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@MACARLOHOST.NET
USER AGREEMENT
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PLEASE
READ THIS AGREEMENT CAREFULLY.
ORDERING OUR SERVICES YOU ARE AGREEING
TO BE BOUND BY THE TERMS OF THIS
AGREEMENT AND ALL TERMS AND CONDITIONS
INCORPORATED BY REFERENCE IN THIS
AGREEMENT, INCLUDING
@MACARLOHOST.NET'S PRIVACY POLICY
& ACCEPTABLE USAGE POLICY. YOUR
USE OF THE SERVICES ALSO CONSTITUTES
ACCEPTANCE OF THIS
AGREEMENT.
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1. INTRODUCTION
This User Agreement ("Agreement") is an agreement
between @MACARLOHOST.NET, a New York Company,
subsidiary of @Macarlo Networks, Incorporated, and
the party set forth in the related order form
(Customer) incorporated herein by reference
(together with any subsequent order forms
submitted by Customer, the "Order Form"), and
applies to the purchase of all services
(collectively, the "Services") ordered by Customer
on the Order Form. Such party is referred to in
this Agreement as "Customer" or "you".
@MacarloHost.Net reserves the right to reject this
Agreement for any reason or no reason, prior to
acceptance thereof by @MacarloHost.Net. Activation
of the Services shall indicate @MacarloHost.Net's
acceptance of this Agreement. Subject to the terms
and conditions of this Agreement, @MacarloHost.Net
will provide to Customer the Services selected by
Customer set forth on the Order Form.
2. AMENDMENT OF AGREEMENT
@MacarloHost.Net may amend or otherwise modify
this Agreement. Customer agrees that
@MacarloHost.Net's posting of any amendments or
modifications to this website
(
http://macarlohost.net/agreement.htm
shall constitute adequate notice to Customer and
that Customer shall periodically consult this web
page for any changes or amendments to this
Agreement. @MacarloHost.Net may, but is under no
obligation to, provide additional notice of any
amendment, modification or update of this
Agreement via e-mail to Customer. If any material
modification to this Agreement is unacceptable to
Customer it shall be Customer's responsibility to
terminate their subscription as provided in
Section 3 of this Agreement. If Customer does not
terminate the Agreement then Customer's continued
use will mean that Customer has accepted the
amended or modified Agreement.
3. DURATION OF AGREEMENT AND CANCELLATION
POLICY
The Initial Term shall begin upon confirmation of
Customer's order or commencement of the Services
to Customer and the Term's length shall be
indicated in the Order Form. After the Initial
Term, this Agreement shall automatically renew for
successive terms, equal in length to the Initial
Term, unless terminated or canceled by either
party as provided herein. During the Term this
agreement cannot be terminated by customer for any
reason.
This Agreement may be terminated by either party
by giving the other party written notice at least
30 days prior to the renewal/anniversary date of
the Term, or by @MacarloHost.Net in the event of
nonpayment by Customer or by @MacarloHost.Net, at
any time, without notice, if in @MacarloHost.Net's
judgment Customer has in any way breached this
Agreement.
If @MacarloHost.Net cancels this Agreement
pursuant to any of the terms outlined in this
agreement @MacarloHost.Net shall not refund to
Customer any fees paid or prepaid in advance of
such cancellation and Customer shall be obligated
to pay all fees and charges accrued prior to the
effectiveness of such cancellation. Prepaid
hosting fees are not refundable, if
@MacarloHost.Net terminates this agreement for
cause. @MacarloHost.Net shall also have the right
to charge customer a minimum of US$150.00
Breach-Of-Contract fee.
If prior to the end of the agreed on Term,
Customer cancels the Services for any reason, or
@MacarloHost.Net terminates the Agreement due to
Customer's breach of the @MacarloHost.Net User
Agreement or Acceptable Usage Policy, Customer
will be charged an early termination fee equal to
the fee for such account remaining in the term. At
no point shall customer receive a refund of any
prepaid service fees.
All sales are final! Except for a cancellation
within the first 15 days after of the service
(Limited Money-Back Guarantee) there is no
"Cooling-Off Period" and Customer can not cancel
this Agreement prior to the end of the Term as
provided herein for any reason. If Customer
cancels this Agreement before the end of the term
customer shall receive no refund for any prepaid
hosting fees and any such fees shall be forfitted.
In the event that Customer cancels within 15 days
of ordering the service by completing the
Cancellation Request Form @MacarloHost.Net will
refund the prepaid hosting fees only to Customer.
Setup fees, fees for additonal services as well as
fees paid for domain name registration are always
non-refundable. Customer acknowledges and agrees
that the Cancellation Request Form
is the ONLY WAY TO EFFECTIVELY CANCEL a web
hosting account with @MacarloHost.Net and meet
potential deadlines to trigger @MacarloHost.Net's
limited Money-Back Guaran tee or to avoid
automatic renewal. Any cancellation requests send
to or directed to @MacarloHost.Net by email and/or
phone and/or regular mail shall be null and void.
Customer also agrees that any request for a refund
shall be forfitted, if the Cancellation Request
Form has not been used to cancel a web hosting
account.
4. BILLING AND PAYMENT
All fees for web hosting or other Services are due
in advance and shall be in accordance with
@MacarloHost.Net's fee schedule, which is
incorporated herein by reference and may be
amended from time to time. In the event that
customer elects to pay with a credit card Customer
authorizes @MacarloHost.Net to charge all fees
owed to such credit card at the time or up to 30
days before they become due. Customer agrees to
pay a $25.00 (twenty-five dollars) late fee if
customer's account or accounts become more than
ten (10) calendar days overdue or if Customer's
credit card is not accepted when a charge is
processed. Fees for renewal periods after the
Initial term shall become due 30 days before the
first day of such renewal period. @MacarloHost.Net
may impose a debt service charge equal to one and
one-half percent (1.5%) of the overdue balance or
a lesser amount where required by law for each
month or portion thereof the overdue amount
remains unpaid. In addition, in the event that any
amount due @MacarloHost.Net remains unpaid five
(5) calendar days after such payment is due,
@MacarloHost.Net, in its sole discretion, may
immediately terminate this Agreement, and/or
withhold or suspend Services. Customer agrees that
@MacarloHost.Net may charge a $30.00 (thirty
dollars) fee to reinstate accounts that have been
terminated or suspended. All taxes, fees and
governmental charges relating to the Services
provided hereunder (other than income taxes of
@MacarloHost.Net) shall be paid by
Customer.
Customer agrees that @MacarloHost.Net may charge
in advance all fees due for the Services provided
to Customer under this agreement to the credit
card supplied by Customer during registration or
at any time thereafter anc customer specifically
agrees not to charge back any payments
@MacarloHost.Net processes through Customer's
credit card.
Customer acknowledges and specifically agrees that
chargebacks - which might occur if Customer
disputes @MacarloHost.Net charges directly with
Customer's credit card bank - are unlawful if
@MacarloHost.Net's service has been rendered. If
customer has a fee dispute with @MacarloHost.Net
he has to settle such dispute with
@MacarloHost.Net directly without initiating any
chargeback proceedures. Any chargeback will evoke
an automatic US$150 (one-hundred-fifty dollars)
service fee, without exception, for which customer
will be held responsible in future collecting
proceedures.
Returned checks will be assessed a $30.00 charge.
Incoming wire transfers will incurr a $25
charge.
5. SPECIAL PROVISIONS APPLICABLE TO
RESELLERS
@MacarloHost.Net from time to time may offer
reseller programs which will permit Customers to
resell certain of @MacarloHost.Net's products and
services. If Customer chooses to resell
@MacarloHost.Net services Customer shall remain a
@MacarloHost.Net customer for all purposes under
this agreement.
Customer agrees that if they resell
@MacarloHost.Net Services, the purchaser of those
resold services will become Customer's customer (a
"Reseller Customer"). A Reseller Customer shall
not become a Customer of @MacarloHost.Net, and
@MacarloHost.Net will not be required to provide
and technical or other support to any Reseller
Customer. Reseller agrees to take all necessary
measures to preclude @MacarloHost.Net from being
made a party to any agreement with any Reseller
Customer. Customer agrees and acknowledges that if
they become a Reseller they will be authorized to
resell @MacarloHost.Net provided Services on a
non-exclusive basis only. Customer's right to
resell @MacarloHost.Net services shall in no way
preclude @MacarloHost.Net from marketing and
selling @MacarloHost.Net's own products and
services through its own employees, affiliates,
other resellers or any other third party.
@MacarloHost.Net expressly reserves the right to
allow other third parties to resell
@MacarloHost.Net services on any terms @Mac
arloHost.Net may chose including terms which may
be more favorable to said third parties then they
are to @MacarloHost.Nete Reseller Customers.
Reseller acknowledges that the non-payment by any
customer of Reseller shall in no way relieve
Reseller of any duty in this agreement include the
duty to timely pay all fees. Reseller shall be
solely responsible for all sales, use, transfer,
privilege, excise or other taxes and duties which
are levied or imposed on @MacarloHost.Net and
Reseller under this Agreement and any and all
transactions between Reseller and Reseller
Customers. Reseller shall be solely responsible
for compliance with any regulations governing the
export of the Services (or any portion
thereof).
Reseller shall not resell the Services under
@MacarloHost.Net's brand name accordingly nothing
in this Agreement constitutes a license to
Reseller to use or resell the Marks (as defined
below).
6. @MACARLOHOST.NET AS RESELLER OR LICENSOR
@MacarloHost.Net is acting only as a reseller or
licensor of the hardware, software and equipment
used in connection with the products and/or
Services that were or are manufactured or provided
by a third party
("
Non-@MacarloHost.Net
Product"). @MacarloHost.Net shall not be
responsible for any changes in the Services that
cause the
Non-@MacarloHost.Net
Product to become obsolete, require modification
or alteration, or otherwise affect the performance
of the Services. Any malfunction or manufacturer's
defects of
Non-@MacarloHost.Net
Product either sold, licensed or provided by
@MacarloHost.Net to Customer or purchased directly
by Customer used in connection with the Services
will not be deemed a breach of @MacarloHost.Net's
obligations under this Agreement. Any rights or
remedies Customer may have regarding the
ownership, licensing, performance or compliance
of
Non-@MacarloHost.Net
Product are limited to those rights extended to
Customer by the manufacturer of such
Non-@MacarloHost.Net
Product. Customer is ent itled to use any
Non-@MacarloHost.Net
Product supplied by @MacarloHost.Net only in
connection with Customer's permitted use of the
Services. Customer shall use its best efforts to
protect and keep confidential all intellectual
property provided by @MacarloHost.Net to Customer
through any
Non-@MacarloHost.Net
Product and shall make no attempt to copy, alter,
reverse engineer, or tamper with such intellectual
property or to use it other than in connection
with the Services. Customer shall not resell,
transfer, export or re-export any
Non-@MacarloHost.Net
Product, or any technical data derived therefrom,
in violation of any applicable United States or
foreign law.
7. IP ADDRESS OWNERSHIP
During the course of providing Services to
customer @MacarloHost.Net may assign to Customer
an Internet Protocol address. Customer agrees that
it has no right to a particular IP address under
this agreement and accordingly @MacarloHost.Net
shall retain ownership of any IP address or
addresses used by Customer under this agreement
and that @MacarloHost.Net reserves the right to
change or remove any and all such Internet
Protocol numbers and addresses, in its sole and
absolute discretion.
8. CACHING
Customer expressly grants to @MacarloHost.Net a
license to cache Customer's Content including
content supplied by third parties and hosted by
@MacarloHost.Net under this Agreement and Customer
agrees to indemnify and hold harmless
@MacarloHost.Net for any infringement of any third
party's intellectual property rights thereby
affected from said caching.
9. NO UNAUTHORIZED SCRIPTS OR EXECUTABLES
Customer agrees not to run any scripts,
executables or other programs or processes on
@MacarloHost.Net's servers or other equipment that
will in any way adversely affect the performance
of said equipment.
10. BANDWIDTH AND DISK USAGE
Customer agrees that @MacarloHost.Net will monitor
and meter Customer's bandwidth and disk usage and
in the event that Customer exceeds the bandwidth
or disk usage alocated to each hosting package
@MacarloHost.Net may take corrective action which
may, at @MacarloHost.Net's sole discretion,
include the assessment of additional charges,
disconnection or discontinuance of any and all
Services, or termination of this Agreement.
Customer agrees that in the event of a dispute
@MacarloHost.Net's monitoring reports shall be the
final method of determination how much disk space
and bandwidth was used and agrees to pay the
excess usage charges when due. Customer's logs
files are counted against any disk usage. Log
files cannot be deleted by customer, but will
automatically be deleted once every week. To avoid
unfair resource distribution at no time shall
Customer use more than 15 simultanious processes
by and with any of Customer's applications and not
upload any file larger than 10 megabyte. All
images in a Customer' s hosting account must be
linked to from pages within the Customer's hosting
account. It is a violation of this agreement if
Customer uses this account as merely an image,
sound or file library. Binary files such as
images, video and sound (i.e MP3, WAV, RA, GIF,
JPG but not limited to those file extensions) may
only account for a maximum of 50% of Customer's
total bandwidth usage before customer must upgrade
to a higher performance solution.
11. INTELLECTUAL PROPERTY RIGHTS
Customer acknowledges that @MacarloHost.Net owns
all trade names, trademarks, service marks,
inventions, copyrights, trade secrets, patents,
know-how and other intellectual property rights
relating to the Services and their provision.
Customer further acknowledges and agrees that
nothing in this Agreement shall constitute a
license to Customer to resell or trade under any
of @MacarloHost.Net's intellectual
property.
12. WEB SITE, E-COMMERCE AND CUSTOMER
WARRANTIES
Customer shall assume sole responsibility for (a)
acquiring any authorization(s) necessary for
hypertext links to third party web sites, (b) the
accuracy of materials on Customer Web Site(s),
including, without limitation, Customer Content,
descriptive claims, warranties, guarantees, nature
of business, and address where business is
conducted, and (c) ensuring that the Client
Content does not infringe or violate any right of
any third party. Notwithstanding the foregoing,
@MacarloHost.Net reserves the right, in its sole
discretion, to exclude or remove from the Web Site
any hypertext links to third party web sites, any
Customer Content on the Web Site, or other content
not supplied by @MacarloHost.Net which, in
@MacarloHost.Net's sole reasonable discretion, may
violate or infringe any law or third party rights
or which otherwise exposes or potentially exposes
@MacarloHost.Net to civil or criminal liability or
public ridicule, provided that such right shall
not place an obligation on @MacarloHost.Net to
monit or or exert editorial control over the Web
Site. @MacarloHost.Net shall in no way be
responsible for Customer's conduct or actions
including but not limited to Customer's handling
of third party information such as credit card
numbers and any liabilities incurred by Customer
including but not limited to tax liabilities for
the conduct of Customer's on-line business.
Customer shall be solely responsible for the
development, operation and maintenance of
Customer's web site and any online store and
e-commerce activities.
13. DISCLAIMER OF WARRANTY
Customer agrees that its use of Services and its
reliance upon information provided by
@MacarloHost.Net are entirely at Customer's own
risk. Customer acknowledges and agrees that
@MacarloHost.Net exercises no control over, and
accepts no responsibility for, the content of
data, scripts, or other information passing
through @MacarloHost.Net's host computers, network
hubs and points of presence or the Internet. THE
SERVICES PROVIDED UNDER THIS AGREEMENT ARE
PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER
@MacarloHost.Net, ITS OWNERS, EMPLOYEES, AGENTS,
OR AFFILIATES MAKES ANY WARRANTIES OF ANY KIND,
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, FOR THE SERVICES OR ANY
EQUIPMENT PROVIDED IN CONJUNCTION THEREWITH.
NEITHER @MacarloHost.Net NOR ITS OWNERS,
EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY
WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED
OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY
WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED
F ROM THE USE OF THE SERVICES OR AS TO THE
ACCURACY, RELIABILITY OR CONTENT OF ANY
INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN
OR PROVIDED THROUGH THE SERVICES. @MacarloHost.Net
IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY
LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED
EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER
OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES
PROVIDED BY @MacarloHost.Net. NO ORAL ADVICE OR
WRITTEN INFORMATION GIVEN BY ANY @MacarloHost.Net
EMPLOYEE, OWNER, OR AGENT WILL CREATE A WARRANTY;
NOR MAY CUSTOMER OR ANY OF CUSTOMER'S OWNERS,
EMPLOYEES, OR AGENTS RELY ON ANY SUCH INFORMATION
OR ADVICE. The terms of this section shall survive
any termination of this Agreement.
14. INDEMNIFICATION
Customer agrees to indemnify, defend and hold
harmless @MacarloHost.Net and its parent,
subsidiary and affiliated companies, and each of
their respective officers, directors, employees,
shareholders and agents (each an "indemnified
party" and, collectively, "indemnified parties")
from and against any and all claims, damages,
losses, liabilities, suits, actions, demands,
proceedings (whether legal or administrative), and
expenses (including, but not limited to,
reasonable attorney's fees) threatened, asserted,
or filed by a third party against any of the
indemnified parties arising out of or relating to
Customer's use of the Services, any violation by
Customer of this agreement, any breach of any
representation, warranty or covenant of Customer
contained in this Agreement or any acts or
omissions of Customer. The terms of this section
shall survive any termination of this
Agreement.
15. LIMITATION OF LIABILITY
Customer agrees neither @MacarloHost.Net nor any
of its employees, owners, or agents shall be held
responsible or liable for situations where the
Services are accessed by third parties through
illegal or otherwise unauthorized means, including
situations where such data is accessed through the
exploitation of security gaps, weaknesses or flaws
(whether known or unknown to @MacarloHost.Net at
the time) which may exist in the Services or
@MacarloHost.Net's equipment used to provide the
Services.
Under no circumstances, including negligence,
shall @MacarloHost.Net or any of its employees,
owners, or agents be liable for any indirect,
incidental, special, consequential or punitive
damages, or loss of profits, revenue, data or use
by Customer, any of its customers, any Reseller
Customer or any other third party, whether in an
action in contract or tort or strict liability or
other legal theory, even if @MacarloHost.Net has
been advised of the possibility of such damages.
No @MacarloHost.Net Person shall be liable to
Customer, any of its customers, any Reseller
Customer or any other third party, for any loss or
damages that result or are alleged to have
resulted from the use of or inability to use the
Services, or that results from mistakes,
omissions, interruptions, deletion of files, loss
of data, errors, viruses, defects, delays in
operations, or transmission or any failure of
performance, whether or not limited to acts of
God, communications failure, theft, destruction or
unauthorized access to @Mac arloHost.Net's
records, programs, equipment or services.
Notwithstanding anything to the contrary in this
Agreement, @MacarloHost.Net's maximum liability
under this Agreement for all damages, losses,
costs and causes of actions from any and all
claims regardless of the legal theory or the
nature of the cause of action shall not exceed the
actual dollar amount paid by Customer for the
Services which gave rise to such damages, losses
and causes of actions during the twelve (12) month
period prior to the date the cause of action arose
or the injury or loss occurred.
Customer understands, acknowledges and agrees that
if @MacarloHost.Net takes any corrective action
under this Agreement because of an action of
Customer or one its customers that corrective
action may adversely affect other customers of
Customer or other Reseller Customers, and Customer
agrees that @MacarloHost.Net shall have no
liability to Customer, any of its customers or any
Reseller Customer due to such corrective action by
@MacarloHost.Net.
This limitation of liability reflects an informed
and voluntary allocation of risks between the
parties and applies to risks both know and unknown
that may exist in connection with this Agreement.
The terms of this section shall survive any
termination of this Agreement.
16. PROHIBITED USES AND ACTIVITIES
@MacarloHost.Net may immediately take corrective
action, including removal of all or a portion of
the Customer's content, disconnection or
discontinuance of any Services if Customer, or
anyone accessing Customer's account or server
space, engages in any of the prohibited Uses or
Activities set forth in Section 16 of this
agreement. Customer hereby agrees that
@MacarloHost.Net shall have no liability to
Customer or any of Customer's customers due to any
corrective action that @MacarloHost.Net may take
(including, without limitation, disconnection of
Services).
A. VIOLATIONS OF INTELLECTUAL PROPERTY
RIGHTS
Customer agrees that it shall not violate any
intellectual property rights and that it shall not
resell services to any party which violates
intellectual property rights. Any violation of any
individual or entity's intellectual property
rights including, rights of privacy and rights of
publicity are prohibited. @MacarloHost.Net is
required by law to remove or block access to
content appearing on or through the Services upon
receipt of proper notice of copyright infringement
(see "Copyright Infringement Notice Information"
below).
B. SPAMMING
Customer agrees not to send spam or resell its
services to anyone who sends spam. The term "spam"
includes, but is not limited to, the sending of
unsolicited bulk and/or commercial e-mail messages
over the Internet or maintaining an open SMTP
policy. In the event of of a dispute
@MacarloHost.Net reserves the right to determine,
in its sole and discretion, whether e-mail
recipients were from an opt-in email list.
C. MISREPRESENTATION OF TRANSMISSION
INFORMATION
Customer agrees not to forge, misrepresent, omit,
or delete message headers, return mailing
information and/or Internet protocol addresses to
conceal or misidentify the origin of any message
or to resell services to anyone who engages in
said conduct.
D. VIRUSES AND OTHER DESTRUCTIVE ACTIVITIES
Use of the Services for creating or sending
malicious, destructive or nuisance code, examples
of which include but are not limited to, viruses,
worms and Trojan horses, or for pinging, flooding
or mail-bombing, or engaging in denial of service
attacks is prohibited and is a breach of this
agreement. Customer also agrees not to engage in
any 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 the Services (or any connected
network, system, service or equipment).
E. MALICIOUS OR UNAUTHORIZED HACKING
Customer agrees not conduct or promote any
"Hacking" activity and agrees that "Hacking" as
herein defined includes but is not limited to, the
following activities: illegally or without
authorization, accessing computers, accounts or
networks, penetrating or attempting to penetrate
security measures, port scans, stealth scans, and
other activities designed to assist in malicious
or unauthorized hacking or cracking. Any such
activity on the part of Customer is a material
breach of this Agreement.
D. EXPORT CONTROL VIOLATIONS
The exportation of encryption software outside of
the United States and/or violations of United
States law relating to the exportation of software
is prohibited.
F. PORNOGRAPHY (ALL)
The use of the Services to store, post, display,
transmit, advertise or otherwise make available
all kinds of pornography is prohibited.
@MacarloHost.Net will as required by law, notify
law enforcement agencies when it becomes aware of
the presence of child pornography on, or being
transmitted through, the Services.
G. OTHER ILLEGAL ACTIVITIES
The use of the Services to engage in any
activities that are determined by
@MacarloHost.Net, in its sole and absolute
discretion, to be illegal or which in
@MacarloHost.Net's opinion are likely to be found
to be illegal is prohibited. Such illegal or
potentially illegal activities include, but are
not limited to, storing, posting, displaying,
transmitting or otherwise making available ponzi
or pyramid schemes, password and cracking
information, fraudulently charging credit cards or
displaying credit card information or other
private information of third parties without their
consent, and failure to comply with applicable
on-line privacy laws. @MacarloHost.Net will
cooperate fully with appropriate law enforcement
agencies in connection with any and all illegal
activities occurring on or through the
Services.
H. OBSCENE, DEFAMATORY, ABUSIVE OR THREATENING
LANGUAGE
Use of the Services to store, post, transmit,
display or otherwise make available obscene,
defamatory, harassing, abusive or threatening
language is prohibited.
I. OTHER PROHIBITED ACTIVITIES
Engaging in any activity that, in
@MacarloHost.Net's sole and absolute discretion,
disrupts, interferes with or is harmful to (or
threatens to disrupt, interfere with, or be
harmful to) the Services, @MacarloHost.Net's
business, operations, reputation, goodwill,
customers and/or customer relations, or the
ability of @MacarloHost.Net's customers to
effectively use the Services is prohibited. Such
prohibited activities include making available any
program, product or service that is designed to or
could be used to violate this Agreement. In
addition, the failure by a Customer to cooperate
with @MacarloHost.Net in correcting or preventing
violations of this Agreement by, or that result
from the activity of, a customer of the Subscriber
is a violation of this Agreement.
17. COPYRIGHT NOTICE INFRINGEMENT
INFORMATION
Pursuant to the Digital Millennium Copyright Act,
@MacarloHost.Net has adopted a policy that
provides for termination of websites hosted by
@MacarloHost.Net that are found to infringe on
copyrights of third parties. Customer expressly
acknowledges that they are aware of this provision
and Customer waives any claims it may have should
it be injured by the enforcement of this
provision. If a copyright holder believes that
there has been a violation of their copyright on a
website that is hosted by @MacarloHost.Net and the
copyright holder demands that @MacarloHost.Net
remove the website or disable the material in
question, @MacarloHost.Net will remove the website
or disable the material if the copyright holder
provides @MacarloHost.Net with all of the
following information:
A signature of a person authorized to act on
behalf of the owner of the exclusive right that is
allegedly infringed.
-
Identification of the copyrighted work that is
claimed to have been or being infringed, or,
in the case of claimed infringement of
multiple copyrighted works, a representative
list of such works.
-
Identification of the material that is claimed
to be infringing or is the subject of
infringing activity and that should be removed
or access to which should be disabled, with
information reasonably sufficient to permit us
to locate the material. Information reasonably
sufficient to permit us to contact the person
giving the notification, such as an address
and telephone, and, if available, an
electronic mail address at which such person
may be contacted.
-
A statement that the person giving the
notification has a good faith belief that use
of the material in the manner complained of is
not authorized by the copyright owner, its
agent, or the law.
-
A statement that the information in the
notification is accurate, and under penalty of
perjury, that the person giving the
notification is authorized to act on behalf of
the owner of the exclusive right that is
allegedly infringed.
-
Disclosure of Customer Information and Legal
Process Although @MacarloHost.Net will
ordinarily maintain strict Customer
confidentiality there are certain exceptions
where @MacarloHost.Net may disclose any
information in its possession, including,
without limitation, information about
Subscribers, Internet transmissions and
website activity in order to comply with a
court order, subpoena, summons, discovery
request, warrant, statute, regulation or
official governmental request, to protect
@MacarloHost.Net or others from harm, and/or
to ensure the proper operation of the
Services. @MacarloHost.Net has no obligation
to notify any person, including the Subscriber
about whom information is sought, that
@MacarloHost.Net has provided the information.
Customer acknowledges the above exceptions and
agrees to them without reservation.
19. FORCE MAJEURE
@MacarloHost.Net shall not be liable for failure
or delay in performing its obligations hereunder
if such failure or delay is due to circumstances
beyond its reasonable control, including, without
limitation, acts of any governmental body, war,
insurrection, sabotage, embargo, fire, flood,
strike or other labor disturbance, interruption of
or delay in transportation, unavailability of,
interruption or delay in telecommunications or
third party services (including DNS propagation),
failure of third party software or hardware or
inability to obtain raw materials, supplies or
power used in or equipment needed for provision of
the Services.
20. GOVERNING LAW; JURISDICTION;
ARBITRATION
This Agreement shall be governed in all respects
by New York law without regard to the conflict of
law provisions thereof. Both parties submit to
personal jurisdiction in New York. Any controversy
or claim arising out of, relating to or in
connection with this Agreement, or the breach
thereof, shall be subject to arbitration
administered by the American Arbitration
Association ("AAA") in accordance with its then
existing Commercial Arbitration Rules
(collectively, the "AAA Rules") and judgment upon
the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
The place of arbitration shall be New York, or any
other place selected by mutual agreement of the
parties. An award rendered in connection with an
arbitration pursuant to this Section shall be
final and binding upon the parties and the parties
agree and consent that the arbitral award shall be
conclusive proof of the validity of the
determinations of the arbitrations set forth in
the award, and any judgment upon such an award may
be entered and enforced in any court of competent
jurisdiction. The parties agree that the award of
the arbitral tribunal will be the sole and
exclusive remedy between them regarding any and
all claims and counterclaims between them with
respect to the subject matter of the arbitrated
dispute. The parties hereby waive all in personam
jurisdictional defenses in connection with any
arbitration hereunder or the enforcement of an
order or award rendered pursuant thereto. In any
legal action, the prevailing party will be
entitled to recover all legal expenses incurred in
connection with the action, including but not
limited to its costs, both taxable and
non-taxable, and reasonable attorney's fees. The
terms of this section shall survive any
termination of this Agreement.
21. ASSIGNMENT
Customer shall not have the right to assign this
Agreement without the prior written consent of
@MacarloHost.Net. This Agreement shall be binding
upon and inure to the benefit of Customer and
@MacarloHost.Net and their successors and
permitted assigns.
22. ENTIRE AGREEMENT; SEVERABILITY
This Agreement, together with the Order Form and
any other documents or agreements identified in
this Agreement, represents the entire agreement
between the parties, and supersedes all previous
representations, understandings or agreements. If
any provision of this Agreement shall be held by a
court of competent jurisdiction to be invalid,
unenforceable, or void, the parties agree that the
remainder of this Agreement shall remain in full
force and effect.
Customer hereby represents that he, she or it is
either, an individual entering this Agreement for
his or her personal use and is over 18 years of
age, or a corporation, limited partnership or
other legal entity, duly organized and in good
standing under the laws of the state of its
organization and the person acting on behalf of
Customer is duly authorized to accept, execute and
deliver this Agreement on behalf of
Customer.
Last updated: May 05th, 2003
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