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CybrHost - Terms of Service
Last modified: 09/14/2011
Usage of CybrHost's services establishes the following agreement (the 'Agreement' or 'Terms of Service') between you ('Customer') and Pantek Inc. dba CybrHost ('CybrHost'). This Agreement, along with any future revisions, completely replace and supersede any prior agreements you have or may have had with CybrHost, Green Dedicated Hosting, and/or Apollo Hosting with respect to hosting services.
1. Service Level Agreement. CybrHost uses commercially reasonable efforts to provide all services and will take every reasonable action to provide a timely response to all customer inquiries. CybrHost also provides a 100% Server and Network Uptime Guarantee SLA which is located at http://www.cybrhost.com/sla and hereby incorporated into this Agreement.
2. Acceptable Use Policy. All services are subject to CybrHost's business and network policies and practices, which can change without notice. Policies are listed in our Acceptable Use Policy, located at http://www.cybrhost.com/aup and hereby incorporated into this Agreement.
3. Policy & Agreement Changes. Unless otherwise prohibited by law, CybrHost may also change service prices, as well any other term within this Agreement at any time, in accordance with these procedures:
a) Services on a Monthly Plan or 'No Term' Services:
i. All changes will be published to the following web location: http://www.cybrhost.com/tos.
ii. Price changes will become effective on your next regularly scheduled invoice period;
iii. Any other changes will become effective one (1) business day after they are published;
iv. Material changes will be emailed to the listed Billing Contact on file on your account;
b) Services on a Term Plan of at least One (1) Year:
i. CybrHost service pricing per your initial Order is guaranteed for the duration of your Term, except with respect to any third-party license costs, per section 8.8 of this Agreement;
ii. All changes will be published to the following web location: http://www.cybrhost.com/tos;
iii. All non-material changes will become effective one (1) business day after they are published;
iv. Material changes will be emailed to the listed Billing Contact on file on your account, and will become effective upon your next Term renewal date.
4. Service Acceptance. CybrHost reserves the right to refuse service to anyone at any time for any reason. Customer agrees that CybrHost may suspend Services to Customer without notice and without liability if: (a) CybrHost reasonably believes that the Services are being used in violation of the AUP, (b) Customer fails to cooperate with any reasonable CybrHost investigation of any suspected violation of the AUP, (c) there is a denial of service attack on Customer's servers or other event for which CybrHost reasonably believes that the suspension of Services is necessary to protect its network or its other customers, and/or (d) as requested by a law enforcement or government agency. Information on CybrHost's servers will be unavailable during a suspension of Services.
5. CybrHost Technical Support Policies
5.1. CybrHost provides 24x7x365 emergency technical support, and 9x5 standard support from the hours of 9am to 6pm M-F EST, excluding holidays. Support is provided via telephone, email, chat, as well as the CybrHost Portal, where Customers can submit Support Tickets, view ticket and billing history, update account information, and order new services. Customer agrees as a first step and whenever possible, to submit a Support Ticket via the Portal for non-emergency requests, by visiting:
5.2. For service change or upgrade requests, Customer must submit a Support Ticket via the Portal, as a first step and whenever possible. Except in an emergency outage situation, service changes and upgrades will usually be performed within one (1) business day after receipt of your Support Ticket. CybrHost may charge a $25.00 service charge for any requested change to your hosting services, configuration, or hosting plan after the first 30-days of your services with CybrHost. This includes but is not limited to such items as domain name changes, additional IP pointers, Webalizer configuration changes, password protected directories, and any other change beyond the scope of normal service which you request.
5.3. Support Not Provided. CybrHost does not provide training nor end-user support for any Services, nor for any application specific issues such as application programming, application performance tuning, html or any other such issues, unless specifically contracted for by Customer and agreed to by CybrHost. CybrHost does not provide technical support for Customer's clients.
5.4. CybrHost, at it's sole discretion, reserves the right to charge a $25 per incident fee for any support work required after standard CybrHost business hours.
6. Contingent. All of CybrHost's obligations under this Agreement are contingent upon (a) Customer's satisfaction of CybrHost's credit approval requirements, (b) CybrHost's verification of the information provided by Customer for the purpose of establishing the applicable Service, and (c) Customer's strict compliance with all terms and conditions of this Agreement and the Acceptable Use Policy.
7. Payment Schedules
7.1. Shared Hosting Plans
Customer contracting for Shared Hosting Services may elect a monthly, quarterly, or yearly payment schedule, but agrees to an initial lease period of ninety (90) days. Customer's plan will then automatically renew for the period selected in their original order until terminated by Customer or CybrHost in accordance with this Agreement. Customers purchasing any Shared Hosting Plan may terminate this Agreement and receive a full refund, for any reason, during the first thirty (30) days of service, as more fully described in section 9a below.
7.2. Physical or Virtual Dedicated Hosting Plans
Customer contracting for Dedicated Hosting Services or Virtual Dedicated Hosting Services agrees to an initial Lease Period as specified in their original order, or a one (1) year Lease Period if unspecified. Customer's plan and Lease Period will then automatically renew annually, until terminated by Customer or CybrHost in accordance with this Agreement.
7.3. Other Services
Payment for SSL Certificates, Domain Registrations, Work Orders, and all other services provided by CybrHost is due and payable in advance of service. All such payments are non-refundable.
8. Customer's Obligations
8.1. Reasonable Security Precautions and Acceptable Actions. Without limiting any other disclaimers or limitations of liability set forth in this Agreement, CybrHost shall have no liability for any damages incurred by Customer due to a breach of security. Accordingly, Customer agrees to (a) use reasonable security precautions in connection with its use of the Services, and (b) if Customer resells CybrHost's services, require its customers and end users to use reasonable security precautions. In addition, Customer agrees not to take any action or install any software which may preclude or impair CybrHost's ability to access or administer its servers.
8.2. Customer Data Back Up. Depending on the specific Services purchased by Customer, CybrHost may provide either partial or full Data backup services for Customer, or Customer may choose not to have CybrHost provide any Data backup services, on any or all of CybrHost's servers used by Customer. As such, Customer acknowledges that any servers can and do fail and the risk of Data loss is always present when any Data is stored on a computer system of any kind, even with the security and reliability protections that CybrHost provides. Customer also acknowledges that Data backups in general do not always allow for restoration of Data due to the many inherent limitations when performing Data backups, and that CybrHost's Data backup services may not always allow Customer to restore any or all of their Data in the event of a failure of any kind. Without limiting any other disclaimers or limitations of liability set forth in this Agreement, Customer agrees that CybrHost shall have no liability for loss of any Data stored on CybrHost's server's by Customer or otherwise provided by CybrHost to Customer, even if CybrHost is providing any type of Data Backup services to Customer. For purposes of this section, 'Data' shall include any software, content, and any other information stored on CybrHost's servers by Customer or otherwise provided to CybrHost by Customer.
8.3. Legal Compliance. Customer shall be responsible for compliance with all applicable laws and governmental regulations affecting its use of the Services, and CybrHost shall not have any responsibility relating to Customer therefore, including, without limitation, any responsibility to advise Customer of Customer's responsibilities in complying with any laws or governmental regulations affecting its use of the Services. If Customer resells CybrHost's Service, Customer shall require its customers and end users to comply with such laws and regulations. CybrHost shall be responsible for compliance with all applicable laws and governmental regulations affecting its provision of the Services.
8.4. Customer's Applications & Website. For the avoidance of doubt, Customer acknowledges and agrees that (a) Customer's application software and website may have certain software or hardware dependencies in order to run properly in a managed hosting environment using CybrHost's Service(s), (b) Customer is solely responsible for ensuring that Customer's applications and/or website will function properly on CybrHost's Service(s) using the hardware and software supported by CybrHost prior to contracting with CybrHost, and (c) CybrHost has no obligation whatsoever to assist or ensure that Customer's applications or website functions properly on CybrHost's Service(s). Accordingly, Customer shall be solely responsible for any cost or effort to change or modify Customer's applications or website to function properly on the CybrHost Service(s), and Customer's inability to have its applications or website function properly using the CybrHost Service(s) shall not relieve Customer of any of its obligations under this Agreement.
8.5. Customer Security. Customer is responsible for the security of the Services provided pursuant to this Agreement, and CybrHost agrees only to perform the specific security services described in the AUP, SLA, Order Form or in this Agreement. Customer shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use was because of a security breach that occurred due to CybrHost's gross negligence.
8.6. Acceptable Use Policy (AUP). Customer acknowledges that it has read CybrHost's Acceptable Use Policy located at http://www.cybrhost.com/aup, and Customer agrees to comply with such policy and any changes thereto which are made in accordance with the further provisions of this section. CybrHost may change such policy by posting the revised policy on its web site or by giving Customer notice thereof. Any such change shall be effective on the earlier of the date the new policy is posted or on the date CybrHost gives Customer notice thereof. If Customer resells CybrHost's Service, Customer shall require its customers and end users to comply with such AUP. Furthermore, Customer agrees to cooperate with CybrHost's reasonable investigation of any suspected violation of the AUP by Customer or any of its customer or end users.
8.7. Software. Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by CybrHost. Customer may not reverse engineer, decompile, or disassemble any CybrHost provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any .open source. license that governs the use of the software. If the applicable Statement of Work or Order Form indicates that CybrHost uses Microsoft software to provide the Services, Customer agrees to the Customer License Terms for Microsoft software published by Microsoft Corporation.
8.8. Third Party Products. As a convenience to Customer, CybrHost may from time to time arrange for Customer's purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. Customer's use of third party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party. Any price increases initiated by such third parties for use or access to their services, products, or licenses will be passed along to customer in kind.
8.9. Distributed Denial Of Service (DDoS) Attacks. A DDoS attack occurs when a number of servers (that have typically been .hacked. or compromised located throughout the Internet) launch an attack against a website or a server, and send a flood of traffic to that website or server. A DDoS attack can significantly impact the performance of the network under attack, and can consume significant amounts of Internet bandwidth. In order to protect CybrHost and its customers from DDoS attacks, CybrHost provides all customers with basic DDoS protection. Customer's traffic will be scrubbed and good traffic (i.e., non-attacked traffic) will be sent to Customer's servers, although Customer agrees and accepts that CybrHost shall be allowed to place a limit on the amount of Internet traffic to be accepted as part of an attack on Customer's server(s). This limit may vary based upon the load on CybrHost's network at any given time, and will be determined by CybrHost in its sole discretion. In the event the total traffic (including attacking and non-attacking traffic) to Customer's server(s) goes above the limit set by CybrHost such that CybrHost believes a continued attack may cause a significant impact to CybrHost's network or other customers, Customer accepts that Customer's Internet traffic going to the attacked server(s) will be null routed (blocked) until the attack drops to a level deemed to be acceptable by CybrHost. For those CybrHost customers that do not sign up for either ongoing Monthly DDoS protection or One-Time DDoS protection and find themselves under a DDoS attack, those Customers. Internet traffic will null routed (blocked) on the server(s) being attacked. In addition, Customer agrees that they will be responsible for any monthly Internet bandwidth usage charges or monthly data transfer charges above Customers. contracted amounts during such an attack, as calculated by CybrHost using CybrHost's standard monthly data transfer calculation methods and its current rates for additional data transfer.
8.10. Data Encryption. In the event Customer stores any Protected Health Information (PHI) as defined by the United States Department of Health and Human Services (.DHHS.) pursuant to the Health Insurance Portability and Accountability Act of 1996 (.HIPAA.), Customer agrees to the following: (a) Customer shall only store said data in an encrypted format on CybrHost's server(s); (b) while Customer may request assistance from CybrHost to setup encryption for its PHI data to be stored on CybrHost's servers, Customer agrees that Customer is solely responsible to ensure that said PHI data is encrypted properly at all times; and (c) Customer shall not disclose to CybrHost any encryption key(s) necessary to decrypt such data nor provide access to CybrHost to any application(s) residing on the CybrHost server(s) which stores PHI. Notwithstanding any other provision of this Agreement, Customer agrees that in the event Customer fails to encrypt any PHI data as provided herein and such unencrypted data is accessed by an unauthorized party while being stored on CybrHost servers subjecting CybrHost to compliance with any regulations and/or laws, Customer shall be solely responsible for all costs associated with compliance with such regulations and/or laws and shall indemnify CybrHost for any and all suits, claims, actions, causes of action, liabilities, losses, damages, costs and expenses (including reasonable attorneys. fees and other expenses) associated with or arising out of such disclosure to the extent caused by the Customer's failure to encrypt such data. The provisions of this paragraph only apply to any Customer that is storing PHI on CybrHost servers that is subject to HIPAA Compliance.
8.11. Shared Server Resource Policy. Customers contracting for Shared Hosting Services may not utilize unlimited resources on their assigned hosting server. If in CybrHost's sole determination Customer is using extreme server resources (including but not limited to CPU time, memory usage, and network resources), Customer will be notified via email and given an option of either upgrading to the appropriate service level (usually a Dedicated Server), reducing the resource used, or terminating service in accordance with this Agreement. Any website, application, script, or service deemed to be adversely affecting CybrHost server performance or network integrity may be shut down without prior notice, in CybrHost's sole discretion, however whenever possible CybrHost will use reasonable efforts to first contact Customer and attempt to resolve the issue prior to shutting down service.
8.12. Publicity. Customer agrees that CybrHost may publicly disclose that CybrHost is providing services to Customer and may include Customer in promotional materials, including press releases and on CybrHost's web site.
9. Termination of Services. To terminate this Agreement, Customer shall notify CybrHost by submitting a "Notice of Cancellation" through http://www.cybrhost.com/cancel. To protect Customer security, Email, HelpDesk, FAX, and phone cancellation requests will NOT be accepted. Customers shall continue to be responsible for all charges to their account through the date of termination. CybrHost shall continue to provide services through the date of termination only if Customer's account is current and no past-due balances exist. CybrHost may terminate this Agreement for any reason or no reason by providing thirty (30) days advance notice to Customer, or immediately in the event of a material breach of this Agreement in CybrHost's discretion.
9a. Termination - Shared Hosting Plans. Customers purchasing any Shared Hosting Plan may terminate this Agreement and receive a full refund, for any reason, during the first thirty (30) days of service. This thirty (30) day money-back offer does NOT apply to purchases of Dedicated Hosting Plans, Virtual Dedicated Server Plans, or any other service types (including but not limited to SSL Certificates, extra bandwidth allotments, or extra Miva or other Modules). If this Agreement is terminated after the first thirty (30) days of service but before the first ninety (90) days of service, Customer shall pay CybrHost for the full ninety (90) days of service. If this Agreement is terminated after the first ninety (90) days of service, CybrHost shall give Customer a prorated refund for any months prepaid and unused.
9b. Termination - Dedicated Hosting Plans and Virtual Dedicated Server Plans. In the event this Agreement is terminated by Customer, or by a breach of this Agreement by Customer, prior to the end of their current Lease Period, Customer shall pay CybrHost an early termination fee equal to the number of remaining months of unused service, multiplied by their contracted monthly rate for services.
9c. Obligations Upon Termination. Upon the expiration or earlier termination of this Agreement for any reason, Customer agrees (a) to immediately cease using all Services, (b) to promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name), and (c) that CybrHost may take steps to change or remove any such IP addresses. Unless Customer requests in writing to the contrary, CybrHost agrees to destroy all Customer-provided software and data after expiration or termination of this Agreement, In the event Customer requests the return of its software or data, Customer agrees to be responsible for all costs associated with CybrHost returning Customer's data and software, and any time spent by CybrHost will be billable services as Systems Administration hours which Customer agrees to pay for prior to having its software and/or data returned.
10. Payments and Late Payment Charges Payment for all fees are due prior to, or at the time the service is provided by CybrHost, and are due in the amount and frequency set forth in the initial service order or Agreement. All such fees are due by 2:00PM EST on the Payment Date. If Customer fails to pay all amounts due within ten (10) days of the Payment Date, interest will become due and will begin to accrue at the rate of 1.5% per month on all unpaid balances. Simultaneously, Customer will be sent a Suspension of Services e-mail, which will grant Customer ten (10) additional days to make payment. If full payment is not received by that time, unless Customer makes other arrangements with CybrHost's Billing department, CybrHost may in their sole discretion either (a) terminate all services, remove all data, and send a final invoice to the customer, with interest continuing to accrue on any unpaid balances at the rate of 1.5% per month, until the fully balance is paid; or (b) CybrHost may continue providing services, until such time as a Customer submits a Cancellation Order, during which time interest will continue to accrue at the rate of 1.5% per month on all unpaid balances, in addition to monthly charges that will continue to accrue until services are cancelled. Any unpaid balances that have not been timely paid may be sent by CybrHost to a collection agency. Customer agrees to be responsible for paying all costs of collection, including, but not limited to, reasonable attorney's fees, court costs, charge backs, NSF Fees, and/or interest charges that are in addition to the amount owed for services provided.
11. Payment by Checks or Money Order. CybrHost accepts payments via Visa, MasterCard, American Express and Discover cards (see section #12 below), as well as payments by Check, or Money Order, in U's. dollars only. CybrHost will not accept international checks or foreign currency of any kind. In the event a check is returned as un-payable, Customer will be assessed a $40.00 returned check fee.
12. Payment by Credit Card. CybrHost accepts payments via Visa, MasterCard, American Express and Discover cards ("Credit Cards"). Credit Cards will be kept on file, and charged seven (7) days prior to the Payment Date. Payment by Credit Card includes Customers express authorization to charge all future recurring fees and charges, as well as charges for any additional services requested by Customer, to the Credit Card on file with CybrHost. If a Credit Card is denied for any reason, CybrHost may make additional attempts to charge the card. After two unsuccessful attempts, Customer will be sent a notice by e-mail, and CybrHost may make one final attempt to charge Customer's Credit Card. CybrHost takes Customer billing concerns very seriously, and will always make reasonable efforts to resolve any concerns directly with the Customer. Credit Card "Charge Backs" are expensive and not recommended - if you have a disagreement about a charge please contact us directly to resolve the issue, by submitting a Billing Support Ticket via the CybrHost Portal, located at https://portal.cybrhost.com. In the event Customer does initiate a charge back for any reason, CybrHost may immediately suspend all Services and block access to Customer data until such time as full payment, plus a $50.00 charge back fee and a $25.00 reactivation fee is paid.
13. Actions Taken by CybrHost. When CybrHost becomes aware of an alleged violation of this Agreement, CybrHost staff will initiate an investigation. During the investigation CybrHost may restrict Customer access and/or disable services in order to prevent further possible unauthorized activity. Depending on the severity of the violation, CybrHost may, at its sole discretion, restrict, suspend, or terminate Customer's account, delete individual files or block services which are in violation of the Terms of Service, and/or pursue other civil remedies. If such violation is a criminal offense, CybrHost will notify the appropriate law enforcement department of such violation. CybrHost does not issue service credits for any outages incurred through service disablement resulting from Policy violations.
14. Warranties and Limitation of Liability. THE SERVICES PROVIDED BY CYBRHOST HEREUNDER ARE PROVIDED TO CLIENT ON AN "AS IS" BASIS. THE PARTIES AGREE THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NO WARRANTY, EXPRESS OR IMPLIED, IS MADE CONCERNING SUCH SERVICES, OR ANY COMPONENT OR ELEMENT THEREOF, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CYBRHOST DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, OR ANY COMPONENT OR ELEMENT THEREOF. WITHOUT LIMITING THE FOREGOING AND EXCEPT AS SPECIFICALLY SET FORTH HEREIN, CYBRHOST DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER, OR ANY COMPONENT OR ELEMENT THEREOF, ARE OR WILL BE ERROR-FREE, UNINTERRUPTED, OR WILL MEET CLIENT'S REQUIREMENTS OR EXPECTATIONS. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, CYBRHOST SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE PROVISION OF SERVICES HEREUNDER, OR ANY COMPONENT OR ELEMENT THEREOF, INCLUDING, WITHOUT LIMITATION, RELIANCE BY ANY PERSON ON INFORMATION OBTAINED THROUGH SUCH SERVICES, VIRUS TRANSMISSION, OR DELETION OR LOSS OF FILES OR E-MAIL, LOSS OF DATA OR INFORMATION OF ANY KIND, LOSS OF PROFIT, OR OTHERWISE ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, WHETHER BY THE ACT OR NEGLIGENCE OF CYBRHOST OR OTHERWISE. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM LIABILITY OF CYBRHOST FOR ANY AND ALL LOSSES, CLAIMS, DAMAGES OR LIABILITIES OF ANY KIND UNDER THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO TOTAL AMOUNT OF FEES PAID BY CLIENT TO CYBRHOST IN THE THREE MONTH PERIOD IMMEDIATELY PRECEEDING SUCH CLAIM. Notwithstanding anything contained in this agreement to the contrary, in the event of a breach of this agreement by CybrHost, Customer shall notify CybrHost of such breach in writing describing in detail such breach (the "Notice of Breach"). Notwithstanding anything to the contrary contained in this Agreement, CybrHost shall have the option, in lieu of the payment of damages to Customer hereunder, to remedy as soon as is reasonably practicable following the receipt of a Notice of Breach, any such breach to Customer's reasonable satisfaction.
15. Personnel and Employee Hiring. Customer agrees that, while this Agreement is in effect and for a period of one (1) year thereafter, they shall not hire nor engage as an independent contractor, either directly or indirectly, any individual who has been employed or contracted by CybrHost, without the express written consent of CybrHost. In the event of a breach of this section 15, Customer agrees to pay CybrHost a fee of fifty percent (50%) of the forecasted first years salary of the hired or engaged individual.
16. Independent Parties. CybrHost and Customer shall at all times be independent parties. Neither party is an employee, joint venture, agent, or partner of the other; neither party is authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other. The employees, methods, facilities and equipment of each party shall at all times be under their exclusive direction and control.
17. Assignment. Customer may not assign any rights or delegate any obligations created by this Agreement without the prior written consent of CybrHost, which consent shall not be unreasonably withheld. Any assignment in violation of this Agreement is void. CybrHost may assign this Agreement, in whole or in part, without the prior consent of Customer. This Agreement shall be binding upon the successors and permitted assigns of the parties.
18. Intellectual Property Ownership
18.1. Subject to the further provisions of this Section, each party acknowledges and agrees that: (i) nothing in this Agreement transfers ownership in any of such party's trade secrets, inventions, copyrights, and other intellectual property to the other party and (ii) each party owns their respective intellectual property. Further, CybrHost acknowledges that Customer owns, and shall continue to own, any and all data and content which Customer stores on CybrHost's servers, and nothing in this Agreement shall transfer ownership of Customer's data or content to CybrHost. Customer acknowledges and agrees that (a) CybrHost owns, and shall continue to own any and all intellectual property (including, without limitation, all of CybrHost's Trade Secrets) that CybrHost may utilize or develop in the course of performing the Services, and (b) Customer does not acquire any ownership interest or rights to possess CybrHost's server(s) or other hardware, and has no right of physical access to the hardware. To the extent that Customer provides any comments, instructions, suggestions, supporting information, and/or other feedback to CybrHost, respecting any Services and/or any other subject matter of this Agreement collectively, 'Feedback'), such Feedback shall be owned exclusively by CybrHost. To the extent Customer has or obtains any intellectual property rights in or to any Feedback, Customer shall be deemed to assign all right, title and interest therein, if any, to CybrHost as of the date such right first vests in Customer.
18.2. Customer acknowledges and agrees that in the course of providing services to Customer, CybrHost may disclose (or Customer may otherwise learn) one or more of CybrHost's Trade Secrets. For example, CybrHost may give Customer, as applicable, full (a) 'Root access' (for Linux), and/or (b) 'Admin access' (for Windows), in each instance to CybrHost's software and hardware including CybrHost's servers. Customer further acknowledges and agrees that in the course of such access, Customer may gain access and knowledge to certain tools, methods and techniques used by CybrHost to deliver CybrHost's uniquely high levels of performance, security, cost-effectiveness, and reliability (all of such tools, methods and techniques shall be referred to collectively herein as .CybrHost's Hosting Tools.). Without limiting the generality of the foregoing, Customer further acknowledges and agrees that CybrHost's Hosting Tools and all other of CybrHost's Trade Secrets (i) are not generally known to, and are not readily ascertainable by proper means by, Customer or by third parties, (ii) derive independent economic value to CybrHost from not being generally known to, and not being readily ascertainable by proper means by, Customer or by third parties, and (iii) are the subject substantial efforts by CybrHost to maintain their confidential nature. Customer further acknowledges and agrees that third parties would obtain economic value from the disclosure of CybrHost's Designated Trade Secrets to them. Customer acknowledges and agrees that all CybrHost's Trade Secrets constitute CybrHost's trade secrets under applicable law.
18.3. Competitors. Unless approved in advance by CybrHost, Customer represents and warrants to CybrHost that, as of the Effective Date, neither Customer nor any Customer Affiliates is a CybrHost competitor. Customer further covenants and agrees that, during the term of this Agreement, neither Customer nor any Customer Affiliates will, directly or indirectly, (a) constitute a CybrHost competitor, and/or (b) engage or encourage any CybrHost Competitor or its employees, relatives or friends of employees, agents, contractors, vendors, affiliates or assigns to utilize any Service of CybrHost for any reason whatsoever.
19. Force Majeure. Neither party shall be considered in default in the performance of any obligation hereunder to the extent that the performance of such obligation is prevented or delayed by a Force Majeure Event, which is defined to include a fire, flood, explosion, strike, war, insurrection, embargo, government requirement, act of civil or military authority, act of God, or any similar event, occurrence or condition which is not caused, in whole or in part, by that party, and which is beyond the reasonable control of that party. The parties shall take all reasonable action to minimize the effects of a Force Majeure Event. In the event that a Force Majeure Event prevents or delays the performance of a party for thirty (30) days, the other party shall thereafter have the right to terminate this Agreement upon written notice at any time before such performance resumes.
20. Severability and Reservation of Rights. If any provision of this Agreement is found invalid or unenforceable by an arbitration panel or a court of law, the remainder of this Agreement shall continue in full force and effect. Any delay or failure in enforcing any right or remedy afforded hereunder or by law shall not prejudice or operate to waive that right or remedy or any other right or remedy, including any remedy for a future breach of this Agreement, whether of a like or different character.
21. Headings. The headings used in this Agreement are intended for convenience only. They are not a part of the written understanding between the parties, and do not affect the construction and interpretation of this Agreement.
22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Ohio, county of Cuyahoga, excluding its principles relating to conflicts of laws. Any arbitration or court action hereunder shall take place in Cuyahoga County, Ohio, or in the City of Independence, Ohio.
23. Survival. The provisions of Sections 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23 shall survive any expiration, cancellation or termination of this Agreement.