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CyberSync Online Agreement
THIS AGREEMENT is made and entered into between CyberSync
Consulting and/or its subsidiaries located at 2440
Buckingham, Windsor, Ontario, hereinafter referred to as ("CyberSync")
and you, the Customer ("Customer" or "You"), who wish to use
the below-described Service(s) of CyberSync in accordance
with this Agreement, to include CyberSync's
application/order form, and its various policies, which are
located on the World Wide Web at https://cybersync.nameservices.net
and its various subdirectories. You and CyberSync are
collectively referred to in this Agreement as the "parties."
NOW, THEREFORE, in consideration of the foregoing premises
and of the mutual covenants and promises hereinafter set
forth, the parties hereto agree as follows:
1. Definitions:
a. "Agreement" shall refer to the complete and entire
understanding between the parties, exclusively represented
by the totality of the following documents: this instrument,
which you are now reading; the CyberSync application/order
form for Web space and Services; CyberSync's Acceptable Use
Policy (AUP); and CyberSync's Billing and Procedures Policy
(BP). The term "Agreement" shall not refer to any statement,
supposition, or understanding not recorded in writing in the
above-listed documents. The CyberSync AUP may be found at
URL: http://www.cybersync.com/hosting/legal/policies.htm.
The CyberSync BP may be found on-line at URL: http://www.cybersync.com/hosting/legal/billing_procedures.htm
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b. "Registered Name" shall refer to a domain name, whether
consisting of two or more levels, about which the Registry
Operator of a Top Level Domain (TLD), or an affiliate
engaged in providing Registry Services, maintains data in a
Registry Database, arranges for such maintenance, or derives
revenue from such maintenance. In essence, a Registered Name
is a domain name that is registered with a Registry
Operator, through an ICANN-accredited Domain Name Registrar.
2. Service Description: As a World Wide Web, Information
Technology, and Internet Service Provider, CyberSync
provides Internet Web hosting, ecommerce, domain
registration, and associated services, hereafter referred to
as the "Service" or "Services." For this purpose, CyberSync
maintains a network of dedicated server computers, routers,
hubs, switches, and other equipment (collectively, the
"Network") located in Ontario, Canada, and integrated with
the Internet. This Network sends and receives data and
information via the World Wide Web. Customer wishes to
connect to the Web and establish an Internet Web presence by
utilizing the various resources of CyberSync's Network and
CyberSync's Services. The quantity, type, and duration of
Services provided to Customer shall be as Customer has
already affirmatively selected in the CyberSync
application/order form. (See summary of options in paragraph
18, below.)
3. Conditions:
a. The CyberSync application/order form for Web space and
Services; CyberSync's AUP; and CyberSync's BP are
incorporated herein by reference, as if fully set out. The
foregoing constitutes a legal and binding contract between
CyberSync and Customer, which does not extend to any other
person or entity.
b. Customer may resell to third parties, but is responsible
for third party activities and content, and is bound by the
terms of this Agreement.
c. The duration of this Agreement, as to its Initial Term
and any renewal thereof, shall be as Customer has already
affirmatively selected on the CyberSync application/order
form. (See summary of options in paragraph 18, below.)
d. In accordance with (IAW) the BP, CyberSync will bill
Customer, and Customer shall pay, for excess resources used
by Customer, such as data transfer, disk space usage, and
virtual host limits. If Customer exceeds the virtual host
limit for a particular CyberSync service plan, however,
CyberSync will automatically upgrade Customer's account to
the next-higher service plan, and bill Customer according to
the upgraded plan, and Customer will pay according to the
upgraded plan.
e. Also IAW the BP, cancellations made after an application
has been received by CyberSync, and after Web space has been
set up by CyberSync, do not nullify Customer responsibility
to pay costs incurred by CyberSync in setting up said Web
space. To protect Customer's data from malicious deletion or
other tampering, and to protect CyberSync from liability
therefore, all cancellations by Customer must be
accomplished exactly IAW the CyberSync BP.
4. Warranties and Limitation of Liability: With respect to
the Services to be provided hereunder, Customer understands
and acknowledges that CyberSync MAKES ABSOLUTELY NO
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. Customer further
agrees that CyberSync shall not be liable to Customer for
any claims, damages, or loss of profit which may be suffered
by Customer or any other entity in any respect for direct,
indirect, consequential, actual, or punitive damages arising
out of or in relation to the Services provided hereunder,
including, but not limited to, losses or damages resulting
from loss of data due to delays, non-deliveries, or Service
interruptions. The utilization of any data or information
received by Customer from use of the Services to be provided
by CyberSync is at Customer's sole and absolute risk.
CyberSync specifically disclaims and denies any
responsibility for the completeness, accuracy, or quality of
such data or information.
5. Trademarks
a. Customer shall not use the CyberSync name, trademarks,
trade names, or logos in connection with the operation of
Customer's business, except as may be provided for in this
Agreement. Neither party shall use the other party's name,
trademarks, or logos in either its own corporate name or in
any fictitious name. Neither party nor its employees or
agents shall knowingly remove or alter any trademark, trade
name, copyright, or other proprietary notices, legends, or
symbols from any of the other party's products or
documentation or intellectual property.
b. Neither party shall take any action, or intentionally
omit to take any action, that would jeopardize, limit, or
interfere in any manner with the ownership of the other
party in the other party's products, services,
documentation, or intellectual property. Title to and
ownership of all copies of any products, services, software,
documentation, or Internet services developed by or for
CyberSync or owned by CyberSync through the term of this
Agreement, whether in machine-readable or printed form, and
including, without limitation, any derivative works,
compilations, or collective works thereof, and all related
technical know-how, and all rights therein (including
without limitation rights in patents, copyrights, and trade
secrets applicable thereto), are and shall remain the
exclusive property of CyberSync and its suppliers. Customer
shall not take any action to jeopardize, limit, or interfere
in any manner with CyberSync's ownership and rights therein.
c. Customer agrees not to disassemble, de-compile, or
reverse-engineer any of CyberSync's Internet software or any
of CyberSync's source code, without limitation.
6. Confidentiality and Non-Competition
a. Customer and CyberSync hereby agree not to disclose or
use, and to assure that their employees and agents do not
disclose or use, any confidential information belonging
exclusively to one another ("one another's Confidential
Information"). Customer and CyberSync acknowledge that the
following materials and information, and all copies thereof,
constitute one another's Confidential Information:
b. Lists of subscribers, customers, or clients, including
without limitation information about their occupation,
credit card numbers, information, and preferences; and the
results of market research performed or obtained by one
another concerning any such subscribers, customers, or
clients;
c. Information belonging to and/or concerning one another
which is not generally known by or disclosed to the public,
including without limitation information regarding one
another's hardware, software, personnel, finances, business
plans, computer programs, code, algorithms, expertise of
employees and consultants, know-how, formulas, processes,
ideas, inventions (whether patentable or not), schematics,
and other technical, business, financial and product
development plans, forecasts, strategies, and any other
information marked "Confidential"; and
d. Both parties acknowledge that the other party's
above-listed Confidential Information is valuable, special,
and unique; that its unauthorized disclosure or use will
cause irreparable injury to the other party; that immediate
injunctive and/or other equitable relief will be necessary
and appropriate to remedy an unauthorized disclosure or use
of such information; and that such relief may include
without limitation a Temporary Restraining Order (obtained
ex parte) as well as permanent injunctive or other relief.
e. Customer shall not cause or attempt to cause any Employee
or Agent of CyberSync, of CyberSync's subsidiaries, or of
its parent company, to terminate his/her employment or
agency during the term of this Agreement. Customer further
agrees not to cause or attempt to cause any of CyberSync's
customers, their agents, or their employees to terminate
their respective relationships with CyberSync, or with any
of CyberSync's subsidiaries, or with its parent company.
f. Upon termination of this Agreement, each party agrees to
return to the other party, within a reasonable time period,
any and all Confidential Information and other materials
belonging to the other party.
g. This Paragraph will survive the termination of this
Agreement for a period of two (2) years.
7. Payment Policies:
a. The following is intended to supplement the CyberSync BP
by providing a context for it, without conflicting
therewith.
b. As consideration for CyberSync's promise to provide to
Customer the Services described hereunder, Customer agrees
to pay CyberSync, at the time of submitting the application
and order, all the CyberSync fees for the Services which
Customer has ordered, regardless of the service plan/payment
selections Customer has already affirmatively made on the
CyberSync application/order form. (See summary in paragraph
18, below.)
c. All set-up and Initial Term fees are non-refundable, in
whole or in part, even if Customer's Web hosting or other
Service account shall be suspended, cancelled, or
transferred prior to the end of Customer's then-current
term. Any termination or cancellation by CyberSync or
Customer shall not relieve Customer of the obligation to pay
all fees accrued prior to such termination or cancellation.
d. Customer's set-up fee and first payment are due at the
time the on-line application and Agreement are filled out
and submitted to CyberSync. Customer will thereafter be
billed according to the CyberSync BP, located on-line at
http://www.cybersync.com/hosting/legal/billing_procedures.htm/.
e. If Customer pays by check, restrictive endorsements or
other statements on checks accepted by CyberSync shall have
no effect. Customer shall reimburse CyberSync for all
administrative costs (including reasonable attorney fees)
associated with collecting delinquent or dishonored
payments, to include chargebacks. At CyberSync's sole
option, interest charges may be added to any past due
amounts at the lower of 1.5% per month or the maximum rate
allowed by law.
f. In the event that Customer fails to pay for Services IAW
the CyberSync BP, CyberSync shall be entitled to
unilaterally suspend its obligation to perform under this
Agreement, in whole or in part, and to discontinue all or
some Services, at its option, until payment is made IAW the
BP. Moreover, in the event of failure to pay by Customer
and/or a chargeback by a credit card company (or similar
action by another payment provider allowed by CyberSync) in
connection with payments for the Services, Customer agrees
and acknowledges that, in CyberSync's sole discretion,
Customer's Registered Name (domain name) registration shall
be transferred to CyberSync, and that CyberSync shall
thereupon possess all rights regarding such Registered Name
registration including, without limitation, the right to
make said Registered Name available to other parties for
purchase, for the purpose of recovering the sum that
Customer has failed to pay. CyberSync may reinstate
Customer's Registered Name registration at CyberSync's sole
discretion, and will reinstate such following CyberSync's
receipt of payment in full from Customer (unless CyberSync
has already sold the Registered Name registration to a third
party, under the above provisions of this Agreement).
g. As to guarantees or any promotional offers that may be in
effect at the time you, the Customer, execute this
Agreement, those promotional offers or guarantees are
expressly subject to the following restrictions: All such
promotional offers of products or services, such as free or
reduced-rate domain name registration, free or reduced-rate
set-up, or similar offers, may be invalidated by CyberSync
in its sole discretion the first time you make a late
payment to CyberSync, or in the event that you cancel your
hosting plan within 30 calendar days after executing this
Agreement; and in such circumstances, before a refund of any
type is made to you, you will be charged the full price for
such domain name registration, set-up, or similar product or
service covered in a promotional offer. No 30-day
"money-back" guarantee shall apply to a collocation hosting
plan or a self-managed dedicated server-hosting plan. No
30-day "money-back" guarantee shall apply to your upgrade
from one hosting plan to another hosting plan.
8. Breach and Revocation: In the event that CyberSync may at
any time believe that the Service is being utilized for
unlawful purposes by Customer, or in contravention of the
terms and provisions of this Agreement, CyberSync may
unilaterally and immediately discontinue such Service to
Customer without liability. Without limitation, this
provision will include adult-content matters, unsolicited
bulk emailing, and failure to pay in accordance with the
CyberSync BP.
9. Security Interest in Customer's Data and Registered Name
(Domain Name) Registration Rights: Customer agrees that CyberSync and/or its subsidiaries shall have a security
interest in Customer's data and in Customer's Registered
Name registration, and shall have the right in CyberSync's
sole discretion to suspend, cancel, transfer, or modify
Customer's Web hosting account and Registered Name
registration in the event that Customer fails to pay or
otherwise breaches this Agreement. Customer understands and
acknowledges that by placing Customer's Registered Name and
Customer's information on CyberSync's servers, Customer has
granted CyberSync and its subsidiaries a security interest
in Customer's Registered Name registration and customer's
data. Customer acknowledges and agrees that Customer's
Registered Name is subject to suspension, cancellation, or
transfer by any ICANN procedure, by any Registrar or
Registry Operator procedures approved under an ICANN-adopted
policy, or by any other TLD Registry Operator procedures as
the case may be, for the resolution of disputes concerning
the Registered Name. Customer further agrees and acknowledge
that CyberSync owns all databases; compilations;
collections; and similar rights, titles, and/or interests
worldwide in the Web hosting and Registered Name databases
generated by information relating to CyberSync and CyberSync
subsidiary customers, and all information and derivative
works generated from the Web hosting and Registered Name
databases to include but not limited to:
a. the original creation date of the Registered Name
registration;
b. the expiration date of the Registered Name registration;
c. the name, postal address, e-mail address (which CyberSync
may alias for purposes of transfers), voice telephone
number, and where available, fax number(s) of the technical
contact, administrative contact, zone contact, and billing
contact for the Registered Name registration;
d. any remarks concerning the Registered Name that appear or
should appear in the WHOIS or similar database;
e. any other information CyberSync generates or obtains in
connection with the provision of Registered Name
registration and/or Web hosting services.
10. Default; Acceleration; and Waiver of Notice: Should
Customer fail to pay Customer's bill as required by this
Agreement, or should Customer otherwise breach this
Agreement, CyberSync may declare Customer in default and
require Customer to pay the entire debt immediately and
without prior notice. Further, in the event of default,
CyberSync may act, in its sole discretion, as Customer's
Attorney-in-Fact to execute actions or proceedings in
connection with this Agreement, including, but not limited
to, selling or otherwise disclosing Customer data and/or the
Registered Name registration.
11. Indemnification: Customer shall indemnify and hold
harmless CyberSync from any and all loss, cost, expense, and
damage on account of any and all manner of claims, demands,
actions, suits, proceedings, judgments, costs, and expenses
that may be initiated against CyberSync and CyberSync's
officers, directors, and employees for any Service provided
to Customer by CyberSync, to include Web space content that
violates any copyright, trademark, or service mark; any
proprietary right of any person or entity; any state and/or
federal laws or regulations; or contains any defamatory
matter.
12. Changes in Terms of Agreement: CyberSync reserves the
right to make changes to the terms and conditions of this
Agreement at any time, and to the on-line application/order
form, to include pricing of the Services, advising of the
change and the effective date thereof by publishing it to
the appropriate CyberSync Web site, but with changes in fees
being effective only at the end of any period for which
Customer has prepaid. Utilization of the Service(s) by
Customer following the effective date of such change(s)
shall constitute acceptance by Customer of such change(s).
Customer is solely responsible for staying informed with
respect to changes in this Agreement, to include the
application/order form, the AUP, and the BP, all of which
are published on-line, as indicated above, and are readily
available for public viewing.
13. Entire Agreement and Understanding: This instrument ---
together with the application/order form for Web space and
Services, CyberSync's AUP, and CyberSync's BP, all of which
are published on CyberSync's Web site and are incorporated
herein by reference --- constitutes the entire Agreement
between the parties, and represents the complete and entire
understanding of the parties with respect to the subject
matter of this Agreement.
14. Relationship: The parties hereto are independent
entities. Nothing in this Agreement shall be construed to
constitute Customer an agent, employee, partner, independent
contractor, joint venturer, or any other similar entity.
15. Governing Law: This Agreement shall be governed by the
laws of the Province of Ontario in Canada without regard to
such State's laws and rules concerning conflicts of laws.
Each party agrees that jurisdiction and venue for any and
all claims, disputes, or other matters arising out of the
Services provided herein and under this Agreement will only
lie in Ontario. If any action at law or in equity is brought
in Ontario, to enforce or interpret the provisions of this
Agreement and Services provided herein, the prevailing party
in such action shall be entitled to all reasonable costs to
include attorney fees. The parties agree that this Paragraph
15 is a material inducement to each of them to enter into
this agreement, and further agree that, if either party
violates this agreement by filing or bringing, Essex County,
Ontario, any action at law or in equity to enforce or
interpret the provisions of this Agreement and the Services
provided herein, the party filing or bringing such action
shall fully reimburse the defendant party for its reasonable
costs to include attorney fees, and shall make such
reimbursement in full within ten (10) calendar days after
receipt of a formal demand therefor, which demand shall
include a list of all costs and expenses demanded.
16. Severability: In the event that any term or provision of
this Agreement is held by a court of competent jurisdiction
to be illegal, unenforceable, or invalid in whole or in part
for any reason, the remaining provisions of this Agreement
shall remain in full force and effect.
17. Interpretation: The format, words, and phrases used
herein shall have the meanings generally understood thereby
in the Computer/Software/Internet Industries. This Agreement
shall be construed according to its plain meaning. In the
event any ambiguity shall be found herein, interpretation
shall be based on the intent of the parties, rather than a
construction automatically against the interests of the
drafting party.
18. Customer understands that Customer has already
affirmatively selected one of the following service
plan/payment options on the CyberSync application/order
form, which is incorporated herein by reference. The four
options are summarized immediately below:
a. Option 1. Term of six (6) months shall begin on the date
of application. Customer pays for the six months of Services
in six monthly installments, each individual installment
being nonrefundable, at Company's sole discretion.
Thereafter, renewal terms SIX MONTHS IN DURATION shall be
automatic unless one of the parties cancels IAW the BP
within 30 calendar days of the end of the then-current term.
b. Option 2. Term of six (6) months shall begin on the date
of application. Customer pays for the six months of Services
in one initial prepay installment, such payment being
nonrefundable, at Company's sole discretion. Thereafter,
renewal terms SIX MONTHS IN DURATION shall be automatic
unless one of the parties cancels IAW the BP within 30
calendar days of the end of the then-current term.
c. Option 3. Term of twelve (12) months shall begin on the
date of application. Customer must pay for the twelve months
of Services in one initial installment, such payment being
nonrefundable, at Company's sole discretion. Thereafter,
renewal terms TWELVE MONTHS in DURATION shall be automatic
unless one of the parties cancels IAW the BP within 30
calendar days of the end of the then-current term.
d. Option 4. Term of twenty-four (24) months shall begin on
the date of application. Customer must pay for the
twenty-four months of Services in one initial installment,
such payment being nonrefundable, at Company's sole
discretion. Thereafter, renewal terms TWENTY-FOUR MONTHS in
DURATION shall be automatic unless one of the parties
cancels IAW the BP within 30 calendar days of the end of the
term.
e. Option 5. Term of twelve (12) months shall begin on the
date of application for Dedicate 3 plans. Customer pays for
the twelve months of Services in twelve monthly
installments, each individual installment being
nonrefundable, at Company's sole discretion. Thereafter,
renewal terms TWELVE MONTHS IN DURATION shall be automatic
unless one of the parties cancels IAW the BP within 30
calendar days of the end of the then-current term.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, and in consideration of the covenants
and agreements contained herein, do hereby execute this
instrument, with each party warranting its ability to enter
into this Agreement for the person or entity herein named as
a party hereto. By filling out the online application/order
form directly, using a dial-up IP address captured and
logged by CyberSync (or by placing a recorded telephonic
order with an CyberSync representative from a valid
telephone number which is logged by a PBX system), and/or by
clicking on "Accept" below, Customer agrees to all the terms
and conditions of this Agreement.
Copyright © 1996-2006, CyberSync Cpnsulting, Inc. All Rights
Reserved.
Please read our Service Agreement &
Dispute Resolution
Policy.
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