PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
3.1. The User is a legal entity or an individual over the age of 18 years that is capable of entering into binding agreements. If the User is a legal entity, then you represent and warrant that you represent and are acting on behalf of the legal entity, and you have the express authority to bind the legal entity to the Terms. User hereby acknowledges and agrees that if Netkiller finds that User does not have the legal authority to bind the such legal entity, the User will be personally responsible for the obligations contained in these Terms. Netkiller shall not be liable for any loss or damage resulting from Netkiller’s reliance on any instruction, information, data, notice, document, or communication reasonably believed by Netkiller to be genuine and originating from an authorized representative of your legal entity. Suppose there is reasonable doubt about the authenticity of any such instruction, information, data, notice, document, or communication. In that case, Netkiller reserves the right (but assumes no duty) to require additional authentication from you. User further acknowledges and agrees that if User is not a legal entity or otherwise able to enter into binding contracts under applicable law, User is not permitted to use the Services, and User with this covenant and agrees that in that event, User will not use the Services.
3.2. The User acknowledges and agrees to comply with all of the terms and conditions outlined in these Terms, all applicable laws, statutes, rules, and regulations of any applicable jurisdiction, and any rules and procedures that may be established or adopted by Netkiller from time to time (collectively, the “Relevant Rules”). User acknowledges and agrees that any material breach of this Section 3.2 by User may result in immediate suspension or termination of Services at Netkiller’s sole discretion.
3.3. The use by the User of the domain name, 'Netkiller ISMS,' Services and/or Content shall comply in all materials respects to all Relevant Rules without infringing the legal rights of any third party. If the User becomes aware of any use of a domain name, 'Netkiller ISMS,' Services, and/or Content that may cause a dispute or claim from a third party, the User shall use his, her or its best efforts to avoid or resolve any such dispute or claim in compliance with the Relevant Rules, these Terms and any policies, rules, and procedures that Netkiller may establish from time to time.
3.4. The User shall provide to Netkiller only information that is complete, correct, and accurate. Further, the User shall provide Netkiller the User’s most current contact information, which shall be updated by the user promptly upon any changes to such contact information. In any event, the User is solely responsible for any Content uploaded by User.
3.5. The User shall securely keep and maintain the User’s passwords, ID’s, usernames, and any other information for the use of the Services (hereinafter, “User’s Confidential Information”). Netkiller shall not be responsible for any loss, misappropriation, or misuse of the User’s Confidential Information.
3.6. The User acknowledges and agrees that User must comply with all Relevant Rules as may be established by regulatory authorities from time to time. The User further acknowledges and agrees that User shall not have nor make any claims of any kind against Netkiller in any way related to issues required, prescribed or proscribed by any regulatory authority and the Relevant Rules, or to Netkiller’s compliance the Relevant Rules.
3.7. The User acknowledges and agrees that, as a condition prior to the commencement of the Services, Netkiller will undertake certain validation tests in order to filter potential fraudulent orders. User further acknowledges and agrees that fully validated Services shall not be provided unless User passes the validation tests.
3.8. Unless Netkiller specifically agrees in writing, User will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for high-risk activities; or (e) use the Services to store or transfer any User Data that is controlled for export under applicable export control laws.
3.9. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, User owns all Intellectual Property Rights in User’s Data, and Netkiller owns all Intellectual Property Rights in the Services.
3.10. Netkiller may display those User’s trademarks, brands, and/or logos within designated areas of the 'Netkiller ISMS'. Netkiller may also display Netkiller’s trademarks, brands and/or logos to indicate that the Services are provided by Netkiller. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
3.11. User agrees that Netkiller may include User’s name and/or logo in a list of Netkiller customers, online or in promotional materials. User also agrees that Netkiller may verbally reference User as a user of the Netkiller products or Services that are the subject of these Terms.
4.1. Netkiller shall provide the Services pursuant to these Terms on a “First Come, First Served” basis.
4.2. User’s right to use the 'Netkiller ISMS', Services and/or Content is contingent on User’s compliance with these Terms, the Relevant Rules, and any rules and procedures established by Netkiller regarding the use of the 'Netkiller ISMS', the Services and Content.
4.3. Netkiller shall keep the User’s information confidential and make it publicly available only as may be required or pursuant to these Terms and/or Netkiller’s Privacy Policy. Such User information may include the User’s contact details, its domain name, the expiry date, contact details of its name server, etc. to the extent permitted or required by all Relevant Rules, these Terms, and Netkiller’s Privacy Policy.
4.4. Unless otherwise required by the Relevant Rules, Netkiller shall not be required to nor be responsible for monitoring or investigating User’s use of the 'Netkiller ISMS', Services, and/or Content, User’s use of its own 'Netkiller ISMS', domain name, or any of User’s Content.
5.1. The prices, fees and payment terms payable by the User for the Services shall be posted by Netkiller on its 'Netkiller ISMS'. Such prices, fees, and payment terms may be changed by Netkiller from time to time by posting any such changes on its 'Netkiller ISMS'. Netkiller will try to provide advance notice of any such change, but regardless of whether or not such notice is timely given, any such changes shall become immediately effective upon posting, unless otherwise stated in the posting on the 'Netkiller ISMS'. In principle, the fees shall be payable in advance and are non-refundable, unless otherwise expressly stated in writing.
5.2. Any fees charged by an independent service provider may be passed through to the User provided, that Netkiller shall provide User with advance notice of such fees. If User objects to such fees or fails or refuses to make payment therefore, then Netkiller may terminate the User’s access to and use of the 'Netkiller ISMS' and Services.
5.3. User shall be solely responsible for the timely payment of any applicable fees and for maintaining and renewing User’s domain name registration, and Netkiller shall have no responsibility or obligation of any kind or nature with respect thereto. All payments shall be made in U.S. dollars unless otherwise set forth in writing by Netkiller.
5.4. All prices and fees are non-refundable once the Services have been initiated by the User’s activation of User’s Netkiller account regardless of whether the Services are subsequently suspended, terminated, or transferred prior to the end of the expiration of the registration, provided, however, that such suspension, termination or transfer is not caused by the gross negligence of Netkiller.
5.5. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. User will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Netkiller in collecting such delinquent amounts except where such delinquent amounts are due to Netkiller’s billing inaccuracies.
5.6. User is responsible for any and all taxes related in any way to User’s access and use of the 'Netkiller ISMS', Services, and/or Content, and User will pay Netkiller for the Services without any reduction for any such taxes. If Netkiller is obligated to collect or pay any taxes, such taxes will be invoiced to User unless User provides Netkiller with a valid, applicable tax exemption certificate authorized by the appropriate taxing authority. If User is required by law to withhold any taxes from its payments to Netkiller, User must provide Netkiller with an official tax receipt or other appropriate documentation to support such payments.
8.1. These Terms shall commence and become effective upon User’s first access of the 'Netkiller ISMS' and Services and, except for those provisions that are intended to survive the User’s use of the 'Netkiller ISMS', Services and/or Content, will continue to be in full force and effect until the User’s Account with Netkiller and User’s use of the 'Netkiller ISMS' and Services shall expire or be terminated.
8.2. Netkiller may terminate or cancel the Terms and terminate or cancel User’s access to and use of the 'Netkiller ISMS' and Services, with or without prior notice to the User, if the User breaches any material term or condition of the Terms or otherwise violates any material provision of the Relevant Rules.
8.3. If Netkiller becomes aware of a violation of the Agreement, then Netkiller may specifically request that User suspend the applicable account. If User fails to comply with Netkiller’s request to suspend the violating account, then Netkiller may do so. The duration of any suspension by Netkiller will be until the violating account has cured the violation or breach that caused the Suspension.
8.4. Notwithstanding the foregoing, if there is an emergency security Issue, then Netkiller may automatically suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or resolve the emergency security Issue. If Netkiller suspends an account for any reason without prior notice to User, at User’s request, Netkiller will provide User the reason for the suspension as soon as is reasonably possible.
8.5. For purposes of this Agreement, the term “emergency security issue” shall mean either: (a) User’s use of the Services in violation of these Terms, which could disrupt: (i) the Services; (ii) other user’s use of the Services; (iii) the Netkiller network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
8.6. Netkiller will have no obligation to retain any archived User Content or information beyond the retention period specified by User (other than for any legal holds) unless User’s right to use the Services is earlier terminated or expires. If the User does not renew its Account or the Account expires or is terminated, or the User otherwise loses the right to use the 'Netkiller ISMS' and Services, Netkiller will have no obligation to retain any archived User information.
8.7. At the end of each period for which User has signed up and paid for Services, all of the paid for Services will automatically renew for an additional term of twelven (12) months by default. Customer will pay Netkiller the then-current fees for each renewed User Account unless User and Netkiller mutually agree otherwise. User may alter the number of end users to be renewed by communicating the appropriate number of accounts to be renewed to Netkiller via the Admin Console. If for any reason Netkiller does not want the Services to renew, then it will provide User written notice to this effect at least fifteen (15) days prior to the end of the then current Services term. This notice of non-renewal will be effective upon the conclusion of the then current Services term. The automatic renewal feature may be disabled by the User.
8.8 If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Netkiller will provide User access to, and the ability to export User’s Content, information and/or data for a commercially reasonable period of time at Netkiller’s then-current rates for the applicable Services; (iii) after a commercially reasonable period of time, Netkiller will delete Customer Data by removing pointers to it on Netkiller’s active servers and overwriting it over time; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party.
10.1. These Terms shall be governed by and construed under the federal laws of the United States of America and the laws of the State of California, whichever may be applicable, without the application of any conflict of law principles.
10.2. You agree that any action relating to or arising out of these Terms shall be brought in the state or federal courts of Santa Clara County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to jurisdiction and venue in the state and federal courts of Santa Clara County, California. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of these Terms.
10.3. Any disputes that cannot be resolved amicably between the parties shall be submitted for arbitration under the rules of the American Arbitration Association, as amended, and venue for such arbitration shall be in Santa Clara County, State of California, United States of America.