General Terms & Conditions
REDBUD SERVICES, LLC
General Terms and Conditions
REDBUD SERVICES, LLC General
Terms and Conditions of Service for Web Hosting Services
BY SIGNING UP FOR AND/OR
OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY
REDBUD SERVICES, LLC YOU AGREE TO BE BOUND BY THE TERMS OF THIS
AGREEMENT. THESE TERMS AND 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 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 Redbud Services, LLC dba TQCI and Ameritel confirming
your order, whichever happens first.
1. DEFINITIONS.
For the purposes of this
Agreement:
1.1.
"Redbud Services, LLC's
Equipment" shall mean computer and telecommunications device,
Internet access and/or transmission rights owned, operated, and/or
maintained by Redbud Services, LLC and/or Redbud Services, LLC's
affiliates, agents, or assigns which provide the Redbud Services,
LLC hosting services.
1.2.
"Redbud Services”, “TQCI”, "Ameritel", "us,"
"we," "our" and grammatical variants thereof shall collectively
refer to Redbud Services, LLC, a limited liability corporation
organized and existing under the laws of the State of Michigan,
United States of America, mailing address: P.O. Box 328, Buchanan,
Michigan 49107, U.S.A. and its assigns and successors in interest.
1.3.
"Redbud Services web hosting
services" shall mean the products and hosting services provided by
Redbud Services and/or Redbud Services’ affiliates, agents, or
assigns at any given time, including but not limited to web hosting,
e-mail, domain registration, and any associated support hosting
services, which hosting services may be changed, amended, and/or
otherwise altered at any time in Redbud Services’ sole discretion.
1.4.
"Redbud Services Software" shall
mean any software provided by Redbud Services 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
Redbud Services hosting services. The Redbud Services 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 Redbud Services’
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 hosting services provided by us to you.
1.8.
"Fee" shall mean monies and other
consideration you are obligated to pay to Redbud Services for the
right to use the Redbud Services hosting services and Bandwidth
subject to the terms and conditions of this Agreement and of the
particular Redbud Services hosting 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 Redbud Services hosting services as published on our website,
which may be modified at any time in Redbud Services’ sole
discretion pursuant to the provisions of 23.1.
1.10.
"International Customers" shall
mean customers residing in or accessing the Redbud Services hosting
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 Redbud Services hosting services and the laws of any
provinces, states or dependencies thereof.
1.12.
"Parties" shall collectively
refer to Redbud Services 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. Redbud Services may add, delete, or modify
the methods by which customers can pay for the Redbud Services
hosting 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 Redbud Services makes no
representations or warranties with respect to those hosting
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 hosting 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
Redbud Services’ 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 Redbud Services hosting services and stored on or transmitted by
the Redbud Services Equipment.
1.19.
"Your Web Site" shall mean data
transmittable via the Internet by Redbud Services which is stored in
your Web Site Space.
1.20.
"Your Services" shall mean the
specific Redbud Services hosting services for which you have
contracted, subject to the limitations and specifications of the
particular service effective as of the date of contract and to the
fees for those Redbud Services hosting services pursuant to the
current Fee Schedule.
2. DESCRIPTION
Subject to and conditioned upon
Redbud Services’ retained rights and all other terms and conditions
set forth in this Agreement, Redbud Services offers the Redbud
Services hosting services as soon as practicable after registration
for and payment of any and all fees due. You will receive a
password, account and instructions upon completion of the
registration process. You are responsible for maintaining the
confidentiality of both your password and your account and are fully
responsible for all activities that occur under your password and
your account. You agree to immediately notify Redbud Services of any
unauthorized uses of the account or any other breaches of security.
Redbud Services 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 Redbud
Services 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 Redbud Services hosting services are subject to
the following conditions and restrictions:
2.1. Web Hosting Services
2.1.1.
Redbud Services 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 Redbud Services’ Equipment for purposes
consistent with this Agreement.
2.1.2.
Redbud Services, 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 hosting services provided by us to
you relating to Your Web Site. Redbud Services 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 Redbud Services with or without reason. Any additional Customer
Service which Redbud Services may subsequently agree to provide to
you shall be at Redbud Services’ sole discretion and once commenced,
may be terminated at any time by Redbud Services without notice to
you and without any liability to Redbud Services. Notwithstanding
the foregoing, Redbud Services 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 Redbud Services.
2.1.3.
Redbud Services, 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 Redbud Services with or without reason, in
its sole discretion. Any Technical Support which Redbud Services may
subsequently agree to provide to you shall be at Redbud Services’
sole discretion and once commenced, may be terminated at any time by
Redbud Services without notice to you and without any liability to
Redbud Services.
2.1.4.
All use of Web Site Space and
provision of hosting services to you by Redbud Services shall be
subject to all terms and conditions set forth herein. You may not
attempt to expand or alter these rights or Redbud Services’ hosting
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 Redbud Services
may return or reject any and all e-mails sent to you to the
originating sender without liability to you. You agree that Redbud
Services 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 Redbud Services hosting
services may not be available to International Customers, and Redbud
Services reserves the right to alter, amend, or discontinue the
provision of some or all of the Redbud Services hosting services to
International Customers in a particular market at any time in Redbud
Services’ sole discretion.
2.1.7.
Redbud Services 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 Redbud Services
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 Redbud
Services relating to the content, use, and operation of Your Web
Site and agree to indemnify and hold harmless Redbud Services from
and against any such claims.
2.1.8.
You are responsible for backing
up Your Data on your own computer. Redbud Services 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 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, Redbud Services will have no
obligation or liability to you.
2.2. Domain Name Registration
2.2.1.
Should you choose to register a
domain name through Redbud Services, Redbud Services will register a
second level domain name on your behalf, provided such domain name
is available for registration. Redbud Services 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. Redbud
Services 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, Redbud Services 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 Redbud
Services to debit the Payment Account for any such fees and costs.
Should the Payment Account provider fail to honor such debit, Redbud
Services 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
Redbud Services or its agents, assignees or licensees may associate
any data of any kind, in Redbud Services’ 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 Redbud Services or
Redbud Services’ 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 Redbud Services 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 Redbud Services
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 Redbud
Services hosting services, whether through expiration of the domain
name, judicial decree, administrative decisions of the UDRP or
otherwise, you agree to inform Redbud Services immediately of the
party to whom the domain name is to be transferred and you authorize
Redbud Services to take any and all action necessary to effect such
transfer.
2.2.5.
Redbud Services 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
Redbud Services 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 Redbud Services are subject to the terms and
conditions of Redbud Services’ Private Registration Service (the
"T&C Private Domain Registration"), which are incorporated herein by
reference.
2.2.7.
Redbud Services may suspend
performance under or terminate this Agreement, cease transmission of
data associated with your domain name, permanently remove Your Data
from the Redbud Services 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 claims you may have, now
and forever, against Redbud Services relating to the registration,
use, and subsequent transfers of your domain name and agree to
indemnify and hold harmless Redbud Services from and against any
such claims.
2.3. Software
2.3.1.
Redbud Services may, in its sole
discretion, provide you with Redbud Services Software in combination
with Your Services. Upon payment of all fees due and owing to Redbud
Services under this Agreement, Redbud Services hereby grants, and
you hereby accept, a nontransferable, revocable, non-sublicensable,
and non-exclusive license to use the Redbud Services 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 Redbud Services. Source code or other
information pertaining to the logic design of the Redbud Services
Software is specifically excluded from the license granted
hereunder.
2.3.2.
Although certain Redbud Services
Software may be provided free of charge, Redbud Services reserves
the right to charge for the Redbud Services Software or any updates
thereto or upgrades therefor at any time.
2.3.3.
You recognize that the Redbud
ServicesSoftware and all related information, including but not
limited to any and all updates, improvements, modifications,
enhancements, and information related to installation of the Redbud
Services Software at your home or office, are proprietary, and that
all rights thereto, including copyright, are owned by Redbud
Services. You further acknowledge that you have been advised that
the Redbud Services Software, including updates, improvements,
modifications, enhancements, and information related to
installation, constitutes a trade secret of Redbud Services, is
protected by civil and criminal law, and by the law of copyright, is
valuable and confidential to Redbud Services, and that its use and
disclosure must be carefully and continuously controlled.
2.3.4.
Redbud Services shall at all
times retain title to all the Redbud Services 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 Redbud Services Software
supplied hereunder is for the your personal or business use. You
shall not permit any third party to use the Redbud Services Software
or allow access to the Redbud Services Software from sites outside
of your home or business premises except as specifically authorized
in writing by Redbud Services. The Redbud Services 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 Redbud Services Software, whether such Redbud Services 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 Redbud Services
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
Redbud Services. In order to protect Redbud Services’ trade secrets
and copyrights in the Redbud Services Software, you agree to
reproduce and incorporate Redbud Services’ trade secrets or
copyright notice in any copies, modifications or partial copies.
2.3.7.
You agree to notify Redbud
Services forthwith if you obtain information as to any unauthorized
possession, use or disclosure of any Redbud Services Software by any
person or entity, and further agree to cooperate with Redbud
Services at Redbud Services’ expense, in protecting Redbud Services’
proprietary rights.
2.3.8.
Unless agreed otherwise in
writing by Redbud Services, the Redbud Services Software may be used
only on a single computer or workstation. Redbud Services 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 Redbud Services Software on
a network except to facilitate permissible installation of the
Redbud Services 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 Redbud Services Software
is provided for online use as part of the Redbud Services hosting
services, and the use of such software may be subject to fees as
outlined in the current Fee Schedule in accordance with this
Agreement. The Redbud Services Online Software is hosted software
which runs directly on Redbud Services’ servers, and you may not
download, install, store or make any copies of the Redbud Services
Online Software, nor may you sublicense the Redbud Services 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 Redbud Services Online Software or any copies thereof and not to
assist any third party in doing so. The Redbud Services Online
Software is designed to be used through the Redbud Services 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. Redbud Services reserves the
right to suspend the use of, modify or discontinue the Redbud
Services 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.
Redbud Services may limit the functionality of any such third party
Online Software, in its sole discretion.
2.3.10.
Redbud Services 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 Redbud Services
Customers by mail and may be ordered via customer's control panel
for a period of six months after the commencement of the Redbud
Services hosting services. The license conditions governing the use
of the Third Party Software may differ from Redbud Services’ own
software licenses. Customers of Redbud Services 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. Redbud Services does not
provide Technical Support for the Third Party Software. THE THIRD
PARTY SOFTWARE IS OFFERED "AS-IS." THE PROVISION AND OFFERING OF
THIRD PARTY SOFTWARE BY Redbud Services DOES NOT CONSTITUTE AN
ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN Redbud Services
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 Redbud
Services’ right to terminate, or upon the expiration of the license
for Redbud Services 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
Redbud Services Software and documentation and all copies thereof,
wherever located, without demand or notice.
2.3.12.
Redbud Services 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 Redbud Services hosting
services are subject to set-up, service, and domain service fees,
pursuant to the Fee Schedule, and by registering for such Redbud
Services hosting services you authorize Redbud Services to debit
your Payment Account for any and all such fees.
3.2.
The Fee is due monthly, in
advance of the provision of hosting services, not later than the
first of that month. In the event that Redbud Services determines
that the hosting services of a collection agency are necessary or
appropriate to collect amounts due under this paragraph, which
determination shall be made in Redbud Services’ 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 hosting services.
Redbud Services will charge the monthly fee and any additional fees
to the Payment Account unless specifically provided otherwise. You
also agree that Redbud Services may automatically debit your Payment
Account, without further authorization from you, for any renewal
term, additional hosting 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
hosting services in excess of those included within Your Services or
Your Web Site. If payment in full is not received by Redbud Services
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
Redbud Services.
3.4.
Redbud Services 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 Redbud Services’ Money Back
Guarantee (the "T&C Money Back Guarantee"), they are incorporated
herein by reference.
3.6.
Redbud Services offers a service
uptime guarantee for the Redbud Services hosting services, which
provides for a credit to You in the event the total availability of
Redbud Services hosted web pages falls below 99% ("Uptime"). If
You can demonstrate to Redbud Services’ satisfaction, in Redbud
Services’ sole discretion, that Redbud Services has failed to
maintain the Uptime, You may contact Redbud Services and request a
credit for that month proportional to the amount of downtime, to be
put towards the purchase of future Redbud Services hosting services.
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 Redbud Services 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 Redbud Services’ 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 Redbud Services or that are not
reasonably foreseeable by Redbud Services.
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
$18.95, 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 Redbud Services hosting services will not be available to
International Customers until Redbud Services is able to receive
satisfactory confirmation from such customer's Payment Account
provider, in Redbud Services’ 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.
3.9.
Upon cancellation of this
Agreement you will receive a prorated refund of any pre-paid,
refundable fees for the remainder of any term. Fees for certain
hosting services, including but not limited to domain name
registration and maintenance, set up fees, shipping and handling,
SSL certificate fees, Website Creator Plus, Website Builder Plus,
in2site Live Dialog Plus, DynamicSiteCreator Plus, Additional Virus
Scanner, Exchange accounts and fees for the Extended Term Packages,
are not refundable unless provided otherwise by applicable local
law. Redbud Services may, in its sole discretion, refund other
amounts as it deems necessary or advisable.
4. NO EXPRESS OR IMPLIED
AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE INCONSISTENT WITH YOUR
WARRANTIES.
Receipt by Redbud Services of
data for storage in Web Site Space and/or transmission via Redbud
Services’ Equipment which are inconsistent with your warranties set
forth in Section 7 herein shall not constitute an agreement by
Redbud Services to allow the Redbud Services hosting services or the
Redbud Services 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 Redbud Services’ Services or Equipment, to continue
to disseminate such data.
5. NO WARRANTIES BY REDBUD
SERVICES.
THE REDBUD SERVICES HOSTING
SERVICES AND REDBUD SERVICES SOFTWARE ARE PROVIDED ON AN "AS IS"
BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU
EXPRESSLY AGREE THAT THE USE OF THE REDBUD SERVICES HOSTING SERVICES
IS AT YOUR SOLE RISK. REDBUD SERVICES DOES NOT WARRANT THAT THE
REDBUD SERVICES HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR
FREE, NOR DOES REDBUD SERVICES MAKE ANY WARRANTY AS TO ANY RESULTS
THAT MAY BE OBTAINED BY USE OF THE REDBUD SERVICES HOSTING SERVICES. NO WARRANTY IS MADE
BY REDBUD SERVICES REGARDING ANY INFORMATION, SERVICES OR PRODUCTS
PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND REDBUD
SERVICES 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. REDBUD SERVICES
DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER
MATERIAL ACCESSIBLE THROUGH THE REDBUD SERVICES hosting services
WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL
COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT NO REPRESENTATIONS OF ANY
KIND HAVE BEEN MADE TO YOU REGARDING THE POTENTIAL VOLUME OF
PATRONAGE OF YOUR WEB SITE OR ANY OTHER PERSON'S OR ENTITY'S WEB
SITE OR WEB PAGE.
6. Redbud SERVICES'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 REDBUD SERVICES,
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 REDBUD SERVICES 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, REDBUD SERVICES'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,
REDBUD SERVICES DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY
THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING
THE REDBUD SERVICES SERVICES, AND REDBUD SERVICES 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 REDBUD
SERVICES FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN
EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF REDBUD
SERVICES 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
REDBUD SERVICES IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH.
7. YOUR ADDITIONAL OBLIGATIONS
AND WARRANTIES.
7.1.
You agree and warrant that the
contact information you have provided to Redbud Services is complete
and accurate, and you further agree to notify Redbud Services 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 Redbud
Services 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
Redbud Services.
7.3.
You agree and warrant that your
use of the Redbud Services hosting services and Redbud Services’
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 hosting 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 Redbud Services hosting services or
Redbud Services 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 Redbud
Services’ 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 pornography, or depictions of bestiality,
rape, sexual assault, violence, torture or disfigurement, or other
content deemed objectionable by Redbud Services, 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 Redbud
Services’ sole and exclusive judgment, Redbud Services 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 Redbud Services may, without prior notice to
you and in Redbud Services’ 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 Redbud Services
from either you or any third party.
7.9.
You agree that in the event that
Redbud Services 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 Redbud Services may, without prior notice
to you and in Redbud Services’ 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
Redbud Services 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 Redbud Services
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 Redbud Services 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 Redbud
Services hosting services or Redbud Services’ 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 Redbud Services hosting services or Redbud
Services’ 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 Redbud Services’ Services or Equipment shall at all times be
free from any and all damaging software defects, including, but not
limited to, software "viruses", "worms", "Trojan Horses," and other
source code anomalies, which may cause software or hardware
disruption or failure, reduced computer operating speed, or
compromise any security system. You agree that you will not attempt
to access the Redbud Services Equipment or Web Site or another
customer's Web Site without authorization, or use the Redbud
Services hosting services to 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 Redbud Services
reserves the right to block mail from any source which Redbud
Services 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 Redbud Services hosting services or
Redbud Services’ Equipment.
7.16.
You shall at all times use Web
Site Space exclusively as a conventional Web Site. You shall not use
the Web Site Space or Your Services in any way which may result in
an excessive load on the Redbud Services Equipment, including but
not limited to installing or running web proxies, using your
allotted space as online backup or storage, or mirroring mass
downloads. Use of Web Site Space and Your Services shall be in a
manner consistent with this Agreement and shall not in any way
impair the functioning or operation of Redbud Services’ Equipment or
network. Should your use of the Redbud Services hosting services
result in an overly high load on the Redbud Services Equipment, in
Redbud Services’ sole discretion, Redbud Services 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 Redbud Services hosting services and that no taxing
authorities shall have any claim against Redbud Services 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 Redbud Services hosting
services. Residents of countries which are serviced by a Redbud
Services affiliate are required to contract with those Redbud
Services 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 Redbud Services 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 Redbud Services hosting services unless expressly
permitted by the terms and conditions of Your Services.
8. CONFIDENTIALITY, TRADEMARK,
AND COPYRIGHT
8.1
During the course of this
Agreement you may gain access to certain confidential, proprietary
and trade secret business or technical information belonging to
Redbud Services in connection with Redbud Services’ performance of
the Redbud Services hosting services ("Confidential Information").
You agree to preserve the confidentiality of all Confidential
Information that is provided in connection with the Agreement, and
shall not, without the prior written consent of Redbud Services,
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 Redbud Services. Redbud Services retains all right and title to
such Confidential Information.
8.2
Redbud Services is a service mark
of Redbud Services LLC. All rights reserved. The trademarks, logos,
and service marks displayed on this Web Site (collectively, the
"Marks") belong Redbud Services and/or its affiliates or third
parties which have licensed those rights to Redbud Services
("Partners"); Redbud Services 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 Redbud Services’ Web Site are the property of
their respective owners.
8.3
Unless expressly stated otherwise
on the Redbud Services Web Site, you should assume that all content,
images, and materials appearing on this Web Site (collectively the
"Redbud Services Content") are the sole property of Redbud Services.
Both U.S. and international copyright laws and treaties protect such
Redbud Services Content. You may not use, reproduce, display, or
sell any Redbud Services Content without Redbud Services’ prior
written consent. You may not link to any page within Redbud
Services’ Web Site or frame any portion of the site without Redbud
Services’ prior written consent.
9. YOUR INDEMNIFICATION OF
REDBUD SERVICES.
You agree that you shall fully
defend and indemnify Redbud Services, 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 Redbud Services, 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 Redbud Services 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 Redbud
Services and you, nor shall anything in this Agreement be construed
as constituting or creating any such agency, joint or collaborative
venture, or partnership between Redbud Services and you. Redbud
Services shall have no control or ownership interests of any kind in
your business. Redbud Services 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 Redbud Services hosting
services or Redbud Services' Equipment. Redbud Services'
relationship to you shall be restricted to matters pertaining to the
provision of the Redbud Services hosting services as set forth in
this agreement.
11. REDBUD SERVICES 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
Redbud Services, any agent or representative of Redbud Services, 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 Redbud Services hosting services or Redbud Services’
Equipment as set forth herein or otherwise;
11.1.2.
the possibility or likelihood
that use of any products and/or hosting services provided by Redbud
Services pursuant to this Agreement can or will result in the
recoupment of any funds expended by you for any purpose; or
11.1.3.
the existence, nonexistence, size
or any other characteristics of any market for any products or
hosting services which involve your use, in any manner, of the
Redbud Services hosting services or Redbud Services’ 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 Redbud Services hosting services and/or
Redbud Services’ 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 Redbud Services. You further
expressly agree not to raise any claim of any kind against Redbud
Services and to hold Redbud Services harmless from any claim of
financial investment or other loss to you directly or indirectly
resulting from your decision to use the Redbud Services hosting
services and/or Redbud Services’ Equipment pursuant to this
Agreement.
12. SERVICES RENDERED ON A
NON-EXCLUSIVE BASIS.
Any and all hosting services
which are or may be provided to you by Redbud Services pursuant to
this Agreement, including the licensure of rights herein, are
non-exclusive and nothing in this Agreement shall limit or restrict
Redbud Services from providing similar hosting 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 Redbud Services from engaging in any activities
similar to yours or in competition with you.
13. NO EDITORIAL CONTROL BY
REDBUD SERVICES.
In reliance on your express
warranties regarding Your Data, Redbud Services shall neither have
nor exert any editorial or other subjective control over the
substantive content of Your Data . Redbud Services 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. Redbud Services 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 hosting 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. Redbud Services may
accept prepayment for hosting 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, Redbud Services 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 Redbud Services 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 Redbud Services 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 Redbud Services
without cause pursuant to Section 14.3. or as otherwise agreed to in
writing by Redbud Services in its sole discretion.
14.3.
You or Redbud Services may
terminate this Agreement at any time for any reason, with or without
cause, upon thirty days' written notice. Redbud Services 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 Redbud Services, 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, or
14.3.3.
if payment for the Redbud
Services hosting services is more than fifteen days overdue.
14.4.
You further agree that in the
event that Redbud Services 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 Redbud Services’ Equipment, that
Redbud Services may without any liability to you, and in addition to
any other remedies, erase or purge such materials from Redbud
Services’ 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. Redbud Services accepts
no liability for such deleted information or content.
15. PRIVACY.
15.1.
It is Redbud Services’ policy to
respect your privacy. Redbud Services will not monitor, edit, or
disclose any personal information about you or your account,
including its contents, without your prior consent unless Redbud
Services 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 Redbud Services or its officers, agents, affiliates, and
licensees;
15.1.3.
enforce this Agreement; or
15.1.4.
protect the interests of other
Redbud Services customers.
15.2.
NOTWITHSTANDING THE PROVISIONS OF
THIS AGREEMENT TO THE CONTRARY, REDBUD SERVICES 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 Redbud Services
hosting services. Redbud Services 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 Redbud Services Privacy Policy.
15.4.
INTERNATIONAL CUSTOMERS
UNDERSTAND AND AGREE THAT THE
Redbud Services hosting
services ARE PROVIDED BY
Redbud Services IN
THE UNITED STATES OF AMERICA. THE PERSONAL INFORMATION WHICH YOU
GIVE Redbud Services
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
Redbud Services HOSTING SERVICE. INTERNATIONAL CUSTOMERS
FURTHER UNDERSTAND AND AGREE THAT
Redbud Services 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 Redbud Services 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 Redbud Services.
18. NOTICES.
18.1.
Redbud Services 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 Redbud
Services. 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 Redbud
Services 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, Redbud Services
LLC, P.O. Box 328, Buchanan, MI 49107;
18.2.3.
by Federal Express;
18.2.4.
by facsimile transmission; or
18.2.5.
by e-mail and registered or
certified mail.
18.3.
Such notice, statement or other
document so delivered to Redbud Services, 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 Redbud Services
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 Redbud Services shall be deemed effective
as of the date on which Redbud Services receives the certified or
registered mail notice.
19. FORCE MAJEURE.
19.1.
In the event of "force majeure"
(as defined below), Redbud Services may terminate this Agreement
without liability to you. For purposes of the Agreement, "force
majeure" shall mean circumstances or occurrences beyond Redbud
Services’ reasonable control, whether or not foreseeable at the time
of entering into the Agreement, in consequence of which Redbud
Services 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 Redbud
Services hosting services are located or maintained or through which
the Redbud Services hosting services are provided, and
nonavailability of any permits, licenses and/or authorizations
required by governmental authority.
19.2.
Redbud Services reserves the
right at any time and from time to time to modify or discontinue,
temporarily or permanently, the Redbud Services hosting services (or
any part thereof) with or without notice. You agree that Redbud
Services shall not be liable to you or to any third party for any
modification, suspension or discontinuance of the Redbud Services
hosting services.
20. NO ASSIGNMENT BY YOU;
ASSIGNMENT BY Redbud
Services.
This Agreement and the rights
pertaining hereto may not be assigned, resold, or otherwise
transferred in whole or in part by you without Redbud Services’
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.
Redbud Services 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 BUCHANAN, MICHIGAN 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. Any action to confirm
or vacate such an award must be brought in either Buchanan, Michigan
or the United States District Court for the Western District of
Michigan. 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 Redbud Services shall be
entitled to collect its attorneys' fees, costs and other expenses in
the event that Redbud Services acts to enforce this arbitration and
forum selection clause, regardless of whether Redbud Services
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 common law of the
state of Michigan 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 Redbud Services
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 Redbud Services 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. Any action under this section
21.3 may be brought in either the United States District Court for
the Western District of Michigan or the Circuit Court for Berrien
County Michigan, and each party consents to the in person and
jurisdiction of such Courts for the purpose of any such action or
proceeding. Each party hereby waives all rights it has or which may
hereafter arise to contest such exclusive jurisdiction of the United
States District Court for the Western District of Michigan or the
Circuit Court for Berrien County Michigan.
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 REDBUD SERVICES 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 Redbud Services
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 REDBUD SERVICES
ACKNOWLEDGE THAT THIS SECTION 21.5 WAIVES ANY RIGHT TO PARTICIPATION
AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION
21.6
This Agreement shall be
interpreted according to the laws of the state of Michigan, United
States of America, and, where applicable, the federal law of the
United States of America, without regard to conflicts of law
principles.
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 Redbud Services 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 Redbud Services and you hereby
acknowledge and agree that neither Redbud Services 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 Redbud Services by posting the new version of the
Agreement at
home.tqci.com and if posted in this manner, shall be effective
immediately upon posting such notice. In the event that Redbud
Services 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 Redbud Services. 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.
MODIFICATION OF TERMS.
REDBUD
SERVICES reserves the right to change or
modify the terms, conditions, rates or services at any time, without any
prior notification.
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