Last updated: March 17, 2021
MASTER SERVICES AGREEMENT
This Master Services Agreement (“MSA”), which includes the agreements, policies, and documents referenced in this MSA, governs the relationship between Hostway Services, Inc. (dba Gate.com) and any persons using the Services (as defined below). Upon the date Client submits an Order Form or starts using the Services (as applicable), Client agrees to be bound by this MSA as updated from time to time in accordance with the amendment provisions herein. Depending on the type of Services applicable, Client may be subject to certain Supplemental Terms as described herein. If there is any conflict between this MSA and such Supplemental Terms, then the Supplement Terms will govern Client’s use of the applicable Services to the extent of the conflict.
This MSA is comprised of the following and includes such further agreements, policies, and documents as referenced in each of the following:
These General Terms apply to all persons using Services.
1.1 Definitions
1.1.1 All other defined terms not listed in this section are defined in their respective sections below or in the applicable Supplemental Terms and apply to the MSA as a whole (and not limited to the section the term is defined in).
“Abuse of Services” means Client’s use of the Services (including making any component of the Services available to Client’s resellers, customers or End Users) in a manner that (a) contravenes applicable laws, including regulations, policies, and rules thereto, (b) creates legal liability or other actual or potential material risk or harm to Gate.com, its Affiliates, Gate.com’s other clients and end users, or Gate.com’s Systems, (c) is a material violation of the MSA, or (d) is generally considered materially objectionable in the Internet community, including but not limited to child pornography, racism, hate speech.
“Affiliate” means any person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such first person, with “control” meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, and “person” broadly construed to include any natural person or any incorporated or unincorporated entity or association, trust, joint venture, joint stock company or other entity.
“Billing Cycle” means the recurring period of time for which Service Fees are payable by Client to Gate.com as specified in the Order Form, Client Portal, or invoice (as applicable).
“Business Day” (or “business day”) means the period from 8:00 A.M. to 5:00 P.M. Central Time on a day which is not a weekend or statutory holiday in Chicago, Illinois, USA.
“Claim” means any claim, demand, action, or proceeding (including law suits and administrative proceedings).
“Client” means the person (individual, company, etc.) named in the Order Form as the Client or, in the absence of Client’s name on such Order Form, the person otherwise using Services.
“Client Account” means the account set up by Gate.com, attributed exclusively to Client, identified by the Client ID, and used for the provisioning and administration of the Services to Client.
“Client Data” means personal information relating to Client and data owned or controlled by Client, including (a) names, addresses, and other personally identifiable information pertaining to Client, (b) usage data collected by Client regarding Client’s own use of Enterprise Services, (c) Client’s content hosted on Gate.com’s Systems, including Client’s Uniform Resource Locators, Web pages and other website data, software and applications, Protected Healthcare Information as such term is further described in the appropriate section below, and (d) any of the same relating to or owned by an End User.
“Client Device(s)” means the personal computer(s), server(s), network and systems owned by Client and installed at Client’s own premises.
“Client ID”, or “customer ID” means the combination of alphanumeric characters designated by Gate.com which (a) is unique to Client, and (b) identifies the Client and the Client Account to Gate.com.
“Client Portal” means Gate.com’s online portal or interface tool (known as Sitecontrol™, Client Portal™, or such other account management tool as Gate.com may designate) for Client to manage the Client Account and associated Services.
“Effective Date” means The Effective Date of each Order Form is the later of the date that the Order Form is executed by Client and submitted to Gate.com or the date that the Services are made available to Client (in whole or in part).
“End User” means any third party who accesses or uses the Services via Client or any Affiliate of Client.
“End User Data” means personal information relating to an End User and data owned or controlled by the End User, including (a) names, addresses, and other personally identifiable information pertaining to End User, (b) usage data collected by Client or End User regarding an End User’s own use of the Services, and (c) an End User’s content hosted on Gate.com’s Systems, including End User’s Uniform Resource Locators, Web pages and other website data, software and applications, Protected Healthcare Information.
“Gate.com Data” means any data relating to Gate.com, all Services or Gate.com’s Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by Gate.com regarding Client’s use of the Services, and (e) all other data owned or controlled by Gate.com.
“Intellectual Property” means any and all rights, title, interest, and ownership, whether by registration, statute, common law or other operation of law, in and to: (a) copyrights, (b) patents, (c) trademarks, (d) trade secrets, (e) any other proprietary, intellectual, or industrial property rights of any kind or nature, (f) registrations and registration applications of the foregoing in any jurisdiction, (g) in Gate.com’s case, Gate.com Data and Gate.com’s Systems, and (h) in Client’s case, Client Data.
“Late Charges” means the interest, equal to 1.5% monthly and 18% annual (or the maximum permitted by law if lesser), to be applied to any portion of the Service Fees not paid by Client to Gate.com before the applicable due date.
“Losses” means any loss, liability, damage, penalty, cost, or expense (including reasonable lawyer fees, witness compensation, and court fees).
“Migration Services” means services which involve moving Client Data from Client’s former hosting provider to Gate.com.
“Minimum Term” means the specific period described in the Order Form, during which time Client may not terminate the Order Form, any Services ordered thereunder, or this MSA.
“MSA” means this document and all Supplemental Terms that are attached hereto and incorporated herein by reference.
“Order Form” means Gate.com’s online or hard copy form or statement of work, which (a) references, incorporates, and is an integral part of this MSA (including the applicable Supplemental Terms), and (b) describes the Services to be provided to Client.
“Party” means either Gate.com or Client individually and “Parties” means both of them collectively.
“Renewal Term” means the period or successive periods starting from the expiration of the Minimum Term specified in the applicable Order Form for which the Order Form and the Services thereunder are renewed.
“Representatives” means, collectively, a Party’s shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders.
“Services” means the products, services, and licenses provided to Client by Gate.com, whether or not used or paid for by Client, which may include any combination of the following:
“Service Fees” means the money amounts or rates, specified in, as applicable, the Order Form, Client Portal, invoice from Gate.com, or which Client has otherwise agreed to pay to Gate.com in consideration of the Services provided, whether used by Client or not.
“Systems” means the technology (including systems, networks, facilities, infrastructure, computer servers, other hardware, software, online application program interfaces, Internet Protocol addresses, and other technologies) owned, licensed, controlled, or otherwise used by Gate.com to provide Services to Client, and, as applicable, to End Users and Client Affiliates.
“Technical Support” means the assistance and advice Gate.com’s technical support staff provides to Client, as part of the Services, via electronic mail, telephone, or other means of communication as designated by Gate.com (including Gate.com’s ticketing system).
“Third Party Products” means the equipment, software, products or services procured from a Third Party Vendor which Gate.com, in turn, provides to Client as part of, or in combination with, Gate.com’s own products and services which are part of the Services.
“Third Party Vendor” means a third party vendor who provides Gate.com with Third Party Products to be, in turn, provided to Client by Gate.com as part of, or in combination with, the Services.
“Third Party Vendor Audit” means an audit performed by either Gate.com or a Third Party Vendor with respect to the Third Party Products.
1.1.2 Order of Precedence. Unless stated expressly in an Order Form or any Supplemental Terms, if there is an inconsistency or conflict between the terms of those documents and the MSA, then the terms of this MSA will govern.
1.1.3 References. All references in the MSA to particular titles, headings, and sections will be references to the titles, headings, and sections of the MSA only, unless specific reference is made otherwise. Such titles, headings, and sections are for reference purposes only and will have no effect on the interpretation of the MSA. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning will refer to the MSA in its entirety, which includes all Order Forms and Supplemental Terms, and not to any particular provision of the MSA. Bolding, underlining, or italicizing of words herein are for ease of reference only and the application or omission of them will have no effect on the interpretation of the MSA.
1.1.4 Without Limitation. When used for listing purposes, the term “including” and “includes” will be deemed to mean “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in the MSA that the masculine, feminine or neutral gender is used, it will be construed as including all applicable genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires.
1.1.5 Translations. The MSA was written in the English language. If there is any discrepancy between the English version and a version in any other language, then the English version will control in all respects.
1.2 Term & Renewal
1.2.1 Term. This MSA will continue in full force and effect until all Order Forms and the Client Account are terminated in their entirety. The term of each Order Form will commence upon the Effective Date and will continue for the duration of the Minimum Term, and any successive Renewal Terms, until terminated by a Party in accordance with this MSA. In the event that Minimum Term and Renewal Term are not specified in the Order Form, the term of each will be one month.
1.2.2 Renewal. Upon expiration of the Minimum Term, the Order Form will automatically renew for successive Renewal Terms until either Party terminates the Order Form, or the Client Account and the MSA in their entirety, in accordance with the termination provisions herein.
1.3 Services
In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with this MSA, including all applicable Supplemental Terms, Gate.com will provide to Client the Services as described in the Order Form. In furtherance of providing the Services to Client, Gate.com hereby grants to Client a worldwide, limited, non-exclusive, non-transferable, fully revocable license to use Gate.com’s Systems in connection with the Services as permitted in this MSA. Gate.com may, at its sole discretion, add to, modify, remove, or re-price any particular product or service from the Services based on factors including the unavailability of any relevant Third Party Products. To prevent downtime caused by outdated components or malfunction and to protect the security of Gate.com’s Systems, Client hereby consents to (a) Gate.com upgrading, repairing, or replacing its Systems that are hosting Client Data at any time with or without notice to Client, and (b) Gate.com migrating Client Data within its Systems at any time with or without notice to Client. Gate.com may (at Gate.com’s sole discretion) provide any of the Services (in whole or in part) through an Affiliate of Gate.com, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within Gate.com’s Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access. In the event that Client refuses or fails to permit such access, Client understands and agrees that Gate.com is not responsible for any malfunction or delay in the performance of the Services resulting therefrom. In connection with Technical Support, Gate.com makes no representation or warranty that Gate.com will be able to find the cause of, or resolve, the problem for which Client contacts Gate.com for Technical Support. Unless otherwise expressly specified in the Order Form, Gate.com is not responsible for providing Technical Support, or any other support (including customer service, billing support, and sales support), to Client’s resellers, customers, and End Users.
1.4 Connectivity
Gate.com will ensure that its Systems are connected to the Internet in order to provide the Services to Client. Client is solely responsible, and Gate.com is not responsible, for sourcing and paying for network resources used to connect Client to the Internet.
1.5 Third Party Products
Client will agree to, be bound by, and comply with the terms of any license or other agreement for Third Party Products that may be required by the applicable Third Party Vendor (such as, but not limited to, the any named in this Section 1.5). Client acknowledges that Client’s use of Third Party Products is subject to Client’s agreement to, and compliance with, the terms and conditions of the Third Party Vendors who provide the respective Third Party Products. The Third Party Vendors are permitted to perform directly Third Party Audits on Gate.com’s Systems (including any computer server or other hardware licensed to Client by Gate.com as part of the Services) with regards to their respective Third Party Products. All trademarks and other Intellectual Property rights associated with or attached to a Third Party Product belong solely to the relevant Third Party Vendor and are used by Gate.com subject to license from such Third Party Vendor. Except as permitted in the licenses which are a part of the Third Party Products, nothing herein grants to Client any right, title, or interest in or to a Third Party Vendor’s Intellectual Property. 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 Third Party Products. Client acknowledges that Third Party Products may, at any given time, be no longer be available or may be revoked at the discretion of the Third Party Vendor. Any mention of Third Party 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 Third Party Vendors of the Third Party Products.
The following Third Party Vendors and their license terms are hereby incorporated into this MSA by reference:
1.6 Client Account
Upon Client’s submission or execution of an Order Form, Gate.com will create a unique Client Account and Client ID for Client. Once the Client Account and associated Client ID have been set up, Gate.com will provide Client with appropriate login credentials and access to the Client Portal.
1.7 Client Account Ownership
The legal owner of the Client Account is the person who is identified as the “Client” in the applicable Order Form or, in the absence of such name in the Order Form, the person otherwise using Services. It is Client’s sole responsibility, and not Gate.com’s responsibility, to ensure that (a) Client’s correct full legal name is stated on the Order Form and in the Client Account, (b) Client’s current name and other contact information is kept up-to-date with Gate.com, (c) the Client ID and associated password are kept secure and disclosed only to those with a need to know, and (d) Gate.com receives all documentation reasonably requested by Gate.com to ascertain the correct legal owner of the Client Account in the event of a dispute or verification of Client’s identification. The includes regularly updating the Client Account to accurately reflect staff departures or changes in service providers Client may have used to subscribe for Services (e.g., website design companies or online media management companies) who may have used their name as the contact person for the Client Account. In the event of a dispute, or in the event of a reorganization or dissolution of the Client, the legal ownership of the Client Account will be as follows in order of precedence: (1) the company or organization listed on the Client Account in Gate.com’s database; (2) the individual who submitted or executed the Order Form; (3) the individual who is the cardholder of the credit card used to pay the most recent Service Fees for the Client Account.
1.8 Domain Name Ownership
Client acknowledges that (a) the person listed as the “Registrant” of the domain name in the public Whois registry is the legal owner of that domain name, (b) the person listed as the “Admin” (or administrative contact) of the domain name in the Whois registry has access to the username and password, which gives such person the ability to change the Whois information, (c) ownership and administration (including registration renewal and billing) of a particular domain name is independent of the ownership and administration of the Client Account even if the domain name is associated with the Client Account, (d) it is Client’s sole responsibility, and not the responsibility of Gate.com, to ensure that the Registrant and Admin information are up-to-date in the Whois registry, and (e) domain names are subject to the standard terms and conditions, as amended from time to time, of the ICANN-accredited domain name registrar and applicable registry, which Client is bound by at the time Client registers the domain name(s).
1.9 Identification Verification
Each time Client wishes to communicate with Gate.com about the Client Account or Client Data, Client will abide by Gate.com’s then-current security measures and identification verification processes, including answering identification verification questions over the phone and submitting a proof of identity form. Gate.com is not responsible or obligated to restore access to the Client Account to any person if that person is unable to meet Gate.com’s security measures and procedures to Gate.com’s sole reasonable satisfaction.
1.10 Ownership Disputes
Gate.com has no responsibility to act as an arbiter, mediator or other authority in the event of a dispute over the ownership of the Client Account or domain name associated with the Client Account or any other dispute between Client and a third party (including Client’s current or former employees, contractors, agents or vendors). Gate.com may suspend Client’s access to, or place an administrative lock on, the Client Account and associated domain name(s) pending an investigation into the ownership thereof.
1.11 Gate.com Access
Gate.com will have continuous root administrative access and physical access to its Systems at any time, including any computer servers and other hardware licensed to Client as part of the Services. Client acknowledges that Gate.com requires such access to in order to provide the Services, including Technical Support. The access provided hereunder may also be used by Gate.com for the purposes of conducting or performing an audit or report, whether by Gate.com directly or by an authorized third party, or pursuant to compliance with any applicable statute, government regulation, or Third Party Vendor requirement (such as in the course of a Third Party Audit). If Client orders Acronis End Point Protection Services or Acronis Cloud Backup Services, then, as a part of those Services, Gate.com may require direct access to the Client Devices (for example, Gate.com may require remote desktop access to a Client Device to provide certain support Services). Gate.com will not access any Client Device without first obtaining Client’s express consent, which can be communicated to Gate.com either: (i) by scheduling a remote support session in advance via email or trouble ticket, or (ii) by actively accepting the initiation of a remote support session when prompted by a Gate.com support agent. However, if Client does not consent to grant such access to the Client Devices, then Gate.com will not be able to provide the support Services that are included with Acronis End Point Protection Services or Acronis Cloud Backup Services, and Gate.com will not be responsible or liable for any loss or damage resulting from such denial of access to the Client Devices.
1.12 Client Access
Client will not physically access any of Gate.com’s Systems, including computer servers and other hardware licensed to Client as part of the Services. Client may access the Client Account through the Client Portal using only Client’s own authentication credentials (username and password). Client is prohibited from accessing or attempting to access the client account, billing data, or other data of any other person using the Services.
1.13 Email Accounts
All email accounts, including POP email accounts, which have not been logged into for a period of 4 consecutive months or more will be deemed abandoned and Gate.com may, at its sole discretion, delete the email account (“Abandoned Mailbox”) and all emails residing in the Abandoned Mailbox (“Abandoned Emails”). In such case, Gate.com will send an email to the master email account identified under the Client Account to notify that the Abandoned Mailbox and the Abandoned Emails will be deleted if the Abandoned Mailbox is not logged into within 14 calendar days. Gate.com may delete all content and data stored in any of Client’s spam folders, junk mail folders, and email accounts for 30 calendar days or more.
1.14 Client Data
Client represents and warrants that Client is the owner of, or is duly authorized or licensed by the legal owner to, hold, store, upload, create, destroy, use, run, implement, modify, edit, or otherwise manage the Client Data. In the event that Client Data includes any software or application that is not provided by Gate.com, Client is solely responsible for supporting such software or application including maintaining the licenses and installing updates and upgrades to such software or application. Gate.com is in no way liable for the support of such software or application, including Client’s use or misuse thereof. Client is solely liable, and Gate.com will not be liable, for any unpaid licenses installed by Client on Gate.com’s Systems that are reported in the course of a Third Party Vendor Audit. Client further warrants that the access by Gate.com of any and all materials and data as furnished by Client to Gate.com in the provision of the Services will not violate or conflict with any Intellectual Property or privacy rights of any third parties including copyrights, patents and trademarks, protected health information, or personally identifiable information. Client warrants that it is authorized to permit Gate.com to use all relevant code for the purposes of performing the Services hereunder. In the event that Client requests Gate.com’s assistance or participation in any third party audit of the Client Data or of Client’s use of the Services, Gate.com agrees to reasonably cooperate with Client (at Client’s expense) to respond to any audit inquiries solely as related to the Services.
1.15 Protected Health Information
If Client uses, transmits, or otherwise handles any information related to an individual’s past, present, or future physical or mental health condition, any treatment for that condition, and any payment for that treatment which information identifies the individual or could reasonably be used to identify the individual (such information referred to as “Protected Health Information” or “PHI”), then Client will: (a) inform Gate.com in writing of Client’s intended use of the Services for PHI, (b) comply with all requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and its implementing rules and regulations, (c) comply with all requirements of the Health Information Technology for Economic and Clinical Health Act, codified at 42 U.S.C. §§17931-17953 (“HITECH”) and its implementing rules and regulations, and (d) execute, as between Client and Gate.com, a Business Associate Agreement as mandated by HIPAA and HITECH (in Gate.com’s standard form), whereby Client is the covered entity and Gate.com is the business associate or whereby Client is the business associate and Gate.com is the subcontractor if Client is the service provider of a covered entity (as the terms “covered entity”, “business associate”, and “subcontractor” are defined by HIPAA and HITECH). In addition to Client’s indemnification obligations under this MSA, Client will further indemnify Gate.com (including Gate.com’s Representatives) from and against any Claims against Gate.com or Losses incurred by Gate.com that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding Protected Health Information, or (ii) Client’s breach of HIPAA, HITECH, or any other relevant statute.
1.16 MIGRATION SERVICES
If Client orders Migration Services, then Client agrees that:
In addition, the Migration Services will further by governed by the Professional Services Supplemental Terms.
1.17 Data Backup
Unless the Order Form expressly includes Gate.com’s data backup services as part of the Services to be provided, Client is solely responsible, and Gate.com is not responsible in any way, for the backup (copy and storage for purposes of retrieval or data loss recovery) of Client’s data or the management of such backup. Client acknowledges that for any of Gate.com data backup services, Client’s data is backed up onto Gate.com’s Systems “as is” and that Gate.com’s backup services do not include any software, application, or other method for monitoring, remediating, or preventing viruses, malfunctions, corruptions, or other security issues with Client’s data or the backup thereof. It is Client’s sole responsibility, and not the responsibility of Gate.com, to (a) secure and protect, including encrypt, all Client Data which may be backed up through Gate.com’s Systems, (b) implement and maintain a disaster recovery plan, including adequate offsite backup commercially reasonable given the nature, scope, and sensitivity of Client’s data, and (c) locally backup all essential data on Client’s own systems independent of Gate.com (including at Client’s own premises) for purposes requiring data recovery or retrieval. Client is solely responsible, and Gate.com is not responsible, for the backup of any of Client’s data which may have resided on Gate.com’s Systems at one time but which no longer resides on Gate.com’s Systems at the time Gate.com’s backup services, if expressly included in the Order Form, is implemented. Gate.com expressly disclaims the usability, functionality, or accuracy of Client’s data backed up using Gate.com’s backup services. Gate.com makes no warranty of any kind (either express or implied) regarding any of Gate.com’s backup services, including (a) the format, readability, configuration, accuracy, completeness, retrievability, functionality or restorability of Client’s data backed up on Gate.com’s Systems to its original state, and (b) the functionality, compatibility or reliability of any of Gate.com’s backup services with any firewall or software or updates and upgrades thereto. If expressly included in the Order Form, then Gate.com provides its backup services “as is” without warranties of merchantability or fitness for a particular purpose. Under no circumstances will Gate.com be liable for any loss of Client’s data or for third party fees related to the recovery or restoration of Client’s data. Client’s use of Gate.com’s backup services is at Client’s sole risk.
1.18 Data Security
Gate.com will use industry standard measures to detect and prevent unauthorized third parties from accessing Gate.com’s Systems. Notwithstanding anything to the contrary, Client acknowledges that Gate.com does not guarantee, and does not represent or warrant, that Gate.com’s Systems cannot or will not be accessed by unauthorized third parties. Client will review Gate.com’s Privacy Policy, as amended from time to time, posted at http://www.hostway.com/privacy-policy/ (or such other redirected webpage or alternate URL as designated by Gate.com), which is incorporated herein by reference.
1.19 Data Disclosures
Client hereby consents to Gate.com disclosing Client’s data required to be disclosed by any (a) law of the U.S.A., or (b) court order of any jurisdiction in the U.S.A. or other jurisdiction in which either Gate.com or Client operates its business. However, if and to the extent allowed by such law or court order, Gate.com will promptly notify Client in writing of the legal obligation and, if Client chooses, Client may seek protective measures against the requirement at Client’s sole expense and reimburse Gate.com for any reasonable expenses (including costs for legal advice, staff hours, and disbursements) incurred by Gate.com in complying with such requirement.
1.20 Data Transfers
1.20.1 Cross-Border Data Transfers. Client acknowledges that the Services and Third Party Products may be provided from the U.S.A. or any other country in which Gate.com, its Affiliates, and its Third Party Vendors maintain their business operations. As such, Gate.com, its Affiliates, and its Third Party Vendors may transmit, store, access, process, and use (collectively “Process”) Client’s data in, to, or from the U.S.A. or any other country in which Gate.com, it Affiliates, and its Third Party Vendors maintain their business operations. In furtherance of the MSA and the applicable Order Form, and in connection with the provisioning of Services and Third Party Products to Clients, Client acknowledges that Client Data may not remain in the country such data originated from. Client hereby consents to Gate.com, its Affiliates, and its Third Party Vendors Processing Client Data in the U.S.A. or any other country in which Gate.com, it Affiliates, and its Third Party Vendors maintain their business operations.
1.20.2 Consent Revocation; Migration; Deletion. Client may revoke its consent to having Client Data Processed in the U.S.A., or such other jurisdiction in which Gate.com’s Affiliates and Third Party Vendors may reside, by providing Gate.com with written notice of Client’s revocation of consent (“Consent Revocation”). Upon receipt of the Consent Revocation, Gate.com will cooperate with Client in transferring all Client Data to a lawful destination of Client’s choice (“Migration”). Client acknowledges that the Migration entails the actions of Client (and, if applicable, Client’s vendor or new hosting service provider) and does not entail any action on Gate.com’s part other than to provide access to the Client Data. Upon Client’s written request, Gate.com may provide Client with reasonable Migration assistance as part of the Enterprise Services, in which case, Gate.com may charge (and Client will pay in advance) the Services Fees Gate.com normally charges for migrations of the magnitude and complexity Client requires for the Migration. Client acknowledges that Client must complete the Migration, and remove all Client Data off of Gate.com’s Systems, within 60 calendar days of the date Gate.com received the Consent Revocation (“Migration Period”). If any Client Data remains on Gate.com’s Systems beyond the Migration Period, then Gate.com may permanently delete such Client Data and all backups and copies thereof. It is Client’s sole responsibility, and not Gate.com’s responsibility, to perform backups and keep copies of Client Data as needed by Client.
1.20.3 Transfer Restrictions. As between Gate.com and Client, it is the sole responsibility of Client, and not the responsibility of Gate.com, to ensure that Client Data, including End User Data, required to remain in a particular country is restricted to that country. Prior to Client’s submission of an Order Form or use of Services, Client will inform Gate.com in writing of all transfer restrictions or jurisdictional requirements pertaining to Client Data and the Parties will work in good faith together to determine if the transfer restrictions and jurisdictional requirements can be satisfied.
1.20.4 EU Data. If Client engages in the “processing” of any “personal data” (as such terms are defined in the EU General Data Protection Regulation 2016/679 (“GDPR”)) from the European Union, then Client will: (a) inform Gate.com in writing of Client’s intended use of the Services for processing personal data from the EU, (b) comply with all requirements of the GDPR and all implementing rules, associated policies, and directives, (c) execute, as between Client and Gate.com, a data processing agreement in compliance with the GDPR (on Gate.com’s standard form), whereby Client is the data controller and Gate.com is the data processor or whereby Client is the data processor and Gate.com is the sub-processor (or level 2 processor) if Client is the service provider of a data controller (as the terms “processor”, “controller”, and “sub-processor” are defined by the GDPR), (d) adhere to the GDPR, including the designation of Client’s data protection officer and execution by Client of data processing agreements with data controllers and Client’s own sub-processors, and (e) ensure that Client is fully transparent about the nature and purpose of its processing of personal data. In addition to Client’s indemnification obligations under this MSA, Client will further indemnify Gate.com (including Gate.com’s Representatives) from and against any Claims against Gate.com or Losses incurred by Gate.com that result from: (i) Client’s breach of or misrepresentation with respect to Client’s obligations regarding processing of personal data from the EU, or (ii) Client’s breach of the GDPR or other applicable law.
1.21 Gate.com’s Intellectual Property
In no way will any license granted by Gate.com in this MSA be an assignment of rights, title, or ownership in any of Gate.com’s Intellectual Property, including any of its Systems, and Gate.com retains sole and exclusive right, title and ownership in and to all of Gate.com’s Intellectual Property. As between Gate.com and Client, all Internet Protocol addresses provided to Client by Gate.com belong exclusively to Gate.com. Client acknowledges that Client has no right to use such Internet Protocol addresses except as permitted by Gate.com in connection with the Services and in accordance with this MSA. Gate.com may change or remove Internet Protocol numbers and addresses at its sole discretion. Except as otherwise expressly permitted in this MSA, Client may not use Gate.com’s Intellectual Property without obtaining the prior written consent, in each instance, of Gate.com. Gate.com’s Intellectual Property includes any data relating to Gate.com, the Services, or its Systems, including (a) Internet Protocol addresses, Uniform Resource Locators, Web pages and other website data, (b) source codes, digital files, encryption keys, and digital certificates, (c) user identifications, account access, log-in information, and passwords, (d) usage data collected by Gate.com regarding Client’s use of Services, and (e) all other data owned or controlled by Gate.com.
1.22 Other Restrictions
Client will not take any action or use any of Gate.com’s Intellectual Property or any Third Party Vendor’s Intellectual Property in a manner that (a) acquires, or may reasonably acquire, any rights, title, or interest in or to Gate.com’s Intellectual Property or any Third Party Vendor’s Intellectual Property by Client or a third party, or (b) compromises or diminishes Gate.com’s rights, title, or interest in or to Gate.com’s Intellectual Property or any Third Party Vendor’s rights, title, or interest in or to their Intellectual Property. If Client does acquire any rights, title, or interest in or to any of Gate.com’s Intellectual Property, by operation of law or otherwise, then Client will immediately assign such rights, title, or interest to Gate.com at Client’s sole cost. Client will not, and will not permit any third party, including its resellers, customers or End Users, to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any of the Services, Gate.com’s Systems, and Third Party Products to ascertain, derive, or appropriate for any reason or purpose the source code or source listings thereof or trade secrets contained therein.
1.23 Resellers, Customers & End Users
Client is solely responsible, and Gate.com is not responsible, for the activities of any End User and for the activities of Client’s resellers and customers. Client will ensure that the use of Services by Client’s resellers, customers, and End Users will not be in contravention this MSA. If Gate.com receives complaints about Client’s resellers, customers or End Users (including complaints about infringement of a third party’s Intellectual Property), subject to Gate.com’s rights in this MSA to suspend Services, Gate.com may at its sole discretion (a) send a notice directly to the reseller, customer or End User requesting them to cease, remedy, and resolve the matter, or (b) forward the complaint to Client whereupon Client will take immediate action to ensure that the matter is resolved to Gate.com’s satisfaction. If the particular activity continues or the complaint is otherwise unresolved, then Client may be subject to termination or other action as Gate.com may deem appropriate.
1.24 Domain Name Proxy Services
If the Services provided to Client includes domain name registration services where Gate.com or a third party provider is named as the Registrant or Admin Contact in Client’s place (“Proxy Services”), Client agrees that if Gate.com or the third party provider does not receive a response to a communication sent to Client within 48 hours of such communication being sent, then Gate.com or the third party provider, as applicable, may suspend the Proxy Services or terminate all services (including, as applicable, all Services) at its sole discretion.
1.25 Other Representations & Warranties
Client represents and warrants to Gate.com as follows:
1.26 Disclaimer
Notwithstanding anything to the contrary in this MSA, Gate.com (a) makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, completeness, non-infringement, or validity of the Services, Gate.com’s Systems, or Third Party Products, and (b) provides all aspects of the Services, Gate.com’s Systems, and Third Party Products “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Client acknowledges that Client uses the Services, Gate.com’s Systems, and Third Party Products at Client’s sole risk. The Services cannot not prevent actions performed directly by Client or Client’s officers, directors, employees, contractors, or agents (for example, clicking on bad link), and Gate.com is not responsible or liable for such actions, including any loss or damage resulting therefrom. No verbal advice or written information given by Gate.com, its employees, licensors or the like, will create a warranty and Client will not rely on any such advice or information as a warranty.
1.27 Force Majeure
Gate.com will not be liable for delays in its performance of this MSA caused by circumstances beyond Gate.com’s reasonable control including natural disasters and other “acts of God”, fire and other destruction, sabotage, terrorism, war, insurrection, embargo and other acts of any governmental body, or strikes and other labor disturbances (“Force Majeure”). If Gate.com is affected by a Force Majeure, Gate.com will (a) promptly give written notice to Client, and (b) make reasonable efforts to reduce to a minimum and mitigate the effect of the Force Majeure.
1.28 Limitation of Liability
Under no circumstances will Gate.com be liable to Client for any consequential, indirect, special, general, incidental, reliance, exemplary, or punitive damages arising out of or relating to this MSA or the Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if Gate.com has been advised of the possibility of such damages. Gate.com’s aggregate liability to Client, if any, arising out of or relating to this MSA or the Services will not exceed the aggregate amount of Service Fees paid hereunder during the 3 calendar months immediately preceding the event giving rise to the liability. No Claim by Client against Gate.com, relating to this MSA or the Services, will be effective after 1 calendar year (12 calendar months) from the time the event or cause of action comprising the basis of the Claim first occurred regardless of any statutory limitation period allowing for a longer period.
1.29 Indemnification
If Gate.com, or any Representative of Gate.com, incurs any Losses because of any Claim arising out of or in connection with the acts or omissions of Client or its employee, contractor, or agent which amount to (a) breach of this MSA (including a breach of any representations or warranties made by Client herein), (b) gross negligence or willful misconduct, (c) misrepresentation, or (d) alleged or actual violations by Client of any law, regulation or rule, then Client will indemnify, reimburse, and compensate Gate.com and, as applicable, Gate.com’s Representatives, for all Losses, as they accrue and become payable by Gate.com, and defend, hold harmless, and protect Gate.com, including Gate.com’s Representatives, from and against all Claims. “Representatives” means, collectively, shareholders, Affiliates, directors, officers, employees, contractors, agents, and advisors, including lawyers, accountants, consultants, financial advisors, bankers, and lenders. In addition, if Gate.com (including Gate.com’s Representatives) incurs Losses because of any Claim arising out of, or in connection with, the acts or omissions of any of Client’s resellers, customers, or End Users, then Client will indemnify, reimburse, and otherwise compensate Gate.com for all Losses related thereto, as they accrue and become payable by Gate.com, and defend, hold harmless, and protect Gate.com from and against all Claims related thereto.
Gate.com agrees to give prompt written notice to Client of the Losses and the Claim for which indemnification is sought, and Client will have the right to control the defense and settlement of any Claim at the sole expense of Client. Gate.com agrees to fully cooperate in the defense or settlement of any Claim at the sole expense of Client. Notwithstanding the foregoing, the failure of Gate.com to give prompt notice, cooperate, or timely mitigate will not affect Gate.com’s rights to indemnification, except (and only to the extent) that Client’s ability to provide indemnification is impeded or frustrated, or Losses would have been avoided or mitigated. Client will obtain the prior written agreement of Gate.com for any settlement or proposal of settlement, which will not be unreasonably withheld
1.30 Abuse of Services
Client will use the Services only in a manner that is legal, lawful, ethical, and generally acceptable in the Internet community. Client will not engage in, and will ensure that Client’s resellers, customers, and End Users do not engage in any Abuse of Services. Without limiting the generality and scope of the definition of Abuse of Services in this MSA, Abuse of Services include (i) infringement of a person’s Intellectual Property or other rights, (ii) publishing or transmitting material which is threatening, obscene, or defamatory, (iii) non-compliance with applicable anti-spam legislation, including the U.S. Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act), as amended, and Canada’ Anti-Spam Legislation (CASL), as amended, (iv) violation of applicable import or export control laws, regulations, and policies, and (v) system or network security violations. System or network security violations include the following: (A) unauthorized access to or use of data, systems or networks, including any attempt to ping, 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); (B) interference with service to any user, host or network, including mail bombing, flooding, deliberate attempts to overload a system, denial of service attacks, and broadcast attacks; (C) forging any TCP-IP packet header or any part of the header information in an email or a newsgroup posting; (D) creating or sending Internet viruses, worms or Trojan horses; (E) engaging in any other activity which is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services and Gate.com’s Systems (or any connected network, system, service or equipment) or conduct their business over the Internet. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Services) is not engaged in any activity which is, or may reasonably be deemed, an Abuse of Services.
1.31 Executive Order 13224
Client will not use the Enterprise Services, in whole or in part, to do business with any person who has been determined to have committed or supported, or who poses a risk of committing or supporting, acts of terrorism or who otherwise is subject to the prohibitions of Executive Order 13224. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Services) is not, and has not been designated, (a) a “suspected terrorist” as defined in Executive Order 13224, (b) owned or controlled by a “suspected terrorist” as defined in Executive Order 13224, or (c) 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 amendments thereto.
1.32 Sanctions
Client will not use the Services, in whole or in part, to do business with any country, person or group sanctioned by the United Nations, U.S.A., or Canada, including those identified by the Office of Foreign Assets Control, as updated from time to time. Client will not export the Services, in whole or in part, to any country, person or group sanctioned by the United Nations, U.S.A., or Canada. Client represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Services) is not, and has not been designated, (a) a resident of a country sanctioned by the United Nations, U.S.A., or Canada, or (b) a person or member of a group sanctioned by the United Nations, U.S.A., or Canada. Client further represents and warrants that Client (or any person employed or contracted by Client or otherwise acting on Client’s behalf in connection with this MSA or the Services) is not engaged in any activity which is, or may reasonably be deemed, in contravention of any of the abovementioned sanctions.
1.33 Suspension
Gate.com may, at its sole discretion and without prior notice, immediately suspend the Services and the Client Account if Gate.com determines that Client is engaging, or has engaged, in any Abuse of Services or if the Client Account is involved in any way, whether directly or indirectly, in an attack on another person’s server or system (“Third Party Server”) or Gate.com’s Systems. Gate.com will promptly notify Client in writing upon suspending Services pursuant to an Abuse of Services. A suspension based on an Abuse of Services or an attack on a Third Party Server may be implemented until the Abuse of Services or threat has been remedied to Gate.com’s sole reasonable satisfaction. Service Fees will continue to accrue during the suspension and Client will ensure timely payment of all Service Fees due. If Client engages in or the Client Account is involved in any Abuse of Services, Client will be responsible for all costs, including labor and other resources, to remedy any damage done to Gate.com’s Systems or attend to complaints received by Gate.com.
1.34 Revocation of Domain Name
If Client purchases a domain through Gate.com, Gate.com may exercise its suspension and termination rights in this MSA against such domain name registration for reasons including (a) Client’s Abuse of Services or other breach of this MSA, or (b) Gate.com’s receipt of an arbitration award or order from a court of competent jurisdiction instructing the suspension, termination or transfer of ownership of the domain name. Client acknowledges that Client will not receive any refund whatsoever for any such suspension, termination, transfer, or modification to Client’s domain name registration.
1.35 Minimum Age Requirement
Client must be at least 18 years of age or the age of majority in the state, province, or country of Client’s residence in order to agree to this MSA and submit an Order Form. If the person wishing to use Services is under such age of majority (a “Minor”), then such person must have a parent or legal guardian accept this MSA, and submit the Order Form, in the name of the parent or legal guardian in order for the Minor to use Services. If Client is a parent or legal guardian who accepts this MSA and submits an Order Form on behalf of a Minor, then Client will be the legal owners of the Client Account and primarily liable for (a) the use of Services by the Minor, and (b) for the Minor’s compliance with this MSA, including timely payment of all Service Fees. Client will remain primarily liable for (a) and (b) mentioned above even after the Minor has reached the age of majority unless Client executes a valid assignment of the Client Account to transfer ownership to the Minor. Any agreement to this MSA or submission of an Order Form by a Minor 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 the Services.
1.36 Assignment
Client may not assign or otherwise transfer Client’s respective rights or obligations under this MSA without the prior written consent of Gate.com, which will not be unreasonably withheld. Without requiring Client’s prior consent, Gate.com may assign or otherwise transfer this MSA, and Gate.com’s rights and obligations hereunder, to (a) any of its Affiliates, or (b) to any third party who succeeds to all or substantially all of Gate.com’s business, stock or assets. Any assignment or transfer in violation of this MSA will not have any effect against Gate.com. This MSA will be binding and have effect upon Gate.com and Client and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than Gate.com and Client and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities in connection with this MSA. Notwithstanding the foregoing, Client acknowledges that Gate.com may, at its sole option, perform any of its duties or obligations hereunder, by itself or with or through any of Gate.com’s Affiliates, which will not be deemed an assignment of this MSA.
1.37 Waiver; Severability; Cumulative Rights
No waiver by Gate.com of a breach of any provision of this MSA will take effect or be binding upon Gate.com unless expressly waived in writing, and such waiver will extend and apply only to the particular breach so waived and will not limit or affect the rights of Gate.com in respect of any future breach or in respect of a breach of any other provision hereof. If any portion of this MSA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability will not affect the validity of the remainder of this MSA. Any specific right or remedy provided in this contract will not be exclusive but will be cumulative of all other rights and remedies.
1.38 Non-Solicitation and Relationship of Parties
While a Client of Gate.com and for a period of 1 year thereafter, Client will not, individually or in association or in combination with any other person or entity, directly or indirectly solicit for employment, entice away from Gate.com, induce, or procure services directly from any employee of Gate.com. Nothing in this MSA will be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between Gate.com and Client. Each of Gate.com and Client will be deemed an independent contractor at all times and will not have any right or authority to assume or create any obligation on behalf of the other party except as may be expressly permitted herein. This MSA is for the sole benefit of Gate.com and Client only and does not create any rights on the part of any third party, including Client’s resellers, customers or End Users.
1.39 Non-Exclusivity
Gate.com and Client each acknowledge that the relationship between them in connection with the Services and this MSA is non-exclusive and that Gate.com may grant a license to use, market, sublicense, or distribute the Services, including providing access to Gate.com’s Systems, to other parties who may engage in the same or similar activities as Client, or who may compete with Client or Client’s goods or services.
1.40 Survival Clauses
The provisions of this MSA which by their nature continue beyond the termination of this MSA will survive such termination, including the provisions of this MSA relating to ownership, Intellectual Property, representations and warranties, disclaimer, limitation of liability, indemnification, and governing law and jurisdiction.
1.41 No 3rd Party Beneficiary
The MSA is for the sole benefit of the Parties and does not create any rights on the part of any third party, including Client’s resellers, customers, and End Users. Client acknowledges that Gate.com’s obligations under the MSA are to Client only. Client is solely responsible, and Gate.com is not responsible, for ensuring Client satisfies all of Client’s obligations to Client’s resellers, customers, and End Users.
1.42 Governing Law
This MSA will be governed and construed in accordance with the laws of the State of Illinois without giving effect to any rule of conflicts of law. Any Claim against a Party in connection with the subject matter of this MSA (or the MSA itself) will be brought in Chicago, Illinois. This MSA will not be governed by or construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods.
1.43 Dispute Resolution
All Claims arising out of or relating in any way to this MSA (including requests for specific performance) will be submitted to mandatory binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted pursuant to the AAA’s then current Commercial Arbitration Rules. The arbitration hearing will be conducted in the English language and will take place in Chicago, Illinois before a single arbitrator selected in accordance with the Commercial Arbitration Rules. The parties will each bear the costs of the arbitration in equal shares. The parties will also bear their own legal fees (including lawyer fees and witness costs) in connection with the arbitration and the arbitrator may not reallocate the legal fees in conjunction with the award. Any award rendered by the arbitrator will be confirmed in a state or federal court of competent jurisdiction in Chicago, Illinois and each of Gate.com and Client hereby irrevocably submits and consents to, and waives any objection to, personal jurisdiction and venue in such court.
1.44 Notices
Any notice or other communication between the Parties required or permitted under this MSA will be in writing and will be delivered by commercial courier or transmitted by electronic mail. It is Client’s responsibility to ensure that Client’s contact information is kept up to date with Gate.com, and Gate.com will not be liable for Client missing any notice or communication as a result of an outdated or seldom accessed address, phone number, or email address.
1.45 Amendments
Client acknowledges that the Internet and information technology industries (and the laws, regulations, policies, and risks associated with them) are constantly and rapidly changing and, as such, Client further acknowledges that Gate.com, at its sole reasonable discretion, may update the MSA from time to time to address the changes affecting the MSA and the Services. If Gate.com makes any amendment to the MSA or any portion thereof, such as any Supplemental Terms, Gate.com may post a notice on Gate.com at https://gate.com/. Client’s continued use of Services following notice of the amendment constitutes Client’s agreement and acceptance of the amendments.
1.46 Complete Agreement
This MSA, which includes the Order Forms, Supplemental Terms, and all other agreements, policies, and documents referenced herein, constitutes the complete agreement between Gate.com and Client relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto – whether verbal, written, or otherwise.
These Billing Terms apply to all persons using Services.
2.1 Service Fees
Client will pay to Gate.com the Service Fees on or before each due date as specified in the Client Portal or invoice (as applicable). Except where Service Fees are calculated based on Client usage or as otherwise provided in the Supplemental Terms, Client acknowledges that Service Fees will start accruing from the time the Client Account is created and Services are made available to Client, whether or not Client uses the Services. If the Order Form includes Services that are billed based on usage, then Client’s Service Fees will vary accordingly in each Billing Cycle depending on Client’s actual usage. If the Order Form includes Services that are billed based on the time and materials used by Gate.com (including any of its Affiliates or Third Party Vendors) such as Professional Services, then Client acknowledges and agrees that Client’s Service Fees are subject to change from the amount described in the Order Form depending on Gate.com’s actual time and materials used, provided that Gate.com will obtain Client’s prior approval for any additional billable time that exceeds the amount described in the Order Form.
2.2 Billing
Client’s Billing Cycle will start from the time Gate.com creates the Client Account and makes the particular Services available to Client. The Billing Cycle may vary depending on the billing period selected by Client and depending on the particular Services ordered (different Services may have different Billing Cycles). Resellers are limited to the monthly Billing Cycle. Unless Client chooses to manually renew Client’s Services, the Billing Cycle will automatically renew for the same successive period until Client cancels the Client Account or terminates this MSA in accordance with the cancellation provisions and termination provisions herein. If Client elects to manually renew the Services, Client is solely responsible, and Gate.com is not responsible, for ensuring the timely renewal of the Services to avoid service interruption. Client may elect to change the Billing Cycle, but the new Billing Cycle will take effect only at the end of the current Billing Cycle and upon renewal. The Billing Cycle will end upon the applicable anniversary date the Billing Cycle began (“Due Date”), which will be for Service Fees in advance with adjustments in arrears for Service Fees based on usage, if applicable. The Billing Cycle applies to Service Fees for all Services except domain name registrations, which are paid according to registration periods as set by the domain name registrar. Client acknowledges that Gate.com does not provide invoices and that Client is solely responsibility for viewing information pertaining to the Billing Cycle and Due Date through the Client Portal and ensuring payment of Service Fees before the Due Date. Add-on features to Services added to the Client Account may be charged monthly or according to the Billing Cycle or otherwise based on an alternate payment schedule as agreed by Gate.com when Client orders such features. Add-on features are non-refundable.
2.3 Past Due Amounts
If Client fails to pay the Service Fees on or before the Due Date, then Gate.com may charge Client Late Charges to be applied to any portion of the Services Fees unpaid past the Due Date. If the Client Account has Service Fees unpaid past the Due Date, then Gate.com may suspend the Client Account (and the Services associated with it) with or without notice at any time at Gate.com’s sole discretion. Gate.com may also terminate this MSA and cancel the Client Account in its entirety if the Service Fees remain past due following reasonable notification from Gate.com to the contact person listed in the Client Account. Client is solely responsible, and Gate.com is not responsible, for keeping Client’s contact information up to date and for any failure to receive such notification of Client Account cancellation.
2.4 Payment Methods
Client will pay the Service Fees via the payment method indicated in the Order Form, which will be selected from one of the following:
Check or Money Order. If Client elects to pay by check, then Client will (a) make the check payable to Services, Inc. at Gate.com’s principal place of business as specified in the Client Portal or such other notice provided to Client by Gate.com, and (b) include the Client ID on the check. Gate.com may charge Client a $25.00 administrative fee for checks or money orders returned as non-sufficient funds (“NSF”) as well as any other bank fees incurred by Gate.com because of the NSF. Client is solely responsible, and Gate.com is not responsible, for ensuring that the Client ID is accurately and legibly written on the check to avoid Late Charges.
Credit Card. If Client elects to pay by credit card, then Client will provide Gate.com with a valid credit card number, associated full name on the credit card, expiration date, and card verification number. Client will notify Gate.com in writing of all changes to Client’s credit card, including card number, expiration date, and billing address. For credit card payments, Client hereby authorizes Gate.com to automatically charge Client’s credit card each Billing Cycle for Service Fees. Client hereby also consents to Gate.com charging Client the chargeback fee assed against Gate.com from the credit card company for each credit card chargeback received by Gate.com. Client acknowledges that recurring Service Fees will be charged to Client’s credit card each Billing Cycle until Client cancels the Client Account or otherwise terminate the Order Form or this MSA in accordance with the cancellation provisions and termination provisions of this MSA.
Bank Wire or ACH. If Client elects to pay by bank wire or ACH, then Gate.com will provide Client with the bank wire or ACH details. Client will submit payments of all Service Fees, before the Due Date, to the bank account designated by Gate.com and include the Client ID in the transmission details. Client will pay for all administrative and processing fees associated with the bank wire or ACH and Client acknowledges that Gate.com may charge Client for such amounts. Client is solely responsible, and Gate.com is not responsible, for ensuring that the Client ID is accurately included in the transmission details to avoid Late Charges.
2.5 Taxes.
2.5.1 Chargeable Tax. The Service Fees quoted by Gate.com, whether on Gate.com’s website, this MSA, any Order Form, quotation, or sales proposal provided to Client, or in Client’s Customer Portal or on Client’s invoice, do not include sales or any other taxes which may be applicable. If any federal, state, provincial or other goods and services tax (excluding any tax levied on property or income) is applicable to Client’s purchase of the Services (“Tax”) and is required by law to be collected from Client by Gate.com, then (a) Gate.com will charge Client for such Tax in addition to the Service Fees, (b) Client consents to such Tax being charged to Client, and (c) Gate.com will remit such collected Tax to the applicable tax authority.
2.5.2 Audit Cooperation. If Gate.com is audited by a tax authority or other governmental entity with legal authority over the matter, Client agrees to reasonably cooperate with Gate.com (at Gate.com’s expense) in order to respond to any audit inquiries in a proper and timely manner so that the audit, and any resulting controversy, may be resolved expeditiously.
2.5.3 Tax Exemption. If a Tax exemption is available and Client complies with the exemption procedures thereto, including submitting to Gate.com all documentation evidencing the exemption, then Gate.com will not charge or collect such Tax during the effective period of such exemption.
2.5.4 Withholding Tax. If any applicable tax authority requires withholding taxes be paid on money amounts payable by Client to Gate.com pursuant to the MSA (“Withholding Tax”), then Client will (i) be entitled to deduct such Withholding Tax from the money amounts payable to Gate.com hereunder, (ii) remit such amounts to the appropriate tax authority, and (iii) provide to Gate.com, on a quarterly (every 3 calendar months) basis, the statements of the Withholding Taxes paid.
2.6 Other Fees
If Client wishes to reactivate a closed Client Account, then Client will be charged a reactivation fee of $19.95. A further fee of $99.95 will be charged to the Client Account if Gate.com restores Client Data to the Client Account as part of the reactivation. Gate.com may charge Client a fee of $19.95 for certain changes to the Client Account (“Account Change Requests”), including requests to:
There is no upgrade fee for upgrading to a higher priced hosting plan, but Client will be charged any difference between the setup fees applicable to Client’s new and former hosting plans. For Account Change Requests, contact customers@hostway.com.
2.7 Termination and Account Cancellation
This MSA will continue through the Minimum Term and any Renewal Term stated in an Order Form. Client may terminate this MSA, a particular Order Form, or the Client Account in its entirety, only in accordance with the terms herein. Gate.com may terminate this MSA or a particular Order Form for convenience upon 30 calendar days’ written notice to Client. Without limiting Gate.com’s rights under Abuse of Services and Suspension above, Gate.com may also terminate this MSA or a particular Order Form for Client’s material breach upon 2 business days’ written notice to Client if such material breach is uncured within such time.
To cancel the Client Account or particular Services after the expiration of the Minimum Term or during a Renewal Term, Client must contact Gate.com’s customer service department on a Business Day (Monday through Friday, excluding holidays, 8:00 A.M. to 5:00 P.M. Central Time) at 1-888-255-0151 or email customers@hostway.com, and must specify the exact Services, or domain name, that Client is cancelling. The cancellation process is not complete or effective until Gate.com confirms the closure of the Client Account by providing Client a confirmation number either over the phone or through email at Client’s contact information recorded on the Client Account. Client acknowledges that there are no pro-rated refunds after the Services are made available to Client. Cancellation requests must be received at least 30 calendar days before the end of Client’s Billing Cycle or Client’s Billing Cycle will automatically renew for a successive Billing Cycle. Gate.com does not monitor, and will not automatically cancel, plans for any problems arising out of or related to domain name transfers, non-usage, InterNIC, Client’s ISP, or any other secondary issues not directly related to the Services. Cancellation of Client’s Services does not relieve Client from paying all outstanding balances owed on the Client Account.
Upon any termination of this MSA or the Client Account, Gate.com may delete all Client Data residing on Gate.com’s Systems. It is Client’s sole responsibility, and not the responsibility of Gate.com, to ensure that all Client Data is either retrieved prior to termination or otherwise backed up on systems other than Gate.com’s Systems or using Services. Client acknowledges that (a) termination of this MSA or any particular Order Form does not automatically cancel the registration of any of the domain names associated with the Client Account, and (b) the cancellation or expiration of Client’s domain names associated with the Client Account does not automatically terminate this MSA or the other Services.
This MSA, and all Order Forms, will automatically terminate if Client makes a general assignment for the benefit of Client’s creditors, Client appoints or has appointed on its behalf a receiver, trustee in bankruptcy or similar officer to take charge of all or part of its assets, Client files or has a petition filed against Client for bankruptcy, or Client is otherwise adjudicated insolvent or bankrupt.
2.8 Billing Disputes
Gate.com will maintain records of the Services provided to Client and the billing thereof. If there is an inconsistency between Gate.com’s records as stated in the Client Portal and Client’s records, then Gate.com’s records will be deemed the controlling records. If Client wants to dispute the amounts, then contact Gate.com’s customer service department on a Business Day (Monday through Friday, excluding holidays, 8:00 A.M. to 5:00 P.M. Central Time) at 1-888-255-0151 or email customers@hostway.com. Disputes Client may have over any portion of Service Fees will not exempt Client’s payment obligations for undisputed Service Fees whether such non-disputed amounts pre-date, post-date, or are concurrently dated with the disputed amounts. If Client fails to provide to Gate.com written notice of a disputed amount of Service Fees within 7 calendar days after the Service Fees are made available through the Client Portal, then Client will be deemed to have accepted the amounts owed and will be obligated to pay such amounts.
2.9 Price Changes
Gate.com may, at its reasonable discretion, add to, modify, remove, or re-price any particular product or service from the Services with or without notice. Price changes become effective on the next Billing Cycle.
2.10 Collections
Client Accounts in arrears with past due and unpaid Service Fees are subject to collections. In the event of collection, Client will be liable for Late Charges and all costs of collection, including attorney’s fees, court costs, and collection agency fees.
2.11 Currency
Unless stated otherwise, all money amounts stated by Gate.com, including on Gate.com’s website, this MSA, any Order Form, quotation, or sales proposal provided to Client, the Customer Portal, and any invoice issued by Gate.com are in U.S. Dollars.
This MSA includes Gate.com’s Privacy Policy, as amended from time to time, posted at http://www.hostway.com/privacy-policy/ (or such other redirected webpage or alternate URL as designated by Gate.com), which is incorporated herein by reference (“Privacy Policy”). By agreeing to this MSA, Client is also agreeing to the Privacy Policy.
Depending on the type of Services that Client orders, Client may be subject to certain Supplemental Terms as described herein. If there is any conflict between this MSA and such Supplemental Terms, then the Supplement Terms will govern Client’s use of the applicable Services to the extent of the conflict. The Supplemental Terms are collectively an integral part of this MSA and supplement the General Terms and Billing Terms above and are hereby incorporated into this MSA by reference.
4.1 Web & Apps Supplemental Terms
These Web & Apps Supplemental Terms apply only to those Clients and End Users using Services relating to Web Hosting, Domains, Emails and E-Commerce and other Applications or Web Solutions.
4.1.1 Refund Policy
Refunds for Services pertaining to Web Hosting and E-Commerce are available for shared hosting plans and virtual private server (“VPS”) plans only. Each shared hosting plan and VPS plan carries a 30-day money back guarantee. If Client cancels a shared hosting plan or VPS plan within the first 30 calendar days of Client’s first Billing Cycle in accordance with Gate.com’s cancellation process, Client may request a refund of the Service Fees (excluding setup fees) Client have paid in advance. Cancellations received after the first 30 days of the Billing Cycle do not qualify for any refund. Refunds will be provided to the original payee via the same payment method as the original payment. The following services do NOT qualify for the 30-day money back guarantee: (a) add-on features to Services; (b) domain name registrations; (c) Enterprise Services as defined under the Enterprise Supplemental Terms; (d) Services ordered through Gate.com’s reseller program; (e) domain parking plus; and (f) overage fees.
4.1.2 Server Resources
Any website that uses a high amount of server resources (including CPU time, memory usage, and network resources) will be given the option to either pay additional Service Fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade to Enterprise Services (including Managed Hosting or Cloud Hosting). Gate.com will be the sole arbiter of what is considered to be a high server usage level. All Web Hosting and E-Commerce plans come with a limit of 5,000 files per Client Account. Each block of 5,000 files after the initial 5,000 will incur an additional charge of $9.95 per month. Any Web Hosting and E-Commerce plan deemed to be adversely affecting server performance or network integrity may be shut down without prior notice.
4.1.3 CGI Scripts
Any script that poses a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. Gate.com does not permit CGI script sharing with domains not hosted by Gate.com or scripts which may be abused for UCE purposes.
4.1.4 Chat Rooms
Client is not permitted to install chat rooms because chat rooms tend to require significant system resources. However, for a small charge, Gate.com may provide Client with Java chat rooms.
4.1.5 Background Running Programs and Cron Jobs
Gate.com may allow programs to run in the background, which programs will be considered by Gate.com on a case-by-case basis. Client will incur extra Service Fees based on system resources used and operational maintenance needed. If Client wishes to run background programs, contact Gate.com at support@hostway.com to arrange the setup.
4.1.6 IRC
Client is not permitted to operate IRC or IRC bots.
4.1.7 Software Distribution
Client is not configured for the purposes of distributing software or multimedia products. If Client wishes to distribute software and/or multimedia files, contact sales@hostway.com to make special arrangements.
4.1.8 Multimedia Files
Client is not permitted to use the Client Account to distribute or store unusual amounts of graphics, audio, or video files (collectively “Multimedia Files”). If the Client Account’s disk space usage for storing Multimedia Files exceeds 70% of its total usage, in terms of total size or number of files, Gate.com may suspend or cancel the Client Account.
4.1.9 Databases
If Client stores any database on Gate.com’s Web Hosting and E-Commerce servers, Client must limit the size to 10% of the total disk space allotted for the particular domain name associated with the Client Account.
4.2 Professional Services Supplemental Terms
These Professional Services Supplemental Terms apply only to those Clients and End Users using Services relating to IT Assessment, Migration Services, or other services requiring time and materials or deemed professional services by Gate.com.
4.2.1 Definitions
“Change Request Form” means Gate.com’s written order form describing the modifications to an applicable Order Form requested by Client.
“Dedicated Server” means a computer server which (a) is licensed to Client by Gate.com, (b) is for the exclusive access and use by Client, its End Users, and Client Affiliates only, and (c) is used to copy, store, or host Client Data on Gate.com’s Systems.
“Professional Services” means, as specified in the applicable Order Form, (a) Gate.com’s products and services relating to Migration Services, and (b) certain Third Party Products.
4.2.2 Professional Services
In consideration of Client’s timely payment of all Service Fees, and subject to Client’s compliance with these Professional Services Supplemental Terms, the Order Form, and the MSA, Gate.com will perform, and provide to Client, the Professional Services as described in the Order Form. Gate.com may (at Gate.com’s sole discretion) provide any of the Professional Services (in whole or in part) through an Affiliate of Gate.com, a Third Party Vendor, or other subcontractors. Client understands and agrees that, as a part of providing the Professional Services, such Affiliates, Third Party Vendors, or other subcontractors, may require access to Client’s systems or Client Data, either within Gate.com’s Systems or in another data center or with another service provider, and Client expressly acknowledges and consents to such access.
4.2.3 Service Fees for Professional Services
Service Fees for Professional Services are based on time estimates and are subject to change (because of factors such as unknown variables and project scope modifications). If Service Fees increase by less than $600, then Client may approve such increase via email, the Client Portal, or other applicable project management system offered by Gate.com or Third Party Vendors. Increases in Service Fees of $600 or more will require an amendment to the Order Form reflecting the change in scope of Professional Services. Client acknowledges that Professional Services will be performed only during the hours of 8am to 5pm Eastern Time, Monday through Friday, except statutory holidays. Requests for Professional Services to be performed outside of such times will be subject to Gate.com approval and premium additional Service Fees.
4.2.4 Ordering Professional Services
(a) Requirement. All Professional Services which Client wishes to receive from Gate.com must be stated in the Order Form. Gate.com is not responsible for any non-delivery of Professional Services, including missed launch dates or other deficiencies, if the Professional Services were not expressly stated in the Order Form signed by Client and a copy delivered to Gate.com. Each Order Form is an integral part of the Professional Services Supplemental Terms.
(b) Conditions. Gate.com’s completion of the deliverables described in the Order Form is subject to Client promptly giving Gate.com all materials, data, and cooperation reasonably requested by Gate.com, and otherwise specified in the Order Form, including materials, data, and cooperation from Client’s third party vendors, subcontractors or end-users involved in Client’s intended use of the Professional Services. Gate.com will not have any obligation, responsibility or liability for delays, unavailability, or deficiencies (including delays in sourcing equipment and other components of Gate.com’s Systems or Professional Services) caused in whole or in part by factors such as Client’s unresponsiveness, Client’s third party suppliers, Third Party Vendors, non-fitness or non-functionality of source code for Client’s intended use of the Professional Services, or other reasons beyond Gate.com’s reasonable control.
4.2.5 Service Modifications
(a) At Client’s Request. If Client wishes to add to or otherwise modify the Professional Services as described in a particular Order Form, then Client will send a written request to Gate.com and, upon Gate.com’s approval, the Parties may execute (a) a Change Request Form specifying the proposed modifications, which will be an integral part of the applicable Order Form, (b) an amendment to the Order Form reflecting the desired modifications, or (c) a new Order Form reflecting the desired modifications to replace the existing applicable Order Form. Client acknowledges that modifications to Professional Services may affect Service Fees as described above.
(b) By Gate.com. Gate.com may at any time, at its reasonable discretion, add to, modify, remove, or re-price any particular product or service from the Professional Services based on factors including unavailability of Third Party Products.
