TERMS OF SERVICE FOR PURCHASED SERVERS
This Enterprise Cloud Server Hosting Agreement (the "Agreement") is made between WhoGoHost Limited ("WhoGoHost" or "Company"), a limited liability WhoGoHost and the Client who orders an Enterprise Cloud Server ("Client" or "Customer" or "You" or "Your"). Each of WhoGoHost and Enterprise Cloud Server referred to as a "Party" and collectively as "Parties" under this Agreement.
You acknowledge that your electronic approval constitutes your acceptance to the Agreement for each electronic purchase or transaction you enter. WhoGoHost may accept or reject any Order you submit in its sole discretion. WhoGoHost's provisioning of the Services described in an Order shall be WhoGoHost's acceptance of the Order. If you are entering into this Agreement on behalf of a legal entity, such as the company you work for, you warrant and represent to us that you have the legal authority to bind that entity to this Agreement. You acknowledge and agree you will use this Service for the purpose for which it was purchased.
PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THE COMPANY'S PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALONG WITH ANY NEW, DIFFERENT OR ADDITIONAL TERMS, CONDITIONS OR POLICIES WHICH COMPANY MAY ESTABLISH FROM TIME TO TIME. YOU MAY VIEW THE LATEST VERSION OF THIS AGREEMENT ONLINE.
Whenever used in this Agreement, the following capitalized terms shall have the respective meaning specified below:
- "Enterprise Cloud Server Data" means all data (without limitation, information, data, text, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible) and other content that are stored by you on the Hosted System or otherwise processed by you through your use of the Services.
- "Order" means any of the following:
- the online order that you submit or accept for the Services
- any other written order (either in electronic or paper form) provided to you by WhoGoHost for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and
- your use or provisioning of the Services through the WhoGoHost cloud control panel or through an API.
- "Personal Data" means any information that is referred to as identifiable information, personal data or personal information (or other like the term) under applicable data protection or privacy law. It includes information that by itself or combined with other information can be used to identify a person.
- "Product Terms and Conditions" means the terms and conditions that are incorporated by reference in your Agreement and that state additional terms and conditions for the particular Services you are buying.
- "Support" means any of the following:
- WhoGoHost employees with training and experience relative to the Services will be available 'live' by telephone, chat and ticket twenty-four (24) hours per day, seven (7) days per week, all year round, and
- any additional level of assistance offered by WhoGoHost for the specific Services you are purchasing, and described in the applicable Product Terms and Conditions or Order.
- "Business Days" are Monday to Friday, excluding public holidays.
- "Business Hours" means 9:00 a.m. - 5:00 p.m. on a Business Day.
- "Claims" means any claim, demand, action, suit, cause of action, assessment or reassessment, charge, judgment, debt, liability, expense, cost, damage or loss, direct or indirect, contingent or otherwise, including loss of value, reasonable professional fees, including fees of legal counsel on a solicitor-and-End User basis, and all costs incurred in investigating or pursuing any of the foregoing or any proceeding relating to any of the foregoing.
- "Confidential Information" means all non-public technical information and business information, programming, software code, trade secrets, marketing strategies, software, documentation, client data, financial information and any other information which in the circumstances of its disclosure could reasonably be viewed as confidential. Confidential Information shall not include information that:
- is or becomes a part of the public domain through no act or omission of the Receiving Party;
- was in the Receiving Party's lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party;
- is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or
- is independently developed by the Receiving Party, provided that the foregoing shall not be deemed to permit use or disclosure of information in breach of applicable law.
- Each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by it or its employees, mandataries or agents in violation of the terms of this Agreement or applicable law.
- "End User" means an individual or legal entity that obtains the Services from the Client.
- "End User Licence Agreements" or "EULA" means the applicable terms of service agreements with WhoGoHost and Third Party Suppliers governing the use of the Services, which are provided by WhoGoHost, appear upon first use of each Product, or are otherwise made accessible by web link or otherwise to the End User.
- "Intellectual Property Rights" means all rights protectable by copyright, trademark, patent, industrial design or trade secret and other intellectual property rights under any law including common law.
- "Products" means any service of WhoGoHost or third party providers made available through our Enterprise Cloud Server Catalogue which are but not limited to Virtual Servers, Cloud Hosting, Local Hosting, Dedicated Servers etc.
- "Third Party Suppliers" means third-party suppliers of Products included in the Hosting Services.
Additional Policies and Agreements
The use of WhoGoHost Services is also determined by the following policies, which are included by reference. By using Our Services, you also agree to the terms of the following policies.
Additional terms may also apply to certain Services, and are combined by reference herein as applicable. For example, if you register a domain name with us, then the Domain Registration Agreement will also apply to you and would be incorporated herein.
WhoGoHost shall provide to you the Services and Support subject to the terms and conditions of Agreement but this is dependent on your complete payment for the order before it is provisioned and then WhoGoHost will comply with all laws applicable to its provision of the Services.
- Client shall comply with applicable law and the terms and conditions of the Agreement
- Client shall ensure that the Services shall be made available only to End Users.
- Client shall pay WhoGoHost the amounts set out for each order for Services attributed to the Client and shall bear all taxes, duties, levies, and other similar charges (and any related interest and penalties), however, designated or imposed on it as a result of the existence or operation of the Agreement, including any income, sales, or use tax on profits which may be levied against it.
- Client shall promise not to use the Services for any purpose that is prohibited by these Terms of Service and shall be responsible for all of your activity in connection with the Services and the activity of any sub-user that uses your access code or Account.
- Client agrees not to transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, offensive, profane, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion,
- you know is false, misleading, untruthful or inaccurate
- constitutes unauthorized or unsolicited advertising
- impersonates any person or entity, including any of our employees or representatives, or
- includes anyone's identification documents or sensitive financial information.
- Unless provided otherwise, Client is solely responsible for making backup copies of the Enterprise Cloud Server Website and Contents. You agree that you will maintain at least one (1) additional current copy of your Enterprise Cloud Server Data and programs stored somewhere other than the server purchased from WhoGoHost.
- The client is responsible for ensuring that there is no excessive overloading, phishing, spamming or sending bulk emails, fraudulent activities on their Server while the Client agrees that the Company reserves the right to suspend the recipient of activities that threaten the stability of its network temporarily or permanently from its hosting Server.
End User Data
Client and WhoGoHost shall be responsible for, and shall follow good industry practices for safeguarding, maintaining the confidentiality of data of End Users and shall comply with all applicable data protection and privacy laws with respect to any data of End Users. Although Client and WhoGoHost may have access to data of End Users using the Products/ Services, the parties shall do so only to the extent necessary to carry out their respective responsibilities under this Agreement for no other purpose. Nothing in this Agreement permits either parties or both Parties to disclose or distribute any data of End Users obtained through activities under this Agreement. For greater clarity, WhoGoHost shall not use any data provided by End Users or Client about End Users for direct or indirect solicitation, marketing, sales or other promotions for itself, any affiliates or any third parties. Data provided by Client to WhoGoHost or entered into WhoGoHost systems shall be Confidential Information of Client. This does not prevent in any way WhoGoHost to solicit through its normal practices End Users.
You may agree to a one (1) month, three (3) months, six (6) months, or twelve (12) months contract agreement with WhoGoHost prior to the activation of your desired Services. Some of the features on the Service require payment of fees, as described for each Service on the Site ("Fees"). If you sign up for these features, you must pay all applicable feature fees. We reserve the right to change our prices at any time and we will use reasonable efforts to notify you of such modification. You authorize us to make any reasonably necessary inquiries to validate your account and financial information.
All Fees are inclusive of all taxes, levies, or duties imposed by taxing authorities, and are non-refundable in whole or in part unless this Agreement specifically provides for a refund and you are responsible for payment thereof. If you purchase any Services that we offer for a Fee, you consent to WhoGoHost, or our third party service providers, storing your payment card information and you authorize us to charge you:
- any Fees for Services you may purchase
- any applicable taxes in connection with your use of the Services to the payment card you provide and you will reimburse us for all collection costs and interest for any overdue amounts.
If the payment card you provide for recurring payments expires and you do not provide new payment card information or cancel your account, you authorize us to continue billing you and you will remain responsible for any uncollected Fees.
In the event of a chargeback by a payment card company (or similar action by another payment provider allowed by us) in connection with your payment of fees for any Services, we may suspend access to the Services or terminate this Agreement. In the event we suspend access to the Services, we may reinstate your rights to and control over these Services solely at our discretion, and subject to our receipt of the unpaid fees and any reinstatement fee communicated to you. According to our refund policy, If you have an issue with your payment card or other payment methods, you should contact us regarding the issue before you contact your payment card or other payment process company to request a chargeback or reversal of the charges.
BEFORE THE END OF THE ACTIVE CONTRACT TERM, AN INVOICE WILL BE GENERATED FOR AN ADDITIONAL CONTRACT TERM UNTIL EXPLICITLY CANCELLED BY YOU AND YOU WILL BE REQUIRED TO MAKE PAYMENT WITH YOUR PREFERRED PAYMENT METHOD AND YOU WILL BE CHARGED ACCORDINGLY. YOU MAY SEND CANCELLATION REQUESTS BY EMAILING email@example.com
Enterprise Cloud Server Account Usage
Furthermore, the Client agrees to the following below;
- System Resource Usage (CPU/Memory/etc.): Per our terms of service, abuse of system resources is prohibited. First violations may or may not cause an account suspension depending on the severity of the issue. The Client will receive a clear warning. Second or third violations may result in an immediate termination of your account. The WhoGoHost staff will judge based on Server performance on what type of activity is considered abusive. Client agrees that you shall not use excessive amounts of CPU processing on any of Company's Server. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Program, or termination of the Agreement, which actions may be taken in Company's sole and absolute discretion. If Company takes any corrective action under this section, Client shall not be entitled to a refund of any fees paid in advance prior to such action.
- Cron Jobs: While Clients are able to set up cron jobs through their control panel, cron job timing cannot be quicker than every 5 minutes. Each Server will revert 'every minute' cron jobs to every 5 minutes on a nightly basis.
- Bandwidth and Disk Usage: Client agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Client on the Order Form. WhoGoHost will monitor Client's bandwidth and disk usage. WhoGoHost shall have the right to take corrective action if Client's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. Any action that will be taken is in WhoGoHost's sole and absolute discretion. If WhoGoHost takes any corrective action under this section, Client shall not be entitled to a refund of any fees paid in advance prior to such action.
- Backups and Backup Access: Client acknowledges that individual site backups are the responsibility of the Client. WhoGoHost keeps overall system snapshots in case of full system recovery and may not be able to provide you with on-demand recovery in case of individual file corruption or accidental deletion. You agree that you will maintain at least one (1) additional current copy of your Enterprise Cloud Server Data and programs stored on the WhoGoHost's Server somewhere other than WhoGoHost Server. If you utilize WhoGoHost's CodeGuard backup services, you are responsible for initiating, performing and testing restores of backup as well as testing your systems and monitoring the integrity of your data to determine the quality and success of your backups.
- Upgrade/Downgrade: Client agrees that you can upgrade at any time to a higher package as the resources are scalable.
- A Party receiving Confidential Information (the "Receiving Party") shall maintain the confidentiality of all Confidential Information of the Party disclosing the Confidential Information (the "Disclosing Party") and shall not release, disclose, divulge, sell or distribute any Confidential Information, without the prior written consent of the Disclosing Party. The Receiving Party may only use and copy the Disclosing Party's Confidential Information as is necessary to carry out its activities contemplated by this Agreement and for no other purpose. The Receiving Party may disclose the Disclosing Party's Confidential Information to its employees on a "need to know basis", provided that it shall first instruct such employees to maintain the confidentiality thereof. The client may disclose Confidential Information to End Users to the extent necessary to carry out the intent of this Agreement, but such End Users shall have entered into an End User Licence Agreement. WhoGoHost may disclose Confidential Information to Third Party Suppliers to the extent necessary for the provision of the Products provided by such Third Party Supplier and compliance with its agreements with such Third Party Suppliers.
- Disclosure of Confidential Information shall be permitted if such Confidential Information is required to be disclosed by law or by any rule, regulation or order of a person having jurisdiction or pursuant to a final order or judgment of a court of competent jurisdiction, and in such case the Parties will cooperate with one another to attempt, if possible, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded to such Confidential Information prior to disclosing such Confidential Information.
- The Parties acknowledge and agree that any breach of the terms of this Section 9 will cause irreparable harm and damage to the aggrieved Party. The Parties further agree that each Party shall be entitled to injunctive relief to prevent breaches of this Section 9 and to specifically enforce the terms and provisions of this Section 9, in addition to any other remedy to which such Party may be entitled, at law or in equity.
- During the term of the Agreement and for two years following expiration or termination of the Agreement, Client will not, directly or indirectly, solicit or recruit the services of any employee of Company performing services under the Agreement, while such employee is employed by Company and for a period of six months after such employee has left the employment of Company.
- Company hereby grants to Client a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of the Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Program. The client may not use Company's technology for any purpose other than accessing and using the Program. Except for the rights expressly granted above, the Agreement does not transfer from Company to Client any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. 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 Company.
- Company owns all right, title and interest in and to the Program and Company'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 Program and the related hardware, software and systems ("Marks"). Noting in the Agreement constitutes a license to Client to use or resell the Marks.
The client may provide the Products/ Services to End Users through a web portal or online marketplace with Client's branding (or sub-clients branding), provided that Client shall be wholly responsible for any trade-marks used for such branding including any claims of infringement of any third party's trade-marks. Client shall not alter, obscure or remove any branding or trade-marks of Third Party Suppliers of the Products, including standard branding and trademarks, which display during access or use of the Products through the Products/ Services.
Each Party recognizes WhoGoHost's, Third Party Suppliers' and Client's ownership and title to their respective trademarks, service marks and trade names whether or not registered (collectively, "Marks"). The client may be provided with a limited right to use Marks of Third Party Suppliers ("Supplier Marks") in connection with promotion and distribution of the Products/ Services and Products. Except for these limited rights, Client may not use Supplier Marks in advertising, promotion, and publicity without the express written consent of WhoGoHost or the Third Party Suppliers, respectively.
WhoGoHost may terminate your access to the Services, in whole or in part, without notice in the event that:
- You fail to pay any fees due before expiry date;
- You violate this Agreement;
- Your conduct may harm WhoGoHost or others or cause WhoGoHost or others to incur liability, as determined by WhoGoHost in our sole discretion; or
- As otherwise specified in this Agreement. In such event, WhoGoHost shall not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination. Additionally, WhoGoHost may charge you for all fees due for the Services for the remaining portion of the then-current term.
- UPON TERMINATION OF THE SERVICES FOR ANY REASON, USER CONTENT, USER WEBSITE(S), AND OTHER DATA WILL BE DELETED.
Disclaimer of Warranties
WHOGOHOST MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND CONCERNING THE PRODUCTS/ SERVICES, THE PRODUCTS OR THEIR USE, ACCURACY, FUNCTION OR OWNERSHIP AND SHALL NOT BE LIABLE IN ANY MANNER FOR ANY MANNER FOR ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED OR COLLATERAL OR WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE PRODUCT WILL BE ERROR-FREE. CLIENT ACKNOWLEDGES THAT PORTIONS OF THE PRODUCTS/ SERVICES ARE PROVIDED BY THIRD PARTY SUPPLIERS WHOSE PERFORMANCE IS NOT WARRANTED OR GUARANTEED BY WHOGOHOST. CLIENT SHALL NOT BE AUTHORIZED TO MAKE ANY WARRANTY, REPRESENTATIONS OR WARRANTIES OR CONDITION, WHETHER WRITTEN OR ORAL, ON BEHALF OF WHOGOHOST. CLIENT SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES FOR THE SERVICES GIVEN BY Client
- WhoGoHost shall indemnify and hold harmless the Client, its employees, officers, directors, mandataries and agents from and against any and all Claims brought by a third party arising out of or in connection with infringement or alleged infringement of the Intellectual Property Rights of such third party due to the distribution of the Products/ Services under this Agreement. If the Products/ Services become or are likely to become the subject of an infringement claim or action, WhoGoHost may at its sole discretion:
- procure, at no cost to the Client, the right to continue distributing and using Products/ Services;
- replace or modify the Products/ Services so that they become non-infringing,
- withdraw the Products/ Services and terminate any End User Licence Agreement without further obligation.
- Except for matters subject to the indemnity referred to in Section 13(a), Client shall indemnify and hold harmless WhoGoHost and the Third Party Suppliers from any Claims arising from its distribution of the Products/ Services hereunder.
No Consequential Damages; Limitation of Liability
IN NO EVENT SHALL WHOGOHOST BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, CONTRACTUAL OR EXTRA-CONTRACTUAL LIABILITY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH, OR OTHERWISE. IN NO EVENT SHALL WHOGOHOST'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID, UNDER THIS AGREEMENT BY CLIENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE FOREGOING DISCLAIMER AND LIMITATION OF LIABILITY SHALL NOT APPLY TO THE BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET OUT SECTION 7 OR WHOGOHOST'S OBLIGATIONS TO INDEMNIFY PURSUANT TO SECTION 13(A).
Reservation of Rights.
The company explicitly reserves the right and sole discretion to:
- Censor any web site hosted on its Web Hosting Server that, in Company's sole discretion, is deemed inappropriate;
- Review every Enterprise Cloud Server account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels;
- Modify its pricing through email notification;
- Terminate your Cloud service for unsolicited, commercial e-mailing (i.e., SPAM); illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; non-payment of Web Hosting fees; and other activities whether lawful or unlawful that Company determines to be harmful to its other Clients, operations, or reputation;
- Terminate your Web Hosting service if the contents of your website result in, or are the subject of, legal action or threatened legal action, against Company or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. The company has no obligation to monitor your site or any of your content but reserves the right in its sole discretion to do so.
Dispute Resolution Policy
Client agrees that if a dispute arises as a result of one or more websites Company is hosting for you, you will indemnify, defend and hold Company harmless for damages arising out of such dispute. Client also agrees that if Company is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a website hosted by Company, that Company, in its sole discretion, may take whatever action Company deems necessary regarding further modification, assignment of and/or control of the website to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
- Media Releases: Except for any announcement intended solely for internal distribution by either Party or any disclosure required by legal, accounting, or regulatory requirements, all media releases, public announcements, or public disclosures, including but not limited to promotional or marketing material, by either Party or its employees, mandataries or agents which includes references to the other Party or the Marks of the other Party shall be coordinated with and approved in writing by such person prior to the release thereof.
- Independent Contractors: The Parties are independent contractors under this Agreement and nothing in this Agreement shall be construed to create any partnership, joint venture, employment or agency relationship whatsoever as between WhoGoHost and Client. Either Party shall not, by reason of any provision herein contained, be deemed to be the partner, mandatory, agent or legal representative of the other Party nor to have the ability, right or authority to assume or create, in writing or otherwise, any obligation of any kind, express or implied, in the name of or on behalf of the other Party.
- Entire Agreement: This Agreement and the additional policies and agreement stated hereto collectively constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions with respect to the subject matter hereof whether oral or written. In case of a conflict between the Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Client or Company, the terms and conditions of the Agreement shall control. No additional terms or conditions relating to the subject matter of the Agreement shall be effective unless approved in writing by an authorized representative of the Client and Company. This Agreement may only be amended, modified or supplemented by a written agreement signed by both of the Parties hereto; provided, however, that these Terms of Program may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's website.
- Governing Law & Jurisdiction: This Agreement and any dispute or claim whatsoever relating to it or its formation shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria. All disputes, controversies or claims arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the Arbitration and Conciliation Act CAP. A18, Laws of the Federation of Nigeria 2004, which Rules are deemed to be incorporated by reference to this clause. The number of arbitrators shall be three, each Party shall appoint an arbitrator within 14 days of service of a notice to refer any such dispute, controversy or claim to arbitration; the seat of the arbitration shall be Lagos, Nigeria, and the language to be used in the arbitral proceedings shall be English.
- Non-Waiver: No waiver of any of the provisions of this Agreement is binding unless it is in writing and signed by the Party entitled to grant the waiver. The failure of either Party to exercise any right, power or option given hereunder or to insist upon the strict compliance with the terms and conditions hereof by the other Party shall not constitute a waiver of the terms and conditions of this Agreement with respect to that or any other or subsequent breach thereof nor a waiver by either Party of its rights at any time thereafter to require strict compliance with all terms and conditions hereof including the terms or conditions with respect to which the other Party has failed to exercise such right, power or option.
- Force Majeure: Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of nature, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other Party or such other Party's employees, mandataries, agents or contractors; provided, however, that lack of funds and a lack of reasonable disaster recovery plans and safeguards shall not be deemed to be a reason beyond a Party's reasonable control. The Parties will promptly inform and consult with each other as to any of the above causes which in their judgement may, or could be the cause of a delay in the performance of this Agreement.
- Successors and Assigns: A Party may not assign this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. This Agreement shall enure to the benefit of and be binding upon WhoGoHost andClient and their respective legal successors and permitted assigns.
- Survival: All obligations of WhoGoHost and Client which expressly or by their nature survive expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding such expiration or termination and until they are satisfied or by their nature expire.
- Notice: Any notice given under this Agreement shall be in writing and given by manually delivering it or sent by telecopy, fax or other similar means of communication. Any such notice shall be effective upon receipt unless received on a day which is not a Business Day in which event it shall be deemed to be received on the next Business Day. Either Party may change its address for service from time to time by notice given in accordance with the foregoing and any subsequent notice shall be sent to the Party at its changed address. upon the expiration of five days after the date of posting, if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of the Agreement by notice in writing to the other party as provided herein. The company may give written notice to Client via e-mail to the Client's e-mail address as maintained in Company's billing records.
- Cumulative Rights: The rights of each Party hereunder are cumulative and no exercise or enforcement by a Party of any right or remedy hereunder shall preclude the exercise or enforcement by such Party of any other right or remedy hereunder or which such Party is otherwise entitled by law to enforce.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in the Agreement, nothing in the Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Client acknowledges and agrees that Whogohost, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Program Description, is an intended third-party beneficiary of the provisions set forth in the Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of the Agreement with respect to its products or services against Client as if it were a party to the Agreement.
- Additional Remedies. Client acknowledges that an act of Client in violation of WhoGoHost's rights in the Products may cause irreparable damage to WhoGoHost, for which money damages may not be an adequate remedy. Accordingly, if Client acts, fails to act, or attempts to act in violation of WhoGoHost's rights in the Software, then in addition to all WhoGoHost's other rights and remedies under this Agreement, WhoGoHost shall have the right to apply for interlocutory and permanent injunctive relief seeking to enjoin such action or failure to act.
- Further Assurances. The Parties agree to do or cause to be done all acts or things necessary to implement and carry into effect this Agreement to its full extent.
- Severability. If in any jurisdiction, any provision of this Agreement or its application to any Party or circumstance is restricted, prohibited or unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provision hereof and without affecting the validity or enforceability of such provision in any other jurisdiction or its application to other Parties or circumstances.
- Counterparts. This Agreement may be executed by the Parties in separate counterparts of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.
- Language. The Parties have requested that this Agreement, together with any schedule, notice or other related documents, be drawn up in the English language only.