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.
- "Applicable Law" means all applicable laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over MegaHostIt and Customer.
- "Documentation" means written, published information accessible at www.MegaHostIt.com/ as updated from time to time.
- "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.
- "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.
- "Login Credentials" means any user IDs, passwords, authentication keys or security credentials that enable Customer's access to and management of the MegaHostIt Services.
- "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.
- "MegaHostIt Partner" means a third party reseller or distributor authorized by MegaHostIt to sell MegaHostIt Services.
- "MegaHostIt Services" means MegaHostIt's services, a current list of which is located at www.MegaHostIt.com/.
- "Service Term" means the Initial Service Term (as defined below) plus any Renewal Term(s) (as defined below).
- "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.
- "Third Party Product" means any non-MegaHostIt-branded products and services (including hardware) and non-MegaHostIt-licensed software products.
- "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.
- "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.
- "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.
- "Users" means any users that access Your content or that use the MegaHostIt Services under Customer's Login Credentials.
ACCESS TO MegaHostIt SERVICES
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
- 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.
- 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.
- 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").
- 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.)
- 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]