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LEGAL The Digital Millennium Copyright Act ("DMCA") sets forth the law regarding the use of copyrighted materials on the Internet. All Servmatix customers are subject to the requirements of the DMCA. Individuals or entities submitting notifications of copyright infringement by a Servmatix customer (per the DMCA) to Servmatix must follow the below procedures. Customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at Servmatix's sole discretion. DMCA Copyright Infringement Notification Requirements: -
Physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf (the "Claimant"). -
Identification of the copyrighted work(s) claimed to have been infringed. -
Identification of the material claimed to infringe the copyright(s), and enough information for Hostway to locate it including URLs and specific descriptions of the infringing material at each URL. -
The Claimant's name, address, and telephone number(s). -
A statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or his agent. -
A statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner. -
Send the notification via mail, email, or fax to:
Servmatix inc.
Legal Department - DMCA Complaints
15349 S. Eagle Crest Drive
Draper, UT 84020
Email:
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Fax: 303-325-3974
The DMCA contains very specific guidelines as to what proper notification of claimed infringement must contain. Copyright owners may obtain a copy of the DMCA, including these guidelines, by visiting the web site of the U.S. Copyright Office at http://www.copyright.gov/title17/92chap5.html#512.
DMCA Counter Notification Requirements: -
Physical or electronic signature of the Customer (ie., allegedly infringing web site's owner) or a person authorized to act on the Customer's behalf. -
Identification of the copyrighted work(s) claimed to have been infringed. -
Identification of the material claimed to infringe the including URLs and specific descriptions of the infringing material at each URL. -
The Customer's name, address, and telephone number(s). -
A statement under penalty of perjury that the Customer has a good faith belief that the material was removed or disabled or is a result of a mistake or misidentification. -
A statement that the Customer consents to the jurisdiction of Federal District Court for the judicial district in which the Customer's address is located, or if the Customer's address is outside the U.S., for any judicial district in which the service provider may be found, and that the Customer will accept service of process from the complainant (or agent thereof). -
Email the counter notification to
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Child Pornography The use of Servmatix's services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Servmatix is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, its services. Customer Security Responsibilities
The customer is solely responsible for any breaches of security affecting servers under customer control. If a customer's server is involved in an attack on another server or system, it will be shut down and an immediate investigation will be launched to determine the cause/source of the attack. In such event, the customer is responsible for the cost to rectify any damage done to the customer's server and any other requirement affected by the security breach. IRC
Servmatix Inc. allows Dedicated Server customers the use of IRC inside the Servmatix Inc. network as long as the use of IRC on a Servmatix Inc. server does not violate any of the other terms of these TOU. As a policy, Servmatix Inc. will not provide vanity IRC reverse DNS records. To enforce this policy Servmatix Inc. does not turn the reverse address of IPs over to the customer. Authority over this information remains with Servmatix Inc.. Billing for Network Resources
The customer understands that the customer is responsible for paying for any network resources that are used to connect the customer's server to the Internet. The customer may request that the customer's server be disconnected from the Internet, but the customer will still be responsible for paying for any network resources used up to the point of suspension or cancellation.
Email Accounts
All email accounts (including, but not limited to POP email accounts) that have not been logged into for a period of 4 consecutive months or more shall be deemed abandoned and Servmatix Inc. shall have the right to delete the email account (“Abandoned Mailbox”) and/or all emails residing in such Abandoned Mailbox (“Abandoned Emails”).
At least 2 weeks in advance, Servmatix Inc. shall send to the master email account a notice that the Abandoned Mailbox and/or the Abandoned Emails shall be deleted if the user or customer does not log into the Abandoned Mailbox within 2 weeks.
Servmatix Inc. has the right to delete all content stored in any of customer’s spam folders or email accounts for 30 days or more.
Servmatix Inc. Services
Servmatix Inc.'s services include, but are not limited to:
1.any act of preparing, setting up, connecting, maintaining, terminating, or reconnecting customers' account (including all billing data and the space on the particular Web server that Servmatix Inc. provides to customers);
2. any use by customers, or any access provided to customers by Servmatix Inc., of computing, telecommunications, software, information, hardware, and equipment;
3.any act, or provision of any service, by Servmatix Inc. to customers, related to Web hosting and domain name registrations (including server usage and technical support), regardless of duration and whether paid for or not;
4.any provision by Servmatix Inc. to customers, of any space, Internet connectivity, or electrical power;
5.any access or use related to the Servmatix Inc.'s Web site, including the Web site itself;
6. any other service mentioned in the TOU;
7. any other service provided by Servmatix Inc. to customers, whether used or not;
8. any other Servmatix Inc. services that are used by customers, whether offered or provided by Servmatix Inc. to customers.
Ownership of Web Site
The legal owner of customers' Web sites and accounts with Servmatix Inc. will be the individual or organization whose name is listed in Servmatix Inc.'s database as the owner. Customers will fully cooperate with and abide by any and all of Servmatix Inc.'s security measures and procedures in the event of any dispute over ownership of customers' Web sites and accounts with Servmatix Inc..
Email Accounts
All email accounts (including, but not limited to POP email accounts) that have not been logged into for a period of 4 consecutive months or more shall be deemed abandoned and Servmatix Inc. shall have the right to delete the email account (“Abandoned Mailbox”) and/or all emails residing in such Abandoned Mailbox (“Abandoned Emails”).
At least 2 weeks in advance, Servmatix Inc. shall send to the master email account a notice that the Abandoned Mailbox and/or the Abandoned Emails shall be deleted if the user or customer does not log into the Abandoned Mailbox within 2 weeks.
Servmatix Inc. has the right to delete all content stored in any of customer’s spam folders or email accounts for 30 days or more. Illegal Use
Servmatix Inc. servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Additionally, in purchasing Servmatix Inc. services, all Servmatix Inc. customers certify that they and/or the organization they represent in procuring services from Servmatix Inc. are not, nor have been designated, a suspected terrorist as defined in Executive Order 13224; are not owned or controlled by a 'suspected terrorist' as defined in Executive Order 13224; and are not on, are not a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all updates thereto. Spamming
Sending unsolicited bulk and/or commercial messages over the Internet (known as "spamming") is prohibited, regardless of whether or not it overloads a server or disrupts service to Servmatix Inc.'s customers. The term "spamming" also includes, but is not limited to, maintaining an open SMTP policy, engaging in spamming using the service of another ISP or IPP and referencing in the spam a Web site hosted on a Servmatix Inc. server, and selling or distributing software (on a Web site residing on a Servmatix Inc. server) that facilitates spamming. Violators will be assessed a minimum fine of US$200 and will face immediate suspension. Servmatix Inc. reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision. System and Network Abuse
Violations of system or network security are prohibited and may result in criminal and civil liability. Examples of system or network security violations include, without limitation the following: unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting. Viruses and Other Destructive Activities
Use of Servmatix Inc.'s services or equipment for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any customer to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use Servmatix Inc.'s services and equipment (or any connected network, system, service or equipment) or conduct their business over the Internet.
Customer Responsibility
Customers are required to use the Servmatix Inc. network responsibly. This includes respecting the other customers of Servmatix Inc.. Servmatix Inc. reserves the right to suspend and/or cancel service with any customer who uses the Servmatix Inc. network in such a way that adversely affects other Servmatix Inc. customers. While Servmatix Inc. may monitor its service electronically to determine that its facilities are operating satisfactorily, as a general practice, Servmatix Inc. does not monitor its customers' communications or activities to determine whether they are in compliance with the TOU. However, when Servmatix Inc. becomes aware of any violation of the TOU or other user agreements, Servmatix Inc. may take any action to stop or correct such violation, including, but not limited to, denying access to Servmatix Inc.'s services and equipment or to the Internet. In addition, Servmatix Inc. may take action against a customer or a customer of such customer because of the activities of such customer. Servmatix Inc. anticipates that customers who offer Internet services will cooperate with Servmatix Inc. in any corrective or preventive action that Servmatix Inc. deems necessary. Failure to cooperate with such corrective or preventive measures is a violation of Servmatix Inc. policy and Servmatix Inc. reserves the right to take any such action even though such action may affect other customers of the Servmatix Inc. customer. Actions Taken by Servmatix Inc.
The failure by a customer to meet or follow any of the TOU is grounds for account deactivation. Servmatix Inc. will be the sole arbiter as to what constitutes a violation of the TOU. Servmatix Inc. reserves the right to remove any account without prior notice and to refuse service to anyone at any time. When Servmatix Inc. becomes aware of an alleged violation of its TOU, Servmatix Inc. will initiate an investigation. During the investigation, Servmatix Inc. may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, Servmatix Inc. may, at its sole discretion, restrict, suspend, or terminate a customer's Web hosting account and/or pursue other civil remedies. If such violation is a criminal offense, Servmatix Inc. will notify the appropriate law enforcement authorities of such violation. An unlisted activity may also be a violation of the TOU if it is illegal, irresponsible, or constitutes disruptive use of the Internet. Servmatix Inc. does not issue credits for outages incurred through service disablement resulting from TOU violations. Violators of the policy are responsible, without limitations, for the cost of labor to rectify any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Servmatix Inc.. Indemnification
Servmatix Inc. customers agree to protect, defend, hold harmless, and indemnify Servmatix Inc., any third party entity related to Servmatix Inc. (including, without limitation, third party vendors), and Servmatix Inc.'s executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and affiliates, from and against any and all liabilities, losses, costs, judgments, damages, claims, or causes of actions, including, without limitation, any and all legal fees and expenses, arising out of or resulting in any from the customer's use of Servmatix Inc.'s services.
Disclaimer
The Servmatix Inc. service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. Servmatix Inc. expressly disclaims any representation or warranty that the Servmatix Inc. service will be error-free, secure or uninterrupted. No oral advice or written information given by Servmatix Inc., its employees, licensors or the like, will create a warranty; nor may you rely on any such information or advice. Servmatix Inc. and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service. Termination for Bankruptcy or Insolvency
If a customer becomes insolvent or any bankruptcy petition is filed by the customer, or any third party against the customer, Servmatix Inc. may immediately terminate provision of Servmatix Inc.'s services to the customer without prior notice or penalty. Such customer consents to the grant of relief from any automatic stay of proceedings against Servmatix Inc. in such event. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO THEORY OF LAW OR EQUITY, WILL Servmatix Inc. (INCLUDING, WITHOUT LIMITATION, Servmatix Inc.'S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING Servmatix Inc.'S SERVICES, BE LIABLE FOR THE LOSS OF A DOMAIN NAME, OR ANY BUSINESS OR PERSONAL LOSS, REVENUES DECREASE, EXPENSES INCREASE, COSTS OF SUBSTITUTE PRODUCTS AND/OR Servmatix Inc. SERVICES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF ANY USE OF, OR ANY INABILITY TO USE, ANY Servmatix Inc. SERVICES EVEN IF Servmatix Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Servmatix Inc.'S TOTAL CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOU OR Servmatix Inc.'S SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY Servmatix Inc. OR Servmatix Inc.'S REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, WILL BE LIMITED TO, AND WILL NOT EXCEED, THE ACTUAL DOLLAR AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS DURING THE 3-MONTH PERIOD PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION AROSE. Modifications Servmatix Inc. may discontinue, upgrade, replace, modify, or change in any way, without limitation, any software, application, program, data, hardware, equipment, or portions or components thereof, used to provide customers with Servmatix Inc.'s services. Certain changes to Servmatix Inc.'s services may affect the operation of customers' personalized applications and content. Each customer is solely responsible, and Servmatix Inc. is not liable, for any and all such personalized applications and content, except as expressly agreed to by Servmatix Inc.. Backup of Data
Except where Servmatix Inc. has expressly agreed in writing to the contrary, customers are solely and entirely responsible, and Servmatix Inc. is in NO way responsible, for the management and backup of all customer data, and all updates, upgrades, and patches to any software that customers use in connection with Servmatix Inc. services. Force Majeure
Servmatix Inc. will not be liable for delays in its performance of the TOU or Servmatix Inc. services caused by circumstances beyond Servmatix Inc.'s reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively "Force Majeure"). Servmatix Inc. will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of customers for the payment of money due.Waiver and AmendmentAny waiver, modification, or amendment of any provision of the TOU or other agreement for Servmatix Inc. services, initiated by a customer, will be effective only if accepted in writing and signed by an authorized representative of Servmatix Inc..
Third Party Providers
You agree that certain services may be provided by third party providers of Servmatix Inc. and that your use of such services may be subject to further agreements, policies, terms, and conditions in addition to those contained or referenced in this Agreement.
Assignment
Customers may not assign or delegate their rights or obligations under the TOU or other agreement for Servmatix Inc.'s services, either in whole or in part, without the prior written consent of Servmatix Inc..
Minimum Age Requirement
Servmatix Inc. customers must be at least 18 years of age. Any individual under the age of 18 years ("Minor") must have a parent or guardian accept the TOU in order for the Minor to become a Servmatix Inc. customer. A parent or guardian who accepts the TOU on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the TOU, including the timely and full payment of the charges for Servmatix Inc. services, and such primary liability will continue even when the Minor has attained the age of 18, unless the parent or guardian obtains Servmatix Inc.'s express written consent to the contrary. Any acceptance of the TOU or any other agreement for Servmatix Inc.'s services will be deemed null and void to the extent that Servmatix Inc. will not be liable in any way as a result of the Minor's age or legal incapacity or the Minor's use of Servmatix Inc.'s services. Governing Law and Severability
The TOU, and any other agreement for Servmatix Inc. services, will be governed by and construed in accordance with the laws of the State of Utah, USA without reference to its conflicts of laws principles. Any litigation or arbitration between a customer and Servmatix Inc. will take place in Utah, and the customer will consent to personal jurisdiction and venue in that jurisdiction. If any provision or portion of the TOU or other Servmatix Inc. agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the TOU or the agreement will continue in full force and effect. Independent Contractors Nothing in this Agreement will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between Servmatix Inc. and its customers. Each of Servmatix Inc. and its customers will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.
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