The following Terms of Use apply to ALL Gate.com customers:
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Gate.com Services
Gate.com’s services include, but are not limited to:
- any act of preparing, setting up, connecting, maintaining, terminating, or reconnecting customers' account (including all billing data and the space on the particular Web server that Gate.com provides to customers);
- any use by customers, or any access provided to customers by Gate.com, of computing, telecommunications, software, information, hardware, and equipment;
- any act, or provision of any service, by Gate.com to customers, related to Web hosting and domain name registrations (including server usage and technical support), regardless of duration and whether paid for or not;
- any provision by Gate.com to customers, of any space, Internet connectivity, or electrical power;
- any access or use related to the Gate.com’s website, including the website itself;
- any other service mentioned in the TOU;
- any other service provided by Gate.com to customers, whether used or not;
- any other Gate.com services that are used by customers, whether offered or provided by Gate.com to customers.
Gate.com reserves the right to amend, add, or discontinue any of the services offered and to add, delete, suspend or modify the terms and conditions of those services at any time, at its sole discretion, and to determine whether and when any such changes will apply to either or both existing and future customers.
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Modifications
Gate.com may at its sole discretion discontinue, upgrade, replace, modify, or change in any way, without limitation, any offered service, and/or any software, application, program, data, hardware, equipment, or portions or components thereof, used to provide customers with Gate.com’s services. Certain changes to Gate.com’s services may affect the operation of customers' personalized applications and content. Each customer is solely responsible, and Gate.com is not liable, for any and all such personalized applications and content, except as expressly agreed to by Gate.com. Gate.com may but is not obligated to provide customers with notice of any such modifications.
Ownership of Account
The legal owner of a customer account with Hostway is the legal entity whose name is listed in Hostway's database as the owner. In the event of any inconsistency, the order of precedence is as follows:
- Company or organization listed on the account in Hostway's database;
- Individual who executed the Order Form or Agreement for Hostway's services; then
- Individual who is the cardholder of the credit card that paid the most recent invoice for the account.
With regards to domain names, the listed Registrant of a domain name is the legal owner of that domain name. However, the ownership of a particular domain name is independent of the ownership of the customer account, even if that domain name is associated with the primary website hosted on the customer account. Customers will fully cooperate with and abide by any and all of Hostway's security measures and procedures in the event of any dispute over ownership of customers' websites and accounts with Hostway.
Email Accounts
All email accounts (including, but not limited to POP email accounts) that have not been logged into for a period of 4 consecutive months or more shall be deemed abandoned and Gate.com shall have the right to delete the email account (“Abandoned Mailbox”) and/or all emails residing in such Abandoned Mailbox (“Abandoned Emails”). At least 2 weeks in advance, Gate.com shall send to the master email account a notice that the Abandoned Mailbox and/or the Abandoned Emails shall be deleted if the user or customer does not log into the Abandoned Mailbox within 2 weeks.
Gate.com has the right to delete all content stored in any of customer’s spam folders or email accounts for 30 days or more.
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Illegal Use
Gate.com’s services and servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Additionally, in purchasing Gate.com services, all customers certify that they and/or the organization they represent in procuring services from Gate.com are not, nor have been designated, a suspected terrorist as defined in Executive Order 13224; are not owned or controlled by a 'suspected terrorist' as defined in Executive Order 13224; and are not on, are not a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all updates thereto.
Spamming
Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming") is prohibited, regardless of whether or not it overloads a server or disrupts service to Hostway's customers. The term "spamming" also includes, but is not limited to, maintaining an open SMTP policy, engaging in spamming using the service of another ISP or IPP and referencing in the spam a website hosted on a Hostway server, and selling or distributing software (on a website residing on a Hostway server) that facilitates spamming. Hostway requires that all customers’ emails and mailing lists (if any) are in full compliance with the Can-Spam Act as outlined here: http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business and with Canada’s Anti-Spam Law as outlined here: http://www.canlii.org/en/ca/laws/stat/sc-2010-c-23/latest/sc-2010-c-23.html. Hostway also prohibits the use of third party/purchased mailing lists. The first violation of this policy will result in a written warning. A second violation will result in immediate suspension of the customer's email services. Subsequent violations may result in customer's account being closed and a minimum fine of $200 accessed. Hostway reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision. System and Network Abuse
Violations of system or network security are prohibited and may result in criminal and civil liability. Examples of system or network security violations include, without limitation the following: unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting. -
Viruses and Other Destructive Activities
Use of Gate.com’s services or equipment for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any customer to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use Gate.com’s services and equipment (or any connected network, system, service or equipment) or conduct their business over the Internet.
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Child Pornography
The use of Gate.com’s services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Gate.com is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, its services.
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Privacy
Gate.com is concerned with the privacy of on-line communications and websites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, Gate.com urges its customers to assume that all of their on-line communications are insecure. Gate.com cannot take any responsibility for the security of information transmitted over Gate.com’s facilities. Additional details on privacy and Gate.com’s use of customer information can be found in Gate.com’s Privacy Statement located here.
Customer Responsibility
Customers are required to use the Gate.com network responsibly. This includes respecting the other customers of Gate.com. Gate.com reserves the right to suspend and/or cancel service with any customer who uses the Gate.com network in such a way that adversely affects other Gate.com customers. While Gate.com may monitor its service electronically to determine that its facilities are operating satisfactorily, as a general practice, Gate.com does not monitor its customers' communications or activities to determine whether they are in compliance with the TOU. However, when Gate.com becomes aware of any violation of the TOU or other user agreements, Gate.com may take any action to stop or correct such violation, including, but not limited to, denying access to Gate.com’s services and equipment or to the Internet. In addition, Gate.com may take action against a customer or an end-user of such customer because of the activities of such end-user. Gate.com anticipates that customers who offer Internet services will cooperate with Gate.com in any corrective or preventive action that Gate.com deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of Gate.com policy and Gate.com reserves the right to take any such action even though such action may affect other customers of the Gate.com customer. Actions Taken by Gate.com
The failure by a customer to meet or follow any of the TOU is grounds for account deactivation. Gate.com will be the sole arbiter as to what constitutes a violation of the TOU. Gate.com reserves the right to suspend or remove any account without prior notice and to refuse service to anyone at any time. When Gate.com becomes aware of an alleged violation of its TOU, Gate.com will initiate an investigation. During the investigation, Gate.com may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, Gate.com may, at its sole discretion, restrict, suspend, or terminate a customer's Web hosting account and/or pursue other civil remedies. If such violation is a criminal offense, Gate.com will notify the appropriate law enforcement authorities of such violation. An unlisted activity may also be a violation of the TOU if it is illegal, irresponsible, or constitutes disruptive use of the Internet. Gate.com does not issue credits for outages incurred through service disablement resulting from TOU violations. Violators of the policy are responsible, without limitations, for the cost of labor to rectify any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Gate.com.
Furthermore, Gate.com reserves the right to suspend or terminate any customer’s account if so ordered by an authoritative body of competent jurisdiction, or if the continuing provision of services to customer may result in a legal or material risk to Gate.com, or if Gate.com is not legally permitted to provide services to customer. Indemnification
Customers agree to protect, defend, hold harmless, and indemnify Gate.com, any third party entity related to Gate.com (including, without limitation, third party vendors), and Gate.com’s executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and affiliates, from and against any and all liabilities, losses, costs, judgments, damages, claims, or causes of actions, including, without limitation, any and all legal fees and expenses, arising out of or resulting in any from the customer's use of Gate.com’s services. Disclaimer
The Gate.com services are provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. Gate.com expressly disclaims any representation or warranty that the Gate.com service will be error-free, secure or uninterrupted. No oral advice or written information given by Gate.com, its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. Gate.com and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service. Termination for Bankruptcy or Insolvency
If a customer becomes insolvent or any bankruptcy petition is filed by the customer, or any third party against the customer, Gate.com may immediately terminate provision of Gate.com’s services to the customer without prior notice or penalty. Such customer consents to the grant of relief from any automatic stay of proceedings against Gate.com in such event. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO THEORY OF LAW OR EQUITY, WILL GATE.COM (INCLUDING, WITHOUT LIMITATION, GATE.COM’S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING GATE.COM’S SERVICES, BE LIABLE FOR THE LOSS OF A DOMAIN NAME, OR ANY BUSINESS OR PERSONAL LOSS INCLUDING DATA LOSS, REVENUES DECREASE, EXPENSES INCREASE, COSTS OF SUBSTITUTE PRODUCTS AND/OR GATE.COM SERVICES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF ANY USE OF, OR ANY INABILITY TO USE, ANY GATE.COM SERVICES EVEN IF GATE.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.GATE.COM’S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOU OR GATE.COM’S SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY GATE.COM OR GATE.COM’S REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, WILL BE LIMITED TO, AND WILL NOT EXCEED, THE ACTUAL DOLLAR AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS DURING THE 3-MONTH PERIOD PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE. -
Backup of Data
Except as described in the specific terms of any backup services ordered by a customer from from Gate.com, all customers are solely and entirely responsible, and Gate.com is in NO way responsible, for the management and backup of all customer data, and all updates, upgrades, and patches to any software that they use in connection with Gate.com services.
Third Party Licenses
Gate.com makes a reasonable effort to provide customers with services, technologies, developments, and innovations (collectively "Technologies"), part of which may be licensed, or co-branded, from or by, third party entities. However, Gate.com makes NO warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of such Technologies. Moreover, Gate.com specifically disclaims all warranties of merchantability and fitness for a particular purpose for such Technologies. Furthermore, no customer will hold Gate.com liable in any way for the revocation of any license, which has been licensed to Gate.com. The use of the Technologies obtained from or through Gate.com, or any other referred third party, whether directly or indirectly, is at the sole risk of customers. Customers understand and agree that their use of such Technologies may be subject to further agreements, policies, terms, and conditions provided by the third party vendor which are in addition to those contained or referenced in this Agreement. Non-Gate.com Products
Any mention of non-Gate.com products by Gate.com, its employees, or any third party entity related to Gate.com is for information purposes only and does not constitute an endorsement or recommendation by Gate.com. Gate.com disclaims any and all liabilities for any representation or warranty made by the vendors of such non-Gate.com products or services. -
Gate.com’s Intellectual Property
Customers will not, without Gate.com’s express written consent, copy, reproduce, republish, or otherwise use any material, in whole or in part, that is located on Gate.com’s website, and customers will not use any of Gate.com’s trademarks, service marks, copyrighted materials, or other intellectual property without Gate.com’s express written consent. Customers will not, in any way, misrepresent their relationship with Gate.com, attempt to pass themselves off as Gate.com, or claim that customers are Gate.com.
Assignment
Customers may not assign or deleGate.com their rights or obligations under the TOU or other agreement for Gate.com’s services, either in whole or in part, without the prior written consent of Gate.com. Minimum Age Requirement
Gate.com customers must be at least 18 years of age. Any individual under the age of 18 years ("Minor") must have a parent or guardian accept the TOU in order for the Minor to become a Gate.com customer. A parent or guardian who accepts the TOU on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the TOU, including the timely and full payment of the charges for Gate.com services, and such primary liability will continue even when the Minor has attained the age of 18, unless the parent or guardian obtains Gate.com’s express written consent to the contrary. Any acceptance of the TOU or any other agreement for Gate.com’s services will be deemed null and void to the extent that Gate.com will not be liable in any way as a result of the Minor's age or legal incapacity or the Minor's use of Gate.com’s services. Dispute Resolution
Any and all claims or disputes arising out of or relating in any way to the TOU, the relationship between customer and Gate.com (each a “party” and together “the parties”) under the TOU, or the services provided under the TOU (including but not limited to requests for specific performance) shall be submitted to mandatory binding arbitration. The arbitration shall be administered by the American Arbitration Association (“AAA”) and conducted pursuant to the AAA’s then current Commercial Arbitration Rule (the “Rules”). The arbitration hearing shall be conducted in the English language and shall take place in Chicago, Illinois before a single arbitrator selected in accordance with the Rules. The parties shall each bear the costs of the arbitration in equal shares. The parties shall also bear their own legal fees (including but not limited to attorneys’ fees) in connection with the arbitration, and the arbitrator(s) may not reallocate the legal fees in conjunction with their award. Any award rendered by the arbitrator shall be confirmed in a state or federal court of competent jurisdiction in Chicago, Illinois and each party hereby irrevocably submits and consents to, and waives any objection to, personal jurisdiction and venue in such court. -
Governing Law and Severability
The TOU, and any other agreement for Gate.com services, will be governed by and construed in accordance with the laws of the State of Illinois, USA without reference to its conflicts of laws principles. Any litigation or arbitration between a customer and Gate.com will take place in Illinois, and the customer will consent to personal jurisdiction and venue in that jurisdiction. If any provision or portion of the TOU or other Gate.com agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the TOU or the agreement will continue in full force and effect.
Force Majeure
Gate.com will not be liable for delays in its performance of the TOU or Gate.com services caused by circumstances beyond Gate.com’s reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively "Force Majeure"). Gate.com will make reasonable efforts to reduce to a minimum and mitiGate.com the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of customers for the payment of money due. Waiver and Amendment
Any waiver, modification, or amendment of any provision of the TOU or other agreement for Gate.com services, initiated by a customer, will be effective only if accepted in writing and signed by an authorized representative of Gate.com. -
Independent Contractors
Nothing in this TOU will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between Gate.com and its customers. Each of Gate.com and its customers will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.
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Construction and Interpretation
Wherever in this TOU the masculine, feminine, or neuter gender is used, it will be construed as including all genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires. The division of the TOU into sections/paragraphs, and the insertion of headings/captions, are for convenience of reference only and will not affect the construction or interpretation of the TOU. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the construction or interpretation of the TOU.
Complete Agreement and Exclusivity
The TOU, and/or any other specific agreement for Gate.com services, constitutes the complete understanding and agreement between Gate.com and its customers. Except when expressly agreed to the contrary in signed writing by an authorized representative of Gate.com, the TOU supersedes any other written (including digitized/computerized) agreement, oral agreement, and/or agreement by conduct. This TOU, and/or any other specific agreement for Gate.com services is between Gate.com and its customers only and will not confer any rights in any third party except as otherwise expressly provided by Gate.com. -
Proxy Services
For domain name registration services where a third party provider is named in your place (“Proxy Services”), you agree that if Gate.com or the third party provider does not receive a response to a communication sent to you within 48 hours of such communication being sent, then the sender of such communication may, at its sole discretion, suspend or terminate the Proxy Services. If Gate.com provides the particular Proxy Services, then Gate.com reserves the right to suspend or terminate any or all of the services provided to you entirely in such event.
Revocation
Gate.com reserves the right to immediately suspend, terminate, transfer, or modify your domain name registration for reasons including (i) your breach of this Agreement, (ii) your use of the domain name registration services in a manner that is in contradiction of applicable laws or customarily acceptable usage policies of the Internet industry, including sending mass unsolicited commercial advertisements or otherwise spamming, making or sending threats, harassments or obscenities, (iii) your use of the domain name registration services in connection with unethical activity, (iv) Gate.com’s receipt of an order from a court of competent jurisdiction or an arbitration award, or (iv) any other grounds that impose a legal risk to Gate.com as determined at its sole reasonable discretion. You agree that you shall not receive any refund whatsoever for any such suspension, termination, transfer, or modification to your domain name registration. |
