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EMC Telecom Corporation General Terms and Conditions of Service BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY EMC TELCOM CORPORATION YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THESE TERMS &CONDITIONS SUPERSEDE ALL EARLIER VERSIONS AND REQUIRE MANDATORY ARBITATION OF DISPUTES. Please read these terms and conditions carefully, as they describe your legal rights and obligations. This agreement shall become come effective as of the date of (1) your electronic signature on or acceptance of this agreement, (2) the activation of your account or (3) your receipt of an e-mail from EMC confirming your order, whichever happens first.1. DEFINITIONS. For the purposes of this Agreement: 1.1."EMC's Equipment" shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by EMC and/or EMC's affiliates, agents, or assigns which provide the EMC Services.1.2."EMC, "us," "we," "our" and grammatical variants thereof shall collectively refer to EMC Telecom Corporation, a corporation organized and existing under the laws of the State of Nevada, United States of America, located at 1005 Terminal Way, Suite 110, Reno, NV, U.S.A. and its assigns and successors in interest.1.3."EMC Services" shall mean the products and services provided by EMC and/or EMC's affiliates, agents, or assigns 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 EMC's sole discretion.1.4."EMC Software” or “EMC Telecom Software" shall mean any software provided by EMC 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 EMC Services. The EMC 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 EMC'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 EMC for the right to use the EMC Services and Bandwidth subject to the terms and conditions of this Agreement and of the particular EMC Services for which you have registered, as outlined on the then-current schedule of fees.1.9."Fee Schedule" shall mean the fees for the EMC Services as published on the EMC website, which may be modified at any time in EMC's sole discretion pursuant to the provisions of 24.1.1.10."International Customers" shall mean customers residing in or accessing the EMC Services from outside of the United States and Canada.1.11."Laws" shall mean the laws, statutes, and regulations then in effect of the United States of America and its various states and dependencies as well as the laws of Your country of residence or the country in which you use or access the EMC Services and the laws of any provinces, states or dependencies thereof.1.12."Parties" shall collectively refer to EMC and you.1.13."Payment Account" shall refer to the credit card or Pay Pal account provided by You upon registration to pay for Your Services. EMC may add, delete, or modify the methods by which customers can pay for the EMC Services at any time without prior notice, in its sole discretion. Payments processed by Pay Pal are subject to Pay Pal's terms and conditions of service, and EMC makes no representations or warranties with respect to those services.1.14."Suspend" or "Suspension" shall include the disabling of, releasing of, disabling of, and/or placing of a registrar lock on your domain name and the cessation of transmission of data to or from Your Web Site or via Your Services.1.15." 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.1.16."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 EMC's web server equipment.1.17."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.1.18."Your Data" shall mean any data, including but not limited to advertisements, documents, e-mails, images, movies, web pages, or other Content, related to your use of the EMC Services and stored on or transmitted by the EMC Equipment.1.19."Your Web Site" shall mean data transmittable via the Internet by EMC which is stored in your Web Site Space.1.20."Your Services" shall mean the specific EMC 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 those EMC Services pursuant to the current Fee Schedule.
2. DESCRIPTION. Subject to and conditioned upon EMC's retained rights and all other terms and conditions set forth in this Agreement, EMC offers the EMC 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 EMC of any unauthorized uses of the account or any other breaches of security. EMC 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 EMC 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 EMC Services are subject to the following conditions and restrictions:
2.1. Web Hosting Services 2.1.1.EMC shall provide to you a non-transferable, revocable, non-sublicensable, 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 EMC's Equipment for purposes consistent with this Agreement.2.1.2. EMC, 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. EMC 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 EMC with or without reason. Any additional Customer Service which EMC may subsequently agree to provide to you shall be at EMC's sole discretion and once commenced, may be terminated at any time by EMC without notice to you and without any liability to EMC. Notwithstanding the foregoing, EMC 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 EMC.2.1.3. EMC, either directly or through its assignee or licensee, shall provide Technical Support relating to Your Web Site. Any and all requests for Technical Support may be refused by EMC with or without reason, in its sole discretion. Any Technical Support which EMC may subsequently agree to provide to you shall be at EMC's sole discretion and once commenced, may be terminated at any time by EMC without notice to you and without any liability to EMC. EMC’s technical support shall only provide free assistance for questions related to equipment or network and not installs, server configurations 2.1.4. All use of Web Site Space and provision of services to you by EMC shall be subject to all terms and conditions set forth herein. You may not attempt to expand or alter these rights or EMC's services by entering into multiple agreements.2.1.5. Unless provided otherwise in the specifications for your Services, Bandwidth use, including but not limited to data retrieval from your Web Site, e-mail traffic, and downloads, shall not exceed six gigabytes per month. Your combined mailbox use per account shall not exceed twenty-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 EMC may return or reject any and all e-mails sent to you to the originating sender without liability to you. You agree that EMC may debit the Payment Account for usage in excess of permitted amounts at the rates set forth in the then-current Fee Schedule.2.1.6. Some EMC Services may not be available to International Customers, and EMC reserves the right to alter, amend, or discontinue the provision of some or all of the EMC Services to International Customers in a particular market at any time in EMC's sole discretion.2.1.7. EMC may suspend performance under or terminate this Agreement, cease transmission of data associated with your domain name immediately and without notice, permanently remove Your Data from the EMC Equipment, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with the relevant Laws if it is informed or otherwise believes, in its sole discretion, that Your Web Site 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 claims you may have, now and forever, against EMC relating to the content, use, and operation of Your Web Site and agree to indemnify and hold harmless EMC from and against any such claims.2.1.8. You are responsible for backing up Your Data on your own computer. EMC does not warrant or otherwise guarantee that it will back up your data or that data which has been backed up can be retrieved, and will not be responsible for any archiving or backup of Your Data. If you have requested EMC to run any form of backups for you, and if any of Your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable due to termination or suspension of your account pursuant to this Agreement, EMC will have no obligation or liability to you. Do not rely solely on EMC backups for maintaining backups of Your Data. Once again… You are responsible for backing up Your Data on your own computer. 2.1.9 In cases of new hosting accounts or additions / modifications to hosted domain names or any other cases which involve the change of name servers of a domain from other DNS servers to EMC's DNS servers, there may occasionally be a delay of several days, weeks or longer depending on the accessibility of control options at the respective registrar of the domain name registration. It is possible that if the registrar (or the entity having control over the domain registration) is not cooperative, the domain Name Servers can not be changed at all. Due to the unpredictable nature of the name servers change process, no guarantees are made regarding the amount of time a specific change may take. On Subscriber request, name servers change of domain names is done by EMC on behalf of the account holder. In such cases, a successful change of name servers cannot be guaranteed in any way or fashion as it solely depends on the accessibility or cooperation by the domain name registration’s registrar.2.1.10 If EMC assigns a subscriber an IP address for use with the subscription, the right to use that IP address shall belong only to EMC and the subscriber shall have no right to use that IP address except as permitted by EMC. EMC shall maintain and control ownership of all IP numbers and addresses that may be assigned to subscribers by EMC. EMC reserves the right to change or remove all such IP numbers and addresses in its sole and absolute discretion, at any time.
2.2. Domain Name Registration2.2.1. Should you choose to register a domain name through EMC, EMC will register a second level domain name on your behalf, provided such domain name is available for registration. EMC 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"). You agree that, if the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions of the UDRP in effect at the time of the dispute. EMC 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. Upon payment in full of any and all registration fees, EMC 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 EMC to debit the Payment Account for any such fees and costs. Should the Payment Account provider fail to honor such debit, EMC may, in its sole discretion, release, cancel, or otherwise dispose of or utilize Your domain name as it sees fit, with no obligation to You whatsoever.2.2.2.You acknowledge and agree that EMC or its agents, assignees or licensees may associate any data of any kind, in EMC's sole discretion, with the Domain Name registered in association with Your Web Site or any URL incorporating said Domain Name until you replace such data with Your Web Site, at such times as Your Web Site is no longer available, and upon termination for any reason, for as long as EMC or EMC's agent, assignee or licensee continue to be listed as the hosting entity with the domain name registry used to register such Domain Name. This paragraph shall apply to any and all web pages generated by EMC or its affiliates, including but not limited to 404 error pages.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 EMC 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. Should you lose your right to use a domain name which is used in connection with the EMC Services, whether through expiration of the domain name, judicial decree, administrative decisions of the UDRP or otherwise, you agree to inform EMC immediately of the party to whom the domain name is to be transferred and you authorize EMC to take any and all action necessary to effect such transfer.2.2.5. EMC 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. Domain names which have been prepaid for a period of more than one year but with fewer than nine years remaining may also be transferred, subject to the payment of an initial year of registration fees. An additional year will be added on to the remaining term of any transferred domain. Domain names with more than nine years remaining on the registration period may not be transferred. 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 EMC to debit your Payment Account for the one-year registration fee and any related fees or charges.2.2.6. The Private Domain Registration Services offered by EMC are subject to the terms and conditions of EMC's Private Registration Service (the "T&C Private Domain Registration"), which are incorporated herein by reference.2.2.7. EMC may suspend performance under or terminate this Agreement, cease transmission of data associated with your domain name, permanently remove Your Data from the EMC Equipment, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, 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 EMC relating to the registration, use, and subsequent transfers of your domain name and agree to indemnify and hold harmless EMC from and against any such claims.
2.3. Software2.3.1. EMC may, in its sole discretion, provide you with EMC Software in combination with Your Services. Upon payment of all fees due and owing to EMC under this Agreement, EMC hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the EMC Software and all related documentation for your own personal or business use during the term of this Agreement. Any rights not expressly granted herein shall be reserved for EMC. Source code or other information pertaining to the logic design of the EMC Software is specifically excluded from the license granted hereunder.2.3.2. Although certain EMC Software may be provided free of charge, EMC reserves the right to charge for the EMC Software or any updates thereto or upgrades therefor at any time.2.3.3.You recognize that the EMC Telecom Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the EMC Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by EMC. You further acknowledge that you have been advised that the EMC Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of EMC, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to EMC, and that its use and disclosure must be carefully and continuously controlled.2.3.4.EMC shall at all times retain title to all the EMC 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 EMC Software supplied hereunder is for the your personal or business use. You shall not permit any third party to use the EMC Software or allow access to the EMC Software from sites outside of your home or business premises except as specifically authorized in writing by EMC. The EMC 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) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the EMC Software, whether such EMC Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for use in Your Web Site pursuant to this Agreement, nor; (ii) provide or make the EMC 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 EMC. In order to protect EMC's trade secrets and copyrights in the EMC Software, you agree to reproduce and incorporate EMC's trade secrets or copyright notice in any copies, modifications or partial copies.2.3.7. You agree to notify EMC forthwith if you obtain information as to any unauthorized possession, use or disclosure of any EMC Software by any person or entity, and further agree to cooperate with EMC at EMC's expense, in protecting EMC's proprietary rights.2.3.8. Unless agreed otherwise in writing by EMC, the EMC Software may be used only on a single computer or workstation. EMC software designed for use on portable workstations may be installed on both a portable and a stationary computer but may not be used on both simultaneously. You may not install the EMC Software on a network except to facilitate permissible installation of the EMC Software on computers attached to the network. You warrant and guarantee that all users of the software shall be aware of and comply with the terms of this license.2.3.9.Certain EMC Software is provided for online use as part of the EMC Services (the "EMC Online Software"), and the use of such software may be subject to fees as outlined in the current Fee Schedule in accordance with this Agreement. The EMC Online Software is hosted software which runs directly on EMC's servers, and you may not download, install, store or make any copies of the EMC Online Software, nor may you sublicense the EMC Online Software. You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the EMC Online Software or any copies thereof and not to assist any third party in doing so. The EMC Online Software is designed to be used through the EMC user interface and, as such, may be utilized by any authorized user from any computer or workstation. This license is automatically revoked upon termination of this Agreement. EMC reserves the right to suspend the use of, modify or discontinue the EMC Online Software for any or all customers at any time without notice. Certain Online Software is also Third Party Software, and is subject to the applicable provisions of 2.3.10. EMC may limit the functionality of any such third party Online Software, in its sole discretion. 2.3.10.EMC provides its customers with the ability to order certain third-party software (the "Third Party Software"), depending on the hosting package ordered. Except for Third Party Software which is also Online Software, such Third Party Software is delivered to EMC Customers by mail and may be ordered via customer's control panel for a period of six months after the commencement of the EMC Services. The license conditions governing the use of the Third Party Software may differ from EMC's own software licenses. Customers of EMC are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. Some such Third Party Software is provided under license from Microsoft Corporation ("Microsoft Software"), and Customers using Microsoft Software are bound by the T&C Microsoft Software Products, which are incorporated herein by reference.
EMC does not provide Technical Support for any Third Party Software. THE THIRD PARTY SOFTWARE IS OFFERED "AS-IS." THE PROVISION AND OFFERING OF THIRD PARTY SOFTWARE BY EMC DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN EMC MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.2.3.11. In the event of termination of this Agreement, or upon any act which shall give rise to EMC's right to terminate, or upon the expiration of the license for EMC Software which is subject to a limited-duration license, any and all licenses granted under this Section 2.3 shall terminate automatically, and you will remove, erase or destroy the EMC Software and documentation and all copies thereof, wherever located, without demand or notice.2.3.12. EMC may stop providing the Software or any updates thereto, including but not limited to the Online Software or the Third-Party Software, at any time without notice or any further liability to You.2.3.13. Software for International Customers is available for download only. Certain Software (including Third-Party Software) may not be available to International Customers.
3. FEES 3.1.Certain EMC Services are subject to set-up, service, and domain service fees, pursuant to the Fee Schedule, and by registering for such EMC Services you authorize EMC to debit your Payment Account for any and all such fees.3.2. The Fee is due monthly, in advance of the provision of services, not later than the first of that month. In the event that EMC 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 EMC's sole and unfettered discretion, any and all collection agency fees and other costs of collection shall be added to any amounts due under this provision.3.3. All Fees must be paid in United States Dollars in advance of the provision of services. EMC will charge the monthly fee and any additional fees to the Payment Account unless specifically provided otherwise. You also agree that EMC may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to Your Services or Your Website, 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. If payment in full is not received by EMC from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for Your Services upon demand by EMC.3.4. EMC 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.3.5. To the extent Your Services are subject to the terms and conditions of EMC's Money Back Guarantee (the "T&C Money Back Guarantee"), they are incorporated herein by reference.3.6.a. EMC offers a service uptime guarantee for the EMC Services, which provides for a credit to You in the event the total availability of EMC hosted web pages falls below 99.99% ("Uptime"). If You can demonstrate to EMC's satisfaction, in EMC's sole discretion, that EMC has failed to maintain the Uptime, You may contact EMC and request a credit for that month proportional to the amount of downtime, to be put towards the purchase of future EMC Services. All credits applied to Your account will be forfeited at the time of any cancellation. Credits cannot be redeemed for cash, and are exclusive of any applicable taxes. The credit does not apply to service interruptions caused by (i) periodic scheduled maintenance or repairs undertaken by EMC from time to time; (ii) downtime caused by You; (iii) outages that do not limit browser access to Your web site (for example, interruptions to your ftp service or e-mail); (iv) suspension of Your account due to legal action taken or threatened against You or Your Services; (v) suspension of Your account due violations of the GT&C, as determined in EMC's sole discretion, including but not limited to excessive use of system resources, non-payment or other billing issues, or identification by the abuse team as fraudulent or otherwise in violation of the GT&C; or (vi) causes beyond the control of EMC or that are not reasonably foreseeable by EMC.
3.6 b. Bank Fees EMC is not responsible for any overdrafts or any other bank fees incurred by You at any time for any erroneous charges or overcharges or double billing that occur from EMC to You. If any such billing errors occur, EMC will credit your account with the appropriate amounts or refund Your payment method. Any refunds may take up to thirty (30)days to reflect on your billing statements.
3.6 c. Billing Profile You are solely responsible to manage and update Your own billing information at all times for EMC to bill you. EMC shall not be responsible for charging billing profiles where You have created and placed a credit card, check card, checking account, or Paypal payment option that are out-dated, expired or incorrect. EMC does not grant any refunds or credit to incorrect billing profiles.
3.6 d. Fraudulent Credit/Debit Card Activity and Charge-Back Policy The Subscriber understands, acknowledges and agrees that by initial and continued use of the services provided by EMC, that he or she agrees to, and is bound by the EMC Credit/Debit Card Charge-Back Policy. It is the policy of EMC to report all forms of Credit/Debit Card fraud to the appropriate legal authorities, regardless of country of origin, and to vigorously prosecute individuals and/or companies that commit Credit/Debit Card fraud by means of charge-backs, use of fraudulent Credit/Debit Cards or other forms of Credit/Debit Card fraud, including, but not limited to: failure to update expired credit cards, using someone else’s credit card, or using a non-valid credit card number with the intent of theft of EMC’s offered web services. EMC considers these acts of Credit/Debit Card fraud and charge-backs for services ordered and provided to be prima fascia evidence of 'Theft Of Service' as defined under New Hampshire Criminal Code § 637:8. The Subscriber understands, acknowledges and agrees EMC will apply and invoice for a collection and charge-back processing fee of $50.00 (USD) to the account balance for each collection effort against Credit/Debit Card ‘fraud’ and 'charge-back' related to the services provided by EMC . The Subscriber understands, acknowledges and agrees that unless payment in full, by Certified Check or Money Order, including both the original amount due plus any charge-back fees, is received within ten (10) days of invoice a collections processing fee in the amount of $50.00 (USD) will be added to the account balance for each Credit/Debit Card ‘fraud’ and 'charge-backs' related to the services provided by EMC. Payment under this provision shall not prevent EMC from seeking to obtain other legal remedies, both civil and criminal, including but not limited to, other expenses, damages, court costs, attorneys fee's and statutory interest. 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 $50.00, which must be paid in full before the account is reactivated.3.8.International Customers bear the risk of currency fluctuations and any fees or taxes associated with the conversation of foreign currencies into United States Dollars. Certain EMC Services will not be available to International Customers until EMC is able to receive satisfactory confirmation from such customer's Payment Account provider, in EMC's sole discretion, that the funds will be available for debit from the International Customer's account. Orders from International Customers will not be accepted unless the country provided in the contact information matches that on file for the Payment Account.
3.8.1 Cancellation Policy If you wish to cancel your account for any reason, you must submit a ticket via our support center in order for us to have documentation of your request to terminate any subscriptions. EMC shall not be held responsible for any fees incurred by You if You fail to submit a termination request. If you have difficulty submitting a request for termination, you may reach us by sending an email, live chat with us, or call us via telephone. Ultimately, a termination request has to be documented in a ticket.
3.8.2 Be sure to provide us the last four digits of the credit card on file for security verification, as well as submitting your issue via the same email associated with your account. The account will be canceled immediately and all credits on the account will automatically be forfeited and any remaining fees will be applied to the account in accordance with the terms of our TOS and EMC Satisfaction Guarantee Policy. We do not schedule cancellations for future termination, so you will need to cancel the account on the day you wish to stop services.
3.9.1 Digital Millennium Copyright Act Policy If you believe that a Web page hosted by EMC is violating your rights under U.S. copyright law, you may file a complaint of such claimed infringement with EMC's designated agent in by postal mail in the manner described below.EMC Telecom Corporation
DMCA Notification
4904 S Power Rd.
Ste 103-147
Mesa, AZ 85212
For your complaint to be valid under the DMCA, you must provide the following information when providing notice of the claimed copyright infringement: a. A physical or electronic signature of a person authorized to act on behalf of the copyright owner. b. Identification of the copyrighted work claimed to have been infringed. c. Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled as well as information reasonably sufficient to permit EMC to locate the material. d. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address. e. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law. f. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For more details on the information required for valid notification, see 17 U.S.C. 512(c)(3). You should be aware that, under the DCMA, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorneys fees. 3.9.2 Counter Notification to Claimed Copyright Infringement If a notice of copyright infringement has been filed against you, you may file a counter notification with EMC's designated agent at the address listed above. Such counter notification must contain the following information:a. physical or electronic signature. b. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. c. A statement under penalty of perjury that the Member has a good faith belief that the material was removed or disabled as a result of mistake or misidentification. d. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the federal district court for the federal district in which you are located, and that you will accept service of process from the complainant. If EMC receives a valid counter notification, the DMCA provides that the removed material will be restored, or access re-enabled.Please be advised that U.S. copyright law provides substantial penalties for a false counter notice filed in response to a notice of copyright infringement.
4. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE INCONSISTENT WITH YOUR WARRANTIES. Receipt by EMC of data for storage in Web Site Space and/or transmission via EMC's Equipment which are inconsistent with your warranties set forth in Section 7 herein shall not constitute an agreement by EMC to allow the EMC Services or the EMC 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 EMC's Services or Equipment, to continue to disseminate such data.
5. NO WARRANTIES BY EMC. THE EMC SERVICES AND EMC SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE EMC SERVICES IS AT YOUR SOLE RISK.EMC DOES NOT WARRANT THAT THE EMCSERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES EMC MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE EMC SERVICES.NO WARRANTY IS MADE BY EMC REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND EMC 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. EMC DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE EMC 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. 3. EMC'S LIMITED LIABILITY.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 EMC, 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 EMC SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, EMC'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, EMC DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE EMC SERVICES, AND EMC 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 EMC FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF EMC 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 EMC IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $500.
7. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES. 7.1. You agree and warrant that the contact information you have provided to EMC is complete and accurate, and you further agree to notify EMC within fifteen days of a change to any such contact information. Contact information includes your full legal 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 EMC 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 website hosted by EMC.7.3.You agree and warrant that your use of the EMC Services and EMC'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 EMC Services or EMC Equipment, shall at all times comply with all applicable Laws.7.4. You agree and warrant that you will neither store on nor allow to be transmitted by EMC's Equipment any data or other matter which constitutes, contains, or links to child pornography or which involves depictions of sexuality by someone who is or looks younger than eighteen years of age, regardless of their actual age, or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age, or which could otherwise result from or cause harm to minors.7.5.You agree and warrant that Your Data 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 Your Data shall not violate any Laws concerning obscenity and shall not contain or link to any unlawful pornography, such as depictions of bestiality, rape, sexual assault, violence, torture or disfigurement, or other content deemed objectionable by EMC, in its sole discretion.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 EMC's sole and exclusive judgment, EMC concludes that Your Web Site displays, contains or links to 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 EMC may, without prior notice to you and in EMC'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 EMC from either you or any third party.7.9.You agree that in the event that EMC 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 EMC may, without prior notice to you and in EMC'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 EMC from either you or any third party. As more completely set forth in Sections 5, 6 and 9, you waive any and all claims you may have, now and forever, against EMC 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 EMC 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, Your Data or Content which you otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the EMC Services or EMC's Equipment, 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 EMC Services or EMC's Equipment.7.11. You agree and warrant that Your Data shall not constitute or contain or link to 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 Your Data shall not contain or link to any material which is harmful, violent, threatening, abusive or hateful.7.13. You agree and warrant that Your Data and any and all material(s) of every kind which you transmit using EMC'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," IRC 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 EMC Equipment or Web Site or another customer's Web Site without authorization, or use the EMC Services to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.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," "phishing," or "mail bombing," and EMC reserves the right to block mail from any source which EMC 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 EMC Services or EMC'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 EMC'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 EMC's Equipment or network. Should your use of the EMC Services result in an overly high load on the EMC Equipment, in EMC's sole discretion, EMC 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 EMC Services and that no taxing authorities shall have any claim against EMC 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 Laws rules regarding online conduct and acceptable Content.7.20. You represent and warrant that you are not a national or resident of Burma/Myanmar, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, and Syria or any other country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the "Entity List" or "Denied Persons List" maintained by the US Department of Commerce or the list of "Specially Designated Nationals and Blocked Persons" maintained by the US Department of Treasury. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for EMC Services. Residents of countries which are serviced by a EMC affiliate are required to contract with those EMC affiliates, and you represent and warrant that you are not a resident of one of those countries.7.21.You agree to abide by United States and other applicable export control laws and not to transfer or permit the transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to your EMC account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.7.22. You agree not to use your IMAP account for the storage of files other than in the course of normal e-mail usage.7.23. You shall not operate a chat room using the EMC Services unless expressly permitted by the terms and conditions of Your Services.
8. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT 8.1During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to EMC in connection with EMC's performance of the EMC 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 EMC, 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 EMC. EMC retains all right and title to such Confidential Information.8.2EMC is a service mark of EMC Telecom Corporation All rights reserved. The trademarks, logos, and service marks displayed on this Web Site (collectively, the "Marks") belong EMC and/or its affiliates or third parties which have licensed those rights to EMC ("Partners"); EMC and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner's prior written consent. All other trademarks, product names, and company names and logos appearing on EMC's Web Site are the property of their respective owners.8.3Unless expressly stated otherwise on the EMC Web Site, you should assume that all content, images, and materials appearing on this Web Site (collectively the "EMC Content") are the sole property of EMC. Both U.S. and international copyright laws and treaties protect such EMC Content. You may not use, reproduce, display, or sell any EMC Content without EMC's prior written consent. You may not link to any page within EMC's Web Site or frame any portion of the site without EMC's prior written consent.
9. YOUR INDEMNIFICATION OF EMC. You agree that you shall fully defend and indemnify EMC, 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 EMC, 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 EMC shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
10. NO JOINT VENTURE OR PARTNERSHIP 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 EMC and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between EMC and you. EMC shall have no control or ownership interests of any kind in your business. EMC 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 EMC Services or EMC's Equipment. EMC's relationship to you shall be restricted to matters pertaining to the provision of the EMC Services as set forth in this agreement.
11. EMC HAS MADE NO REPRESENTATIONS REGARDING SUCCESS, MARKETS OR PROFITABILITY 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 EMC, any agent or representative of EMC, 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, marketability, or likelihood of success of your endeavors through the use of the EMC Services or EMC'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 EMC pursuant to this Agreement can or will result in the recoupment of any funds expended by you for any purpose; or11.1.3. 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 EMC Services or EMC'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 EMC Services and/or EMC'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 EMC. You further expressly agree not to raise any claim of any kind against EMC and to hold EMC harmless from any claim of financial investment or other loss to you directly or indirectly resulting from your decision to use the EMC Services and/or EMC's Equipment pursuant to this Agreement.
12. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS. Any and all services which are or may be provided to you by EMC pursuant to this Agreement, including the licensure of rights herein, are non-exclusive and nothing in this Agreement shall limit or restrict EMC 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 EMC from engaging in any activities similar to yours or in competition with you.
13. NO EDITORIAL CONTROL BY EMC. In reliance on your express warranties regarding Your Data, EMC shall neither have nor exert any editorial or other subjective control over the substantive content of Your Data . EMC does not engage in any monitoring of Your Data, and exercises no control over information which is found on the internet, except for its own Web Site. EMC 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. TERM AND TERMINATION. 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. EMC 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, EMC offers certain Hosting Packages for which the initial term of this Agreement shall be in excess of one month (the "Extended Term Packages"), at the end of which this Agreement shall renew automatically on a month-to-month basis pursuant to the terms of Section 14.1. Any and all service fees for the Extended Term 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 EMC to charge the Payment Account 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 EMC to the fees owing on the Extended Term Package. Fees paid for the Extended Term Packages are not refundable unless this Agreement is terminated by EMC without cause pursuant to Section 14.3. or as otherwise agreed to in writing by EMC in its sole discretion.14.3. You or EMC may terminate this Agreement at any time for any reason, with or without cause, upon thirty days' written notice. EMC 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 EMC, 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 Payment Account provider refuses payment of fees or charges or you refuse authorization for same, or14.3.3. if payment for the EMC Services is more than fifteen days overdue.14.4.You further agree that in the event that EMC 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 EMC's Equipment, that EMC may without any liability to you, and in addition to any other remedies, erase or purge such materials from EMC's Equipment without prior notice to you.14.5. After termination, you will no longer have access to your account and Your Data, including but not limited to e-mails, log files, databases, or other data files associated with your account may be deleted. EMC accepts no liability for such deleted information or content.
15. PRIVACY. 15.1. It is EMC's policy to respect your privacy. EMC will not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless EMC 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 civil or criminal subpoenas, search warrants, national security letters, or other requests for information from law enforcement officials;15.1.2. protect and defend the rights or property of EMC or its officers, agents, affiliates, and licensees;15.1.3. enforce this Agreement; or15.1.4. protect the interests of other EMC customers.15.2.NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, EMC 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 EMC Services. EMC 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 EMC Privacy Policy.15.4. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE EMC SERVICES ARE PROVIDED BY EMC TELECOM CORPORATION IN THE UNITED STATES OF AMERICA. THE PERSONAL INFORMATION WHICH YOU GIVE EMC WILL BE TRANSFERRED TO AND MAINTAINED IN THE UNITED STATES AND ELSEWHERE. IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THE TERMS AND CONDITIONS FOR THE EMC SERVICE. INTERNATIONAL CUSTOMERS FURTHER UNDERSTAND AND AGREE THAT EMC MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR WEBSITE OR DOMAIN NAMES PURSUANT TO THIS SECTION, AND WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
16. SEVERABILITY.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 unenforceability 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 unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
17. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER. Failure of EMC 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 EMC
18. NOTICES. 18.1.EMC 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 EMC. Such notice is deemed effective whether you receive it or not and shall be deemed written notice for the purposes of this Agreement.18.2.You may provide notice to EMC 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, EMC Telecom Corporation 1005 Terminal Way, Suite 110, Reno NV USA. 18.2.3.by Federal Express;18.2.4.by facsimile transmission; or18.2.5.by e-mail and registered or certified mail.18.3.Such notice, statement or other document so delivered to EMC, 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 EMC 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 EMC shall be deemed effective as of the date on which EMC receives the certified or registered mail notice.
19. FORCE MAJEURE. 19.1. In the event of "force majeure" (as defined below), EMC may terminate this Agreement without liability to you. For purposes of the Agreement, "force majeure" shall mean circumstances or occurrences beyond EMC's reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which EMC 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 EMC Services are located or maintained or through which the EMC Services are provided, and non-availability of any permits, licenses and/or authorizations required by governmental authority.19.2. EMC reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the EMC Services (or any part thereof) with or without notice. You agree that EMC shall not be liable to you or to any third party for any modification, suspension or discontinuance of the EMC Services.
20. NO ASSIGNMENT BY YOU; ASSIGNMENT BY EMC. This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without EMC's prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. EMC may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
21. ARBITRATION AND WAIVER OF JURY TRIAL. 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 CALIFORNIA IN ACCORDANCE WITH THE RULES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC ("JAMS") AND IN ACCORDANCE WITH THE RULES OF JAMS. Any award arising out of such arbitration shall be subject to entry as a judgment by any court of competent jurisdiction in the United States. You consent to personal jurisdiction and venue in such courts and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that EMC shall be entitled to collect its attorneys' fees, costs and other expenses in the event that EMC acts to enforce this arbitration and forum selection clause, regardless of whether EMC prevails in the underlying action. 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 the federal law of the United States of America. There are no exceptions to these mandatory arbitration provisions except as set forth in Sections 21.2 and 21.3.21.2. Notwithstanding the provisions of Section 21.1, if you fail to timely pay amounts due EMC may assign your account for collection and the collections agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permitted by Law or this Agreement.21.3. Nothing in Section 21.1 shall preclude EMC from: (i) seeking and obtaining any injunctive relief or attachment and expedited discovery or other equitable relief to enforce the terms of this Agreement or to remedy a breach thereof, or (ii) bringing an action to enforce this Agreement or the provisions hereof in the event JAMS will not or cannot arbitrate a particular dispute. 21.4 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 EMC 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.21.5 Neither you nor EMC may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding. YOU AND EMC ACKNOWLEDGE THAT THIS SECTION 21.5 WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION21.6 This Agreement has been negotiated and entered into in the State of California and all questions with respect to this Agreement and the relationships of the parties hereunder will be governed by the internal laws of the State of California, regardless of the choice of law principles of California or any other jurisdiction.
22. ENTIRE AGREEMENT. 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 EMC 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 EMC and you hereby acknowledge and agree that neither EMC nor you have executed this Agreement in reliance upon any such representation or promise.
23. MODIFICATION. 23.1. This Agreement may be materially altered by EMC by posting the new version of the Agreement at www.emctelecom.com or any of its affiliate websites, and if posted in this manner, shall be effective immediately upon posting such notice. In the event that EMC 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 the posting of notice of such change. 23.2. 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 EMC. No additional or conflicting term in any other document used by you will have any legal effect.
24. STATUTE OF LIMITATIONS.
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.
25. TERMS AND CONDITIONS FOR SATISFACTION GUARANTEE AND PAYPAL PAYMENTS
A) Usage i) The EMC Satisfaction Guarantee applies to Mail Plans, Site Studio Plans, Linux and Microsoft Shared Hosting, Microsoft Exchange Hosting, and VPS (Virtual Private Servers).ii) Credit shall be applied from the unused monthly fees and any setup fees. iii) The EMC Satisfaction Guarantee also applies to dedicated and managed EMC Server products. All setup fees for dedicated and managed Server products are nonapplicable. iv) The EMC Satisfaction Guarantee starts on the date the initial order was placed.
ALL PAYMENTS MADE THROUGH PAYPAL WILL BE DEEMED FINAL WITH NO EXCEPTIONS. B) Domain Names i) No refund or credit for domain name registration fees. C) Bandwidth i) No refund or credit for any unused bandwidth.ii) When taking advantage of the EMC Satisfaction Guarantee, a customer whose account exceeds the included bandwidth will be required to pay any additional bandwidth accrued. D) Miscellaneous i) No refund or credit on any additional or optional services or features added from the Control Panel by the customer. This includes all applications.ii) No refund or credit on any EMC Professional Services, including, but not limited to, installs, migrations or configurations.
iv) The EMC Satisfaction Guarantee does NOT apply to software. This includes the control panel license fees, such as cPanel and Plesk. Currently $10 will be deducted from any refund due to cancelations for any Plesk and cPanel users.
v) All refunds due to cancelations will be subject to a service termination fee of 12% of the original transaction paid.
vi) Any customer who has breached or whose account has been suspended or terminated due to the breach of any part of the EMC TOS has automatically forfeited the right to use the EMC Satisfaction Guarantee.
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