Effective as of 1/1/2002
Notice: This is the text displayed in the sign-up for services are of the www.esseff.com web site. As this site is not published a copy is provided here for your reading. It will be referred to simply as "Terms of Service" and your usage, purchase or signing an "Internet Services Agreement" of subscriber products from esseff Digital will be the equivalent of CLICKING THE "I ACCEPT" BUTTON during a computer sign up.
You must register and accept the terms of this Agreement in order to use the Services. BY CLICKING ON THE "I ACCEPT" BUTTON DURING SIGNUP, AND REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES INCORPORATED BY REFERENCE. Esseff Digital, LLC reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Addendum and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Any changes or modification will be effective upon posting of the revisions on the Esseff Digital, LLC Web site (the "Site"). Esseff Digital, LLC will post a notice of such changes or modifications to this Agreement or the Addendum on the Site for thirty (30) days. Esseff Digital, LLC may post changes or modifications to referenced Acceptable Use Policies without notice to you. Your continued use of Services following Esseff Digital, LLC's posting of any changes or modifications will constitute your acceptance of such changes or modifications. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT (OR THE ADDENDUM IF THEY APPLY TO YOU), DO NOT CLICK THE "I ACCEPT" BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFICATION, DO NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY ESSEFF DIGITAL, LLC OF YOUR TERMINATION OF THIS AGREEMENT.
1. Term and Payment for Services
1.1. Term. This Agreement shall be for an "Initial Term" as chosen by you in the Order Form located on this Site at the time you register for the Services. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide Esseff Digital, LLC with notice of termination thirty (30) days prior to the end of the Initial Term or the Renewal Term. You must provide Esseff Digital, LLC with your notice of termination in writing or as otherwise provided by this Agreement. Upon canceling service, you will be asked to provide Esseff Digital, LLC with sufficient customer identification information so that Esseff Digital, LLC may properly identify you and your account. Any notice of termination will be effective following thirty (30) days after Esseff Digital, LLC's receipt thereof.
1.2. Termination Policy. If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) Esseff Digital, LLC will refund to you any fees paid in advance of such termination and (b) the refunded amount shall be equal to the discounted amount of the remainder of whole months remaining in the billing cycle, less the plan period discount applicable to the whole number of months in which service has already been provided. Notwithstanding the foregoing, if you terminate your receipt of Hosting Services prior to the end of the first thirty (30) days of the Initial Term, you are entitled to a refund of the fees you paid in advance for the monthly Services, not including any set-up fees. Your termination request or notice must be submitted to Esseff Digital, LLC in the manner described in Section 1.1.
1.3. Default and Cure. In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within fifteen (15) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.
1.4. Billing Cycles. Esseff Digital, LLC allows customers to select from several billing cycles when completing the online signup process, including, but not limited to (a) monthly billing, (b) quarterly billing, and (c) annual billing. Esseff Digital, LLC will bill Customer according to the following schedule:
1.) Monthly. Subsequent billings to occur approximately 30 days from the initial signup date.
2.) Quarterly. Subsequent billings to occur approximately 90 days from the initial signup date.
3.) Annual. After initial signup date, billing cycles to occur at intervals of approximately 365 days, with the amount of each billing being equal to the discounted annual total billing amount.
1.5. Charges. You agree to pay for all charges attributable to your use of the Services at the then current Esseff Digital, LLC prices, which shall be exclusive of any applicable taxes. You are responsible for the payment of all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on Esseff Digital, LLC's net income.
1.6. Payment. All charges for Services must be paid in advance according to the then current prices applicable to the Services. Upon entering this Agreement, you must choose to pay either by direct charge to a credit or debit card. Since you are required to pay by credit or debit card upon registering for the Services, you thereby authorize Esseff Digital, LLC to charge your credit or debit card to pay for any charges that may apply to your account. You agree that Esseff Digital, LLC may accumulate any supplemental charges, incurred by you in your use of the Services ("Supplemental Charges") until such charges exceed $20 and then charge your account. You must notify Esseff Digital, LLC of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Esseff Digital, LLC from charging your account. If you fail to pay any fees and taxes within five (5) days from applicable due date for credit card or invoice payments, late charges of the lesser of one and one-half per cent (1.5%) per month or the maximum allowable under applicable law shall also become payable by you to Esseff Digital,
LLC. In addition, your failure to fully pay any fees and taxes within seven (7) days after the applicable due date will be deemed a material breach of this Agreement, justifying Esseff Digital, LLC's suspension of its performance of the Services and/or termination of this Agreement. You are responsible for any fees associated with reinstatement of Services. Any such suspension or termination would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.
2. Use of Services
2.1. Applicable Use Policy. The Esseff Digital, LLC Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services. The Usage Policy is posted on Esseff Digital, LLC's Web site (or such other location as Esseff Digital, LLC may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. ESSEFF DIGITAL, LLC RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
2.2. Material and Product Requirements. Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on Esseff Digital, LLC's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Esseff Digital,
LLC. Esseff Digital, LLC will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", Esseff Digital, LLC has the option at any time to reject this material. Esseff Digital, LLC will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Esseff Digital,
LLC. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not Esseff Digital, LLC's responsibility to provide this knowledge or customer support outside of the Services agreed to by you and Esseff Digital,
2.3. Bandwidth and Storage Usage. You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to pay the associated additional charges.
2.3.1 Bandwidth Availability. Each account shall have a maximum capability of supporting 2 Mbps (or approximately 630GB per month) sustained throughput. This capacity is approximately equal to 80% utilization of two (2) T-1 lines per account. Additional bandwidth can be utilized by the customer, and will be billed in accordance with Section 2.3.2 the Terms of Service agreement. The decision on the method to be used in the computation of billing charges for bandwidth overages shall be made at the discretion of the customer, and will be subject to change by the customer in six month intervals.
2.3.2 Bandwidth Overages.
A. Managed Bandwidth Service:
Esseff Digital, LLC will adjust the maximum throughput limit to higher than 2 Mbps in 1 Mbps increments at the request of the customer. Each 1 Mbps addition shall be billed at the rate of $1500 / month. These adjustments can be made by e-mailing
firstname.lastname@example.org. This method provides the customer maximum control of bandwidth overage cost control by providing a maximum burstable threshold for the account.
B. Unmanaged Bandwidth Service:
Bandwidth overages shall be computed using the 95th percentile method, using a 15 minute sampling interval. This method will bill the customer based on the compilation of all 15 minute readings at the end of the calendar month, then eliminating the top 5% of all readings, and using the remaining next-to-highest reading to compute the actual used bandwidth for the account. The resulting computation of sustained throughput shall be rounded to the nearest 1/10 of 1 Mbps, and multiplied times the $1500 / Mbps rate to obtain the final billing amount for the period.
2.3.3 Disk Space Overages:
Disk space overages shall be computed using the 95th percentile method, using a 24 hour sampling interval. This method will bill the customer based on the compilation of all 24 hour readings at the end of the calendar month, then eliminating the top 5% of all readings, and using the remaining next-to-highest reading to compute the actual used disk space for the account. The resulting computation of disk space overage shall be rounded up the nearest 100 MB interval, and multiplied times the $50 / 100 MB rate to obtain the final billing amount for the period.
2.4 Uptime guarantee. Esseff Digital, LLC shall make all reasonable attempts to provide a 99.93% server uptime. The 99.93% uptime shall be monitored and computed as the aggregate uptime of each calendar month. In the case that Esseff Digital, LLC fails to provide uptime equal to, or in excess of 99.93%, customer shall be credited an amount that is equal to the prorated amount of time that service was not available. The credited amount shall be rounded to the nearest quarter hour, and shall be applied at the subscribed billing amount, including any discounts given.
3.1. Investigation of Violations. Esseff Digital, LLC may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. Esseff Digital, LLC will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
3.2. Actions. Esseff Digital, LLC reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, Esseff Digital, LLC may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on Esseff Digital, LLC's systems, and/or (d) disabling or removing any hypertext links to third-party Web sites, any of your content distributed or made available for distribution via the Services, or other content not supplied by Esseff Digital, LLC which, in Esseff Digital, LLC's sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes or potentially exposes Esseff Digital, LLC to civil or criminal liability or public ridicule. It is Esseff Digital, LLC's policy to terminate repeat
infringers. Esseff Digital, LLC's right to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If Esseff Digital, LLC takes corrective action due to such possible violation, Esseff Digital, LLC shall not be obligated to refund to you any fees paid in advance of such corrective action.
3.3. Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect Esseff Digital, LLC's systems and customers, or to ensure the integrity and operation of Esseff Digital, LLC's business and systems, Esseff Digital, LLC may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on Esseff Digital, LLC's servers and systems. Esseff Digital, LLC also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
4. Intellectual Property Rights
4.1. Your License Grant to Esseff Digital, LLC. You hereby grant to Esseff Digital, LLC a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to Esseff Digital, LLC a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
4.2. Esseff Digital, LLC Materials and Intellectual Property. All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Esseff Digital, LLC or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Esseff Digital, LLC to provide the Services to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Esseff Digital, LLC or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Esseff Digital, LLC during the term of this Agreement. Unauthorized copying, reverse engineering,
decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
4.3. Trademarks. You hereby grant to Esseff Digital, LLC a limited right to use your trademarks, if any, for the limited purpose of permitting Esseff Digital, LLC to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sublicense use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate upon termination of this Agreement.
5. Warranty; Warranty Disclaimer.
5.1. Customer and/or Third Party Acts. Esseff Digital, LLC is not responsible in any manner for any nonconforming Services to the extent caused by you or your customers. In addition, Esseff Digital, LLC is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond Esseff Digital, LLC's reasonable control.
5.2. No Express or Implied Warranty. ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY ESSEFF DIGITAL, LLC UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT ESSEFF DIGITAL, LLC EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH ESSEFF DIGITAL, LLC'S COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. ESSEFF DIGITAL, LLC DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ESSEFF DIGITAL, LLC DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADESECRET OR TRADEMARK INFRINGEMENT.
5.3 Your Warranties and Representations to Esseff Digital, LLC. You warrant, represent, and covenant to Esseff Digital, LLC that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all
authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
6. Limitation and Exclusion of Liability
6.1. Limitations. IN NO EVENT SHALL ESSEFF DIGITAL, LLC HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. ESSEFF DIGITAL, LLC SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF ESSEFF DIGITAL, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF ESSEFF DIGITAL, LLC TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO ESSEFF DIGITAL, LLC BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY ESSEFF DIGITAL, LLC UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE ESSEFF DIGITAL, LLC FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
6.2. Interruption of Service. You hereby acknowledge and agree that Esseff Digital, LLC will not be liable for any temporary delay, outages or interruptions of the Services. Further, Esseff Digital, LLC shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
7. Indemnification. You will defend, indemnify and hold harmless Esseff Digital, LLC and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an
"Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to:
(i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your improper or illegal use of the Services; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by Esseff Digital,
LLC; or (iii) any claim relating to your services or products, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or non-proprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).
8.1. Confidentiality. The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written consent of the other party except as permitted under this Agreement. "Confidential Information" means all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services; or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs, product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure. If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.
8.2. Notices. All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.
8.3. Choice of Law and Forum. THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF OREGON, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN OREGON, AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS.
8.4. Entire Agreement. This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by an agreement in writing signed by both parties.
8.5. No Fiduciary Relationship; No Third-Party Beneficiaries. Esseff Digital, LLC is not the agent, fiduciary, trustee or other representative of you. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
8.6. Assignments. You may not transfer or assign your rights, duties, or obligations under this Agreement without Esseff Digital, LLC's prior written consent. Esseff Digital, LLC may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement, without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.
8.7. No Waiver. Esseff Digital, LLC's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Esseff Digital, LLC's right to subsequently enforce such provision or any other provisions under this Agreement.
8.8. Severability. If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
8.9. Survival. All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
Acceptable Use Policy
As a provider of web site hosting, and other Internet-related services, Esseff Digital, LLC offers its customers (also known as subscribers), and their customers and users, the means to acquire and disseminate a wealth of public, private, commercial, and non-commercial information. Esseff Digital, LLC respects that the Internet provides a forum for free and open discussion and dissemination of information, however, when there are competing interests at issue, Esseff Digital, LLC reserves the right to take certain preventative or corrective actions. In order to protect these competing interests, Esseff Digital, LLC has developed an Acceptable Use Policy
("AUP"), which supplements and explains certain terms of each customer's respective service agreement and is intended as a guide to the customer's rights and obligations when utilizing Esseff Digital, LLC's services. This AUP will be revised from time to time. A customer's use of Esseff Digital, LLC's services after changes to the AUP are posted on Esseff Digital, LLC's web site, www.Esseff Digital,
LLC.com, will constitute the customer's acceptance of any new or additional terms of the AUP that result from those changes.
One important aspect of the Internet is that no one party owns or controls it. This fact accounts for much of the Internet's openness and value, but it also places a high premium on the judgment and responsibility of those who use the Internet, both in the information they acquire and in the information they disseminate to others. When subscribers obtain information through the Internet, they must keep in mind that Esseff Digital, LLC cannot monitor, verify, warrant, or vouch for the accuracy and quality of the information that subscribers may acquire. For this reason, the subscriber must exercise his or her best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because Esseff Digital, LLC cannot monitor or censor the Internet, and will not attempt to do so, Esseff Digital, LLC cannot accept any responsibility for injury to its subscribers that results from inaccurate, unsuitable, offensive, or illegal Internet communications.
When subscribers disseminate information through the Internet, they also must keep in mind that Esseff Digital, LLC does not review, edit, censor, or take responsibility for any information its subscribers may create. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the information they create is carried over Esseff Digital, LLC's network and may reach a large number of people, including both subscribers and nonsubscribers of Esseff Digital,
LLC, subscribers' postings to the Internet may affect other subscribers and may harm Esseff Digital, LLC's goodwill, business reputation, and operations. For these reasons, subscribers violate Esseff Digital, LLC policy and the service agreement when they, their customers, affiliates, or subsidiaries engage in the following prohibited activities:
Spamming -- Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming"). It is not only harmful because of its negative impact on consumer attitudes toward Esseff Digital,
LLC, but also because it can overload Esseff Digital, LLC's network and disrupt service to Esseff Digital, LLC subscribers. Also, maintaining an open SMTP relay is prohibited. When a complaint is received, Esseff Digital, LLC has the discretion to determine from all of the evidence whether the email recipients were from an "opt-in" email list.
Intellectual Property Violations -- Engaging in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Also, engaging in activity that violates privacy, publicity, or other personal rights of others. Esseff Digital, LLC is required by law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also Esseff Digital, LLC's policy to terminate the privileges of customers who commit repeat violations of copyright laws.
Obscene Speech or Materials -- Using Esseff Digital, LLC's network to advertise, transmit, store, post, display, or otherwise make available pornography or obscene speech or material. Also, Esseff Digital, LLC is required by law to notify law enforcement agencies when it becomes aware of the presence of child pornography on or being transmitted through Esseff Digital, LLC's network.
Defamatory or Abusive Language -- Using Esseff Digital, LLC's network as a means to transmit or post defamatory, harassing, abusive, or threatening language.
Forging of Headers -- Forging or misrepresenting message headers, whether in whole or in part, to mask the originator of the message.
Illegal or Unauthorized Access to Other Computers or Networks -- Accessing illegally or without authorization computers, accounts, or networks belonging to another party, or attempting to penetrate security measures of another individual's system (often known as "hacking"). Also, any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity).
Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities -- Distributing information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mail bombing, or denial of service attacks. Also, activities that disrupt the use of or interfere with the ability of others to effectively use the network or any connected network, system, service, or equipment.
Facilitating a Violation of this AUP -- Advertising, transmitting, or otherwise making available any software, program, product, or service that is designed to violate this
AUP, which includes the facilitation of the means to spam, initiation of pinging, flooding, mail bombing, denial of service attacks, and piracy of software.
Export Control Violations -- Exporting encryption software over the Internet or otherwise, to points outside the United States.
Usenet Groups -- Esseff Digital, LLC reserves the right not to accept postings from newsgroups where we have actual knowledge that the content of the newsgroup violates the
Other Illegal Activities -- Engaging in activities that are determined to be illegal, including advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software.
Other Activities -- Engaging in activities, whether lawful or unlawful, that Esseff Digital, LLC determines to be harmful to its subscribers, operations, reputation, goodwill, or customer relations.
As we have pointed out, the responsibility for avoiding the harmful activities just described rests primarily with the subscriber. Esseff Digital, LLC will not, as an ordinary practice, monitor the communications of its subscribers to ensure that they comply with Esseff Digital, LLC policy or applicable law. When Esseff Digital, LLC becomes aware of harmful activities, however, it may take any action to stop the harmful activity, including but not limited to, removing information, shutting down a web site, implementing screening software designed to block offending transmissions, denying access to the Internet, or take any other action it deems appropriate.