, sublicensable, non-transferable (except as set forth in Section 19(j)) right and license to copy, display, distribute, modify and otherwise use the User Data, solely as necessary to provide the MegaHostIt Services to Customer. Customer further acknowledges that MegaHostIt may collect Usage Data and may aggregate and/or anonymize Usage Data to use for statistical purposes and share samples of such aggregated and/or anonymized Usage Data with other third parties. (For German customers only: If Customer is from Germany, MegaHostIt may only collect and aggregate anonymized Usage Data to use for statistical purposes and share samples of such aggregated and anonymized Usage Data with other third parties.)
    2. CUSTOMER REPRESENTATIONS AND OBLIGATIONS. Customer will only use the MegaHostIt Services with User Data to which it has full right, title or license. Customer represents, warrants and covenants that its use of the MegaHostIt Services and related backup to and storage of User Data complies and will comply with all Applicable Laws, including those related to data privacy, data security, international communication and the exportation of technical, personal or sensitive data. Customer will not, and will take commercially reasonable steps to ensure that each User does not, post content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is illegal, unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; or (v) contains any information or content that You do not have a right to make available under any law or under contractual or fiduciary relationships. Customer represents and warrants that the User Data does not and will not violate any third-party rights, including any Intellectual Property Rights, and rights of publicity and privacy. If Customer becomes aware that any of the User Data or any User's access to or use of the User Data violates this Agreement, Customer will take immediate action to remove the applicable part of User Data or suspend the User's access. Customer will ensure that Customer's use of the MegaHostIt Services complies at all times with Customer's privacy policies and all Applicable Laws, including any encryption requirements. Customer is solely responsible for User Data. Except as provided in the Data Processing Agreement, Customer is responsible for protecting the security of User Data, including any access to User Data that Customer provides to its employees, customers or other third parties, and when it is in transit to and from the MegaHostIt Services. Customer must take and maintain commercially reasonable steps regarding the security, protection and backup of User Data, which might include the use of encryption technology to protect User Data from unauthorized access. Customer is responsible for providing any necessary notices to Users and for obtaining any legally-required consents from Users concerning their use of the MegaHostIt Services. Customer is responsible for any losses or other consequences arising from Customer's failure to encrypt or back up User Data. Customer will have and maintain appropriate policies and procedures for cybersecurity and to ensure compliance with its regulatory or legal obligations.

      If you believe your copyright is being infringed by content on the MegaHostIt network, please submit a notice to [email protected]

  1. TERM AND TERMINATION.

    1. TERM. This Agreement will be effective upon Customer's execution of an MegaHostIt Order Form or when Customer otherwise clicks a box agreeing to this Agreement (during Account creation or otherwise) and, unless earlier terminated as set forth in this Agreement, continue in effect for the initial service term identified on the MegaHostIt Order Form or selected in the Account, as applicable (the "Initial Service Term"). Unless otherwise set forth in an MegaHostIt Order Form, if applicable, this Agreement will automatically renew for additional periods of equal duration (each, a "Renewal Term"), unless either party gives notice of non-renewal at least thirty (30) calendar days' prior to the end of the then-current term (or less if such Service Term is monthly).
    2. TERMINATION. In addition to any other termination rights set forth in this Agreement, (i) MegaHostIt can terminate this Agreement immediately upon written notice to Customer if Customer breaches Section 7(b) and (ii) either party can terminate this Agreement upon written notice to the other party if (A) such other party breaches this Agreement (other than breaches of Section 7(b)) and fails to cure such breach within thirty (30) days of receipt of written notice thereof or (B) such other party (1) becomes insolvent, admits in writing its inability to pay debts as they mature or makes an assignment for the benefit of creditors; (2) becomes subject to control of a trustee, receiver or similar authority or any bankruptcy or insolvency proceeding; or (3) an equivalent or similar event or proceeding occurs in respect of the Customer in any jurisdiction (in each case of (1), (2) and (3), which, if initiated involuntarily, is not dismissed within forty-five (45) calendar days of its institution).
    3. EFFECTS OF TERMINATION. THE TERMINATION OF THE MegaHostIt SERVICES WILL CAUSE SUCH MegaHostIt SERVICES TO CEASE FUNCTIONING AND RESULT IN CUSTOMER NOT BEING ABLE TO ACCESS ANY USER DATA. FOLLOWING TERMINATION OF THIS AGREEMENT, MegaHostIt WILL DESTROY ALL USER DATA (WITHOUT PREJUDICE TO SECTION 9(d) BELOW). The termination of this Agreement for any reason will not affect: (i) the obligations of Customer and MegaHostIt to account for and pay to one another any amounts for which they are obligated by virtue of transactions or events which occurred prior to the effective date of termination; or (ii) any other obligation or liability which either Customer or MegaHostIt has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination. The following Sections will survive any expiration or termination of this Agreement: 1, 3(b), 3(c), 4, 5, 6(c), 7(a), 9(c), 9(d), 11, 12, 13, 14, 15 and 19.
  2. SUSPENSION

    1. GENERALLY. MegaHostIt may suspend Your use of the MegaHostIt Services if MegaHostIt reasonably determines: (i) Customer, or Customer's use of the MegaHostIt Services, is in breach of this Agreement; (ii) Customer fails to address MegaHostIt's request to take action as specified in Section 7(b); (iii) Customer's use of the MegaHostIt Services poses a security risk to the MegaHostIt Services or other users of the MegaHostIt Services; (iv) suspension is warranted pursuant to MegaHostIt's receipt of a subpoena, court order, or a request by a law enforcement agency; or (v) as otherwise expressly set forth in this Agreement. MegaHostIt will give You notice before MegaHostIt suspends You, subject to Applicable Law, and unless MegaHostIt reasonably determines that providing the notice presents risk of harm to the MegaHostIt Services or any person or property. MegaHostIt is entitled to obtain injunctive relief if Customer's use of the MegaHostIt Services is in violation of any restrictions set forth in this Agreement.
    2. EFFECT OF SUSPENSION. You will remain responsible for all fees incurred before or during any suspension. You will not be entitled to any service credits under any applicable Service Level Agreement that You might have otherwise accrued during the period of suspension.
  3. ALLOCATION OF RISK

    Customer acknowledges and agrees that MegaHostIt has set its prices and entered into this Agreement and permitted Customer's access to the MegaHostIt Services in reliance upon the disclaimers of warranty and the limitations of liability in this Agreement, that the same reflect an allocation of risk between MegaHostIt and Customer (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between MegaHostIt and Customer. If Customer is subject to Applicable Laws that prohibit Customer from indemnifying MegaHostIt as set forth herein or prohibit Customer from entering into the risk allocation arrangement set forth herein, then the terms of such provisions of this Agreement will apply to Customer only to the fullest extent permitted by Applicable Law, it being understood that Customer and MegaHostIt each wish to enforce the provisions of this Agreement to the maximum extent permitted by Applicable Law.
  4. DISCLAIMER.

    EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, MegaHostIt SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTY, TERMS OR CONDITIONS WHATSOEVER. ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY MegaHostIt AND ITS LICENSORS, TO THE EXTENT PERMITTED BY APPLICABLE LAW. NEITHER MegaHostIt NOR ITS LICENSORS WARRANT THAT THE MegaHostIt SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE MegaHostIt SERVICES WILL BE COMPATIBLE WITH CUSTOMER'S DEVICES, OR THAT THE MegaHostIt SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND SAVE TO THE EXTENT SUCH ALLOCATION OF RISK IS NOT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF MegaHostIt SERVICES IS WITH CUSTOMER. IN NO EVENT WILL MegaHostIt OR ITS LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS CUSTOMER MAY HAVE RELATED TO ITS USER DATA.

  5. LIMITATION OF MegaHostIt LIABILITY

    1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MegaHostIt BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, LOST SAVINGS, LOST OR CORRUPTED USER DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OF USER DATA, LOST REVENUE, BUSINESS INTERRUPTION, OR LOSS OF CAPITAL (IN EACH CASE, WHETHER DIRECT OR INDIRECT) OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY MegaHostIt SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF MegaHostIt HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR LIABILITY ARISING OUT OF MegaHostIt'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, THE AGGREGATE LIABILITY OF MegaHostIt IN CONNECTION WITH ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY MegaHostIt SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO: (i) THE AMOUNT PAID TO MegaHostIt FOR THE MegaHostIt SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE DAMAGED PARTY NOTIFIES THE OTHER PARTY IN WRITING OF THE CLAIM FOR DAMAGES; OR (ii) IF GREATER, SUCH AMOUNT AS IS THE MINIMUM AMOUNT FOR WHICH MegaHostIt WOULD BE LIABLE UNDER APPLICABLE LAW.
    2. FURTHER LIMITATIONS. MegaHostIt's licensors and service providers will have no liability of any kind under this Agreement. Customer may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises. For German customers only Customer may not bring a claim under this Agreement more than eighteen (18) month after the cause of action arises and the Customer obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence.
  6. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY

    1. INDEMNITY FOR MegaHostIt SERVICES. Subject to the remainder of this Section 14, MegaHostIt will defend Customer against an Infringement Claim and indemnify Customer from the resulting costs and damages finally awarded against Customer to that third party by a court of competent jurisdiction or agreed to in settlement; provided that Customer: (i) promptly provides MegaHostIt with notice of any Infringement Claim; (ii) grants MegaHostIt sole control over the claim's defense and settlement, and any related action challenging the validity of the allegedly infringed patent, trademark or copyright; and (iii) reasonably cooperates in response to MegaHostIt's requests for assistance. Customer may not settle or compromise any Infringement Claim without MegaHostIt's prior written consent. Notwithstanding the foregoing, MegaHostIt will have no obligation under this Section or otherwise with respect to any claim or award based on: (i) a combination of the MegaHostIt Services with non-MegaHostIt data, products, business processes or content, including User Data; (ii) use of the MegaHostIt Services for a purpose or in a manner not specified in this Agreement or the Service Specific Terms, or otherwise in a manner for which the MegaHostIt Services were not designed; (iii) any modification of the MegaHostIt Services made without MegaHostIt's express written approval; or (iv) any Evaluation Service. This Section 14(a) states Your exclusive remedy for any Infringement Claims save that where the Customer is a consumer based in the EU, nothing in this Section 14(a) will limit or exclude the Customer's statutory rights except as permitted by Applicable Law.
    2. INDEMNITY FOR THIRD PARTY PRODUCTS. To the extent required or allowed, MegaHostIt will pass through to Customer any indemnities related to Third Party Products, if any. Notwithstanding the foregoing, Customer acknowledges that MegaHostIt is not responsible for the fulfillment of any Third Party Product indemnities or for problems attributable to use of Third Party Products.
    3. REMEDIES. If any component of the MegaHostIt Services becomes, or in MegaHostIt's opinion is likely to become, the subject of an Infringement Claim, MegaHostIt will at MegaHostIt's option and expense: (i) procure the rights necessary for Customer to keep using such component; (ii) modify or replace such component to make it non-infringing; or (iii) terminate this Agreement and refund any pre-paid fees for any MegaHostIt Services pro-rated for its remaining term.
  7. ANTICORRUPTION LAWS

    Customer and MegaHostIt each acknowledge that it is familiar with the U.S. Foreign Corrupt Practices Act (the "FCPA") and agrees to comply with its terms as well as any provisions of local law related thereto. Specifically, Customer and MegaHostIt each are familiar with the provisions of the FCPA prohibiting the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business involving the offering. Customer and MegaHostIt each agree to not violate or knowingly let anyone violate the FCPA and that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA or any other applicable anticorruption or anti-bribery law.
  8. YOUR OBLIGATIONS

    Customer represents and warrants that (a) Customer will use the MegaHostIt Services only for lawful purposes, and will comply with all Applicable Laws and (b) Customer's access to and collection, use, relocation, storage, disclosure and disposition of User Data will comply with all Applicable laws, including without limitation, all privacy and data security laws.
  9. GENERAL PROVISIONS.

    1. PUBLICITY. MegaHostIt must not use a Customer logo or trademark in any way without Customer's prior written approval; provided, however, that MegaHostIt may use Customer's name and logo on MegaHostIt's website and marketing materials solely to identify Customer as an MegaHostIt customer (without revealing any details about the parties' relationship or this Agreement). Customer will reasonably consider serving as a reference for MegaHostIt. If Customer has any issues with any use by MegaHostIt of Customer's name or logo, MegaHostIt and Customer will cooperate reasonably to resolve the issue promptly to Customer's satisfaction.
    2. SEVERABILITY. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this Agreement, and all other provisions will remain in full force and effect.
    3. GOVERNING LAW. Except as otherwise expressly provided herein, this Agreement is governed by the laws of the state of Texas, United States of America (excluding its conflict of law rules). The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts in some countries will not apply U.S. law to some types of disputes. If You reside in one of those countries, then where U.S. law is excluded from applying, the laws of Your country of residence will apply to any dispute or difference arising out of or in connection with the Agreement.
    4. DISPUTE RESOLUTION. Subject to Section 19(e) below, the parties agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined solely and exclusively by binding arbitration before a single arbitrator (the "Arbitrator"). The parties also agree that the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and shall be conducted in Washington, D.C., unless otherwise agreed to in writing by the parties. The parties further agree that this Agreement does not permit a class arbitration, even if the procedures or rules of JAMS (or other dispute-resolution organization or body) would otherwise permit it. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MegaHostIt ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION. NO CLASS ACTION OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION OR OTHER PROCEEDING UNDER THIS AGREEMENT. Either party may initiate arbitration by filing and serving a written demand for arbitration, which must be served on the other party by overnight mail with delivery confirmation to the addresses set forth in this Agreement. The parties covenant and agree that the arbitration hearing shall commence within one hundred eighty (180) calendar days of the date on which a written demand for arbitration is filed by any party hereto (the "Filing Date"). The Arbitrator's decision and award (the "Award") shall be made and delivered within two hundred forty (240) calendar days of the Filing Date, and shall set forth a reasoned basis for the Award. The Arbitrator shall not have the power to award damages in excess of traditional (i.e., benefit of the bargain) compensatory damages in contract and may not award special, liquidated, multiple, punitive, or other damages, and each party hereby irrevocably waives any claim to such damages. In connection with the arbitration proceeding, the Arbitrator shall have the power to allow each party to (i) propound up to five (5) requests for the production of documents, including subparts, and (ii) conduct five (5) depositions of witnesses. Interrogatories may not be propounded by any party, and all discovery must be completed within sixty (60) calendar days after the selection of the arbitration, and no later than one hundred twenty (120) calendar days after the Filing Date. The Arbitrator shall also have the power to issue a subpoena for documents or information to any third-party witness within his or her jurisdiction. The parties agree that the entirety of the arbitration proceedings, including all documents and information produced by any party or non-party, all deposition testimony, and all pleadings, motions, or correspondence exchanged in connection with the arbitration proceeding, shall be kept confidential. Each Party hereby irrevocably agrees and submits to exclusive jurisdiction and venue in the federal district courts in the Eastern District of Virginia for entry of judgment on the Award or for relief in aid of arbitration; except, however, if the federal district courts in the Eastern District of Virginia decline to exercise jurisdiction, each Party agrees and submits to exclusive jurisdiction and venue in the state courts of Fairfax County in the Commonwealth of Virginia for the entry of judgment on the Award. If each of these courts decline to exercise jurisdiction, each party agrees and submits to jurisdiction and venue in any federal or state court located in the Commonwealth of Virginia for entry of judgment on the Award or for relief in aid of arbitration; and if each of those courts decline to exercise jurisdiction, judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking: (i) provisional remedies in aid of arbitration from a court of appropriate jurisdiction; (ii) a temporary restraining order from a court of appropriate jurisdiction related to the purposes of this Agreement; or (iii) relief from a small claims court for disputes or claims within the scope of such court's jurisdiction. If the courts in Your country will not permit You to agree to the arbitration, jurisdiction and venue of the courts described above, then Your local jurisdiction and venue will apply to any dispute or difference arising out of or in connection with the Agreement. For EU consumers only - The European Commission's online dispute resolution platform can be found here: http://ec.europa.eu/odr. MegaHostIt is not obliged to submit to any alternative dispute resolution procedure, other than the arbitration before JAMS contemplated herein.
    5. ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement and understanding between MegaHostIt and Customer regarding the subject matter hereof and supersedes any previous or contemporaneous communications, representations, proposals, commitments, understandings, negotiations, discussions, understandings, or agreements (including non-disclosure or confidentiality agreements), whether oral of written, regarding the same subject matter. In the event of any conflict between these Terms of Service and an MegaHostIt Order Form, if applicable, the terms and conditions set forth in these Terms of Service will govern unless expressly amended in such MegaHostIt Order Form.
    6. WAIVER. The failure by MegaHostIt at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by MegaHostIt will not be deemed a continuing waiver but will apply solely to the instance to which such waiver is directed.
    7. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
    8. NO JOINT VENTURE. This Agreement will not be construed as creating any partnership, joint venture or agency relationship between MegaHostIt and Customer.
    9. ASSIGNMENT. MegaHostIt may freely assign, transfer and/or delegate its rights and obligations under this Agreement but Customer may not assign, transfer and/or delegate its rights and obligations under this Agreement without MegaHostIt's prior written consent (not to be unreasonably withheld). Any attempted assignment or transfer in violation of this Section will be void. Subject to these limits, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
    10. NO THIRD PARTY BENEFICIARIES. Other than as expressly provided in this Agreement, no third-party beneficiaries are intended or will be construed as created by this Agreement.
    11. FORCE MAJEURE. MegaHostIt will not be liable for any delay or failure to perform any obligations under this Agreement due to any cause beyond MegaHostIt's reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war. If such a force majeure event occurs and continues for a period of more than thirty (30) calendar days, either party may terminate this Agreement upon written notice to the other party.
    12. EXPORT COMPLIANCE. Customer may not use or otherwise export or re-export the MegaHostIt Services or any related software or technology except as authorized by United States law and the Applicable Laws of the jurisdiction in which the MegaHostIt Services were obtained. In particular, but without limitation, the MegaHostIt Services may not be exported or re-exported (i) into any U.S. embargoed country or region, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List, Entity List or Unverified List. By using the MegaHostIt Services, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer also agrees that it will not use these products for any purposes prohibited by United States law. Customer is solely responsible for complying with all import, export, and re-export control laws, including but not limited to the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR"). Customer is also solely responsible for any applicable license requirements in connection with the MegaHostIt Services, and MegaHostIt makes no representations or warranties regarding the suitability of the MegaHostIt Services for Customer's compliance with the EAR and/or ITAR.