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HOSTING
SERVICES TERMS AND CONDITIONS
PLEASE
READ THE FOLLOWING HOSTING SERVICES TERMS AND CONDITIONS. BY SUBSCRIBING
TO SINGLEREEL’S SERVICES, YOU AGREE TO BE BOUND BY ALL THE
TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU AGREE WITH THE
TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I ACCEPT,”
OR CHECK THE APPROPRIATE BOX MANIFESTING YOUR INTENT TO BE BOUND
BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE ACCOUNT SET-UP
PROCESS. YOU SHOULD PRINT-OUT A COPY OF THIS AGREEMENT FOR FUTURE
REFERENCE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF
THIS AGREEMENT, CLICK THE “BACK” BUTTON ON YOUR BROWSER
AND DO NOT SUBSCRIBE TO SINGLEREEL’S SERVICES. SINGLEREEL
AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO BE BOUND
BY THE TERMS AND CONDITIONS CONTAINED HEREIN.
This
Hosting Services Terms and Conditions (“Agreement”)
contains the complete and entire terms and conditions that apply
to your use of SINGLEREEL’s Services (as defined below).
SINGLEREEL may modify the terms of this Agreement, including the
Fees (as defined below) at its sole discretion upon thirty (30)
days’ notice to you. Your continued use of the Services
after the effective date of such notice constitutes acceptance
by you of such modifications.
1.
SERVICES.
At
the time of initial registration, you will select from the list
of available services the service plan(s) to which you wish to
subscribe (“Services”). All subscriptions to Services
are subject to acceptance by SINGLEREEL. Your subscription to
the Services will be deemed accepted by SINGLEREEL when SINGLEREEL
delivers a confirmation of the subscription to you. SINGLEREEL
reserves the right to refuse to provide you with any Service for
any reason. SINGLEREEL also reserves the right to interrupt access
to the Services to perform regular and emergency maintenance as
needed. You may order additional services at any time, provided
that you agree to pay the then-current fees for such additional
services. All additional services shall be considered “Services”
hereunder. All Services provided are subject to the terms and
conditions of this Agreement.
2.
PAYMENT.
The
pricing for all Services (“Fees”) shall be SINGLEREEL’s
then-current pricing for such Services. The initial Fees for the
Services selected by you shall be as provided in the initial on-line
order form.
You
agree to pay all Fees when due. At the time of registration, you
must select a payment method. SINGLEREEL reserves the right to
contract with a third party to process all payments. Such third
party may impose additional terms and conditions governing payment
processing.
Currently,
SINGLEREEL’s billing cycle runs from the 16th to the 15th
of each calendar month. You will receive an invoice via e-mail
on the 15th day of each month for the upcoming month, and if you
pay be credit card, as a convenience to you, we will process your
payment on the 27th of each calendar month. Transfer fees are
based upon daily transfer of data as shown in the database file
for each account from the l6th of the last month to the 15th of
the current month.
All
Fees for Services are due on or before the 1st day of each calendar
month, payable in advance. If you do not pay all Fees when due,
your account will be deemed past due. For any overdue amount of
Fees, SINGLEREEL will charge you interest at one and one-half
percent (1.5%) or the highest rate allowed by applicable law,
whichever is lower, of the unpaid amount, until paid. If payment
of the Fees is not received within three (3) days of the payment
due date, SINGLEREEL may deactivate your password. If payment
of the Fees is not received within five (5) days of the payment
due date, SINGLEREEL may withhold or suspend Services and may
terminate this Agreement at its sole discretion. Suspension or
termination of Services does not relieve you from your obligation
to pay all accrued but unpaid Fees, including any interest which
has accrued thereon.
You
agree to pay any taxes, including personal property, value added,
or sales taxes, resulting from your use of the Services. If SINGLEREEL
should receive less than full payment of the Fees due to taxes,
bank charges, transfer fees, or the like, SINGLEREEL will invoice
you for the difference between payment received and the Fees due.
You agree to pay all attorney and collection fees arising from
our efforts to collect any past due Fees from you to the extent
allowed by law.
3.
ACCEPTABLE USE POLICY.
You
agree to comply with the SINGLEREEL Acceptable Use Policy, which
may be found by going to SINGLEREEL’s web site at www.SINGLEREEL.com,
as modified from time to time, which is hereby made a part of
this Agreement. SINGLEREEL reserves the right to modify the applicable
Acceptable Use Policy at any time by posting the modified policy
on its web site and you agree to monitor this web site and comply
with any such modifications.
SINGLEREEL
may, at its sole discretion, immediately terminate your access
to the Services if your conduct (or if SINGLEREEL believes that
your conduct) violates the Acceptable Use Policy. You further
agree to require your end users to comply with the Acceptable
Use Policy. SINGLEREEL may, at its sole discretion, immediately
terminate your access to the Services, if any of your end users
violate the Acceptable Use Policy.
SINGLEREEL
will not actively monitor the content of the web sites being hosted
by SINGLEREEL, although SINGLEREEL, at its sole discretion, may
elect to electronically monitor its network and may disclose any
content or records concerning your account as necessary to satisfy
any law, regulation, or other governmental request or to properly
operate our network and protect any of our customers. SINGLEREEL
will investigate complaints of a violation of a third party right
or of the Acceptable Use Policy. SINGLEREEL will cooperate with
those attempting to minimize Internet abuse and reserves the right
to institute “filters” or other mechanisms for that
purpose. SINGLEREEL will cooperate with law enforcement authorities
and will notify such authorities if it suspects that you or any
of your end users are engaged in illegal activities. You acknowledge
and expressly agree that SINGLEREEL will not be liable to you
or any of your end users for any action SINGLEREEL takes to remove
or restrict access to the Services for any alleged violation of
the Acceptable Use Policy, or exorcising its rights as a Good
Samaritan or under the Digital Millennium Copyright Act.
When
you register for the Services, SINGLEREEL will ask you to select
a user ID and a password. You may use the Services or modify your
information, data and content only through such user ID and password.
You are entirely responsible for maintaining the confidentiality
of your user ID and password. You are entirely responsible for
any and all activities which occur under your user ID and password.
You agree to immediately notify SINGLEREEL of any unauthorized
use of your account or any other breach of security known to you.
4.
PROPERTY RIGHTS.
As
between you and SINGLEREEL, SINGLEREEL acknowledges that it claims
no proprietary rights in or to the content (including without
limitation, text, software, music, sound, audio visual works,
motion pictures, photographs, animation, video and graphics) supplied
by you for use on your web site (“Your Content”).
You hereby grant to SINGLEREEL a non-exclusive, worldwide and
royalty-free license to copy, make derivative works, display,
perform, use, broadcast and transmit on and via the Internet Your
Content, solely for the benefit of you and in accordance with
SINGLEREEL’s performance of its obligations hereunder.
In
connection with performance of the Services and at the sole discretion
of SINGLEREEL with no obligation, SINGLEREEL may provide you with
certain materials, including, without limitation, computer software
(in object code or source code form), data, documentation or information
developed or provided by SINGLEREEL or its suppliers under this
Agreement, domain names, electronic mail addresses and other network
addresses assigned to you, and other know-how, methodologies,
equipment, and processes used by SINGLEREEL to provide you with
the Services to Client (“Host Materials”). Subject
to the terms and conditions of this Agreement, SINGLEREEL hereby
grants you a limited, revocable, non-transferable, non-exclusive
license to use the Host Materials solely in connection with the
Services. As between you and SINGLEREEL, you acknowledge and agree
that SINGLEREEL owns all right, title, and interest or otherwise
has acquired all applicable licenses for the Host Materials, and
all copyright, trade secret, patent, trademark and other intellectual
property rights therein. Any use of the Host Materials is not
licensed and strictly prohibited. You agree that you will not
upload, transmit, reproduce, distribute or in any way exploit
any Host Materials obtained through the Services without first
obtaining the express written permission to do so from SINGLEREEL.
This
Agreement does not constitute a license to use SINGLEREEL’s
trade names, service marks or any other trade insignia. Any use
of any of SINGLEREEL’ trade names, services marks or any
other trade insignia shall be subject to SINGLEREEL’ prior
written consent.
5.
NO WARRANTIES.
YOU
EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE
AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS
IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS.
SINGLEREEL 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,
TITLE AND NON-INFRINGEMENT. SINGLEREEL MAKES NO WARRANTY THAT
THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES
WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES
SINGLEREEL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY
OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS
IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. YOU
UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR
DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES
IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF
DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
SINGLEREEL
MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE
TO YOU THAT ARE NOT PART OF THE SERVICES (“THIRD-PARTY SERVICES”).
SINGLEREEL HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES.
USE OF ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK
AND SUBJECT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT
BETWEEN YOU AND THE THIRD-PARTY.
SINGLEREEL
MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR
OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO
THROUGH THE SERVICES.
NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
FROM SINGLEREEL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY,
WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE.
UNLESS
OTHERWISE AGREED TO IN WRITING, SINGLEREEL DOES NOT MAKE A BACK-UP
OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE
YOU TO MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS.
6.
LIMITATION ON LIABILITY.
YOU
ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEB-SITE
AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER MATTERS UNDER YOUR
CONTROL. IN NO EVENT SHALL SINGLEREEL BE LIABLE TO YOU FOR ANY
DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB-SITE
AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB-SITE AND/OR BUSINESS.
THIS
SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE
OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT
LIMITED TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED
TO NEGLIGENCE, STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.
REGARDLESS
OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU
AGREE THAT IN NO EVENT WILL SINGLEREEL, OUR AFFILIATES, CONTRACTORS,
SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER
PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES,
TECHNOLOGY, OR CONTENT AVAILABLE ON THE SERVICES (“AFFILIATES”),
BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (A) FOR ANY DECISION
MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE
INFORMATION PROVIDED THROUGH THE SERVICES; (B) FOR LOSS OR INACCURACY
OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES
OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES,
LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS INTERRUPTION
OR SIMILAR ACTION, EVEN IF SINGLEREEL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
THE
TOTAL AGGREGATE AND MAXIMUM LIABILITY OF SINGLEREEL AND THE AFFILIATES,
ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT (REGARDLESS
OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY AMOUNTS YOU
HAVE PAID TO SINGLEREEL DURING THE SIX (6) MONTHS PRIOR TO THE
ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.
7.
INDEMNIFICATION.
You
agree to defend, indemnify, and hold SINGLEREEL and its Affiliates
harmless from and against any and all claims and liabilities,
including reasonable attorneys’ and experts’ fees,
related to or arising from (a) any breach of your covenants under
this Agreement; (b) your use of the Services; (c) all conduct
and activities occurring under your user ID and password; (d)
any item or service sold or advertised in connection with Your
Content or your information and data; (e) any defamatory, libelous
or illegal material contained within Your Content or your information
and data; (f) any claim or contention that Your Content or your
information and data infringes any third party’s patent,
copyright or other intellectual property rights or violates any
third party’s rights of privacy or publicity; (g) third
party’s access or use of Your Content or your information
and data; (h) any violation of the applicable Acceptable Use Policy;
(i) to the extent applicable, Your Content complies with Title
18, U.S.C. s. 2257 and that all models depicted in the Your Content
are over the age of eighteen (18); (j) Your Content does not contain
any images which constitute child pornography, obscenity, bestiality,
actual depictions of violence, or are otherwise illegal in the
United States of America; and (k) all representations and reproductions
of any aspect of the likeness of actual people in the Your Content
have been duly authorized and permitted by the persons depicted.
SINGLEREEL reserves the right, at its own expense, to participate
in the defense of any matter otherwise subject to indemnification
from you, but shall have no obligation to do so. You shall not
settle any such claim or liability without the prior written consent
of SINGLEREEL, which shall not be unreasonably withheld.
8.
TERM AND TERMINATION.
This
Agreement shall be effective for as long as you use the Services.
Either you or SINGLEREEL may terminate this Agreement, with or
without cause, upon thirty days notice to the other party. In
addition to SINGLEREEL’s’ right to terminate this
Agreement provided elsewhere in this Agreement, SINGLEREEL may
terminate this Agreement immediately if, based on SINGLEREEL’
sole judgment, it determines that you have (a) breached the applicable
Acceptable Use Policy, (b) infringed or violated any intellectual
property right or privacy or publicity right of a third party,
or (c) not complied with Title 18, U.S.C. s. 2257, or that any
of the Your Content contains images which constitute child pornography,
obscenity, bestiality, actual depictions of violence, or are otherwise
illegal in the United States of America.
The
termination of this Agreement will terminate your access to the
Services and your license to the Host Materials. SINGLEREEL shall
not be liable to you or to any third party for termination of
the Services for any reason. The termination of this Agreement
does not relieve you of your obligation to pay any Fees accrued
or payable to SINGLEREEL prior to the effective date of termination
of this Agreement.
Upon
termination of this Agreement, SINGLEREEL reserves the right to
maintain copies of your data files and records for archival purposes.
SINGLEREEL reserves the right to impose an early termination charge
for all Services terminated prior to the last day of the billing
cycle.
Upon
termination of this Agreement, provisions that by their nature
would be expected to survive termination shall survive and remain
in full force and effect in accordance with their terms.
9.
GENERAL PROVISIONS.
A.
Governing Law. This Agreement and all matters arising out of or
otherwise relating to this Agreement shall be governed by the
laws of the State of New York, excluding its conflict of law provisions.
The parties hereby submit to the personal jurisdiction of the
state and federal courts of the State of New York. Exclusive venue
for any litigation permitted under this Agreement shall be with
the state and federal courts located in New York County, New York.
B.
Arbitration. If there is a dispute between the parties arising
out of or otherwise relating to this Agreement, the parties shall
meet and negotiate in good faith to attempt to resolve the dispute.
If the parties are unable to resolve the dispute through direct
negotiations, then, except as otherwise provided herein, either
party may submit the issue to binding arbitration in accordance
with the then-existing Commercial Arbitration Rules of the American
Arbitration Association. The arbitration shall be conducted in
New York County, New York and conducted by a single arbitrator,
knowledgeable in Internet and e-Commerce. Except as provided below,
the party bringing the action shall be responsible for paying
all costs for arbitration, including the arbitrator’s fees.
Each party shall bear its own attorneys’ fees (except if
the matter is for the collection of a debt owed, the prevailing
party shall be awarded its attorneys fees, all arbitration costs
and arbitrator fees, in addition to all other applicable remedies).
The arbitrator shall have no authority to award any punitive or
exemplary damages; certify a class action; add any parties; vary
or ignore the provisions of this Agreement, and shall be bound
by governing and applicable law.
C.
Assignment. The rights and liabilities of the parties hereto will
bind and inure to the benefit of their respective assignees, successors,
executors, and administrators, as the case may be. Neither this
Agreement nor any rights granted hereunder may be sold, leased,
assigned or otherwise transferred, in whole or in part by you.
D.
Severability. If for any reason a court of competent jurisdiction
or arbitrator finds any provision of this Agreement, or any portion
thereof, to be unenforceable, that provision will be enforced
to the maximum extent permissible and the remainder of this Agreement
will continue in full force and effect.
E.
No Waiver. Failure by either party to enforce any provision of
this Agreement will not be deemed a waiver of future enforcement
of that or any other provision, and no waiver of one breach will
constitute a waiver of subsequent breaches of the same or of a
different nature.
F.
Complete Agreement. This Agreement (including the Acceptable Use
Policy and Privacy Policy) constitute the entire agreement between
the parties with respect to the Services, and supersedes and replaces
all prior or contemporaneous understandings or agreements, written
or oral, regarding such subject matter. No amendment to or modification
of this Agreement will be binding unless in writing and signed
by a duly authorized representative of both parties.
G.
Relationship Between the Parties. SINGLEREEL is an independent
contractor; nothing in this Agreement shall be construed to create
a partnership, joint venture or agency relationship between the
parties.
H.
Headings. Section and subsection headings of this Agreement are
inserted for convenience only and shall not be deemed to constitute
a part hereof nor to affect the meaning thereof
I.
Force Majeure. SINGLEREEL shall not be responsible for any failure
to perform due to unforeseen circumstances or to causes beyond
its reasonable control, including but not limited to: acts of
God; war, riot, embargoes, acts of civil or military authority,
or terrorism; fire, flood, earthquakes, hurricanes, tropical storms
or other natural disasters; fiber cuts; strikes, or shortages
in transportation, facilities, fuel, energy, labor or materials;
failure of the telecommunications or information services infrastructure;
hacking, SPAM, or any failure of a computer, server or software,
including Y2K errors or omissions, for so long as such event continues
to delay SINGLEREEL’s performance.
J.
Export. You understand and acknowledge that the software elements
of the Host Materials may be subject to regulation by agencies
of the U.S. Government, including the U.S. Department of Commerce,
which prohibits export or diversion of software to certain countries
and third parties. You will not assist or participate in any such
diversion or other violation of applicable U.S. laws and regulations.
You warrant that you will not license or otherwise permit anyone
not approved to receive controlled commodities under applicable
U.S. laws and regulations and that you will abide by such laws
and regulations.
K.
Government Rights. The software elements of the Host Materials
have been developed at private expense and is “commercial
computer software” or “restricted computer software”
within the meaning of the FARs, the DFARs, and any other similar
regulations relating to government acquisition of computer software.
Nothing contained herein will be deemed to: (i) grant any government
agency any license or other rights greater than are mandated by
statute or regulation for commercial computer software developed
entirely at private expense, or (ii) restrict any government rights
in any extensions or custom solutions provided hereunder and developed
at government expense.
L.
Notices Electronic Communications. All notices permitted or required
under this Agreement may be sent by e-mail, fax, express mail,
mail, or registered mail to the e-mail address, fax number, or
address most recently provided and will be effective upon transmission.
Evidence of successful transmission shall be retained. Each of
us may communicate with the other by electronic means as described
in this Agreement. Each of us agrees to the following for all
electronic communications: (i) The user identification of a sender,
contained in an electronic communication, is legally sufficient
to verify the sender’s identity and the communication’s
authenticity; (ii) An electronic communication sent by you containing
your user identification establishes you as its originator and
has the same effect as a document with your written signature
on it; and (iii) An electronic communication, or any computer
printout of it, is valid proof of the validity of the original
document of the electronic communication. |
