These terms of service (TOS) are entered into between Category 99 Inc., d/b/a MacHighway.com (MacHighway.com, MacHighway, we, us, or our) and the entity purchasing our using services provided by or through MacHighway.com (Customer, you, or your). We agree to be bound by this TOS when we process your payment information. You agree to be bound by this TOS when you submit the contact information set out below. This TOS contains provisions that you are required to apply to your customers (End Users). It is your responsibility to ensure that these provisions are included in contracts and other agreements with your End Users. You are responsible for your End Users under this TOS. If you intend to resell the Services, you must also agree to be bound by our Reseller Agreement.
Our Other Agreements Are Incorporated Into the TOS
Services We Provide to You
The features and details of the Services governed by this TOS are described on the schedule set out at "MacHighway.com" for the category of Services you selected ("Product Description Page"). Throughout this TOS, the aspects of the category of Services provided to you by MacHighway.com, as set out on the Product Description Page, are referred to together as the "Service."
MacHighway.com provides the Service to you based on the description of it on the Product Description Page as of the Effective Date. Should the Product Description Page change subsequent to the Effective Date, MacHighway.com has no obligation to modify the Service to reflect such a change.
Certain aspects of the Service may be provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the products provided by them and incorporated into the Service. If a third party makes a change to its products, you may not terminate this TOS based on such a change, even if it materially affects the Service.
You are required to provide us with accurate information when setting up your account, during the course of our relationship, and when corresponding with us. On occasion, we may need to communicate with you by e-mail about the Service. You agree to maintain a working e-mail address that is monitored daily. We have no responsibility, or liability, for interruptions in the Service, or damages of any sort, based on communications that are misdirected as a result of your failure to provide us with updated contact information.
The entity set out in our records is considered by us to be our customer. If you are reselling the Service, or are an End User of a reseller, it is your obligation to ensure that our records accurately reflect ownership and control of the Service.
The "Effective Date" of this TOS will be the day on which you initially provide the contact information set out above.
This TOS will begin on the Effective Date and continue for the term set out on the Product Description Page (Initial Term). After the expiration of the Initial Term, this TOS will renew for successive periods of equal length (Renewal Term). If the Product Description Page does not contain an Initial Term, the Initial Term shall be one month.
You are responsible for the fees and charges set out on the Product Description Page (Fees). You may be charged 7 days prior to the date set out on the Product Description Page (Due Date).
Our obligation to provide the Service is contingent on your payment of the Fees by the Due Date. You must pay the Fees without set off or deduction. It is your responsibility to ensure that we receive payment of the Fees. Should the Service be suspended, for any reason, Fees will continue to accrue. Set up and domain name registration charges are not refundable for any reason.
If the Fees are not paid by your financial institution on the Due Date, your account will be considered delinquent. To reinstate your account, you will be required to pay, depending on the reason for the delinquency: (i) a returned check fee in the amount of $50; (ii) interest in the amount of 2.0% per month, or the maximum amount allowed by law; (iii) collection charges; (iv) any fees levied on us by our financial institution; and/or (v) an investigation fee of $200.
You may choose to purchase products and services that are not included in the Service but which are offered for sale by other parties through MacHighway.com (Third Party Services). Third Party Services may be billed separately from the Service. Fees for the Third Party Services may not be billed on the month on which they are delivered. You agree to pay for these Third Party Services regardless of the length of time elapsed between their delivery date and the date on which you are charged.
If you believe there is an error on your bill you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. Your dispute must include sufficient facts for us to investigate your claims and be received by us at least 5 days prior to the Due Date (Dispute Deadline). You waive your right to dispute any charges or Fees if you fail to meet Dispute Deadline. If we find that your claim is valid, we agree to credit the account that is the subject of the dispute on your next bill. If you contact your credit card company, prior to notifying us of the dispute, and initiate a "charge back" based on this dispute, and your charge back claim is past the Dispute Deadline, you will be charged a $200 investigation fee. This fee compensates us for the investigation your credit card issuer requires us to conduct in order to demonstrate our right to payment.
Money Back Guarantee
The Service carries an unconditional 30 day satisfaction guarantee (Guarantee). To cancel the qualifying Service and receive a refund, contact us within the first 30 days of the Effective Date for the particular Service. If you wish to retain your domain name, the cost of your domain name will be deducted from your refund at our regular, non-discounted, domain name price. If you paid us by credit card we will credit the card on file, otherwise we will send you a check.
The Guarantee only applies to an individual Service for 30 calendar days following the Effective Date. If you purchase more than one Service from us, the Guarantee only applies to the Service that falls within this 30 day period.
Termination for Convenience
Either party may terminate the Service by providing written notice to the other no later than 10 days before the expiration of the Initial Term or Renewal Term for that particular Service.
Termination for Material Breach
One party may terminate this TOS upon the occurrence of a material breach, if this breach has not been cured by the other party within 30 days of their receipt of written notice of the breach. A material breach shall be determined from the perspective of a reasonable business person with significant experience conducting business on the Internet. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action. Third Party Services may be part of the Service. A decision to cease offering Third Party Services will not be a material breach.
Termination for Your Violation of Our Policies
We reserve the right to immediately suspend the Service and/or terminate this TOS: (i) for a violation of any of our policies, including those incorporated by reference; and/or (ii) your failure to pay any amounts due. This right of termination is without prejudice to any other rights we may have. You are not entitled to any type of notice or protest should we exercise these rights, nor will you receive a refund of any Fees.
Use of the Services
Your use of the Services must be reasonable. You may not place excessive burdens on our CPUs, servers or other resources. You agree that we may place restrictions on your use of the Service, and charge you excess bandwidth fees, to the extent that they exceed the use of the Service of similarly situated customers. You understand that bandwidth, connection speeds and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result our need to place restrictions on your use of the Service.
Using your allotted space as online backup or storage, or mirroring mass downloads is not allowed. At all times use the file space exclusively as a conventional web site.
You agree to cooperate with us to facilitate your use of the Service. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is "server ready" and ensuring that you, your employees and/or agents have sufficient technical expertise to understand how to implement the Service.
Upon termination or expiration, your account will be closed. We have no responsibility to forward e-mail, or other communications, for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your e-mail or other communications.
Licenses and Intellectual Property
License From MacHighway.com To You
MacHighway.com grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by MacHighway.com solely to access and use the Service. This license terminates on the expiration or termination of this TOS. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in MacHighway.com's technology shall remain with MacHighway.com or MacHighway.com's licensors. You are not permitted to circumvent any devices designed to protect MacHighway.com's, or its licensor's, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
Any license provided to you, is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this TOS and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
Licenses From You To MacHighway.com
We may use information you provide to us for technical support, implementation, operation or administration of the Service (Operational Information). Operational Information, as well as aggregate information gleaned from the operation of our business in general, will be used to improve, or create new products and services. We shall be the exclusive owners of the resulting intellectual property. You waive any rights you may have in this intellectual property, and assign all right, title and interest in it to us and agree to cooperate with us to secure our rights.
You grant MacHighway.com, and any third parties used by MacHighway.com to provide the Service, a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, End Users, in conjunction with the Service. This license terminates on the expiration or termination of this TOS. All right, title and interest in your technology shall remain with you, your End Users, or your licensors.
MacHighway.com, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, User Content and/or Web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. User further agrees that Category 99 Inc. shall not be liable to User for any loss or damages that may result from such conduct.
Representations and Warranties
We each warrant to the other that: (i) we have the power, authority and legal right to enter into this TOS; and (ii) we have the power, authority and legal right to perform our obligations under this TOS and all incorporated provisions.
Your Representations and Warranty
You represent and warrant to MacHighway.com that: (i) you have the experience and knowledge necessary to use the Service; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Internet; (iii) you will provide us with material that may be implemented by us to provide the Service without extra effort on our part; (iv) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service; (v) that you understand that you may not be able to access location based services, such as "911" emergency calls, using the Service; (vi) that in entering into this TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (vii) that you will make back up copies of your data, even if you purchase "back-up" services from MacHighway.com, so that you can access and use it when needed. MacHighway.com does not warrant that it backs-up any account, user content or other data, and you agree to accept as a risk the loss of any and all of your data.; and/or (viii) that you will pass through the terms of our Acceptable Use Policy to End Users.
You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all materials provided to MacHighway.com, or which may be accessed or transmitted using the Service. You also warrant that to the extent you do business with other parties using the Service, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph.
99.99% Uptime Guarantee
We guarantee that the web server your site is on will be available at least 99.99% of the time in any given month. We know how important your site is to you, so we make sure it is accessible to your visitors. If for some reason it isn't, due solely to our actions, we will credit your account for a full month's service.
We also promise to notify you well in advance of any scheduled upgrades, security enhancements, and maintenance that may result in downtime. These are scheduled in the wee hours of the morning when traffic is lowest, and they are always handled very quickly and carefully.
MacHighway reserves the right to discontinue any affiliate account at any time for any reason without compensation. Such reasons for cause of discontinuance could be a high sign-up to click-through ratio.
THE SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 10.1, MACHIGHWAY.COM HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND TITLE. MACHIGHWAY.COM DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. MACHIGHWAY.COM IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO, OR FROM, YOU OR STORED BY YOU OR AN END USER VIA THE SERVICE PROVIDED BY US. MACHIGHWAY.COM SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY MACHIGHWAY.COM. NO WARRANTIES MADE BY THESE THIRD PARTY ENTITIES TO MACHIGHWAY.COM SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM MACHIGHWAY.COM, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION.
SOME STATES DO NOT ALLOW MACHIGHWAY.COM TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR AN INDIVIDUAL SERVICE.
Limitation of Liability
You agree that MacHighway.com has no liability, whatsoever, for (i) content that you or an End User access from the Internet; (ii) for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our system; and/or (iii) for your inability to access the publicly switched telephone network.
IN NO EVENT WILL MACHIGHWAY.COM'S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY MACHIGHWAY.COM FROM YOU FOR THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM MACHIGHWAY.COM SHALL BE INTERPRETED TO INCLUDE MACHIGHWAY.COM'S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING SERVICES TO YOU THROUGH MACHIGHWAY.COM.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD MACHIGHWAY.COM OR ITS LICENSOR’S, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF MACHIGHWAY.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS MACHIGHWAY.COM'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless MacHighway.com and its parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Service; (ii) any violation by you of any of MacHighway.com's policies; (iii) any breach of any of your representations, warranties or covenants contained in this TOS; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the term "you" as set out in subparagraphs (i) through (iv) include you, End User, visitors to your website, and users of your products or services, the use of which is facilitated by us.
MacHighway.com shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Service infringes any issued U.S. patent. This indemnification provision is expressly limited to the Service which is fully owned by MacHighway.com. It does not extend to products or services provided by third parties even if incorporated into the Service. If set out in its agreements with third-party suppliers, MacHighway.com shall flow down similar intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying MacHighway.com promptly in writing of the claim and giving MacHighway.com full authority, information, and assistance for the defense and settlement of that claim. You shall have the right to participate in the defense of the claim at your expense. If such claim has occurred, or in MacHighway.com's opinion is likely to occur, you agree to permit MacHighway.com, at its option and expense, either to: (i) procure for you the right to continue using the Service; (ii) replace an individual component of the Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate MacHighway.com's obligations (and your rights) under this TOS with regard to such Service and refund to you the price originally paid by you to MacHighway.com for the Service, or the Fee actually received by MacHighway.com from you for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
Notices will be sent to you at the address you provide to us. It is your obligation to ensure that we have the most current address for you in our records
Please refer to our website, MacHighway.com, for contact information for most issues, including technical support and billing. Notices regarding this TOS and other MacHighway.com policies should be directed to:
Category 99, Inc.
Attention: Legal Notices
240 S Broadway STE 206
Denver, CO. 80209
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by the such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
Choice of Law, Jurisdiction and Venue
The parties agree that all disputes shall be brought before U.S. District Court for the District of Colorado. If the District Court may not consider the dispute, all disputes shall be brought before the Colorado Superior Court. The parties agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this TOS or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of Colorado, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
No waiver of rights under this TOS, or any MacHighway.com policy, or agreement between you and MacHighway.com shall constitute a subsequent waiver of this or any other right under this TOS.
This TOS may be assigned by MacHighway.com. It may not be assigned by you. This TOS shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
In the event that any of the terms of this TOS become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this TOS. All remaining terms of this TOS shall remain in full force and effect.
This TOS does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
The following paragraphs shall survive the expiration or termination of this TOS: 1, 6, 11, 12, 13, 14.1, 14.3.
Changes to the TOS
MacHighway.com reserves the right to revise its policies at any time without notice.