Terms and Conditions (Applicable to All Services)
The following Terms and Conditions are applicable to all Services provided by Celeratec to Client, and will govern the relationship of the parties with respect to all dealings between them. These Terms and Conditions are in addition to and incorporated into any purchase order, contract, or other document in which Client selected services to be performed by Celeratec (an “Order” regardless of the title). If an Order conflicts with any Term or Condition, these Terms and Conditions shall govern. As used herein, the following terms apply:
“Client” or “You” refers to the legal entity and/or persons for whom Services are provided and the person or entity identified in an order, together with all of Client’s agents, employees, officers, managers, directors, contractors and persons who are authorized by Client to use the Services provided by Celeratec (collectively “Client”).
“Celeratec” refers to Celeratec, LLC a Texas limited liability, and its agents, employees, officers, managers, member and persons authorized to perform services for Celeratac.
“Services” refer to any and all Services provided by Celeratec to or for Client, including those services identified in any scope of work or Order and all ancillary services provided in support thereof, including, as applicable, email hosting, application hosting, website hosting, network management, server management and technical support, data and communication security, and hardware, software, and internet related consulting and problem-solving.
PLEASE READ THIS SECTION CAREFULLY.
CLIENT AGREES TO BE BOUND BY THE TERMS OF THE ORDER AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE THEREIN. CLIENT’S USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS:
1. Limited License to Celeratec.
Client hereby grants to Celeratec a non- exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services: digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, display, perform and hyperlink the Client Content, including Client logos and proprietary data and information. The limited license permits Celeratec to make and keep archival or back-up copies of Client Content and Client Web site. Except for the rights expressly granted above, Celeratec is not acquiring any right, title or interest in or to the Client Content, all of which shall remain solely with Client.
2. Client Content.
Celeratec does not systematically monitor the content that is submitted to, stored on or distributed or disseminated by Client via the Services (the “Client Content”). Client Content includes the content of Client’s consumers, contacts and/or users of Client’s website and emails. Client will be responsible for all content and activities on Client’s website. Notwithstanding the foregoing, Celeratec reserves the right to immediately take corrective action, including removal of all or a portion of the Client Content, disconnection or discontinuance of any and all Services, or termination of Services if Celeratec notices or suspects harmful or inappropriate Client Content. In the event Celeratec takes corrective action, Celeratec shall not refund to Client any fees paid in advance of such corrective action. Client hereby agrees that Celeratec shall have no liability to Client or any of Client’s customers due to any corrective action that Celeratec may take (including, without limitation, disconnection of Services).
3. Term; Termination; Cancellation Policy.
The initial term of the agreement between Celeratec and Client shall begin upon commencement of the Services to Client, and continue for 1 year or such other term as stated in any written Order. After the initial term, the agreement to provide Services under the Terms and Conditions will continue for additional 1-year terms with annual renewal and/or until Services are terminated as provided herein (whichever occurs first). The initial Term and all renewal periods are collectively the “Term.”
Client agrees to pay for all Services as provided in invoices that will be submitted by Celeratec within 10 business days after the date thereof.
- Client expressly authorizes Celeratec to charge any credit card provided by Client for Services. If the payment method Client uses with Celeratec, such as a credit card, reaches its expiration date and you do not edit your payment method information, you agree and authorize Celeratec to continue billing you, and you will remain responsible for any uncollected amounts.
- in an effort to ensure your domain registration renewal processes successfully, you agree that Celeratec may process renewal charges up to two weeks in advance of your expiration date unless you explicitly request otherwise.
- The fees charged by Celeratec do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Celeratec’s net income). All such taxes will be Client’s sole responsibility and may be added to Celeratec’s invoices as separate charges to be paid by Client.
- All fees are fully earned when due and non-refundable when paid. If Celeratec collects any payment through an attorney or under advice therefrom or through a collection agency, or if Celeratec prevails in any action to which the Client and Celeratec are parties, Client will pay all costs of collection and litigation, including, without limitation, all court costs and Celeratec’s reasonable attorneys’ fees.
5. Termination by Celeratec.
Your agreement with Celeratec to provide Services may be terminated by Celeratec:
- in the event of nonpayment by Client,
- by Celeratec, at any time, without notice, if, in Celeratec’s sole and absolute discretion, Client is in violation of any Term or Condition,
- Client’s use of the Services disrupts or, could disrupt, Celeratec’s business operations, as determined by Celeratec in its discretion, and/or
- as provided herein.
6. Termination by Client.
If you wish to non-renew or cancel Services, you must provide written notice to Celeratec at least 30 days prior to the end of the Term. You are obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. Any cancellation request shall be effective thirty (30) days after receipt by Celeratec, unless a later date is specified in such request.
7. Termination for Cause.
Celeratec may terminate any Order and/or cease providing Services immediately, without notice and without penalty, if any of the following apply:
(a) if the Services are prohibited by applicable law, rule or regulation, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Client as much prior notice as reasonably practicable;
(b) immediately, if Celeratec determines that Client’s use of the Services, the web site or the Client Content violates any Term or Condition.
8. Effect of Termination.
Upon termination of the Order for any cause or reason whatsoever, Celeratec shall be entitled to cease performing Services; provided, however, notwithstanding the expiration or termination, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under the Order prior to termination, and for duties that are intended to be performed post-termination, all of which shall survive.
9. Client Responsibilities.
- Client is solely responsible for the quality, performance and all other aspects of the Client Content and the goods, services and deliverables provided by Client through the Client web site.
- Client will cooperate fully with Celeratec in connection with Celeratec’s performance of the Services. Client must provide and pay for any equipment or software that may be necessary for Client to use the Services. Delays in Client’s performance of its obligations under the Order will extend the time for Celeratec’s performance of its obligations that depend on Client’s performance. Client will notify Celeratec of any change in Client’s mailing address, telephone, email or other contact information.
- Client assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Client web site and email, and any goods, services or deliverables described therein, as well as any rules, requirements and terms or conditions of use.
- Because the Services permit Client to electronically transmit or upload content directly to the Client web site, Client shall be fully responsible for uploading all content to the Client web site and supplementing, modifying and updating the Client web site, including all back-ups.
- Client is solely responsible for making back-up copies of the Client web site and Client Content.
10. Client’s Representations and Warranties.
Client hereby represents and warrants to Celeratec, and agrees that during the Term Client will ensure that:
- Client is the owner or valid licensee of the Client Content and each element thereof, and Client has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Client Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Celeratec to pay any fees, residuals, royalty payments or other compensation of any kind to any Person or Entity;
- Client’s use, publication and display of the Client Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
- Client will comply with all applicable laws, rules and regulations regarding the Client Content and the Client web site and will use the Client web site only for lawful purposes; and
- Client has used its best efforts to ensure that the Client Content is and will at all times remain free of all computer viruses, worms, Trojan horses, malware, and other malicious code.
11. Additional Client Duties.
Client shall be solely responsible for the development, operation and maintenance of Client’s web site and electronic commerce activities, for all products, services and deliverables offered by Client or appearing online and for all contents and materials appearing online or on Client’s products, including, without limitation.
- the accuracy and appropriateness of the Client Content and content and material appearing in its store, products or deliverables
- ensuring that the Client Content and content and materials appearing in its store, its products and deliverables do not violate or infringe upon the rights of any person, and
- ensuring that the Client Content and the content and materials appearing in its store, its products and deliverables are not defamatory or otherwise illegal. Client shall be solely responsible for accepting, processing and filling Client orders and for handling Client inquiries or complaints. Client shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site, online store and deliverable services.
12. Changes Affecting Services.
Celeratec, in its sole discretion, may (i) deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, Client Content, email and/or web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. Client further agrees that Celeratec shall not be liable to Client for any loss or damages that may result from such conduct.
13. Property Rights.
Celeratec hereby grants to Client a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the Term to use Celeratec technology, products and services solely for the purpose of accessing and using the Services. Client may not use Celeratec’s technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, all rights, titles and interests in and to any Celeratec technology shall remain solely with Celeratec. Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Celeratec technology, products or Services. Celeratec owns all right, title and interest in and to the Services and Celeratec’s trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems. All network hardware, other devices and technology installed or provided by Celeratec (“Celeratec Property”) are, and shall remain, the sole property of Celeratec. Upon termination of Services, or upon demand (whichever occurs first), Client shall return all Celeratec Property to Celeratec within 14 calendar days. If Client fails or refuses to return any Celeratec Property in working condition, Client agrees to pay to Celeratec, and shall be liable for, the full retail replacement value for each piece of Celeratec Property not returned in working condition.
14. Celeratec as Licensor.
Celeratec is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party (“Non-Celeratec Product”). Celeratec shall not be responsible for any changes in the Services that cause the Non-Celeratec Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer’s defects of Non-Celeratec Product either sold, licensed or provided by Celeratec to Client or purchased directly by Client used in connection with the Services will not be deemed a breach of Celeratec’s obligations under the Order. Any rights or remedies Client may have regarding the ownership, licensing, performance or compliance of Non-Celeratec Product are limited to those rights extended to Client by the manufacturer of such Non- Celeratec Product. Client is entitled to use any Non-Celeratec Product supplied by Celeratec only in connection with Client’s permitted use of the Services. Client shall use its best efforts to protect and keep confidential all intellectual property provided by Celeratec to Client through any Non-Celeratec Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Client shall not resell, transfer, export or re-export any Non-Celeratec Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
15. Internet Protocol (IP) Address Ownership.
If Celeratec assigns Client an Internet Protocol (“IP”) address for Client’s use, the right to use that IP address shall belong only to Celeratec, and Client shall have no right to use that IP address except as permitted by Celeratec in its sole and absolute discretion in connection with the Services, during the Term. Celeratec shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Client by Celeratec, and Celeratec reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
16. Right to Reproduce/Caching.
Client grants Celeratec the right to reproduce, copy, use and distribute all and any portion of the Client Content to the extent needed to provide and operate the Services. Client expressly grants to Celeratec a license to cache all or any part of the Client Content and Client’s web site, including content supplied by third parties, hosted by Celeratec hereunder and agrees that such caching is not an infringement of any of Client’s intellectual property rights or any third party’s intellectual property rights.
17. Mutual Confidentiality.
Celeratec and Client agree that all information, data, codes, processes, technology, and all communications between Celeratec and Client shall be deemed “Proprietary” to the party providing or transmitting the same, even if created by a third party. Celeratec and Client agree: (a) to treat all Proprietary property of the other as “confidential,” (b) to protect and safeguard all such property with the same level of protection that it maintains for its own trade secrets, and (c) to take reasonable steps to avoid disclosure to third parties, except as provided herein or as agreed by further consent.
18. Spam/Security Filters.
Celeratec’s Services include privacy and security protocols that guard against malware, spyware, harmful programs and attachments, trojan horses, ransomware, and similar malicious viruses, programs and code that can harm computer systems. While Celeratec employs some of the most advanced protocols, there are no guarantees that all such activity and threats can or will be stopped. In addition, the use of filtering technology may prevent, block or re-direct communications, transmissions, emails and attachments from customer or accounts that are not intended by Client to be blocked or prevented. Celeratec is not liable or responsible to Client if communications and transmissions are blocked or re-directed. Client is required to periodically check with customers and third parties to verify receipt or transmission of communications and transmissions. If Client determines that communications or transmissions are being blocked or diverted, and Client desires to receive or send such communications or transmissions, Client shall provide written notice to Celeratec to adjust the filters to allow for the successful transmission or receipt; provided, however, Client will be solely liable for the consequences, if any, of changes to the filter that allow such transmissions.
19. Account Backups.
Celeratec encourages all Clients to periodically perform their own backups. For a fee, Celeratec will perform regular automated data backups. These backups are intended for disaster recovery purposes only, and are not intended for regular Client use. While Celeratec maintains the previously stated backups, this service is provided as a convenience only and Celeratec assumes no liability as to the availability or completeness of client data backups. Each client is expected and encouraged to maintain backup copies of their own data. Data restores may be provided but are subject to additional service fees of up to $500.00/restoration. Upon cancellation or suspension of Services for nonpayment, all data will be purged from the server.
20. Disclaimers of Warranty.
Client acknowledges and agrees that Celeratec exercises no control over, and accepts no responsibility for, the content of the information passing through Celeratec’s host computers, network hubs and points of presence or the Internet. The services provided under the Order or herein are provided on an AS IS, as available basis. Celeratec makes no warranty of any kind, either expressed or implied, and all such warranties are disclaimed, including but not limited to warranties of merchantability or fitness for a particular purpose, or non-infringement, for the services or any equipment Celeratec provides. Celeratec makes no warranty that the services will not be interrupted or error free; nor does it make any warranties as to the results that may be obtained from the use of the Services or as to the accuracy, reliability or content of any information or merchandise contained in or provided through the Services. Celeratec is not liable, and expressly disclaims any liability, for the content of any data transferred either to or from Client or stored by Client or any of Client’s Clients via the Services provided by Celeratec. No oral advice or written information given by Celeratec, will create a warranty; nor may you rely on any such information or advice. The terms of this section shall survive any termination of the Order.
21. Limitation of Liability.
In no event will Celeratec’s liability in connection with the Services or any order, whether caused by failure to deliver, non- performance, defects, breach of warranty or otherwise, exceed the aggregate service fees paid to Celeratec by Client during the 6-month period immediately preceding the event giving rise to such liability.
- Celeratec cannot and does not guarantee continuous service, service at any particular time, integrity or speed of data, information or content stored or transmitted via the internet. Celeratec will not be liable for any unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content transmitted, received or stored on its system.
- Neither party shall be liable in any way to the other party or any other person for any lost profits or revenues, loss of use, loss of data or costs of procurement of substitute goods, licenses or services or similar economic loss, or for any punitive, indirect, special, incidental, consequential or similar damages of any nature, whether foreseeable or not, under any warranty or other right hereunder, arising out of or in connection with the performance or non-performance of any order, or for any claim against the other party by a third party, regardless of whether it has been advised of the possibility of such claim or damages. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability). However, the limitations contained in this Section shall not apply to Client’s indemnification obligations.
Client shall indemnify, defend and hold harmless Celeratec and its officers, directors, employees, shareholders, and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Client’s use of the Services, (ii) any breach of any representation, warranty or covenant of Client contained in the Order or these Terms or (iii) any acts or omissions of Client. The terms of this section shall survive any termination.
23. Jury Waiver.
Each of Client and Celeratec agree that any and all disputes shall be resolved by a judge only, and not by a jury. Each of Client and Celeratec expressly, voluntarily and intentionally waives its right to a jury trial as to any dispute between or involving them. By so agreeing, the parties intend for any lawsuit to be resolved quickly and without undue exposure to the public. Each party agrees to make good faith efforts to redact sensitive information or data, or to file such documents in such manner as to protect confidentiality.
Each of Client and Celeratec agree that the Services provided by Celeratec are performed exclusively in the State of Texas, regardless of where the Client is located. Accordingly, the relationship of the parties, and all Services is governed by Texas law, and Dallas Texas shall be the exclusive venue and jurisdiction for any dispute between the parties.
25. Miscellaneous Provision.
- Independent Contractor: Celeratec and Client are independent contractors and nothing contained in the Terms and Conditions or the Order places Celeratec and Client in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Amendments: These Terms and Conditions may be modified from time to time by Celeratec in its sole discretion, which modifications will be effective upon posting to Celeratec’s web site, and will become binding on Client when Client uses any of the Services thereafter.
- Notices: All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by email, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid. Either party may change its address or email address for purposes hereof by notice in writing to the other party as provided herein. Celeratec may give written notice to Client via electronic mail to the Client’s electronic mail address as maintained in Celeratec’s billing records.
- No Assignment: Client may not assign or transfer the Order or any of its rights or obligations hereunder, without the prior written consent of Celeratec. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Celeratec may assign its rights and obligations under the Order, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Client. The Order and these Terms and Conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Force Majeure: Neither party is liable for any default or delay in the performance of any of its obligations hereunder or the Order (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, pandemic, epidemic, fire, flood, acts of God, labor disputes, accidents, governmental shut-down orders, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries: Nothing in the Term and Conditions, or Order, is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any person or entity other than the parties hereto and their respective successors and permitted assigns.
- Government Regulations/Export Controls: Client may not export, re- export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with the Services without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Client operates or does business.
- Marketing: Client agrees that during the Term, Celeratec may publicly refer to Client, orally and in writing, as a Client of Celeratec. Any other public reference to Client by Celeratec requires the written consent of Client.