TERM & CONDITIONS
THIS IS AN AGREEMENT BETWEEN YOU AND NET GATE.
This is an agreement ("Agreement") between you and NET GATE, a service registered to GULHMES LTD (or, if applicable based on where you live, one of its affiliates) ("Net gate"). This Agreement governs your use of any server, Gate server, Web site or Web page operated by Net Gate (each, an "Net Gate Web Site," and collectively, the "Net Gate Web Sites"). You represent that you are at least 18 years of age and have attained the age of majority in the province, state or country in which you reside, and any information that you submit is correct. NET GATE OFFERS THE NET GATE WEB SITES TO YOU CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THIS AGREEMENT. YOUR USE OF THE NET GATE WEB SITES CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIABILITY AND AN EXCLUSIVE REMEDY. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN.
2. HOW NET GATE MAY MODIFY THIS AGREEMENT
Net Gate reserves the right to change the terms, conditions, and notices under which it offers the Net Gate Web Sites, including any charges associated with the use of the Net Gate Web Sites. You are responsible for regularly reviewing these terms, conditions and notices, and any additional terms posted on any Net Gate Web Site. Your continued use of the Net Gate Web Sites after the effective date of such changes constitutes your acceptance of and agreement to such changes.
Any Net Gate Web Site may itself contain additional terms (for example, codes of conduct or guidelines) that further govern use of that Net Gate Web Site, including without limitation, particular features or offers (for example, sweepstakes). If any terms contained in this Agreement conflict with any terms contained within a Net Gate Web Site, then the terms in this Agreement shall control.
4. NO COMMERCIAL, UNLAWFUL OR HARMFUL USE OF THE NET GATE WEB SITES
The Net Gate Web Sites are only for your personal use. You will not use the Net Gate Web Sites for commercial purposes; including but not limited to, sending commercial email solicitation or advertisements. You will not use the Net Gate Web Sites in any way that is unlawful, criminal, or harms Net Gate, its affiliates, re-sellers, distributors, service providers and/or suppliers (each, a "Net Gate Party" and collectively, the "Net Gate Parties") or any customer of a Net Gate Party, as determined in Net Gate’s sole discretion or any other person. You will not use the Net Gate services to harass or threaten any other party. You will not use the Net Gate Services to crash, slow, or intentionally harm any computer system. You may not use the Net Gate Web Sites in any way that breaches any code of conduct, policy or other notice applicable to the Net Gate Web Sites. You will not use the Net Gate Services to obtain unauthorized access to any computer system. Without limiting the generality of this section, you may not use the Net Gate Web Sites in any manner that could damage, disable, overburden, or impair any computer system or Net Gate Web Site (or the network(s) connected to any Net Gate Web Site) or interfere with any other party's use and enjoyment of the Net Gate Web Sites.
5. SPAM IS PROHIBITED AND CAUSES DAMAGE; SPAM FILTERING TECHNOLOGY
Without limiting the generality of Section 4, you will not use the Net Gate Web Sites to transmit, either directly or indirectly, any unsolicited bulk e-mail or unsolicited commercial e-mail. You will not use the Net Gate Web Sites in any way that violates the Net Gate Anti-Spam Policy. You may view our Anti-Spam Policy outlined in our User Agreement - Personal, Non-Commercial Use. A breach of any part of the Anti-Spam Policy is a breach of this Agreement. Net Gate may use filtering technology or other measures in its efforts to stop unsolicited bulk e-mail and unsolicited commercial e-mail, and if your use of the Net Gate Web Sites includes e-mail related services, then such filtering technology or other measures may block, either temporarily or permanently, some e-mail sent to you through the Net Gate Web Sites even if such e-mail does not violate the Anti-Spam Policy.
6. COMMUNICATIONS MONITORING
To the maximum extent permitted by applicable law, Net Gate may monitor your use of the Net Gate service, e-mail, or other electronic communications and may disclose such information in the event it has a good faith reason to believe it is necessary for purposes of ensuring your compliance with this Agreement, and protecting the rights, property, and interests of the Net Gate Parties or any customer of a Net Gate Party.
NET GATE MAKES NO WARRANTY
NET GATE PROVIDES ITS SERVICES "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NET GATE PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. THE NET GATE PARTIES DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE NET GATE WEB SITES WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
8. LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY
IN NO EVENT WILL ANY NET GATE PARTY BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF THE NET GATE, EVEN IF SUCH NET GATE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER SECTION 10 IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH THE NET GATE WEB SITES, YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST ANY NET GATE PARTY WITH RESPECT TO THIS AGREEMENT OR THE NET GATE WEB SITES, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE NET GATE WEB SITES.
9. CHANGES TO THE NET GATE WEB SITES; ADDITIONAL LIABILITY LIMITATION
THE NET GATE PARTIES MAY CHANGE THE NET GATE WEB SITES OR DELETE FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON. As you use the NET GATE Web Sites, you should expect to receive, access or use information, materials, graphics, software, data and content (collectively, "Content") originated by NET GATE and persons other than NET GATE (any such person is referred to as a "Third Party"). WITHOUT LIMITING THE GENERALITY OF SECTIONS 9 AND 10, YOU ACKNOWLEDGE AND AGREE THAT THE NET GATE PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS 9 AND 10, YOU ACKNOWLEDGE AND AGREE THAT NET GATE IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE NET GATE WEB SITES, (2) ANY INCOMPATIBILITY BETWEEN THE NET GATE WEB SITES AND OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE NET GATE WEB SITES IN AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES AVAILABLE FROM NET GATE OR THIRD PARTIES THOUGH LINKS CONTAINED ON THE NET GATE WEB SITES. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTIONS 9, 10 AND 11 OF THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY MANDATORY PROTECTIONS PROVIDED TO YOU UNDER APPLICABLE LAW.
10. TERMINATION; ACCESS RESTRICTION
Net Gate may terminate this Agreement, or terminate or suspend your access to the Net Gate Web Sites at any time, with or without cause, with or without notice. Upon such termination or suspension, your right to use the Net Gate Web Sites will immediately cease.
11. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
If this Agreement is with Net Gate, claims for enforcement, breach or violation of duties or rights under this Agreement will be adjudicated under the laws of the State of California, without reference to conflict of laws principles. If this Agreement is with a Net Gate affiliate, claims for enforcement, breach or violation of duties or rights under this Agreement will be adjudicated under the laws of the place of incorporation for such Net Gate affiliate, without reference to conflict of laws principles. All other claims, including, without limitation, claims under or for violation of consumer protection laws, unfair competition laws, and in tort, will be adjudicated under the laws of your state of residence in the United States, or, if you reside outside the United States, under the laws of the country to which the subject Net Gate Web Sites are directed. If this Agreement is with Net Gate, you hereby irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in San Diego County, California, USA in all disputes arising out of or relating to the use of the Net Gate Web Sites. If this Agreement is with a Net Gate affiliate, you hereby consent to the exclusive jurisdiction and venue of the courts located in the place of incorporation for such Net Gate affiliate in all disputes arising out of or relating to the use of the Net Gate Web Sites.
12. INTERPRETING THE AGREEMENT; ASSIGNMENT
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. Net Gate may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not assign this Agreement, or assign, transfer or sublicense your rights, if any, in the NET GATE Web Sites. Except as expressly stated herein, this Agreement constitutes the entire agreement between you and NET GATE with respect to the NET GATE Web Sites and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and NET GATE with respect to the NET GATE Web Sites. The section titles in the Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
13. COPYRIGHT AND TRADEMARK NOTICES; OTHER ACKNOWLEDGEMENTS
All contents of the NET GATE Web Sites are Copyright © 2005 NET GATE, Inc. and/or its suppliers. All rights reserved. NET GATE and/or other NET GATE products and services referenced herein may also be either trademarks or registered trademarks of NET GATE in the United States and/or other countries. The names of actual companies and products mentioned herein may be the trademarks of their respective owners. The example companies, organizations, products, domain names, e-mail addresses, logos, people, places and events depicted herein are fictitious. No association with any real company, organization, product, domain name, e-mail address, logo, person, places or events is intended or should be inferred. Any rights not expressly granted herein are reserved.
14. DISALLOWED USES OF ANONYMIZER SERVICES
15. ACCOUNT INFORMATION
Passwords – Net Gate provides anonymity and therefore keeps as little information as possible on our customers, including their passwords. If you forget your password, you will be unable to access your account. It is highly recommended that you record your Account Number and password in a secure place for future reference.