Terms of Service
This Terms of Service Agreement ("Agreement") is entered into as of the date on which the Customer/Client first uses Cirkuit Networks (Cirkuit Commerce) Services (as defined below) ("Effective Date") by and between Cirkuit Networks, Inc. ("Cirkuit Networks"; “Cirkuit Commerce”; or “SEO-Cart”) and Customer ("Customer" or “Client”).
R E C I T A L S
WHEREAS, Cirkuit Networks is a service provider that offers access to, and use of, certain applications including its fully integrated set of web-based tools ("Cirkuit Commerce Services") and implementation support to initiate such access and use.
WHEREAS, Customer wants to retain Cirkuit Networks to allow Customer to access and use the Cirkuit Networks Services under the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, Customer and Cirkuit Networks agree to the foregoing and as follows:
Overview of Agreement. This Agreement represents the terms and conditions under which Cirkuit Networks shall provide Customer access to and use of the Cirkuit Networks Services package or packages subscribed to ("Cirkuit Commerce Services or Plans"), which may be amended from time to time to reflect additional or amended Cirkuit Networks Services ordered by Customer. Cirkuit Networks Services shall be provided to Customer via the Internet's world wide web. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect.
Equipment. Customer will be responsible for procuring, at Customer's sole expense, all equipment or other software (including licenses necessary to use currently-supported versions thereof), if any, required to use Cirkuit Networks Services. For such third party hardware or software, Customer shall only receive the manufacturer's warranty, if any, and shall receive no warranties from Licensor for any such third party hardware or software.
Access Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer's employees ("Authorized Users") to use the Cirkuit Networks Services Package and related documentation solely for Customer's business purposes consistent with the terms and conditions of this Agreement. Cirkuit Networks will issue to one Authorized User ("Cirkuit Commerce Administrator") an individual logon identifier and password ("Administrator's Logon") for purposes of administering the Cirkuit Networks Services Package. Customer acknowledges and agrees that only its Cirkuit Commerce Administrator shall be authorized to bind Customer in connection with any service provided to Customer under this Agreement. Using Administrator's Logon, the Cirkuit Commerce Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the Cirkuit Networks Services Package. Customer shall use its reasonable efforts to see that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the Cirkuit Networks Services Package consistent with the assigned business rules; and (e) use the Cirkuit Networks Services Package in accordance with the terms and conditions of this Agreement. Customer will be responsible for: (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (g) any and all costs and expenses incurred through the authorized use of Customer's Logon. Cirkuit Networks reserves the right to deny, suspend or revoke access to the Cirkuit Networks Services, in whole or in part, if Cirkuit Networks believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the Cirkuit Networks Services inconsistent with the terms and conditions of this Agreement.
Restrictions. The customer is expected to be familiar with and to practice good Internet etiquette (“Netiquette”). The customer will comply with the rules appropriate to any network to which Cirkuit Networks may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts children or is likely to result in retaliation against Cirkuit Networks by offended users. Cirkuit Networks reserves the right to refuse or terminate service at any time for violation of this article. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.
Customer agrees that Customer and its Authorized Users will not: (a) sell, lease, license or sublicense the Cirkuit Networks Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the Cirkuit Networks Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the Cirkuit Networks Services by, any third party; (d) copy or reproduce all or any part of the Cirkuit Networks Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the Cirkuit Networks Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the Cirkuit Networks Services; (g) knowingly introduce into or transmit through the Cirkuit Networks Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Cirkuit Networks Services; or (i) engage in or allow any action involving the Cirkuit Networks Services that is inconsistent with the terms and conditions of this Agreement.
Audit Rights. If a customer uses the Cirkuit Commerce software or has obtained FTP access to the Cirkuit Networks software, Cirkuit Networks shall have the right, during the term of this Agreement and for a period of six (6) months thereafter, upon reasonable notice and at reasonable times, to access Customer's location and files to inspect Customer's use of the Cirkuit Networks Services Package, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the Cirkuit Networks Services or this Agreement, Cirkuit Networks shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity.
Non-Exclusivity. The parties acknowledge and agree that Cirkuit Networks is providing access to and use of the Cirkuit Networks Services to multiple customers and that such services are non-exclusive.
Availability of Services. Cirkuit Networks shall use commercially reasonable efforts to keep the Cirkuit Networks Services available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled emergency maintenance, and systems outages. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, Cirkuit Networks makes no guarantees that any given user/customer will be able to access the Cirkuit Networks services at any given time, and Cirkuit Networks shall not be liable to Customer for failure of accessibility to their website, email, FTP, or any Cirkuit Networks services because of conditions including, but not limited to:
- Service interruptions caused by customer from custom scripting, coding, or configurations;
- Service interruptions caused by customer from the installation of third-party applications;
- Service interruptions that prevent customer’s ability to make changes to their website, including but not limited to, changes via file transfer protocol (“FTP”), CMS, and email;
- Service interruptions related to the reliability of software programming environments, or failure of software due to coding errors or program software bugs;
- Service interruptions related to the reliability of software programming environments;
- Service interruptions caused by periodic maintenance, repairs or replacements that Cirkuit Networks may undertake from time to time; or
- Service interruptions beyond the reasonable control of Cirkuit Networks or that are not reasonably foreseeable by Cirkuit Networks, including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, or other unforeseeable failures.
ARTICLE 3—SPAM POLICY
Cirkuit Networks (Cirkuit Commerce) has a zero tolerance spam policy, also known as Unsolicited Commercial Email (UCE). Cirkuit Networks (Cirkuit Commerce) does not permit spam being sent using the Cirkuit Networks (Cirkuit Commerce) servers or network.
All email or newsletters sent using the Cirkuit Networks (Cirkuit Commerce) servers must meet the following criteria:
- The recipient of your email has made a purchase from your website online store, requested information be sent to them from your website contact submission form, responded to a questionnaire or survey, or signed up for your newsletter through your website email/newsletter subscription field.
- Marketing/Newsletter emails must provide a working link for users to unsubscribe.
- All requests to unsubscribe must be processed within 10 days.
- Email "from address" must contain the domain name of your Cirkuit Commerce store or website.
- Email subject lines must not contain misleading information.
Cirkuit Networks (Cirkuit Commerce) may actively monitor our email servers for abuse. Any client found to be using the Cirkuit Networks (Cirkuit Commerce) email servers to send spam can immediately have their Cirkuit Networks (Cirkuit Commerce) services disabled and/or cancelled be notified of such.
Use of any third-party mass email programs (software) in conjunction with Cirkuit Networks (Cirkuit Commerce) email (SMTP) servers is strictly prohibited. Marketing emails or newsletters can only be sent using the Cirkuit Networks (Cirkuit Commerce) provided services as noted at this URL: /ecommerce-features/analytics-and-marketing/email-marketing-services.
ARTICLE 4—THIRD-PARTY SOFTWARE POLICY
No third-party software may be installed on Cirkuit Networks (Cirkuit Commerce) servers without prior written consent via email or by postal mail. Additionally, in the event you would like to install any third-party software, after receiving written approval from Cirkuit Networks (Cirkuit Commerce), the following terms shall apply. You represent and warrant you have the right to use and install the third-party software and have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. You agree to defend, indemnify and hold harmless Cirkuit Networks (Cirkuit Commerce) and its employees, officers and directors for, from and against any and all claims brought against Cirkuit Networks (Cirkuit Commerce) and its employees, officers and directors by a third-party alleging the software infringes: (i) the third-party's rights; or (ii) a U.S. patent, trademark, copyright or other intellectual property right. You agree that in such an event you shall pay all resulting costs, damages, expenses and reasonable attorneys' fees that a court awards and settlements incurred by Cirkuit Networks (Cirkuit Commerce) in connection with any such claims.
Use of any third-party mass email programs (software) in conjunction with Cirkuit Networks (Cirkuit Commerce) email (SMTP) servers is strictly prohibited. Marketing emails or newsletters can only be sent using the Cirkuit Networks (Cirkuit Commerce) provided services as noted at this URL: /ecommerce-features/analytics-and-marketing/email-marketing-services. In addition, the unauthorized sending of an email through the Cirkuit Networks SMTP servers that has more than 50 email recipients is prohibited and strictly enforced.
ARTICLE 5—FEES; PAYMENT TERMS
Application and Use Fees. Client shall pay any Cirkuit Networks (Cirkuit Commerce) application or user fees, including but not limited to additional bandwidth, additional disk storage space, content management system (CMS), and SSL certificate fees associated with their account on their account bill date (original account signup day, example: 5th of the month) according to the Cirkuit Networks (Cirkuit Commerce) then-applicable fee schedule, which can be accessed at the following link /pricing as well as any applicable taxes. Recurring and non-recurring payments can be made via Credit Card (Visa, MasterCard, or American Express), PayPal, or ACH Checking Debit and will automatically be processed using the client's payment method on file on their account bill date for all services associated with their account. Furthermore, if additional services are rendered by Cirkuit Networks (Cirkuit Commerce), including but not limited to website maintenance or custom programming work, payment for such work must be made within three (3) days of invoice bill date. In all cases, if payment is not made in full within three (3) days of the account or invoice bill date, Cirkuit Networks (Cirkuit Commerce) at their own discretion can disable the Clients Cirkuit Networks (Cirkuit Commerce) account administrative login(s), and new order email notification until payment in full is received. If payment in full is not received with fifteen (15) days, Cirkuit Networks (Cirkuit Commerce) at their own discretion can disable and remove from the internet the client's website until payment in full is received.
Late Payments. If Customer fails to pay any fees due within three (3) days of their account or invoice bill date, Cirkuit Networks will have the right to: (a) charge the client via the payment method they have on file for their account.
Taxes. Customer will pay or reimburse Cirkuit Networks (Cirkuit Commerce) for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Cirkuit Networks (Cirkuit Commerce) under this Agreement, excluding, however, income taxes or gross receipts taxes which may be levied against Cirkuit Networks (Cirkuit Commerce). Such taxes may be reflected on Customer invoices.
ARTICLE 6—LIMITED WARRANTIES
Customer Warranty. Customer represents and warrants to Cirkuit Networks (Cirkuit Commerce) that: (a) Customer has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer and its Authorized Users will only use the Cirkuit Networks (Cirkuit Commerce) Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (c) Customer warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Customer receive notice of any claim regarding the Cirkuit Networks (Cirkuit Commerce) Services, Customer shall promptly provide Cirkuit Networks (Cirkuit Commerce) with a written notice of such claim.
Cirkuit Networks (Cirkuit Commerce) Warranty. Cirkuit Networks (Cirkuit Commerce) warrants that: (a) Cirkuit Networks (Cirkuit Commerce) has the authority to enter into this Agreement and perform its obligations under this Agreement; and (b) Cirkuit Networks (Cirkuit Commerce) will perform the services required under this Agreement in a professional and workmanlike manner.
Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, CIRKUIT NETWORKS (CIRKUIT COMMERCE) MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF THE CIRKUIT NETWORKS (CIRKUIT COMMERCE) SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. CIRKUIT NETWORKS (CIRKUIT COMMERCE) SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
ARTICLE 7—LIMITATION OF LIABILITY
- Customer expressly understands and agrees that, as allowed by applicable laws, Cirkuit Networks (Cirkuit Commerce) shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the Service.
- To the extent permitted by applicable laws, in no event shall Cirkuit Networks (Cirkuit Commerce) be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with the use of the services, or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates, or your violation of any law or the rights of a third party.
- Your use of the Services is at your sole risk. The Services are provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
- Cirkuit Networks (Cirkuit Commerce) does not warrant that the Services will be uninterrupted, timely, secure, or error-free.
- Cirkuit Networks (Cirkuit Commerce) does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable.
- Cirkuit Networks (Cirkuit Commerce) does not warrant that the quality of any products, services, information, or other materials purchased or obtained by you through the Services will meet your expectations, or that any errors in the Services will be corrected.
IN NO EVENT SHALL CIRKUIT NETWORKS (CIRKUIT COMMERCE) BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS.
Customer agrees to indemnify, defend (at Cirkuit Networks (Cirkuit Commerce) sole option and at Customer's sole expense) and hold harmless Cirkuit Networks (Cirkuit Commerce), its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim arising out of or relating to Customer's use of and/or access to the Cirkuit Networks (Cirkuit Commerce) Services or services provided hereunder, including but not limited to any claims arising out of the sale or offer for sale of any illegal, infringing, counterfeit products or services or any other misuse of the Cirkuit Networks (Cirkuit Commerce) Services by Customer/Client or its customers. Customer specifically acknowledges that Cirkuit Networks (Cirkuit Commerce) shall not be liable to Customer for losses, if any, incurred as a result of fraudulent or unauthorized misuse of Cirkuit Networks (Cirkuit Commerce) Services. Customer specifically acknowledges that Cirkuit Networks (Cirkuit Commerce) shall not be liable to Customer or End User for losses, if any, incurred as a result of software coding errors (software bugs) that result in an error, flaw, failure or fault in the software program or system that causes it to produce an incorrect or unexpected result, or to behave in unintended ways; Omissions, Misspellings, or other Misunderstanding of how Cirkuit Networks (Cirkuit Commerce) Services or Software works or functions; or any fraudulent or unauthorized misuse of Cirkuit Networks (Cirkuit Commerce) Services or software by Customer or End User.
ARTICLE 9—CONFIDENTIAL INFORMATION
"Confidential Information" will include the terms of this Agreement, any software provided by Cirkuit Networks (Cirkuit Commerce) under this Agreement, the logon identifiers and/or passwords provided to Customer and each Authorized User, the prices and fees charged under this Agreement, any other materials marked confidential by Customer or Cirkuit Networks (Cirkuit Commerce) and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance. Each party acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (d) publicly available; (e) already in the other party's possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the other party without reference to the disclosing party's Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity; provided no less than ten (10) days written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.
ARTICLE 10—PROPRIETARY RIGHTS
No right (except for the license granted in Article 2-Services-Access Rights), title or interest of intellectual property or other proprietary rights in and to the Cirkuit Networks (Cirkuit Commerce) Services and/or other products or services made available under this Agreement is transferred to Customer hereunder. Cirkuit Networks (Cirkuit Commerce) and its Third Party Licensors retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the Cirkuit Networks (Cirkuit Commerce) Services and/or other products or services provided under this Agreement. Customer will retain all right, title and interest to the documents created by Customer using the Cirkuit Networks (Cirkuit Commerce) Services, subject to any rights of Cirkuit Networks (Cirkuit Commerce) in underlying works from which such documents were derived.
ARTICLE 11—TERM AND TERMINATION
Cancellation Procedure. Customer is responsible for all Cirkuit Networks (Cirkuit Commerce) Service charges up to and including the day client cancels Cirkuit Networks (Cirkuit Commerce) Services. To cancel Cirkuit Networks (Cirkuit Commerce) Services, the customer must call our telephone number as listed on the Cirkuit Networks (Cirkuit Commerce) website and ask for the cancellation of your account. A Cirkuit Networks (Cirkuit Commerce) representative will verify that the person calling is the owner of the website account and will issue a cancellation confirmation email to the customer. The cancellation confirmation email will serve as proof that the website and related services has been cancelled. The customer is responsible for all outstanding charges up to the time the cancellation confirmation is issued. For security purposes, e-mail notices must originate from the account holders email address only.
Cancellation of store front software does not release client from any long term contracts that client might have signed with Cirkuit Networks (Cirkuit Commerce). If client has pre-paid for a year of service, cancellation does not result in a refund.
Term. This Agreement will commence as of the Effective Date and shall continue thereafter on a month to month basis unless terminated pursuant to ARTICLE 11, OR UPON PHONE NOTICE TO THE CIRKUIT NETWORKS (CIRKUIT COMMERCE) BILLING DEPARTMENT. ANY EMAIL NOTICE MUST ORIGINATE FROM THE ACCOUNT HOLDERS EMAIL ADDRESS ONLY AND WILL BE FOLLOWED UP BY A PHONE CALL FOR CONFIRMATION. WRITTEN NOTICE MAY BE MAILED DIRECTLY TO CIRKUIT NETWORKS (CIRKUIT COMMERCE) AT:
Cirkuit Networks, Inc.
11722 Allisonville Road, STE 103-176
Fishers, IN 46038
Termination by Cirkuit Networks. Cirkuit Networks shall have the right, upon written notice to Customer, to terminate this Agreement if: (a) Customer fails to timely pay Cirkuit Networks (Cirkuit Commerce) any amount due to Cirkuit Networks (Cirkuit Commerce) under this Agreement; (b) Customer materially breaches any term or condition of this Agreement, provided such breach is not cured by Customer within thirty (30) calendar days following Cirkuit Networks (Cirkuit Commerce) notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
Termination by Customer. Customer will have the right, upon written notice to Cirkuit Networks (Cirkuit Commerce), to terminate this Agreement if Cirkuit Networks (Cirkuit Commerce) is in material breach of this Agreement and Cirkuit Networks (Cirkuit Commerce) fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice.
Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason: (a) Customer's access to, and use of, the Cirkuit Networks (Cirkuit Commerce) Services will terminate; (b) Customer will return to Cirkuit Networks (Cirkuit Commerce) any and all Cirkuit Networks (Cirkuit Commerce) Services, equipment, software, documentation or other deliverables provided to Customer by Cirkuit Networks (Cirkuit Commerce) including any copies thereof held by Customer; (c) Cirkuit Networks (Cirkuit Commerce) will deliver to Customer all Customer documents and other materials (which may be obtained using Cirkuit Networks (Cirkuit Commerce) create export file function) stored by Customer on the Cirkuit Networks (Cirkuit Commerce) Network; and (d) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.
Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement, including but not limited to Articles 2, 3, 4, 5, 6, 7, 8, 9, and 10.
Notices. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via e-mail, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier, in each case addressed, in the case of Customer, the address listed in Cirkuit Networks records, or in the case of Cirkuit Networks, to Cirkuit Networks, 11722 Allisonville Road, STE 103-176, Fishers, Indiana 46038 (or to such other address as may be specified upon notice).
Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without Cirkuit Networks prior written consent, which consent may be withheld, delayed or conditioned in Cirkuit Networks discretion. Cirkuit Networks will have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to Customer.
Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.
Waiver. Cirkuit Networks (Cirkuit Commerce) has the right to update and/or modify this agreement at any time without prior notice to the Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of Cirkuit Networks. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Agreement. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless Cirkuit Networks in good faith deems the unenforceable provision to be essential, in which case Cirkuit Networks will have the right to terminate this Agreement in accordance with Article 11.
Public Announcements. Customer grants Cirkuit Networks the right to use Customer's name in press releases, product brochures and financial reports indicating that Customer is a customer of Cirkuit Networks.
Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
Third Party Beneficiaries. Customer acknowledges that some Cirkuit Networks Services may be provided by Third Party Licensors. Third Party Licensors are third party beneficiaries to this Agreement, and there are no other third party beneficiaries to this Agreement.
Governing Law; Jurisdiction; Dispute Resolution with Third Party Licensors. This Agreement will be interpreted and construed in accordance with the laws of the State of Indiana , without regard to conflict of law principles. All disputes arising out of this Agreement shall be brought only in the district and federal courts located in or for Indianapolis, IN. EACH PARTY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN OR FOR MARION COUNTY, INDIANA.
Non-solicitation. Customer acknowledges and agrees that the employees and consultants of Cirkuit Networks are a valuable asset to Cirkuit Networks and difficult to replace. Accordingly, Customer agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and non-renewal or termination of this Agreement, Customer will not solicit or attempt to solicit any employee or consultant of Cirkuit Networks.
Customer Security Responsibilities. The Customer is solely responsible for any breaches of security affecting servers under Customer is involved in an attack on another server control. If a Customer's server or system has been maliciously breached, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the Customer is responsible for the cost to rectify any damage done both to the customer's item and any other related area affected by the security breach. The labor used to rectify any such damage is categorized as emergency security breach recovery and is currently charged at $250 USD per hour. Enquiries regarding security matters may be directed to Head of Security at [email protected].
System and Network Security. Violations of system or network security are prohibited and may result in criminal and civil liability. Cirkuit Networks may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
- Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
- Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
- Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Cirkuit Networks. Such labor is categorized as emergency security breach recovery and is currently charged at $250 USD per hour required. Enquiries regarding security matters may be directed to Head of Security at [email protected].
Cirkuit Networks is concerned with the privacy of online communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, Cirkuit Networks urges its customers to assume that all of their online communications are insecure. Cirkuit Networks cannot take responsibility for the security of information transmitted over Cirkuit Networks facilities, network, hardware, or connection to the internet.
Copyright Infringement - Software Piracy Policy. The Cirkuit Networks service may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights.
Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law, and you may be liable for up to $150,000 per infringement.
Network Responsibility. Customers have a responsibility to use the Cirkuit Networks service responsibly. This includes respecting the other customers of Cirkuit Networks. Cirkuit Networks reserves the right to suspend and or cancel service with any Customer who uses the Cirkuit Networks service in such a way that adversely affects other Cirkuit Networks customers. This includes but is not limited to:
- Attacking or attempting to gain unauthorized access to servers and services that belong to Cirkuit Networks or its customers (i.e. computer hacking), and/or
- Participating in behavior, which result in reprisals that adversely affect the Cirkuit Networks service or other customers' access to the Cirkuit Networks service.
Cirkuit Networks will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a Cirkuit Networks customer, whether or not the attacked account or computer belongs to Cirkuit Networks, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or customer, of Cirkuit Networks is strictly prohibited.
Violations of this policy may be reported directly to the FBI's Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/about-us/investigate/cyber. Cirkuit Networks will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.
Lawful Purpose . All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content.
Using any Cirkuit Networks service or product for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited.
Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of Cirkuit Networks services or products is prohibited. Using the Cirkuit Networks network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited.
Servers hosted within Cirkuit Networks network are open to the public. You are solely responsible for your usage of the Cirkuit Networks network and servers and any statement you make on servers hosted within the Cirkuit Networks network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.
Child Pornography on the Internet. Cirkuit Networks will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography. Customers are ultimately responsible for the actions of their clients over the Cirkuit Networks network and will be liable for illegal material posted by their clients.
According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.
Violations of the Child Protection Act may be reported to the U.S. Customs Agency at 1-800-BEALERT
Unsolicited Commercial Email/Unsolicited Bulk Email (UCE/UBE). Unsolicited commercial email (UCE) is defined by Cirkuit Networks as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc…) sent for purposes of distributing commercial information of any kind, soliciting the purchase or sale of products or services or soliciting any transfer of funds to a recipient who has not agreed to receive such communication.
Unsolicited bulk e-mail (UBE) is defined by Cirkuit Networks as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc…) to multiple recipients who have not agreed to receive such communication.
Use of the Cirkuit Networks network, servers or services to transmit any unsolicited commercial or unsolicited bulk-e-mail is expressly prohibited, as is hosting web sites or services on a server, which are advertised in any UCE/UBE. Cirkuit Networks also prohibits the sending of any fraudulent, malicious, harassing, false or misleading electronic communications, including, without limitation, chain letters, pyramid schemes, or e-mails with forged headers. Posting off-topic advertisements to Usenet discussion groups, ICQ, Instant Messenger, etc., is also expressly prohibited.
Additionally, Cirkuit Networks customers are expressly prohibited from sending any UCE/UBE from our network or any email from another network that in any way references a document, image, or Web site that resides on the Cirkuit Networks network or in one of our data centers. Violations of this type may result in the termination of the offending Cirkuit Networks account. Our customers are ultimately responsible for any violations of the AUP by their clients, and any violation of the AUP by a client of a Cirkuit Networks customer shall be deemed a violation of the AUP by such Cirkuit Networks customer.
Customers whose actions directly or indirectly result in Cirkuit Networks IP space being listed in any of the various abuse databases may be subject to having the offending domain(s), server(s), or user(s) immediately removed from our service. In addition, if Cirkuit Networks in its sole discretion determines that a customer is in violation of our AUP, Cirkuit Networks may, at its sole discretion, restrict, suspend or terminate a customer's account. Cirkuit Networks will, in most cases, attempt to contact a customer prior to suspension or termination of a server(s), but cannot guarantee prior notification.
Any server suspended or terminated for AUP violations will be reconnected only after the customer agrees to cease all activities that violate the Cirkuit Networks AUP and pays all applicable reconnect fees and related charges. Any server suspended a second time for AUP violations WILL be immediately and permanently removed from our network.
Customers that Cirkuit Networks determines in its sole discretion to be in violation of the Cirkuit Networks AUP may be subject to additional fees or fines including, without limitation, any applicable reconnect fees.
Violation of Cirkuit Networks UCE/UBE policy may be reported to [email protected].
Guidelines for Permission-Based Email. While Cirkuit Networks prohibits the use of its systems or network to send unsolicited email (UCE/UBE) as described above, customers may send permission-based email marketing, subject to the guidelines provided herein. Permission-based marketing is defined as electronic marketing that an end user agrees to receive. This is often referred to as 'opt-in' electronic marketing. All recipient information for such marketing conducted by Cirkuit Networks customers must be documented and cataloged by the customer. This information is to include date, time, originating IP and the location from which the email address or other recipient information was obtained. Additionally, a customer must at a minimum comply with the following guidelines, and any additional guidelines established by Cirkuit Networks from time to time in its sole discretion, to engage in permission-based email marketing without violating the AUP:
- All commercial or bulk email originating from a Cirkuit Networks customer on the Cirkuit Networks network must have a working unsubscribe link. The customer must honor all requests to unsubscribe within 72 hours. Additionally, there must be text in the email stating that while all requests to unsubscribe are honored, it may take up to 72 hours to process.
- All commercial or bulk email originating from a Cirkuit Networks customer on the Cirkuit Networks network must clearly list the email address to which the email was originally sent (the intended recipient's email address) in the body of the message OR in the 'TO:' line of the email.
- All Cirkuit Networks customers sending commercial or bulk email must have a working [email protected] address from EVERY domain associated with the email campaign. Additionally, the abuse@ address must be prominently posted on the front page of the associated web site. Customers must regularly answer any messages sent to the abuse@ address.
- All Cirkuit Networks customers sending commercial or bulk email must register the abuse@ address for every domain associated with commercial email they send at abuse.net.
- All commercial or bulk email sent must include information about where the email address was obtained in the body of the email. For example:
"You opted-in to receive this email promotion from our web site or from one of our partner sites."
- All Cirkuit Networks customers sending commercial or bulk email must answer all complainants' requests for details regarding where the complainant "opted-in" to receive electronic marketing within 72 hours. This information must include the date, time, originating IP and the location from which the email address or other recipient information was obtained. Instructions on how to get this information must be stated clearly in the body of the email. For example, a statement similar to the following must be present in the body of the email:
"If you would like to learn more about how we received your email address, please contact us at [email protected]."
Requests for "opt-in" information must be responded to within 72 hours.
- All Cirkuit Networks customers sending commercial or bulk email must be able to track and identify anonymous complainants. There are several software packages (such as RoboMail) that can help accomplish this.
- If a Cirkuit Networks customer is using an affiliate program to send commercial or bulk email through the Cirkuit Networks network and the affiliate program becomes subject to repeated abuse by users, the customer must discontinue use of the affiliate program or be subject to immediate suspension or cancellation.
- All customers of Cirkuit Networks are required to have up-to-date and valid contact information on file with their registrar for any domain hosted on the Cirkuit Networks network.
- Cirkuit Networks reserves the right to test portions of any customer's email list in response to complaints and request opt-in information from a random sample of that list at any time.
- Cirkuit Networks reserves the right to determine in its sole discretion the validity of any customer's email list. Any list Cirkuit Networks determines in its sole discretion to be in violation of this AUP must be removed immediately or the customer will be subject to immediate suspension or termination. Repeated violations will result in permanent suspension.
- Cirkuit Networks reserves the right to test and otherwise monitor customer's compliance with the above guidelines and requirements at any time during the customer's term of service at Cirkuit Networks.
- If Cirkuit Networks determines in its sole discretion that the customer is not in strict compliance with the guidelines for permission-based e-mail marketing, then Cirkuit Networks may immediately suspend or terminate the customer's service.
IP Address Overlap. Cirkuit Networks administers the network on which customer servers reside. The customer cannot use IP addresses, which were not assigned to them by Cirkuit Networks staff. Any server found using IPs, which were not officially assigned, will be suspended from network access until such time as the IP addresses overlap can be corrected.
Suspension. If Cirkuit Networks in its sole discretion determines that a Customer's server has become the source or target of any violation concerning the Cirkuit Networks Acceptable Use Policy (AUP), Cirkuit Networks reserves the right to suspend network access to that server. While Cirkuit Networks will attempt to contact the Customer before suspending network access to the customer's server(s), prior notification to the Customer is not assured. In certain cases, Cirkuit Networks will contact law enforcement and other agencies regarding these activities. Customers are responsible for all charges, as well as any fees relating to the investigation, suspension, administration and handling of their servers before, during and after the suspension period.
Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
Trademark and Copyright Legal Notices
Cirkuit Networks, the Cirkuit Networks and Cirkuit Commerce logos, among others, are registered trademarks and/or registered service marks of Cirkuit Networks, Inc., or one of its subsidiaries, in the United States and other countries. cirkuit.net, cirkuit.com, seocart.com, among others, are trademarks and/or service marks of Cirkuit Networks, Inc. or one of its subsidiaries, in the United States and other countries.
Other brands or product names are trademarks or service marks of their respective owners, should be treated as such, and may be registered in various jurisdictions.