By signing up for and/or otherwise accessing any of the services or products offered by RawData Hosting, a corporation organized and existing under the laws of the State of Rhode Island addressed at PO Box 8976, Warwick, RI 02888 and you, or which has an ownership interest in you. The effective date of this agreement shall be the earlier of (1) the activation of your account or (2) your receipt of an e-mail from RawData Hosting confirming your order.
For the purposes of this Agreement:
1.1.
"RawData Hosting's Equipment" shall mean computer and telecommunications
device, Internet access and/or transmission rights owned, operated, and/or
maintained by RawData Hosting and/or RawData Hosting's agents or assigns
which function to provide the RawData Hosting Services.
1.2.
"RawData Hosting", "us," "we, "our" and
grammatical variants thereof shall collectively refer to RawData Hosting
and its assigns and successors in interest.
1.3.
"RawData Hosting Services" shall mean the products and services
provided by RawData Hosting at any given time, including but not limited
to web hosting, e-mail, domain registration, and any associated support
services, which services may be changed, amended, and/or otherwise altered
at any time in RawData Hosting's sole discretion.
1.4.
"RawData Hosting Software" shall mean any software provided by
RawData Hosting at any given time, whether downloaded to your computer,
provided to you on CD or another form of removable media, or utilized
online as part of the RawData Hosting Services. The RawData Hosting Software
includes the program and any and all copies or portions thereof, whether
standing alone or in combination with other programs, as well as the documentation
and other materials delivered in connection with the software, if any.
1.5.
"Bandwidth" shall refer to the rate of data transmission in bits
per second using RawData Hosting's Equipment.
1.6.
"Content" shall mean the downloadable files which are interpreted
by a client web browser for display with or without plug-ins.
1.7.
"Customer Service" shall refer to communication from us to you
dealing with problems or questions relating to services provided by us
to you.
1.8.
"Fee" shall mean monies and other consideration you are obligated
to pay to RawData Hosting for the right to use the RawData Hosting Services
and Bandwidth subject to the terms and conditions of this Agreement and
of the particular RawData Hosting Services for which you have registered,
as outlined on the then-current schedule of fees. Fees may be changed
at any time on thirty days notice.
1.9.
"Fee Schedule" shall mean the fees for the RawData Hosting Services
as published on the RawData Hosting web site, which may be modified at
any time in RawData Hosting's sole discretion pursuant to the provisions
of 24.1.
1.10.
"Parties" shall collectively refer to RawData Hosting and you.
1.11.
"Suspend" or "Suspension" shall include the disabling
of your domain name and the cessation of transmission of data to or from
Your Web Site or via Your Services.
1.12.
"Technical Support" shall refer to communications from us to you
dealing with problems or questions relating to technical matters involving
software or services provided by us to you.
1.13.
"Web Site Space" shall mean a quantity of computer memory allocation,
as outlined in the program description for Your Services, generally located
on one or more computer storage devices and measured in units of megabytes
(MBs) wherein data comprising Your Web Site is stored and is accessible
by RawData Hosting's web server equipment.
1.14.
"You", "your" and grammatical variants thereof shall
mean you, any other entity which has an ownership or other beneficial
interest in you, or any other entity in which you have an ownership or
other beneficial interest.
1.15.
"Your Web Site" shall mean data transmittable via the Internet
by RawData Hosting which is stored in Web Site Space.
1.16.
"Your Services" shall mean the specific RawData Hosting Services
for which you have contracted, subject to the limitations and specifications
of the particular service effective as of the date of contract and to
the fees for that pursuant to the current Fee Schedule.
Subject to and conditioned upon RawData Hosting's retained rights and all other terms and conditions set forth in this Agreement, RawData Hosting offers the RawData Hosting Services as soon as practicable after registration for and payment of any and all fees due. You will receive a password, account and instructions upon completion of the registration process. You are responsible for maintaining the confidentiality of both your password and your account and are fully responsible for all activities that occur under your password and your account. You agree to immediately notify RawData Hosting of any unauthorized uses of the account or any other breaches of security. RawData Hosting cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will RawData Hosting be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The RawData Hosting Services are subject to the following conditions and restrictions:
2.1.1.
RawData Hosting shall provide to you a non-exclusive and limited license
to use the amount of Web Site Space allocated to Your Services for your
non-exclusive use for the exclusive purpose of storing Your Web Site
data and disseminating said data via the Internet through the use of
RawData Hosting's Equipment for purposes consistent with this Agreement.
2.1.2.
RawData Hosting, either directly or through its assignee or licensee,
shall provide Customer Service relating to Your Web Site consisting of
replying to customer questions or complaints regarding services provided
by us to you relating to Your Web Site. RawData Hosting is not obligated
to provide any Customer Service except as specified in this Section 2.
Any and all requests for additional Customer Service may be refused by
RawData Hosting with or without reason. Any additional Customer Service
which RawData Hosting may subsequently agree to provide to you shall be
at RawData Hosting's sole discretion and once commenced, may be terminated
at any time by RawData Hosting without notice to you and without any liability
to RawData Hosting. Notwithstanding the foregoing, RawData Hosting at its
sole discretion may at any time alter or cease providing the Customer Service
which it has agreed to provide to you relating to Your Web Site pursuant
to this Agreement without any liability to RawData Hosting.
2.1.3.
RawData Hosting, either directly or through its assignee or licensee,
shall provide Technical Support relating to Your Web Site consisting
of replying to communications from and to end users dealing with problems
or questions relating to technical matters involving software or services
provided by us to you. While RawData Hosting is not obligated to provide
any Technical Support except as specified in this Section 2, you may
contact us to request additional Technical Support on a fee for service
basis to be arranged between RawData Hosting and you. Any and all requests
for additional Technical Support may be refused by RawData Hosting with
or without reason, in its sole discretion. Any additional Technical Support
which RawData Hosting may subsequently agree to provide to you shall
be at RawData Hosting's sole discretion and once commenced, may be terminated
at any time by RawData Hosting without notice to you and without any
liability to RawData Hosting. Notwithstanding the foregoing, RawData
Hosting at its sole discretion may at any time alter or cease providing
the Technical Support which it has agreed to provide to you relating
to Your Web Site pursuant to this Agreement without any liability to
RawData Hosting.
2.1.4.
All use of Web Site Space and provision of services to you by RawData
Hosting shall be subject to all terms and conditions set forth herein.
You may not attempt to expand or alter these rights or RawData Hosting's
services by entering into multiple agreements.
2.1.5.
Bandwidth use, including but not limited to data retrieval from Your
Web Site, e-mail traffic, and downloads, shall not exceed twenty gigabytes
per month. Your combined Mailbox use per account shall not exceed five
gigabytes per month. You are responsible for monitoring your Bandwidth
and Mailbox use, and agree to check your e-mail and download or delete
your e-mail on a regular basis in order to ensure compliance with this
paragraph. Should you exceed your Mailbox use limits RawData Hosting
may return any and all e-mails sent to you to the originating sender
without liability to you. You agree that RawData Hosting may debit your
credit card for usage in excess of permitted amounts at the rates set
forth in the then-current Fee Schedule.
2.1.6.
RawData Hosting may suspend performance under or terminate this Agreement,
cease transmission of data associated with your domain name immediately
and without notice, and take any other actions it deems necessary, in
its sole discretion, to comply with the relevant laws if it is informed
or otherwise believes, in its sole discretion, that your domain name
violates the intellectual property rights of any third party or is otherwise
the subject of a dispute. As more completely set forth in Sections 5,
6, and 9, you waive any and all clams you may have, now and forever,
against RawData Hosting relating to the content, use, and operation of
Your Web Site and agree to indemnify and hold harmless RawData Hosting
from and against any such claims.
2.2.1.
Should you choose to register a domain name through RawData Hosting,
RawData Hosting will register a second level domain name on your behalf,
provided such domain name is available for registration. RawData Hosting
acts only as an intermediary between you and the organization providing
the domain name, and has no influence over the assignment of domain names.
The registration of your domain name is subject to the terms and conditions
of those third-party registrars, and is also subject to the terms of
the Uniform Domain Name Dispute Resolution Policy (“UDRP”).
RawData Hosting assumes no liability in the event the domain name is
unavailable or otherwise not assigned to you, and does not warrant or guarantee
that assigned domain names do not infringe the rights of third parties,
or that you will retain the rights to that domain name for any period of
time. RawData Hosting shall not own or otherwise legally control any domain
name registered on your behalf. You agree that you are responsible for any
and all fees and costs related to the registration of your domain name,
and you authorize RawData Hosting to debit your credit card for any such
fees and costs.
2.2.2.
You acknowledge and agree that RawData Hosting or its agents, assignees
or licensees may, upon registration of your domain name, associate any
data of any kind, in RawData Hosting's sole discretion, with the Domain
Name registered in association with Your Web Site until you replace such
data with the Web Site.
2.2.3.
You represent and warrant that your domain name does not infringe the
copyright, trademark, or any other intellectual property rights of any
person or company and that your domain name is otherwise in compliance
with the terms of this agreement, in particular the provisions of Section
7.
2.2.4.
You shall inform RawData Hosting of any claim or potential claim against
your domain name, including but not limited to the initiation of a dispute
under the UDRP, within five days of notification of same. You shall provide
RawData Hosting of notice of any negotiations with third parties with
respect to the ownership and/or intellectual property rights to your
domain within five days of the commencement of such negotiations. Should
you lose your right to use a domain name which is used in connection
with the RawData Hosting Services, whether through expiration of the
domain name, judicial decree, administrative decisions of the UDRP or
otherwise, you agree to inform RawData Hosting immediately of the party
to whom the domain name is to be transferred and you authorize RawData
Hosting to take any and all action necessary to effect such transfer.
2.2.5.
RawData Hosting will accept the transfer of domain names from other registrars,
provided however, that you will be required to pay for an initial year
of registration fees upon transfer. Upon the expiration of the one-year
extension you will be charged an annual renewal fee for any subsequent
renewal period. By requesting the transfer of your domain name you authorize
RawData Hosting to debit your credit card for the one-year registration
fee and any related fees or charges.
2.2.6.
RawData Hosting may suspend performance under or terminate this Agreement,
cease transmission of data associated with your domain name immediately
and without notice, and take any other actions it deems necessary, in
its sole discretion, to comply with the UDRP or relevant laws if it is
informed or otherwise believes, in its sole discretion, that your domain
name violates the intellectual property rights of any third party or
is otherwise the subject of a dispute. As more completely set forth in
Sections 5, 6, and 9, you waive any and all clams you may have, now and
forever, against RawData Hosting relating to the registration, use, and
subsequent transfers of your domain name and agree to indemnify and hold
harmless RawData Hosting from and against any such claims.
2.3.1.
RawData Hosting may, in its sole discretion, provide you with software
(or scripts) in combination with Your Services. Upon payment of all fees
due and owing to RawData Hosting under this Agreement, RawData Hosting
hereby grants, and you hereby accept, a nontransferable, and non-exclusive
license to use the software and all related documentation during the
term of this Agreement. Any rights not expressly granted herein shall
be reserved for RawData Hosting.
2.3.2.
Although the some software provided by RawData is generally provided
free of charge, RawData Hosting reserves the right to charge for the
software or any upgrades therefore at any time.
2.3.3.
You recognize that the software provided by RawData Hosting and all related
information, including but not limited to any and all updates, improvements,
modifications, enhancements, and information in some cases may be proprietary,
and that all rights thereto, including copyright, are owned by RawData
Hosting. You further acknowledge that you have been advised that the
software, including updates, improvements, modifications, enhancements,
and information related to the software, in some cases may constitute
a trade secret of RawData Hosting, is protected by civil and criminal
law, and by the law of copyright, is valuable and confidential to RawData
Hosting, and that its use and disclosure must be carefully and continuously
controlled.
2.3.4.
RawData Hosting shall at all times retain title to all the software and
all related information, including all updates, improvements, modifications
and enhancements, furnished to you hereunder.
2.3.5.
Unless provided otherwise in the specifications for Your Services, the
software provided by RawData Hosting supplied hereunder is for the your
personal or business use. You shall not permit any third party to use
the software or allow access to the software from sites outside of your
home or business premises except as specifically authorized in writing
by RawData Hosting. The RawData Hosting Software is to be used only for
the purposes specified in this Agreement and specifically as restricted
in the following three subparagraphs of this Section 2.
2.3.6.
While this Agreement is in effect, or while you have custody or possession
of any of the software, you will not: (i) copy or duplicate, or permit
anyone else to copy or duplicate, any of the software, whether such software
is in written, magnetic or any other form, except pursuant to reasonable
backup procedures, or for use in Your Web Site or applications pursuant
to this Agreement, nor; (ii) provide or make the software available to
any person or entity other than your employees or agents who have a need
to know consistent with your use thereof under this Agreement, nor; (iii)
create or attempt to create, or permit others to create or attempt to
create, by disassembling, reverse engineering or otherwise, the source
programs or any part thereof from the object program or from other information
(whether oral, written, tangible or intangible) made available to you
under this Agreement, nor; (iv) copy for your own use or the use of others
operator manuals, system reference guides, training materials and other
user-oriented materials without the prior written consent of RawData
Hosting. In order to protect RawData Hosting's trade secrets and copyrights
in the software, you agree to reproduce and incorporate RawData Hosting's
trade secrets or copyright notice in any copies, modifications or partial
copies.
2.3.7.
You agree to notify RawData Hosting forthwith if you obtain information
as to any unauthorized possession, use or disclosure of any software
provided by RawData Hosting by any person or entity, and further agree
to cooperate with RawData Hosting at RawData Hosting's expense, in protecting
RawData Hosting's proprietary rights.
2.3.8.
Unless agreed otherwise in writing by RawData Hosting, the software may
be used only in relation to the Web Site for which it was assigned to,
and for the hosting account for which it was installed for.
2.3.9.
RawData Hosting provides its customers with the ability to use certain
third-party software (the "Third Party Software"), depending on
the hosting package ordered. Such Third Party Software is delivered to
RawData Hosting Customers electronically, usually by installation or
delivery to the Customers Web Site Hosting Space on RawData servers.
The license conditions governing the use of the Third Party Software may
differ from RawData Hosting's own software licenses. Customers of RawData
Hosting are bound by the conditions of all licenses pertaining to such Third
Party Software and should make themselves familiar with their terms and
conditions. THE PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY RAWDATA
HOSTING DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE,
NOR CAN RAWDATAHOSTING MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING
THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
2.3.10.
In the event of termination of this Agreement, or upon any act which
shall give rise to RawData Hosting's right to terminate, any and all
licenses granted under this Section 2.3 shall terminate automatically,
and you will remove, erase or destroy any software and documentation
provided by RawData and all copies thereof, wherever located, without
demand or notice.
3.1.
Certain RawData Hosting Services are subject to set-up, service, and
domain service fees, pursuant to the Fee Schedule, and by registering
for such RawData Hosting Services you authorize RawData Hosting to debit
your credit card for any and all such fees.
3.2.
RawData Hosting agrees to host Your Web Site in exchange for your payment
to RawData Hosting of a monthly Fee for service in any given month, not
later than the first of that month. In the event that RawData Hosting
determines that the services of a collection agency are necessary or
appropriate to collect amounts due under this paragraph, which determination
shall be made in RawData Hosting's sole and unfettered discretion, any
and all collection agency fees and other costs of collection shall be
added to the amount due under this provision.
3.3.
All Fees must be paid by major credit card in United States Dollars in
advance of the provision of services and are considered earned in full.
RawData Hosting will charge the monthly fee and any additional fees
to the credit card account provided by you upon registration unless
specifically provided otherwise. You also agree that RawData Hosting
may automatically charge your credit card for any subsequent renewal
term, additional services, and any related Fees or expenses applicable
to Your Services or Your Web site, including but not limited to fees
for excessive bandwidth use or other surcharges for services in excess
of those included within Your Services or Your Web Site, without further
authorization from you. If payment in full is not received by RawData
Hosting from your credit card issuer or its agents, you agree to pay
all amounts due from you for our services to you upon demand by RawData
Hosting.
3.4.
In the event RawData Hosting must invoice you for the collection of our
fees for services provided to you, you will accept and pay an administrative
processing fee of $5 applied to each occurrence.
3.5.
RawData Hosting may offer subsequent promotional rates or special offers,
the terms of which may or may not be more favorable than the terms and
conditions for Your Services. Any such promotions or modifications shall
not effect your obligations under this Agreement. Promotional fees may
be subject to additional terms and conditions which, to the extent they
conflict with the terms of this Agreement , shall govern. Promotional
fees and special offers may not be combined.
3.6.
To the extent Your Services are subject to the terms and conditions of
RawData Hosting's Money Back Guarantee (the "T&C Money Back Guarantee"),
they are incorporated herein by reference.
3.7.
You shall pay all costs of collection, including reasonable attorney's
fees and costs, in the event any invoice requires collection efforts.
All accounts referred to a collection agency shall be subject to an additional
fee of $25, which must be paid in full before the account is reactivated.
3.8.
Upon cancellation of this Agreement you are not refundable unless provided
otherwise by applicable local law. RawData Hosting may, in its sole discretion,
refund other amounts as it deems necessary or advisable.
Receipt by RawData Hosting of data for storage in Web Site Space and/or transmission via RawData Hosting's Equipment which are inconsistent with your warranties set forth in Section 7 herein shall not constitute an agreement by RawData Hosting to allow the RawData Hosting Services or the RawData Hosting Equipment to be used to disseminate such information or data in whole or in part, by any means, or if once disseminated via the use of RawData Hosting's Services or Equipment, to continue to disseminate such data.
THE RAWDATA HOSTING SERVICE AND RAWDATA HOSTING SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. RAWDATA HOSTING DOES NOT WARRANT THAT THE RAWDATA HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES RAWDATA HOSTING MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE RAWDATA HOSTING SERVICES. NO WARRANTY IS MADE BY RAWDATA HOSTING REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND RAWDATA HOSTING HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER, INCLUDING BUT NOT LIMITED TO YOUR SERVICES AND YOUR WEB SITE; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. RAWDATA HOSTING DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE RAWDATA HOSTING SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY KIND HAVE BEEN MADE TO YOU REGARDING THE POTENTIAL VOLUME OF PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON'S OR ENTITY'S WEB SITE OR WEB PAGE.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL RAWDATA HOSTING, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE RAWDATA HOSTING SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES OR JURISDICTIONS, RAWDATA HOSTING'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.? EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, RAWDATA HOSTING DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE RAWDATA HOSTING SERVICES, AND RAWDATA HOSTING WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE RAWDATA HOSTING FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF RAWDATA HOSTING FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO RAWDATA HOSTING FOR ONE MONTH PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $100.
7.1.
You agree and warrant that the contact information you have provided
to RawData Hosting is complete and accurate, and you further agree to
notify RawData Hosting within fifteen days of a change to any such contact
information. Contact information includes your name, e-mail address,
and mailing address and the name, mailing address, telephone number,
facsimile number, and e-mail address of the technical and administrative
contacts for your domain, if any.
7.2.
You agree to provide RawData Hosting notice of any changes in the primary
or secondary DNS address of your name servers, to the extent you have
installed and are operating those name servers or to the extent your
domain name is held by another registrar and points to a web site hosted
by RawData Hosting.
7.3.
You agree and warrant that your use of the RawData Hosting Services and
RawData Hosting's Equipment, and all sales and distributions, by any
and all means, of any type(s) of Content including, but not limited to,
executable files (such as .EXE), digitized audio/visual files (such as
MP3), or archived copies of copyrighted works (such as .ZIP); goods,
including, but not limited to, videotapes and CD-ROM products, and any
type of services by you, which are advertised and/or promoted by, or
are in any other way directly or indirectly associated with your use
of the RawData Hosting Services or RawData Hosting Equipment, shall at
all times comply with all applicable laws, including, but not limited
to, all federal, state and local laws throughout the United States of
America.
7.4.
You agree and warrant that you will neither store on nor allow to be
transmitted by RawData Hosting's Equipment any data or other matter which
constitutes any form of pornography or which involves depictions of nudity
or sexuality.
7.5.
You agree and warrant that all data, visual materials, advertising and
other matter you store on or allow to be transmitted by RawData Hosting's
Equipment shall be solely for business, entertainment and/or educational
purposes and that you shall assume the sole responsibility and duty to
ensure that all such data, visual materials, advertising and other matter
shall be transmitted exclusively to willing adults and only to places
in which such materials comply with contemporary community standards.
7.6.
You agree and warrant that all data, visual materials, advertising and
other matter you store on or allow to be transmitted by RawData Hosting's
Equipment shall not violate any state or federal laws concerning obscenity
and shall not contain any depictions of urination or other excretory
functions, bestiality, "fisting", incest, rape, sexual assault,
actual physical violence, torture or disfigurement.
7.7.
You agree that you shall install and maintain appropriate and effective
screening devices and/or procedures on Your Web Site to avoid access
to, or communication of, any harmful matter or indecent communications
to minors.
7.8.
You agree that if, in RawData Hosting's sole and exclusive judgment,
RawData Hosting concludes that Your Web Site displays or contains any
harmful matter or indecent materials or communications which are available
to, or accessible by, minors, or displays or contains any material that
consists of child pornography or which could otherwise result in harm
to minors; then RawData Hosting may, without prior notice to you and
in RawData Hosting's sole and exclusive discretion, either remove and
erase the material from Your Web Site, and/or disable public access to
the material on Your Web Site, and/or cease hosting Your Web Site, without
any liability of any kind to RawData Hosting from either you or any third
party.
7.9.
You agree that in the event that RawData Hosting is informed by any party
that your domain name or any material on Your Web Site infringes the
copyright of any party, or violates the right of publicity or privacy
of any party, or consists of any other claim or violation of intellectual
property rights of any kind, then RawData Hosting may, without prior
notice to you and in RawData Hosting's sole and exclusive discretion,
either remove the material from Your Web Site, and/or disable public
access to your domain name or the material on Your Web Site, and/or terminate
this Agreement, without any liability of any kind to RawData Hosting
from either you or any third party. As more completely set forth in Sections
5, 6 and 9, you waive any and all clams you may have, now and forever,
against RawData Hosting relating to any action taken in response to the
claim that you have infringed the intellectual property rights of a third
party, and agree to indemnify and hold harmless RawData Hosting from
and against any such claims.
7.10.
You affirmatively represent, agree and warrant that you have and at all
times shall have all necessary intellectual property rights, including,
but not limited to, all copyrights, trademark and service mark rights
and rights of publicity, both in the United States and throughout the
world, to reproduce and disseminate, via the Internet, all data which
you store in Web Site Space or which you otherwise promote, advertise,
disseminate and/or distribute to anyone by your direct or indirect use
of the RawData Hosting Services or RawData Hosting's Equipment, including,
without limitation, all advertising and promotional materials, prior
to and at all times during the time such materials are promoted, advertised,
disseminated or distributed through any direct or indirect use of the
RawData Hosting Services or RawData Hosting's Equipment.
7.11.
You agree and warrant that no data or other matter you store on or allow
to be transmitted by RawData Hosting's Equipment shall constitute or
contain material which is libelous, slanderous, defamatory, or which
will violate or infringe upon or will otherwise give rise to any adverse
claim with respect to any common law or other right of any person or
other entity, including, without limitation, privacy rights and all other
personal and proprietary rights. You agree not to collect the personally
identifiable data of any person without that person's consent, records
of which shall be maintained throughout the term of this Agreement and
for three years afterward. If you collect this data through Your Web
Site you shall do so only pursuant to a posted privacy policy disclosing
any and all uses of such identifiable data and in compliance with applicable
law.
7.12.
You agree and warrant that no data or other matter you store on or allow
to be transmitted by RawData Hosting's Equipment shall contain any material
which is harmful, violent, threatening, abusive or hateful.
7.13.
You agree and warrant that any and all material(s) of every kind which
you store in Web Site Space or transmit using RawData Hosting's Services
or Equipment shall at all times be free from any and all damaging software
defects, including, but not limited to, software "viruses", "worms", "Trojan
Horses," and other source code anomalies, which may cause software
or hardware disruption or failure, reduced computer operating speed,
or compromise any security system. You agree that you will not attempt
to access the RawData Hosting Equipment or web site or another customer's
web site without authorization.
7.14.
You agree and warrant that you shall not use any form of mass unsolicited
electronic mail solicitations, news group postings, IRC posting or any
other form of "spamming" or "mail bombing," and RawData
Hosting reserves the right to block mail from any source which RawData
Hosting believes, in its sole discretion, is being used to send such unsolicited
e-mail, including but not limited to open mail relays.
7.15.
You agree and warrant that you shall not engage in any false, deceptive
or fraudulent activities in association with your use of the RawData
Hosting Services or RawData Hosting's Equipment.
7.16.
You shall at all times use Web Site Space exclusively as a conventional
web site. All use of Web Site Space and RawData Hosting's Services and
Equipment shall at all times be in a manner consistent with this Agreement
and shall not in any way impair the functioning or operation of RawData
Hosting's Equipment or network. Should your use of the RawData Hosting
Services result in an overly high load on the RawData Hosting Equipment,
in RawData Hosting's sole discretion, RawData Hosting may suspend your
account until the cause of any such overload is determined and resolved.
7.17.
You agree and warrant that all applicable taxes have been paid or will
be paid in full by you when due regarding all businesses and employees
associated with your use of the RawData Hosting Services and that no
taxing authorities shall have any claim against RawData Hosting or any
persons affiliated therewith for the payment of such taxes.
7.18.
You represent and warrant that you are over eighteen years of age (twenty
one in places where eighteen years is not the age of majority) and are
fully competent to enter into this Agreement.
7.19.
You agree to comply with all local rules regarding online conduct and
acceptable Content. Specifically, you agree to comply with all applicable
laws regarding the transmission of technical data exported from Canada,
the United States or the country in which you reside.
7.20.
You agree not to use your EMAIL account for the storage of files other
than in the course of normal e-mail usage.
7.21.
You shall not operate a chat room using the RawData Hosting Services
unless expressly permitted by the terms and conditions of Your Services.
During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to RawData Hosting in connection with RawData Hosting's performance of the RawData Hosting Services ("Confidential Information"). You agree to preserve the confidentiality of all Confidential Information that is provided in connection with the Agreement, and shall not, without the prior written consent of RawData Hosting, disclose or make available to any person, or use for your own or any other person's benefit, other than as necessary in performance of your obligations under this Agreement, any Confidential Information of RawData Hosting. RawData Hosting retains all right and title to such Confidential Information.
You agree that you shall fully defend and indemnify RawData Hosting, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 7 or your violation of a third party's intellectual property rights. You further agree to defend, indemnify and hold harmless RawData Hosting, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that RawData Hosting shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between RawData Hosting and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between RawData Hosting and you. RawData Hosting shall have no control or ownership interests of any kind in your business. RawData Hosting shall have no direct financial or other interest in, nor in any way "own" any online "store" or other online venture pertaining to your use of the RawData Hosting Services or RawData Hosting's Equipment. RawData Hosting's relationship to you shall be restricted to matters pertaining to the provision of the RawData Hosting Services as set forth in this agreement.
11.1.
You confirm that you have unilaterally decided to enter the online and/or
web site service business and that these are high risk businesses. You
further confirm, understand, acknowledge and expressly agree that neither
RawData Hosting, any agent or representative of RawData Hosting, nor
any other person is currently representing or otherwise directly or indirectly
communicating in any manner herein or otherwise, nor has at any time
in the past, represented to you or has otherwise directly or indirectly
communicated in any manner to you any guarantee, reassurance or any other
communication of any kind regarding:
11.1.1.
the potential profitability or likelihood of success of your endeavors
through the use of the RawData Hosting Services or RawData Hosting's
Equipment as set forth herein or otherwise;
11.1.2.
the possibility or likelihood that use of any products and/or services
provided by RawData Hosting pursuant to this Agreement can or will result
in the recoup of any funds expended by you for any purpose; or
11.1.3.
the existence, nonexistence, size or any other characteristics of any
market for any products or services which involve your use, in any manner,
of the RawData Hosting Services or RawData Hosting's Equipment pursuant
to this Agreement.
11.2.
You expressly acknowledge and agree that the success of any business
endeavors which involve your use, in any manner, of the RawData Hosting
Services and/or RawData Hosting's Equipment pursuant to this Agreement,
like any other business endeavor, is subject to numerous factors, such
as the effectiveness of its advertising and promotion, your administrative
capabilities, etc., and that the ultimate success or failure of your
business rests with you and not RawData Hosting. You further expressly
agree not to raise any claim of any kind against RawData Hosting and
to hold RawData Hosting harmless from any claim of financial investment
loss to you directly or indirectly resulting from your decision to use
the RawData Hosting Services and/or RawData Hosting's Equipment pursuant
to this Agreement.
Any and all services which are or may be provided to you by RawData Hosting pursuant to this Agreement, including the licensure of rights herein, are not exclusive and nothing in this Agreement shall limit or restrict RawData Hosting from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict RawData Hosting from engaging in any activities similar to yours or in competition with you.
RawData Hosting and you agree that, consistent with the strict policy of RawData Hosting, and in reliance on your express warranties regarding the substantive content of data, advertisements, communications, messages and other materials which you shall store in Web Site Space, and/or otherwise disseminate via the use of RawData Hosting's Services or Equipment, RawData Hosting shall neither have nor exert any editorial or other subjective control over the substantive content of such data, advertisements, communications, message or other materials. RawData Hosting shall not engage in any monitoring of the substantive content comprising Your Web Site or Web Site Space. RawData Hosting exercises no control over information which is found on the internet, except for its own web site, and cannot be held responsible for the accuracy, correctness, or legality of such information. You are solely responsible for the content of Your Web Site and for verifying the accuracy and suitability of information and services you obtain from third parties via the internet.
14.1.
Unless sooner terminated pursuant to other terms of this Agreement, and
except as otherwise provided in this Agreement, this Agreement shall
be for an initial term of one month and shall be automatically renewed
each month for additional one month periods unless and until sooner terminated
pursuant to the provisions of this Section 14. RawData Hosting may accept
prepayment for services to be provided under this Agreement, but such
acceptance shall not modify or extend the term of this Agreement.
14.2.
Notwithstanding the provisions of Paragraph 14.1. to the contrary, RawData
Hosting offers certain Hosting Packages for which the initial term of
this Agreement shall be either semi-annual, or annual, at the end of
which this Agreement shall renew automatically for an identical term
os service unless otherwise no longer offered as a packaged service by
RawData Hosting. Any and all service fees for the semi-annual or annual
Hosting Packages are due and payable for the entire initial term thereof,
and should you terminate, attempt to terminate, or otherwise default
on this Agreement prior to the end of the initial term you authorize
RawData Hosting to charge your credit card for all such fees and charges
for the remainder of such initial term. For the purposes of this Section,
any modification of the server package shall be deemed a termination
and shall entitle RawData Hosting to the fees owing on semi-annual or
annual Hosting Package. Fees paid for semi-annul or annual Hosting Packages
are not refundable unless this Agreement is terminated by RawData Hosting
without cause pursuant to Section 14.3. or as otherwise agreed to in
writing by RawData Hosting in its sole discretion.
14.3.
RawData Hosting may terminate this Agreement at any time for any reason,
with or without cause, upon thirty days' written notice. RawData Hosting
may suspend performance under or terminate this Agreement and cease transmission
of data associated with Your Web Site immediately and without notice:
14.3.1.
if RawData Hosting, in its sole discretion, deems that you have breached
any part of this Agreement, including, without limitation, any warranty
or obligation set forth in Section 7,
14.3.2.
if your credit card issuer refuses payment of fees or charges or you
refuse authorization for same, or
14.3.3.
if payment for the RawData Hosting Services is more than fifteen days
overdue.
14.4.
You further agree that in the event that RawData Hosting believes, in
its sole discretion, that you have breached any provision(s) of Section
7 of this Agreement, or any of its subparts, by storing or allowing material
such as that described in the aforementioned Section 7, or any of its
subparagraphs, to be transmitted by RawData Hosting's Equipment, that
RawData Hosting may without any liability to you, and in addition to
any other remedies, erase or purge such materials from RawData Hosting's
Equipment without prior notice to you.
14.5.
After termination, you will no longer have access to your account and
all information or content, including but not limited to e-mails, web
pages, CGI scripts, log files, databases, or other data files associated
with your account may be deleted. RawData Hosting accepts no liability
for such deleted information or content. RawData Hosting may, in its
sole discretion, make such information or content available to you to
the extent it has not been deleted.
14.6.
You acknowledge and agree that RawData Hosting or its agents, assignees
or licensees may, upon termination for any reason, associate any data
of any kind, in RawData Hosting's sole discretion, with the Domain Name
registered in association with Your Web Site as long as RawData Hosting
or RawData Hosting's agent, assignee or licensee continue to be listed
as the hosting entity with InterNIC or another domain name registry used
to register Your Web Site's domain name.
15.1.
It is RawData Hosting's policy to respect your privacy. RawData Hosting
will not monitor, edit, or disclose any personal information about you
or your account, including its contents, without your prior consent unless
RawData Hosting deems it necessary, in its sole discretion, to:
15.1.1.
comply with legal process or other legal requirements, including but
not limited to responding to subpoenas or other requests for information
from law enforcement officials;
15.1.2.
protect and defend the rights or property of RawData Hosting or its officers,
agents, affiliates, and licensees;
15.1.3.
enforce this Agreement; or
15.1.4.
protect the interests of other RawData Hosting customers.
15.2.
RAWDATA HOSTING RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW),
IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED
TO THE USE OF A USER'S MAIN ACCOUNT AND ANY SUB-ACCOUNTS, FOR THE PURPOSE
OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL
OR CIVIL INVESTIGATIONS.
15.3.
Your IP address is transmitted and recorded with each message you send
using the RawData Hosting Services. RawData Hosting does provide certain
information in aggregate form collected from and relating to you to third
persons such as advertisers. For a more detailed description of the types
and uses of personal information collected from you, please read the
RawData Hosting Privacy Policy.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceable shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceable of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
Failure of RawData Hosting at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of RawData Hosting.
18.1.
RawData Hosting may provide notice to you via e-mail sent to the e-mail
address provided by you upon registration or as subsequently provided
by you to RawData Hosting. Such notice is deemed effective whether you
receive it or not.
18.2.
You may provide notice to RawData Hosting in one of the following ways:
18.2.1.
by personal delivery;
18.2.2.
by addressing the notice as indicated below and depositing the same by
registered or certified mail, postage prepaid, in the United States mail,
RawData Hosting
PO Box 8976
Warwick, RI 02888
18.2.3.
by Federal Express;
18.2.4.
by facsimile transmission; or
18.2.5.
by e-mail and registered or certified mail.
18.3.
Such notice, statement or other document so delivered to RawData Hosting,
except as this Agreement expressly provides otherwise, shall be conclusively
deemed to have been given when first personally delivered, on the date
of delivery or on the first date of receipt. Notice by e-mail to RawData
Hosting shall be deemed ineffective, null and void unless a copy of such
notice is also sent by registered or certified mail, and postmarked not
more than five days subsequent to the giving of e-mail notice. Any such
e-mail notice to RawData Hosting shall be deemed effective as of the
date on which RawData Hosting receives the certified or registered mail
notice
19.1.
In the event of "force majeure" (as defined below), RawData Hosting
may terminate this Agreement without liability to you. For purposes of
the Agreement, "force majeure" shall mean circumstances or occurrences
beyond RawData Hosting's reasonable control, whether or not foreseeable
at the time of entering into the Agreement, in consequence of which RawData
Hosting cannot reasonably be required to perform its obligations hereunder
or otherwise perform its obligations under the Agreement. Such circumstances
or occurrences include, but are not limited to: acts of God, war, civil
war, insurrection, fires, floods, labor disputes, epidemics, governmental
regulations and/or similar acts, embargoes, termination or temporary
unavailability of any computer hardware or software, server, or network
on which the RawData Hosting Services are located or maintained or through
which the RawData Hosting Services are provided, and non-availability
of any permits, licenses and/or authorizations required by governmental
authority.
19.2.
RawData Hosting reserves the right at any time and from time to time
to modify or discontinue, temporarily or permanently, the RawData Hosting
Services (or any part thereof) with or without notice, including the
right to cease all business operations in the United States and Canada.
You agree that RawData Hosting shall not be liable to you or to any third
party for any modification, suspension or discontinuance of the RawData
Hosting Services.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without RawData Hosting's prior written consent. In particular, you may not sell accounts or sub accounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. RawData Hosting may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
21.1.
Any and all disputes as to the interpretation of or any performance under
this Agreement which are not first resolved informally, shall be determined
by binding arbitration in Rhode Island in accordance with the rules of
the American Arbitration Association. The final award in any such arbitration
proceeding shall be subject to entry as a judgment by any court of competent
jurisdiction, provided that such judgment does not conflict with the
terms and provisions hereof. The jurisdiction of the arbiter (or arbiters)
with respect to legal matters shall be limited only by the statutory
and common law of the State of Rhode Island and the federal law of the
United States of America.
21.2.
Nothing in this paragraph shall preclude RawData Hosting from seeking
and obtaining any injunctive relief or attachment and expedited discovery.
21.3.
In addition to the foregoing, you hereby agree that as a part of the
consideration for this Agreement, you waive the right to a trial by jury
for any dispute arising between you and RawData Hosting that is in any
way related to the subject matter of this Agreement, and that such waiver
shall be enforceable up to and including the day that trial is to start,
and even if the arbitration provisions of this paragraph are waived.
Should any legal fees, costs, or other expenses be incurred by any party
with regard to enforcement of this arbitration and jury waiver provision,
RawData Hosting shall be entitled to recover such legal fees, costs,
or other expenses without regard to whether RawData Hosting prevails
in the underlying case.
This Agreement shall be construed in accordance with the laws of the State of Rhode Island governing contracts executed and performed therein and the laws of the United States of America, and shall be binding upon and inure to the benefit of the Parties' respective heirs, personal representatives, executors, administrators, successors and assigns. The Parties agree that the State of Rhode Island shall be the proper place of jurisdiction for the determination of any disputes arising from this Agreement, and the Parties irrevocably consent to jurisdiction of the local, state and federal courts located in the state of Rhode Island. Should any legal fees, costs, or other expenses be incurred by RawData Hosting in attempting to enforce this choice of venue, RawData Hosting shall be entitled to recover such legal fees, costs, or other expenses without regard to whether RawData Hosting prevails in the underlying case.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of RawData Hosting or you has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and RawData Hosting and you hereby acknowledge and agree that neither RawData Hosting nor you have executed this Agreement in reliance upon any such representation or promise.
24.1.
This Agreement may be materially altered by RawData Hosting by posting
the new version of the Agreement at www.rawdata.net and if posted in
this manner, shall be effective immediately upon posting such notice.
In the event that RawData Hosting does materially change the terms of
this Agreement, you accept and shall be bound by such changed terms unless
you opt to terminate the Agreement within thirty days of receipt of notice
of such change.
24.2.
You may not modify this Agreement, in whole or in part, and any such
modification or attempt to modify shall not be enforceable unless reduced
to writing and signed by a duly authorized representative of RawData
Hosting. No additional or conflicting term in any other document used
by you will have any legal effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.