Infinite Media Corp.'s Digital Outrage (shall be referred to as "Digital Outrage") Universal Terms of Service for Digital Outrage Web Hosting and E-mail Services
This Agreement ("Agreement") is by and between DigitalOutrage.com, ("Digital Outrage") a/an New York company and you, your heirs, agents, successors and assigns ("You"), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of Digital Outrage web hosting (“Hosting”) and E-mail Services (“E-mail Services”) and explains Digital Outrage’s obligations to You and Your obligations to Digital Outrage in relation to the Web Hosting and E-mail Services You purchase.
This Agreement as well as any additional Digital Outrage policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and Digital Outrage concerning Your use of Digital Outrage ’s Web Hosting and E-mail Services, and supersede and govern all prior proposals, agreements, or other communications. All Digital Outrage policies and agreements specific to particular Web Hosting and Service are incorporated herein and made part of this Agreement by reference, including the dispute policy (“UDRP”). By purchasing Digital Outrage’s Web Hosting or E-mail Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which Digital Outrage may establish from time to time, and any agreements that Digital Outrage is currently bound by or will be bound by in the future. You may view the latest versions of these Agreements here.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with Digital Outrage, whether or not the transactions were in Your behalf. You acknowledge that Digital Outrage’s acceptance of any application made by You for E-mail Services provided by Digital Outrage will take place at the Internet Corporation for Assigned Names and Numbers ("ICANN") accredited registrar's offices located in Scottsdale, Arizona, USA.
The General Terms in Section A apply to all customers of Digital Outrage. The Web Hosting and E-mail Services Specific Agreements incorporated in Section B apply only to customers who have purchased those referenced E-mail Services.
A. GENERAL TERMS APPLICABLE TO ALL WEB HOSTING AND E-MAIL SERVICES
1. TERM OF AGREEMENT; MODIFICATIONS.
You agree that Digital Outrage may modify this Agreement and the E-mail Services from time to time. You agree to be bound by any changes Digital Outrage may reasonably make to this Agreement when such changes are made. If You have purchased E-mail Services or Web Hosting from Digital Outrage, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Web Hosting or E-mail Services. In the event You terminate Your usage, Digital Outrage will not refund any amounts You have paid. You agree that Digital Outrage shall not be bound by any representations made by third parties who You may use to purchase E-mail Services from Digital Outrage , and that any statement of a general nature, which may be posted on Digital Outrage ’s Web site or contained in Digital Outrage ’s promotional materials, will not bind Digital Outrage . Digital Outrage may, at times, offer certain promotions with different charges and features.
You agree that You will be responsible for notifying Digital Outrage should You desire to terminate Your use of Digital Outrage’s E-mail Services. Notification of Your intent to terminate must be provided to Digital Outrage no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date.
2. ACCURATE INFORMATION.
You agree to maintain accurate information by providing updates to Digital Outrage, as needed, while You are using Digital Outrage’s E-mail Services. You agree You will notify Digital Outrage within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Digital Outrage to determine the validity of information provided by You will constitute a material breach of this Agreement.
4. ACCOUNT SECURITY.
You agree You are entirely responsible for maintaining the confidentiality of Your customer number/login, password, and credit card number (collectively, the "Account Access Information"). You agree You are entirely responsible for any and all activities that occur under Your account. You agree to notify Digital Outrage immediately of any unauthorized use of Your account or any other breach of security. You agree Digital Outrage will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by Digital Outrage or another party due to someone else using Your Account Access Information. For security purposes, it is suggested You change Your password every six (6) months, for every Digital Outrage account, subject to Digital Outrage's password and PIN guidelines. You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. Digital Outrage specifically disclaims liability for any activity in Your account, whether authorized by You or not.
5. NO UNLAWFUL CONDUCT OR IMPROPER USE.
As a condition of Your use of Digital Outrage ’s Web Hosting and E-mail Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to Digital Outrage if, for any reason, Digital Outrage takes corrective action with respect to Your improper or illegal use of its E-mail Services.
Digital Outrage reserves the right at all times to disclose any information as Digital Outrage deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Digital Outrage's sole discretion.
If You have purchased E-mail Services, Digital Outrage has no obligation to monitor Your use of the E-mail Services. Digital Outrage reserves the right to review Your use of the E-mail Services and to cancel the E-mail Services in its sole discretion. Digital Outrage reserves the right to terminate Your access to the E-mail Services at any time, without notice, for any reason whatsoever.
Digital Outrage reserves the right to terminate E-mail Services if Your usage of the E-mail Services results in, or is the subject of, legal action or threatened legal action, against Digital Outrage or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit. Digital Outrage may review every account for excessive space and bandwidth utilization and to terminate or apply additional fees to those accounts that exceed allowed levels.
Except as set forth below, Digital Outrage may also cancel Your use of the E-mail Services, after thirty (30) days, if You are using the E-mail Services, as determined by Digital Outrage in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. Notwithstanding anything to the contrary herein, in the event Digital Outrage cancels Your E-mail Services during the first thirty (30) days after You purchase the E-mail Services, You will receive a refund of any fees paid to Digital Outrage in connection with the E-mail Services being canceled. In the event Digital Outrage deletes Your E-mail Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to Digital Outrage if, for any reason, Digital Outrage takes corrective action with respect to Your improper or illegal use of its E-mail Services.
6. NO SPAM; LIQUIDATED DAMAGES.
You agree Digital Outrage may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay Digital Outrage liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise You agree to pay Digital Outrage's actual damages. You acknowledge You have read and understand and agree to be bound by the terms and conditions of Digital Outrage ’s Anti-spam Policy, available here . Such terms and conditions are applicable to the use of all Digital Outrage Web Hosting and E-mail Services and are incorporated herein.
7. INTELLECTUAL PROPERTY.
You agree that Digital Outrage or its licensor holds all rights, title and interest in all Web Hosting and E-mail Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such E-mail Services or Web Hosting.
You understand and agree that all content and materials contained in this Agreement, other policies, the Digital Outrage web site, and any affiliated web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that Digital Outrage or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of Digital Outrage or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
8. FEES AND PAYMENT.
As consideration for the Web Hosting or E-mail Services purchased by You and provided to You by Digital Outrage, You agree to pay Digital Outrage at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your E-mail Services are suspended, terminated, or transferred prior to the end of the E-mail Services term. Digital Outrage expressly reserves the right to modify pricing through email notification and/or notice on its Web site. Payment may be made by You by providing either a valid credit card, an online check, a personal check, or using Digital Outrage ’s prepaid service Good as Gold, (“Prepaid E-mail Services”) to establish a cash reserve for charge by Digital Outrage (collectively, the "Payment Method"). Your Prepaid E-mail Services account may be funded by a money order or a personal check under as further described, below. Your Payment Method on file must be kept valid if You have any active products in Your account. For Digital Outrage Marketplace users, You may use either a valid credit card, PayPal, or Prepaid E-mail Services to make purchases.
If You signed up for a monthly payment plan, Your monthly billing date will be determined based on the day of the month You purchase the E-mail Services unless that date falls after the 28th of the month in which case Your billing date will be the 28th of each month. If You signed up for an annual (or longer) payment plan, and You elected the automatic renewal option, Digital Outrage will automatically renew Your E-mail Services when they come up for renewal and will take payment from the Payment Method You have on file with Digital Outrage, at Digital Outrage's then current rates.
If for any reason Digital Outrage is unable to charge Your Payment Method for the full amount owed Digital Outrage for the E-mail Services provided, or if Digital Outrage is charged a penalty for any fee it previously charged to Your Payment Method, You agree that Digital Outrage may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason Digital Outrage is unable to charge Your credit card with the full amount of the E-mail Services provided, or if Digital Outrage is charged back for any fee it previously charged to the credit card You provided, You agree that Digital Outrage may pursue all available remedies in order to obtain payment. You agree that among the remedies Digital Outrage may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any domain names or E-mail Services registered or renewed on Your behalf. Digital Outrage reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular E-mail Services, including additional costs that it may incur in providing the E-mail Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, including PayPal, and disputes that require legal E-mail Services. These charges will be billed to the Payment Method we have on file for You. You may change Your Payment Method at any time by calling Digital Outrage.
You agree that You are solely liable for arranging that Your E-mail Services are renewed, and that Digital Outrage shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your E-mail Services.
Payment By Check
By using Digital Outrage ’s pay by check option (“Pay By Check”), You can purchase Digital Outrage Web Hosting and E-mail Services using a personal check. The checking account must be at a financial institution in the United States, and the check must be payable in U.S. dollars.
It is Your responsibility to keep Your checking account current, and to have available funds in it. You agree that Digital Outrage will not be responsible for payments that fail to go through as a result of Your checking account no longer existing, or holding insufficient funds. If for any reason Digital Outrage is unable to withdraw the full amount owed for the E-mail Services provided, You agree that Digital Outrage may pursue all available remedies in order to obtain payment. You agree that if the EFT or bank draft is returned unpaid, You will pay a service charge of $25.00 or the maximum amount allowed by law, which may be debited from Your account using an EFT or bank draft. The check may not be for less than the full amount required at that time. All personal checks may be delayed up to fourteen (14) days until the money is credited, which may delay Your usage of the Web Hosting or E-mail Services.
Pay by PayPal
By using Digital Outrage ’s pay by PayPal, Inc. (“PayPal”) option (“Pay by PayPal”), You can purchase Digital Outrage Web Hosting and E-mail Services using PayPal. In consideration for the Web Hosting and E-mail Services purchased by You and provided to You by Digital Outrage, You agree to allow PayPal to debit the full amount of this transaction from Your PayPal account balance or the Preferred Funding Source You established with PayPal, which is non-refundable.
It is Your responsibility to keep Your PayPal Account current, to have available funds in it and to have Your PayPal Account backed by a valid credit card. You agree that PayPal and Digital Outrage will not be responsible for payments that fail to go through as a result of Your Funding Source no longer existing, or holding insufficient funds. If for any reason PayPal is unable to withdraw the full amount owed for the E-mail Services provided, You agree that PayPal and Digital Outrage may pursue all available remedies in order to obtain payment. You agree that if the transaction is returned unpaid, You will pay a service charge of $25.00 or the maximum amount allowed by law, which may be debited from Your account by PayPal or charged to Your Preferred Funding Source.
9. REPRESENTATIONS AND WARRANTIES.
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.
Digital Outrage expressly reserves the right to deny, cancel or transfer any domain name registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Digital Outrage , as well as its affiliates, subsidiaries, officers, directors and employees. Digital Outrage also reserves the right to freeze a domain name during resolution of a dispute.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL Digital Outrage BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE WEB HOSTING OR E-MAIL SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF Digital Outrage HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, Digital Outrage ’s liability is limited to the full extent permitted by law. You agree that in no event shall Digital Outrage's maximum aggregate liability exceed the total amount paid by You for the particular Web Hosting or Service in dispute purchased from Digital Outrage .
11. DISCLAIMER OF WARRANTIES.
Digital Outrage EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUCH E-MAIL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Digital Outrage MAKES NOT WARRANTY THAT ITS E-MAIL SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE E-MAIL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. Digital Outrage DOES NOT WARRANT, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR RESULTS OF, ANY OF THE E-MAIL SERVICES IT PROVIDES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THAT FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Digital Outrage and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys' fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, Web Hosting or E-mail Services with Digital Outrage whether or not on Your behalf, and whether or not with Your permission) use of the Web Hosting or E-mail Services You purchased from Digital Outrage or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold Digital Outrage harmless from any loss, liability, damages or expense, including reasonable attorneys' fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should Digital Outrage be notified of a pending law suit, or receive notice of the filing of a law suit, Digital Outrage may seek a written confirmation from You concerning Your obligation to indemnify Digital Outrage. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Digital Outrage shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify Digital Outrage of any such claim promptly in writing and to allow Digital Outrage to control the proceedings. You agree to cooperate fully with Digital Outrage during such proceedings.
You agree to cooperate fully with Digital Outrage during such proceedings. You agree You will not be entitled to a refund of any fees paid to Digital Outrage if, for any reason, Digital Outrage takes corrective action with respect to Your improper or illegal use of its E-mail Services. You also agree that if Digital Outrage is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Site Analytics account of Yours with Digital Outrage, that Digital Outrage, in its sole discretion, may take whatever action Digital Outrage deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
13. GOVERNING LAW, VENUE; WAIVER OF TRIAL BY JURY.
This agreement shall be deemed entered into in the State of New York. Except for disputes concerning the user of a domain name registered with Digital Outrage, You agree that the laws and judicial decisions of Suffolk County, New York, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Suffolk County, New York. For the adjudication of disputes concerning the use of any domain name registered with Digital Outrage , You agree to submit to jurisdiction and venue in the U.S. District Court for the District of New York.
You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
You agree that all notices (except for notices concerning breach of this Agreement) from Digital Outrage to You may be posted on our Web site. Notices concerning breach will be sent either to the email or postal address You have on file with Digital Outrage. In either case, delivery shall be deemed to have been made five (5) days after the date sent
Notices from You to Digital Outrage shall be made either by email, sent to the address provided on the Digital Outrage Web site, or first class mail to Digital Outrage ’s address at:
Infinte Media II Corp., Attn: Legal Counsel, 4205 Express Drive North, Ronkonkoma, NY, 11779.
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
17. ENTIRE AGREEMENT.
You agree that this Agreement including the policies and agreements it refers to (i.e. our Dispute Resolution Policy, etc.) constitute the complete and only Agreement between You and Digital Outrage regarding the E-mail Services contemplated herein.
The failure of Digital Outrage to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of Digital Outrage thereafter to enforce such provisions.
19. FORCE MAJEURE.
Digital Outrage will make every effort to keep its Web site and E-mail Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold Digital Outrage liable for any of the consequences of such interruptions.
Sections 1, 7, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 shall survive any termination or cancellation of this Agreement.
21. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
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