PBXACT HOSTING SERVICE SUBSCRIPTION AGREEMENT
This agreement (this “Agreement”) is made effectice as of November 17, 2018 (the “Effective Date”), between CyberLynk (“CyberLynk”) and Customer governs provision of CyberLynk’s PBXact Hosting service (the “Service”). This Agreement is effective as of the moment Customer (a) indicates assent through the CyberLynk Website or (b) establishes an account with CyberLynk or uses the Service or any element thereof. CyberLynk may revise this Agreement from time to time by posting a new version hereof on the CyberLynk Website. Continued use of the Service constitutes acceptance of such revisions to this Agreement.
1. The Service.
(a) The Service includes the features and restrictions set forth in the quotation or the service package purchased by Customer (the “Package”). Customer agrees to the following terms and conditions regarding the term and termination of this Agreement and regarding billing cycles for each of the following Packages (in addition to such other provisions as the Package may include):
(i) Month-to-Month Package: Customer pays monthly by credit card and may terminate at any time via email to firstname.lastname@example.org or the client portal. CyberLynk is not obligated to refund any payments in the event of such termination. If not terminated, the Month-to-Month Package automatically renews monthly.
(ii) Semi/Annual Prepaid Package: Customer pre-pays for the entire Service period in question (“Service Period”), typically six (6) months or one (1) year. Customer may terminate at any time via email to email@example.com or the client portal. CyberLynk is not obligated to refund any payments in the event of such termination. If not terminated, the Prepaid Package renews at the end of the Service Period as a Prepaid Package for a Service Period of the same duration.
Customer will retain records of the terms and conditions of its Package for future reference. CyberLynk may change Package prices or add or delete Package features or restrictions at any time, and such changes will become effective immediately for Month-to-Month and Prepaid Packages and at the end of the Service Period for Term Contract Packages. In the event of any conflict between the terms of any Package and the terms of this Agreement, the terms of this Agreement will govern. In the event of any conflict between the terms of any Package and the terms of this Agreement, the terms of this Agreement will govern.
(b) In the event that Customer is dissatisfied with the Service, including without limitation any new feature or restriction, Customer’s sole remedy will be termination of this Agreement pursuant to the provisions of Subsection 1(a) above and Section 3 below.
(a) Customer will pay CyberLynk in advance for provision of the Service pursuant to the requirements of Customer’s Package. Customer is responsible for monitoring storage, bandwidth utilization, and other metered services.
(b) Invoices are issued by email and online as a courtesy; Customer will maintain awareness of its usage levels and the fees it owes CyberLynk and will pay them when due. All invoices are due on or before their due date stated on the invoice and will be considered overdue if not paid on that day.
(c) Customer will keep a valid credit card on file with CyberLynk. Customer will update credit card information as necessary. If paying by credit card, Customer will be charged the first business day prior to the account due date, and CyberLynk may interrupt Service if a charge attempt is denied. If a charge attempt is denied, CyberLynk may levy a $9.99 declined credit card fee for each unsuccessful attempt.
(d) Customer will pay a $24.99 fee (i) for bank transfers under $500 and (ii) for custom billing requests. A Returned check will constitute a material breach of this Agreement, and Customer will incur a $50.00 returned check charge, in addition to any other remedies available to CyberLynk.
(e) CyberLynk is not required to issue refunds or credits except as explicitly specified in this Agreement.
3. Term & Termination.
(a) This Agreement will continue until terminated by either party pursuant to the procedures set forth herein.
(b) Customer may terminate this Agreement for convenience pursuant to the provisions of its Package outlined in section 1(a) above; provided that Customer will provide the required notice of termination through email to billing@CyberLynk.net.
(c) If Customer has a Month-to-Month Package, six (6) months or Annual Prepaid Package, CyberLynk may terminate this Agreement for convenience on thirty (30) days’ notice. If Customer has a Term Contract Package, CyberLynk may terminate this Agreement for convenience on thirty (30) days’ notice prior to the end of the Service Period.
(d) In the event of any breach of this Agreement, including without limitation any breach of the provisions of Section 4 (Acceptable Use) or of the payment obligations set forth in Section 2, CyberLynk may terminate the Services, any portion thereof, or this Agreement, immediately and without advanced notice. CyberLynk is not required to return any data or personal property to Customer after such termination, or to refund any fees paid or prepaid.
4. Acceptable Use.
(a) Customer asserts that it has read CyberLynk’s Acceptable Use Policy (“AUP”). The AUP is currently posted at http://www.CyberLynk.net/legal. Customer will adhere to the AUP and will not allow the Services or CyberLynk equipment to be used for activities prohibited by such policies. CyberLynk may revise the AUP from time to time by posting a new version thereof on the CyberLynk Website, and Customer is responsible for awareness of such revisions. In the event of any conflict between the AUP and this Agreement, this Agreement will govern.
(b) Without limiting the generality of the foregoing, in its use of the Service or the CyberLynk equipment, Customer will not: (i) perpetrate any security breach, network attack, act of hacking, or distribution of any virus, worm, or other harmful code; (ii) perpetrate any fraud, intellectual property infringement, or act of child pornography; (iii) disseminate or post any material or information that is or may be threatening, libelous, obscene, harassing, or offensive; (iv) threaten or harass any CyberLynk employee, agent, or representative by telephone, in person, or through any other means of communication; (v) perpetrate any crime or other illegal activity; (vi) tamper with other CyberLynk accounts, commit unauthorized intrusion into any part of CyberLynk’s system, or access any CyberLynk system not included in Customer’s package; (vii) scan CyberLynk’s or any other network; (viii) use the Service for password cracking, for defrauding others into releasing passwords, for denial-of-service attacks (including without limitation the sending of packets with an unauthorized packet size), for UDP flooding, for ping-flooding, for half-open TCP connection flooding, or for any other unauthorized intrusion on a third party service or system, whether or not the intrusion results in loss or corruption of data; (xii) use programs, scripts, or commands or send messages with the intent to interfere with a user’s terminal session; or (ix) use the Services or the network to collect replies of messages sent from another provider which violate the rules of this Agreement or those of the originating provider. Customer will not permit any third party to use the Service or CyberLynk equipment for any of the activities prohibited by this subsection.
(c) Customer will reimburse CyberLynk for any expenses it incurs as a result of violation of the AUP or of the terms of this Section 4. In the event that CyberLynk investigates any such suspected violation as a result of third party requests or demands from government or law enforcement agencies, Customer will pay CyberLynk an investigation fee, even if such investigation determines that no violation took place. In the event that CyberLynk investigates on its own initiative and discovers conduct it reasonably considers a violation, Customer will pay CyberLynk an investigation fee. Investigation fees include a charge of $99.00 per person-hour for CyberLynk staff and reimbursement for any costs of outside attorneys. CyberLynk may require payment of such fees by wire transfer.
(d) Customer is responsible for preventing AUP violations and other violations of the terms of this Section 4 and this Agreement by hackers and other third parties. Third party violations of the provisions of this Section will be considered violations by Customer. CyberLynk is not responsible for protecting Customer from hackers or from other third parties.
(e) CyberLynk has no obligation to monitor the Services but may do so and may disclose information regarding use of the Services for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; or to protect itself and its customers. CyberLynk may grant law enforcement agencies access to its equipment to monitor Customer’s use of the Service.
5. Ownership of Data, Software, Hardware, and IP Addresses.
All software, hardware and Internet protocol (“IP”) addresses provided by CyberLynk are licensed to Customer and remain CyberLynk’s sole and exclusive property.
6. Maintenance, Security, & Service Interruption.
(a) CyberLynk may interrupt Service to perform maintenance. CyberLynk will exercise reasonable efforts (i) to inform Customer before interrupting Service and (ii) to repair the system promptly.
(b) Customer is responsible for maintaining security, for maintaining patches and disaster recovery systems, and for maintaining backups. CyberLynk is not responsible for providing physical access to or copies of the software, data, or content stored on the system under any circumstances and is not required to provide network access (i) after any termination or suspension of Customer’s account or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access not resulting from CyberLynk’s fault. CyberLynk will not be liable for loss of data or for breaches in system integrity, even if Customer’s Package includes firewalls, backups, denial of service protections, or other mechanisms to protect data and system integrity. In the event that CyberLynk suspects that security of any of its equipment has been breached, it may disable such equipment and the Service.
(c) Notwithstanding any provision to the contrary elsewhere in this Agreement, CyberLynk may immediately and without notice terminate this Agreement, suspend Service, or remove Customer’s material or information from CyberLynk’s equipment, in whole or in part, in the event of a violation or suspected violation of the terms of Section 4 (Acceptable Use), including without limitation in the event that CyberLynk receives a notice or claim that Customer’s use of the Service infringes or violates third party rights. CyberLynk may require that Customer pay the investigation fees referred to in Section 4(c) before CyberLynk provides additional Service to Customer after such suspension or removal of materials and may require that customer prepay investigation fees, additional attorneys’ fees, or other costs likely to be incurred as a result of provision of continued Service.
(d) In the event that Customer’s use of the Service causes a denial of service or in any other way injures the functioning of services CyberLynk provides to other customers, CyberLynk may interrupt Service or permanently disable it, even if such denial of service or injury occurred through no fault of Customer’s.
(e) CyberLynk will not be liable for service interruptions, including without limitation interruptions executed in order to investigate suspected violations of Section 4 (Acceptable Use), whether or not such violations occurred.
(f) Customer will promptly report any Service failures to CyberLynk via email to ‘support@CyberLynk.net’. Customer recognizes that any expenses it incurs for System diagnosis or repair, including without limitation expenses for outside consultants, are nonrefundable unless approved in writing for refund in advance by CyberLynk.
8. Disclaimers and Warranties.
(a) THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CYBERLYNK DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. CYBERLYNK MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE PROVIDED BY CYBERLYNK OR ANY OF ITS REPRESENTATIVES WILL CREATE A WARRANTY.
(b) CYBERLYNK WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF CYBERLYNK WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. CYBERLYNK ’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES BILLED TO CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
(c) CYBERLYNK WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: (i) OTHER CYBERLYNK CUSTOMERS OR THIRD PARTIES ACCESSING CUSTOMER’S DATA OR ASSIGNED COMPUTERS; (ii) SECURITY BREACHES; (iii) EAVESDROPPING; (iv) DENIAL OF SERVICE ATTACKS; (v) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE EQUIPMENT OR SERVICE; (vi) CUSTOMER’S RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICE; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE EQUIPMENT OR SERVICE; (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE; OR (ix) LOSS OF DATA OR LOSS OF ACCESS TO DATA.
(d) CYBERLYNK ’S LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS SECTION AND IN THIS AGREEMENT APPLY EQUALLY TO CYBERLYNK ’S OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, REPRESENTATIVES, SUPPLIERS, SUBSIDIARIES, PARENTS, AND AFFILIATED COMPANIES.
9. Third Party Claims & Indemnity.
(a) Promptly after CYBERLYNK’s request, Customer will notify any third party, in writing, that CYBERLYNK is not responsible for (i) any content or materials posted on any Customer VPS or dedicated server or otherwise disseminated through Customer’s use of the Service or (ii) any use or abuse of the Service whatsoever by Customer or any third party.
(b) Customer will defend and indemnify CYBERLYNK (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from any third party claim arising out of or related to: (i) alleged Customer conduct that would breach this Agreement, including without limitation alleged infringement of third party intellectual property or privacy rights; (ii) Customer’s use, misuse, or failure to use the Service; and (iii) any action taken by CYBERLYNK as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, and costs, including without limitation attorneys’ fees.
(a) This Agreement is to be construed in accordance with and governed by the internal laws of the State of Wisconsin without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the internal laws of the State of Wisconsin to the rights and duties of the parties. The parties hereby consent to the personal and exclusive jurisdiction and venue of the federal and state courts of Milwaukee, Wisconsin.
(b) No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy.
(c) If any provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions will in no way be affected or impaired thereby.
(d) This Agreement, with any other instrument or document referenced herein, which are incorporated by this reference as though set forth in full, embodies the final, full, and exclusive statement of the agreement between the parties, and as of its date supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to the subject-matter hereof.
(e) All written communications to Customer will be deemed delivered if sent to the contact information provided to CYBERLYNK at the time of order, unless Customer provides some alternate contact information in writing. All written communications to CYBERLYNK and all fees will be mailed to CyberLynk Network, Inc, 10125 S. 52nd Street, Franklin, Wisconsin 53132, unless CYBERLYNK posts alternate contact information at its Website.