PremiumDNS Terms of Service Agreement
This PremiumDNS Terms of Service Agreement (“Agreement”) sets forth the terms and conditions of Your use of Circle ITC Limited’s premium DNS services (the “Services”) as defined in Section 2 below. The Services may, at the sole and absolute discretion of Circle ITC Limited, be delivered by a third-party provider (“Vendor”). In this Agreement “You” and “Your” refer to You as the user of Our Services, or any agent, employee, servant or person authorized to act on Your behalf. “We”, “Us” and “Our” refer to Circle ITC Limited, as well as its subsidiaries and sister companies and any third-party providers, including but not limited to the Vendor (collectively, “Circle ITC”). This Agreement explains Our obligations to You, and explains Your obligations to Us for using the Services. These obligations are in addition to (not in lieu of) any terms and conditions that apply to Your use of the Services under any other Circle ITC policies and/or agreements. When You use the Services, Your Account (or You permit someone else to use it) to purchase or otherwise acquire access to the Services or to cancel Your Services (even if We were not notified of such authorization), You signify Your agreement to the terms and conditions contained in this Agreement along with the Circle ITC Universal Terms of Service Agreement and all applicable policies and product agreements incorporated by reference therein. You agree that Circle ITC may, in its sole and absolute discretion, modify this Agreement and the Services it offers to You from time to time and that such modifications are effective immediately upon posting to this site. Your use of the site or Services after such changes or modifications have been made constitutes Your agreement to be bound by this Agreement as last revised. If You have purchased Services from Circle ITC, the terms and conditions of this Agreement shall continue in full force and effect, including any changes made to this Agreement, as long as You take advantage of and use the Services.
Unless otherwise specified, capitalized terms used in this Agreement shall have the meanings set forth in this Section 1.
- “Confidential Information” means material, data, systems and other information concerning the operation, business projections, market goals, financial affairs, products, services, customers and Intellectual Property Rights of the other party that may not be accessible or known to the general public. Confidential Information shall include, but shall not be limited to, any information which concerns technical details of operation of the Services.
- “Customer Zone(s)” or “Domain Name” means the data provided by You to Circle ITC which contains information that defines how the Services should respond to DNS Queries.
- “Disrupting Event” means any event not within Circle ITC’s control which causes interruption of the Service, degrades the performance of the Service, impacts the operational stability of Circle ITC, or Circle ITC’s customers, or in any other way interferes with the use of the Services by Circle ITC, or Circle ITC’s customers, or the provision of such by Circle ITC to its customers.
- “DNS” means the Doman Name System that is a distributed database and hierarchical global infrastructure deployed on the Internet and private IP-based networks used to resolve domain names into IP addresses.
- “DNS Query” shall mean a request received by the Name Servers for information about a Customer Zone.
- “DNS Security Extensions” or “DNSSEC” shall mean a service which allows a Customer to digitally sign its Domain Name’s authoritative zone data.
- “Intellectual Property Rights” mean any and all now known or hereafter existing rights associated with the United States and foreign copyrights (including, without limitation, the right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), database rights, trademarks (including, without limitation, trade dress, trade names, service marks, corporate names and logos), inventions, patents (including, without limitation, the right to make, use, offer for sale and sell), patent applications, software, firmware, know-how, trade secrets, moral rights and all rights or forms of protection of proprietary rights of every kind and of a similar nature, or having similar effect to any of them, which may exist throughout the world however designated, whether or not any of them is registered, and having applications for registration for any of the foregoing.
- “Primary Name Server(s)” shall mean server(s) that make Customer Zone(s) available to the Services for distribution to the Name Servers.
- “Resource Record(s)” shall mean a record contained in a Customer Zone that, includes, but is not limited to, the following entries: Name, Class, TTL, and Type.
- “Name Servers” means the name servers, hardware, software, data, algorithms and processes used to host, and resolve DNS Queries for, the Customer Zone(s).
- “Service Infrastructure” includes, but is not limited to, the database, Name Servers, application servers, application gateways, network devices, software, specifications, protocols, IP addresses, configurations, routing data and processes and any other tangible or intangible asset used by Circle ITC to provide the Services.
2. Service Description.
Circle ITC will provide You with a cloud-based service which hosts, and resolves DNS Queries for, Customer Zone(s) (collectively, the “Services”). You must ensure that Customer Zones do not exceed 1,000 Resource Records.
3. Customer Obligations.
You shall (a) set up, configure and update Customer Zone(s) throughout the term; (b) after You have completed DNS configuration, You must ensure that Your registrars-of-record modify the records for the Domain Names that You are hosting to make the Name Servers authoritative for such Domain Names; (c) provide Circle ITC with reasonable access, cooperation, and timely and accurate information; (d) permit Circle ITC and the Vendor to exchange any and all relevant information, including but not limited to Your Confidential Information relating to the Services provided herein; (e) upon request by Circle ITC make changes or direct Our service providers to make changes to existing network equipment and/or infrastructure in order to enable Circle ITC to provide the Services; (f) be responsible for obtaining all necessary authorizations and permissions to effect such changes; and (g) be responsible for all fees or charges (if any) for making such changes.
4. Acceptable Use Policy.
You shall not use, nor permit others to use, the Services: (a) for any unlawful, infringing, defamatory, or fraudulent purpose; (b) to transmit obscene, harassing or otherwise objectionable material, whether or not such material is constitutionally protected; (c) to send any virus, worm, trojan horse or harmful code, or attachment; (d) to alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption of any computer file, database or network; (e) so as to materially interfere with or disrupt Circle ITC’s network or third party networks connected to Circle ITC’s network; (f) for online gambling in all forms that violates applicable laws; and/or (g) in a manner that is inconsistent with this Agreement, any applicable laws, or any usage guidelines provided or posted by Circle ITC in writing from time to time. If Circle ITC determines, in its sole discretion, that You have failed to comply with any part of this Section 4, You agree that Circle ITC may, upon providing forty-eight (48) hours written notice, immediately take corrective action which includes, but is not limited to (i) suspending the Services; and/or (ii) terminating this Agreement or any part thereof; provided, however, that Circle ITC shall not be required to provide notice to You in the event that You failure or alleged failure to comply with this Acceptable Use Policy (“AUP”) constitutes a violation of the law or causes, is causing or may cause a Disrupting Event. Such corrective action is in addition to any other rights Circle ITC may have under this Agreement or under law, and Circle ITC shall have no liability with respect to any action taken, or inaction, in connection with this Section 4. Circle ITC may provide You with notice that it intends to take action under this Section 4 but is not required to do so. You acknowledge that Circle ITC shall not be responsible for any failure to deliver the Services resulting from factors outside of Circle ITC’s reasonable control including, but not limited to, any failure by You to comply with this Section 4 and/or any non-performance or improper performance by You or any third parties.
5. License Grants.
- License Grants.Circle ITC grants to You, and You accept, a limited, non-exclusive, non-transferable, non-sublicensable license to use the Services. You acknowledge and agree that (a) Circle ITC retains all Intellectual Property Rights (as defined herein), title to and interest in all other information, data, content, software, systems, infrastructure, ideas, concepts, techniques, processes, configurations or other intellectual property embodied in or used or practiced in connection with the Services.
- You shall not (a) permit either direct or indirect use of the Services by any third party; (b) resell or distribute any of the Services or any copy thereof to any customer, end-user or other third party; (c) attempt to create a substitute service or product through the use of the Services under any circumstances; (d) modify, dissemble, decompile, reverse engineer, create derivative works of, or make any other attempt to discover or obtain the source code for any of the software or systems which deliver the Services; or (e) combine any software with any code or software licensed under the GNU General Public License (“GPL”) or any other open source license, in any manner that could cause, or could be interpreted or asserted to cause, such software (or any modifications thereto) to become subject to the terms of the GPL or such other open source license.
- Customer License Grant.You grant to Circle ITC and Circle ITC accepts a limited, non-exclusive, non-transferable, non-sublicensable license to use the Customer Zone(s) for the purposes of providing the Services.
6. Protection of Infrastructure.
In case of a Disrupting Event, Circle ITC may immediately and without prior notice suspend the Services to You where Circle ITC has a reasonable belief that the Disrupting Event involves or is directed at You. Within forty-eight (48) hours of any such suspension (or sooner if reasonably practicable), Circle ITC will notify You (email being sufficient) of the suspension and of the Disrupting Event. You agree that, if notified of such a suspension, You will cooperate with Circle ITC in good faith to determine the cause of, and resolve, the Disrupting Event if possible.
7. Effect of Termination.
In the event of expiration of the term or termination of this Agreement, the Services will be terminated for all Customer Zone(s) on the date on which the Agreement expires or the date on which the Services are terminated by Circle ITC or You in accordance with this Agreement, as applicable. You are solely responsible for (a) removing the Customer Zone(s) and contacting Your registrars-of-record to redirect DNS name server delegation for such Customer Zone(s); (b) any registrar modification fees incurred for changing DNS name server delegation; and (c) procuring any new or replacement services upon termination or expiration. By not taking any action with respect to Customer Zone(s) before the date on which this Agreement expires or the Services terminate, as applicable, You hereby acknowledge and agree that Circle ITC may, in its discretion, take any number of actions which include, but are not limited to, not resolve DNS Queries to such Customer Zone(s) which will likely result in interruption of its DNS resolution on or after the date on which this Agreement expires or the date on which the Services terminate, as applicable, redirect DNS Queries, or respond to such DNS Queries in a manner deemed suitable to Circle ITC.
8. Representations & Warranties.
You represent and warrant that (a) Your registration and use of any domain name(s) will not infringe the intellectual property rights of a third party and are for legitimate purposes and not for the purpose of (i) disrupting the business of a competitor; (ii) confusing or misleading Internet users; or (iii) cybersquatting, which is defined as the registration or acquisition of a domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of a trademark reflected in the domain name or to a competitor; (b) You have obtained any necessary consents and permissions to provide Your and/or third party information (including, but not limited to, the Customer Zone(s), Domain Names and any personal data) to Circle ITC; (c) the use of the Services is for Your own internal use and not for resale by You; and (d) You are not engaged in any illegal activities and that You will comply with all applicable rules, regulations and laws; (e) You will not misappropriate or infringe, directly or indirectly, the intellectual property rights of any third party. In the event Circle ITC believes, in its discretion, that You have breached any of the foregoing representations and warranties, Circle ITC may, without limitation, terminate this Agreement immediately upon notice to You, suspend the Services immediately upon notice to You, and remove some or all of the Customer Zones.
9. No Right of Indemnification Against Vendor.
You acknowledge and agree that You shall have no right to seek, and shall not seek, any indemnification directly from Circle ITC or the Vendor.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE SERVICES ARE PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, CIRCLE ITC DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE.
11. Compliance with Law, Export Requirements, Foreign Reshipment Liability.
Each party agrees that it shall comply with all applicable federal, state and local laws, regulations, and export requirements in connection with its performance under this Agreement. Regardless of any disclosure made by You to Circle ITC of an ultimate destination of any software, hardware, or technical data acquired from Circle ITC and, notwithstanding anything contained in this Agreement to the contrary, You will not modify, export, or re-export, either directly or indirectly, any software, hardware, or technical data, or portions thereof, without first obtaining any and all necessary licenses from the United States government or agencies thereof or any other country that requires an export license or other governmental approval at the time of modification, export, or re-export. Circle ITC shall have the right to suspend performance of any of its obligations under this Agreement, without prior notice and without liability if You fail to comply with this Section 11.
You represent and warrant that (a) You are aware of, understand and will comply with the provisions of the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.K. Bribery Act, as applicable (collectively, the “Acts”); (b) You will not take any action that might be a violation of the Acts or other applicable anti-corruption laws that prohibit the same type of conduct; (c) You have, and will have, policies in place sufficient to ensure compliance with the provisions of the FCPA and the U.K. Bribery Act, as applicable; (d) You and Your Affiliates, in the exercise of Your and their rights and the performance of Your and their obligations under this Agreement, or in connection with any transaction contemplated or authorized by this Agreement, have not, and shall not, pay or give, offer or promise to pay or give, or authorize any third party to pay or give, any money or any other thing of value directly or indirectly for the purpose of unfairly obtaining or retaining any business or securing an other unfair advantage to: (i) any government official or government employee (including any official or employee of a state-owned commercial enterprise or public international organization; (ii) any political party or officer or employee of any political party; (iii) any candidate for political office; (iv) any officer or employee of any customer or potential customer; or (v) any other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any of the foregoing persons or entities; (vi) all amounts paid to Circle ITC by You hereunder, including, but not limited to any discounts or credits furnished by Circle ITC, if any, shall not be paid or given to any other person, firm, corporation or other entity, except in payment for a bona fide business purpose authorized by this Agreement and incurred in connection with the performance of services hereunder in accordance with applicable law. Circle ITC acknowledges that any violation of this Section 12, or any formal allegation brought by a government agency charged with enforcement of anti-corruption laws that You are involved in a violation of any applicable anti-corruption law involving, or related to this Agreement, would be a material breach of this Agreement, giving Circle ITC the right to terminate this Agreement immediately without any liability owed by Circle ITC.
13. Billing & Payment.
All fees for the Services shall be in accordance with Circle ITC’s fee schedule then in effect, the terms of which are incorporated herein by reference, and shall be due at the time You order the Services, unless otherwise noted. All fees are non-refundable, in whole or in part, even if the Services and/or Your domain name registration are suspended, cancelled or transferred prior to the end of Your then current term, unless this Agreement or the Circle ITC Refund Policy specifically provides for a refund. At the sole and absolute discretion of Circle ITC, fees for the Services may be refundable if You cancel the Services within five (5) days after purchase.
Service availability is limited by the outstanding domain name registration period at the time You order the Services. If Your domain name registration expires prior to the end of one (1) year from purchase of the Services, You will be required to pay the full annual fee but Your Services will automatically expire upon expiration of your domain name registration. If Your domain name registration expires on a date which is after one (1) year from purchase of the Services, You may elect to purchase the Services for a period expiring on the expiration date of Your domain name registration. In such cases, the fees for Services will be prorated for the period which exceeds one (1) year from purchase of the Services.
14. Service Availability; Suspension & Termination of Services.
- Service Availability.The Services are not available during any period of transfer of a domain name registration to or away from Circle ITC. You acknowledge and agree that You are solely responsible for adding DNS records from any third-party nameservers utilized by You prior to using the Services. Circle ITC has no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with any downtime resulting from your decision to cease using third-party nameservers and commence using the Services.
- Suspension & Termination of Services.Circle ITC may defer commencement or suspend the Services being provided to You at any time and for any reason, including but not limited to a deferral or suspension arising as a result of the requirements of the Vendor and/or any third-party service provider. Further, We may reject Your purchase of the Services, or elect to discontinue providing Services to You, at any time (i) for breach of this Agreement, the Circle ITC Universal Terms of Service Agreement or any of the policies or agreements incorporated by reference therein; (ii) following the cancellation or termination of your domain name registration with Circle ITC; or (iii) as a result of the rejection, suspension or termination of services by the Vendor or any third-party service provider. No refund is available for any period of deferral or suspension or termination of Services pursuant to this Section 14.
15. Service Level Agreement for DNS Resolution.
Circle ITC will use commercially reasonable efforts to ensure the Services deliver 100% DNS resolution (“Service Level Agreement” or “SLA”). If We fail to meet this SLA, as solely determined by Us, due to an internal infrastructure or equipment failure resulting in a failure by the Services to respond to your DNS queries, You may be eligible to receive an Account credit calculated as the prorated Service fee for each day of downtime up to a maximum of 30 days per 12 month period. A staff member within Our customer support team must confirm downtime. To be eligible for a Service cycle prolongation, You need to contact Circle ITC by submitting a ticket to Circle ITC’s Billing department within the first three (3) calendar days after the downtime took place. You may not be eligible for a Service cycle prolongation in the case of a Service interruption caused or associated with issues such as the following (regardless of whether an internal infrastructure or equipment failure by Circle ITC also caused or contributed to the Service interruption):
- DDoS or similar attacks on Our servers;
- Third-party software failure;
- You maxing Your resource container;
- Issues resulting from errors or omissions by You;
- Interruptions caused by You as a result of custom scripting, coding or the installation of third-party applications;
- Network conditions across the internet (outside of our network), such as between Your ISP and Our data center;
- Firewall blocks/bans;
- Browser or DNS caching issues;
- Outages related to the reliability of certain programming environments;
- Any other circumstances beyond our control or that are not reasonably foreseeable; or
- Any act of God or force majeure which results in a Service failure.
This SLA shall be Your sole and exclusive remedy for any defects in, or issues with, the Services. Circle ITC shall not be liable for any consequential or indirect loss or damage caused by the failure of the Services.
16. Disclaimer of Representations and Warranties.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR OWN RISK AND THAT THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. CIRCLE ITC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CIRCLE ITC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SERVICES, AND CIRCLE ITC ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY CIRCLE ITC, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS SUPPORT CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE SERVICES.
17. Limitation of Liability; Waiver and Release.
IN NO EVENT SHALL CIRCLE ITC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) OUR SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (III) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF THE SERVICES, (VI) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM OUR SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO OUR SITE, (VII) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (VIII) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT CIRCLE ITC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT CIRCLE ITC WILL NOT BE LIABLE FOR ANY (I) SUSPENSION OR LOSS OF THE SERVICES; (II) INTERRUPTION OF BUSINESS; (III) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEBSITE(S) PROVIDED THROUGH OR BY THE SERVICES; (IV) LOSS OR LIABILITY RESULTING FROM ACTS OF GOD; (V) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (IV) EVENTS BEYOND THE CONTROL OF CIRCLE ITC; (VII) THE PROCESSING OF YOUR APPLICATION FOR SERVICES; OR (VIII) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD. IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT CIRCLE ITC’S TOTAL AGGREGATE LIABILITY FOR THE PARTICULAR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION IS LIMITED TO THE SLA AND IN NO EVENT SHALL EXCEED THE TOTAL AMOUNT PAID BY YOU FOR SAID SERVICES OVER THE PREVIOUS TWELVE (12) MONTHS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE. NO WAIVER OF ANY PROVISION OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS IT IS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF CIRCLE ITC.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge Circle ITC and all affiliates of Circle ITC, and all officers, agents, employees, and representatives of Circle ITC, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Services and Your acquisition and use thereof. Further, You agree to defend, indemnify and hold harmless Circle ITC and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by Circle ITC’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Services or Your use of the Services, including without limitation infringement or dilution by You or by another using the Services from Your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data You supplied to Circle ITC, including, without limitation, any misrepresentation in Your application, if applicable; (v) the inclusion of metatags or other elements in any website created for You or by You via the Services; (vi) any information, material, or services available on Your licensed Circle ITC website; or (vii), any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of You elsewhere. Should Circle ITC be notified of a pending lawsuit, or receive notice of the filing of a lawsuit, Circle ITC may seek a written confirmation from You concerning Your obligation to defend, indemnify and hold harmless Circle ITC. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Circle ITC shall have the right to participate in the defense of any such claim through counsel of its Own choosing. You agree to notify Circle ITC of any such claim promptly in writing and to allow Circle ITC to control the proceedings. You agree to cooperate fully with Circle ITC during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
19. Governing Law; Jurisdiction; Waiver of Trial By Jury.
Your rights and obligations, and all actions contemplated by this Agreement, shall be governed by the laws of the United States of America and the State of California. You agree that any action to enforce this agreement or any matter relating to Your use of the Services must be brought exclusively in the United States District Court for the Central District of California, or if there is no jurisdiction in such court, then in a state court in Los Angeles County, State of California. You agree to waive the right to a trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement.
You agree that any notices required to be given under this Agreement by Us to You will be deemed to have been given if delivered in accordance with the account and/or, if domain related, the domain name Whois information You have provided. You acknowledge that it is Your responsibility to maintain current contact information in the account and/or domain name Whois information You have provided.
21. Final Agreement.
This Agreement, together with all modifications, constitutes the complete and exclusive agreement between You and Us, and supersedes and governs all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by You except by means of a written document signed by both You and an authorized representative of Us. By applying for the Services through the online application process or otherwise, or by using the Services under this Agreement, you acknowledge that You have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
22. No Agency Relationship.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
23. Survival of Terms.
The following provisions shall survive any expiration or termination of this Agreement: (a) Section 1 (Definitions); (b) Section 5.2 (Restrictions); (c) Section 7 (Effect of Termination); (d) Section 10 (Disclaimer of Warranties); and (e) any other provisions of this Agreement which, by their nature, were intended by the parties to survive any expiration or termination of this Agreement.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
25. Assignment and Resale.
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Circle ITC’s prior express written consent.
26. Force Majeure.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Circle ITC, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this section extends for a period in excess of thirty (30) days in the aggregate, Circle ITC may immediately terminate this Agreement.
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
28. Contact Information.
If you have questions about this Agreement, please contact us by email or regular mail at the following address:
Circle ITC Legal Department
19 Franklin Bardi Street