Terms of Service Agreement
Last Updated October 26th, 2017
Dilmax reserves the right, at any time and from time to time, to amend or to modify these Terms of Service without prior notice to you, provided that if any such alterations constitute a material change to these Terms of Service, Dilmax will notify you by posting an announcement on the Website. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, you agree to be bound by such amended or modified Terms of Service. For this reason, we encourage you to review the Terms of Service whenever you use the Services. If you do not agree to any change to these Terms of Services, then you must immediately stop using the Services.
1. Eligibility & Registration
1.1 The Services are not targeted towards, nor intended for use by, anyone under the age of 13. By using the Services, you represent and warrant that you are 13 years of age or older. If you are under the age of 13, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
1.2 To sign up for the Services, you must register for an Personal Account on the Services (an "Personal Account"). You must provide accurate and complete information and keep your Personal Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Personal Account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents), and for keeping your Personal Account password secure. You may never use another person's user Personal Account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state, provincial, territorial or other authorities), breach of security or unauthorized use of your Personal Account. You should never publish, distribute or post login information for your Personal Account. You shall have the ability to delete your Personal Account, either directly or through a request made to one of our employees or affiliates. You agree to provide accurate information in your registration and not to share your password with third parties. You agree not to impersonate another person or to select or use a user name or password of another person. You agree to notify Dilmax promptly of any unauthorized use of your Personal Account and of any loss, theft or disclosure of your password. Failure to comply with these requirements shall constitute a breach of these Terms of Service and shall constitute grounds for immediate termination of your Personal Account and your right to use the Website. Dilmax will not be liable for any loss or damage as a result of your failure to provide us with accurate information or to keep your personal account secure.
2.1 For purposes of these Terms of Service, the term "Content" includes, without limitation, information, data, text, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, "Content" also includes all User Content (as defined below).
2.2 All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively "User Content"), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
2.3 The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
2.4 Subject to these Terms of Service, we grant each user of the Services a worldwide, non-exclusive, revocable, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
2.5 By submitting any User Content to the Website, excluding privately transmitted User Content, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit such User Content in connection with the Website, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of the Website or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Personal Account or the Services. You also hereby do and shall grant each user of the Website and/or the Services a non-exclusive, perpetual license to access any of your User Content that is available to such user on the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Personal Account or the Services. By submitting any User Content to the Services other than on the Website, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, and perform such User Content solely for the purpose of providing the Services. For clarity, the foregoing licenses granted to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
2.6 Some Content will be marked on the Service as "Creative Commons Content". Creative Commons Content will be identified with a Creative Commons icon. We hereby grant each user of the Services a license to Creative Commons Content under the Creative Commons CC BY-NC-SA 4.0 US license, available at the the "Creative Commons License. You agree to abide by the terms of the Creative Commons License when using Creative Commons Content.
3. Rules of Conduct
3.1 As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services and the activity of any sub-user that uses your access code or Personal Account.
3.2 You agree that you will not transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that (i) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, offensive, profane, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion, (ii) you know is false, misleading, untruthful or inaccurate, (iii) constitutes unauthorized or unsolicited advertising, (iv) impersonates any person or entity, including any of our employees or representatives, or (v) includes anyone's identification documents or sensitive financial information. Dilmax may permit, in its sole discretion, adult websites that abide by state and federal law and regulation.
3.3 You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other Personal Accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or "spam" on the Services; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Website; (vi) harvest or scrape any Content from the Services; (vii) use the Services for high risk activities including but not limited to the operation of nuclear facilities, air traffic control, life support systems, or any other use where the failure of service could lead to death, personal injury, or environmental damage; or (viii) otherwise take any action in violation of our guidelines and policies.
3.4 You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
3.5 We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
3.6 Subscribers are restricted from registering multiple Personal Accounts with the same billing details without first notifying Dilmax of that intent. Otherwise, Dilmax shall have the right to automatically flag such Personal Accounts as fraudulent or abusive, and Dilmax may, without notification to the Subscriber of such Personal Account, suspend the service of such Personal Account or any other Personal Account used by such Subscriber. The use of referral codes by multiple Personal Accounts having the same billing profile is not allowed. Dilmax also reserves the right to terminate a Subscriber's Personal Account if it is targeted by malicious activity from other parties.
3.8 The enumeration of violations in this Section 3 of these Terms of Service is not meant to be exclusive, and Dilmax provides notice hereby that it has and will exercise its authority to take whatever action is necessary to protect the Services, Subscribers, and third parties from acts that would be inimical to the purposes of this Section 3 of these Terms of Service.
3.9 In using the Services, Subscribers must comply with, and refrain from violations of, any right of any other person, entity, law, or contractual duty, including without limitation the laws of the United States, and including without limitation those laws forbidding: (a) distribution of child pornography, (b) forgery, identity theft, misdirection or interference with electronic communications, (c) invasion of privacy, (d) unlawful sending of commercial electronic messages or other marketing or electronic communications, (e) collection of excessive user data from children, or other improper data collection activities, (f) securities violations, wire fraud, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. Subscribers will also comply with the affirmative requirements of law governing use of the Services, including but not limited to: (i) disclosure requirements, including those regarding notification of security breaches, (ii) records maintenance for regulated industries, and (iii) financial institution safeguards.
3.10 Subscribers shall not use any method to circumvent the provisions of these Terms of Service, or to obtain Services in excess of those for which they contract with Dilmax. Subscribers shall use only those IP addresses that are assigned to them by Dilmax, and shall not use any IP addresses outside of their assigned range. Subscribers shall not use any mechanism to exceed the amount of resources assigned to them through the Services, or to conceal such activities.
3.11 Subscribers are required to provide personal ID (passport) details and contact information within 1 day from the date of receipt of the request from Dilmax. Dilmax could use this information for security checks and validation personal account data.
3.12 Subscribers may not use the Services to distribute, receive communications or data gleaned from, or execute any action directed by any type of injurious code, including but not limited to: (i) trojans, (ii) key loggers, (iii) viruses, (iv) malware, (v) botnets, (vi) denial of service attacks, (vii) flood or mail bombs, (viii) logic bombs, or (ix) other actions which Dilmax reserves the sole right to determine to be malicious in intent.
3.13 Subscribers shall not send bulk email if it’s unsolicited. Subscribers shall comply with all laws regarding the sending of commercial electronic messages or other marketing or electronic communications. Subscribers are forbidden from taking any action that would result in their IP addresses, or any IP address associated with Dilmax or other Subscribers, being placed on the Spamhaus.org blacklist. Dilmax reserves the sole and absolute right to determine whether an email violation has occurred.
3.14 Subscribers may not use the Services in a manner that would violate the lawful privacy rights of any person, or to publish or republish defamatory or libelous statements, or to harass or embarrass, which shall be determined in Dilmax's sole and absolute discretion.
3.15 Subscribers may not use the Services in violation of the copyrights, trademarks, patents or trade secrets of third parties, nor shall they utilize the Services to publish such materials in a manner that would expose them to public view in violation of the law. The provisions of the Digital Millennium Copyright Act of 1998 ("DMCA") (as required under 17 U.S.C. §512) and all other applicable international trademark, copyright, patent or other intellectual property laws will apply to issues presented by allegations of copyright violations by third parties. Dilmax will, in appropriate circumstances, terminate the Personal Accounts of repeat violators. If a third party believes that a Subscriber of Dilmax is violating its intellectual property rights, it should notify us by email at firstname.lastname@example.org. A notification should include information reasonably sufficient to permit Dilmax to locate the allegedly infringing material, such as the IP address or URL of the specific online location where the alleged infringement is occurring. Please see our DMCA Copyright Policy.
3.16 Subscriber shall comply with all applicable export and import control laws and regulations in its use of the Services, and, in particular, Subscriber shall not utilize the Services to export or re-export data or software without all required United States and foreign government licenses. Subscriber assumes full legal responsibility for any access and use of the Services from outside the United States, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license. Should such a license be required, it shall be Subscriber's responsibility to obtain the same, at Subscriber's sole cost and expense, and in the event of any breach of this duty resulting in legal claims against Dilmax, Subscriber shall defend, indemnify and hold Dilmax harmless from all claims and damages arising therefrom.
3.17 Subscribers are responsible for the acts of others utilizing their access to the Services, and will be held responsible for violations of the Services by their sub-users or persons who gain access to the Services using the Subscriber's access codes. Any activity that a Subscriber is prohibited from performing by these Terms of Services is equally prohibited to anyone using the access to the Services of the Subscriber.
3.18 Subscribers shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with Personal Account access information.
3.19 Subscribers shall notify all persons who receive access to the Services of the provisions of these Terms of Service, and shall inform them that the terms of these Terms of Service are binding upon them.
3.20 Subscribers shall notify Dilmax if and when they learn of any security breaches regarding the Services, and shall aid in any investigation or legal action that is taken by authorities and/or Dilmax to cure the security breach.
4. Third Party Services
4.1 The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. It is your responsibility to protect your system from such items as viruses, worms, Trojan horses and other items of a destructive nature.
5. Payments and Billing
5.1 Payment for Services is due in advance of the time period for which such payment covers. Services are billed on an automatic and recurring basis unless and until you follow Dilmax cancellation procedure set forth in this Agreement.
5.2 Unless separately negotiated by You and Us, and confirmed by separate written agreement, the initial and recurring Fees for the Services selected by You shall be as provided in the initial on-line order form. All set-up fees and special programming fees are non-refundable. Fees for Services are payable in advance. Failure to make payment of Fees for Services when due may result in the suspension or termination of Services.
5.3 At the time of registration, You must select a payment method. Dilmax reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. If You do not pay all Fees when due, Your account will be deemed past due.
5.4 You agree to pay any and all taxes, including personal property, value added, or sales taxes, resulting from Your use of the Services. Dilmax is not responsible for any bank fees incurred by You due to Your use of check cards, automatic payment services, insufficient funds, and any and all other fees your financial institution may impose due to Your use of the Services. If Dilmax should receive less than full payment of the Fees due to taxes, bank charges, transfer fees, or the like, Dilmax will invoice You for the difference between payment received and the Fees due.
5.5 You also agree to pay all attorney and collection fees arising from Dilmax efforts to collect any past due Fees. If you cancel any Service prior to the expiration of the pre-paid Fees, You understand and agree that Dilmax will not issue You any refund whatsoever, including but not limited to any remaining pre-paid Fees, set up Fees, and/or special programming Fees.
5.6 Coupons and Promo Codes – From time to time, Dilmax may offer coupons or other promo codes which may be used when signing up for hosting with Us. Coupons and promo codes are for first-time customers of Dilmax and must be used at the time of Your initial purchase with Us – they may not be applied after Your service with Us has already been initiated. Unless expressly provided, such coupons and promo codes may not be used toward upgrades to Your account. Any account We deem to be attempting unauthorized coupon or promo code use may be subject to Termination for Cause.
5.7 You can cancel the contract and get a prorated refund. There is a fee of $2 USD per each transaction.
6. Warranty Disclaimer
6.1 We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding: (i) which Subscribers gain access to the Services or (ii) what Content you access via the Services or (iii) how you may interpret or use the Content.
6.2 To the extent permitted by applicable law, you release us from all liability for you having acquired or not acquired content through the services. We make no representations concerning any content contained in or accessed through the services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or content contained in or accessed through the services.
6.3 The services, including without limitation any information delivered as part of the services, and content are provided "as is", "as available" and without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, noninterference with data, availability, accuracy, that you will have continuous, uninterrupted or secure access to our website or that the services are error free and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We, and our directors, employees, agents, suppliers, partners and content providers do not warrant that: (i) the services will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any content or software available at or through the services is free of viruses or other harmful components; or (iv) the results of using the services will meet your requirements. Your use of the services is solely at your own risk. The services contain information provided by one or more third party data providers. Dilmax does not control and is not responsible for the information provided by any such third party provider. You acknowledge and agree that neither Dilmax nor any such third party provider has any obligation to correct information about you except as required by applicable law. Information you request may not be available or may not be provided, and Dilmax has no liability for such failure. In no event will Dilmax warrant or guarantee the correctness, comprehensiveness, completeness, accuracy, timeliness of any information, products, or services on this website. The information, products, and services available on the website may include technical inaccuracies or typographical errors. Therefore, you agree that your access to and use of our website, products, services and content are at your own risk.
7. Limitation of Liability
7.1 In no event shall we, nor our directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the services (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever, substitute goods or services (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) of fees paid to us for the particular services during the immediately previous one month period, even if Dilmax had been advised of, knew, or should have known, of the possibility thereof. Subscriber acknowledges that the fees paid by him or her reflect the allocation of risk set forth in this agreement and that Dilmax would not enter into this agreement without these limitations. Subscriber hereby waives any and all claims against Dilmax arising out of subscriber's purchase or use of the services, or any conduct of Dilmax's directors, officers, employees, agents or representatives. Your sole and exclusive right and remedy in case of dissatisfaction with the services or any other grievance shall be your termination and discontinuation of access to or use of the services.
In addition, you agree that Dilmax is not responsible for any data compiled by our services and that Dilmax will not be liable, in any manner, as a result of your exposure to any defamatory, libelous, threatening, unlawfully harassing, obscene or otherwise unlawful content or data. In no event shall Dilmax, or any third party provider of any component of the services or of any information delivered as part of the services, be liable to you and/or any party for any damages of any kind, including but not limited to direct, indirect, special, exemplary, punitive, consequential or similar damages arising out of or related to the services, content, products, the use or inability to use this website, or any linked website, including without limitation, lost profits, loss of use, business interruption, or other economic losses, loss of programs or other data, whether in an action of contract, negligence or other tortious action, even if Dilmax is advised of the possibility of such damages, including liability associated with any viruses which may infect your computer equipment.
Some jurisdictions limit or prohibit the foregoing limitations, and in such jurisdictions the foregoing limitations shall be applied to the maximum extent permitted by law.
8.1 Subscriber shall keep confidential any confidential information to which it is given access, and shall cooperate with Dilmax's efforts to maintain the confidentiality thereof. Subscriber shall not publish to third parties or distribute information or documentation that Dilmax provides for purposes of operating and maintaining its systems, including material contained in estimates, invoices, work orders, or other such materials.
9.1 Subscriber is solely responsible for the preservation of Subscriber's data which Subscriber saves onto its virtual server (the "Data"). Even with respect to data as to which subscriber contracts for backup services provided by Dilmax, to the extent permitted by applicable law, Dilmax shall have no responsibility to preserve data. Dilmax shall have no liability for any data that may be lost, or unrecoverable, by reason of subscriber's failure to backup its data or for any other reason.
11.1 You shall defend, indemnify, and hold harmless us, our affiliates, parents, subsidiaries, any related companies, licensors and partners, and each of our and their respective employees, officers, directors, agents, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your (or any third party using your personal account or identity in the services) use or misuse of, or access to, the services, content, or otherwise from your user content, violation of these terms of service or of any law, or infringement of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
12. Termination and Access
12.1 Dilmax reserves the right, in our sole discretion, to terminate your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Terms of Service or any law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination may result in the forfeiture and destruction of information associated with your Personal Account. Dilmax may provide prior notice of the intent to terminate Services to you if such notice will not, in Dilmax's discretion, run counter to the intents and purposes of these Terms of Service. Except as otherwise set forth hereunder, any and all fees paid hereunder are non-refundable and any and all fees owed to Dilmax before such termination shall be immediately due and payable, including any liabilities that may have been incurred prior to termination such as Dilmax's costs for collection (including attorneys' fees) of any such charges or other liabilities. Upon termination, any and all rights granted to Subscriber by this Agreement will immediately be terminated, and Subscriber shall promptly discontinue all use of the Services. If you wish to terminate your Personal Account, you may do so by following the instructions on the Website or through the Services. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
13. Choice of Law, Venue, Consent to Email Service and Waiver of Hague Convention Service Formalities
13.1 Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the State of California, without regard to principles of conflict of laws. Subject to Section 15 below, you agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of California. Subscriber consents to service of process via email at the email address(es) provided by Subscriber, and waives any requirement under the Hague Convention or other judicial treaty requiring that legal process be translated into any language other than English.
14. Dispute Resolution
14.1 Mindful of the high cost of litigation, you and Dilmax agree to the following dispute resolution procedure: in the event of any controversy, claim, action or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Services; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and Dilmax ("Dispute"), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent (1) if to Dilmax at: 101 541 Jefferson Ave, Ste 100, Redwood City CA 94063 or (2) if to you at: your last-used billing address or the billing and/or shipping address in your Personal Account information. Both you and Dilmax agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any arbitration or filing any claim against the other party.
15.1 If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party shall submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker's compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in California and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator's fees. Each party shall bear its own attorneys' fees (except if the matter is for the collection of a debt owed, the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies). The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement, and shall be bound by governing and applicable law. The arbitrator shall be willing to execute an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. The parties hereby waive any rights they may have to trial by jury in regard to arbitral claims.
15.2 Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by You.
15.3 Severability. If for any reason a court of competent jurisdiction or arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
15.4 No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
15.5 Complete Agreement. This Agreement (including all other policies incorporated herein) constitutes the entire agreement between the parties with respect to the Services, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
15.6 Relationship Between the Parties. Dilmax is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
15.7 Non-Solicitation. Beginning upon commencement of the Services to You and continuing for a period of two (2) years after the termination of this Agreement or after any other cancellation or termination of Your account or Services with Us, You agree not to directly or indirectly, solicit, hire, contract, or otherwise employ any Dilmax employee who was an employee during the term of this Agreement (including the Initial Term and any successive terms), to work for You or any other firm, person or business, of whatever character, corporate or otherwise.
15.8 Headings. Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
15.9 Force Majeure. Dilmax shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software for so long as such event continues to delay Dilmax performance.
15.10 Export. You understand and acknowledge that the software elements of the Host Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that You will abide by such laws and regulations.
15.11 Government Rights. The software elements of the Host Materials have been developed at private expense and are "commercial computer software" or "restricted computer software" within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (i) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (ii) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
15.12 Notices Electronic Communications. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided by You and will be effective upon transmission. Evidence of successful transmission shall be retained. Each of the parties may communicate with the other by electronic means as described in this Agreement. Each of the parties agrees to the following for all electronic communications: (i) The user identification of a sender, contained in an electronic communication, is legally sufficient to verify the sender's identity and the communication's authenticity; (ii) An electronic communication sent by You containing Your user identification establishes You as its originator and has the same effect as a document with Your written signature on it; and (iii) An electronic communication, or any computer printout of it, is valid proof of the validity of the original document of the electronic communication.
16. Dilmax DMCA Copyright Policy
Dilmax has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (http://lcweb.loc.gov/copyright/legislation/dmca.pdf).
16.1 Procedure for Reporting Copyright Infringement:
If you believe that material or content residing on or accessible through our Websites or Services infringes a copyright, please send a notice of copyright infringement containing the following information to the adress listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed; this includes, at a minimum and if applicable, the URL or IP address of the link shown on the Site where such material may be found, as well as the reference or link to the material or activity that you claim to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link, including at a minimum, if applicable, the URL or IP address of the link shown on the Site where such reference or link may be found.
- Contact information about the notifier including address, telephone number and, if available, e-mail address;
- A statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law;
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner; include this statement in the body of the Notice.
Please contact the Designated Agent to Receive Notification of Claimed Infringement for Company at email@example.com.
17. Miscellaneous Provisions
17.1 You are granted a limited, non-exclusive right to create a hypertext link to the Website found at https://neoserver.site provided such link does not portray Dilmax and/or its affiliates or any of their respective products and services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked at any time. You may not use, frame or utilize framing techniques to enclose any Dilmax trademark, logo or other proprietary information, including the images found at the Website, the content of any text or the layout/design of any page or form contained on a page without Dilmax's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Dilmax or any third party.
17.2 The Website contains many of the valuable trademarks, service marks, names, titles, logos, images, designs, copyrights and other proprietary materials owned, registered and used by Dilmax, Including but not limited to, the mark " Dilmax". Dilmax and the Dilmax product names referenced in the Website are either trademarks, service marks or registered trademarks of Dilmax. Any unauthorized use of same is strictly prohibited and all rights in same are reserved by Dilmax. No use of any Dilmax trademark may be made by any third party without express written consent of Dilmax. Other products and company names mentioned in the Website may be the trademarks of their respective owners.
17.3 Elements of Dilmax's Website are protected by trade dress, trademark, unfair competition, and other laws and may not, unless otherwise permitted hereunder, be copied in whole or in part. No logo, graphic, or image from the Website may be copied or retransmitted without Dilmax's express written permission. The images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website are the property of Dilmax or its licensors and are protected by copyright, trademark and other laws. In addition to our rights in individual elements of the Website, Dilmax owns copyright or patent rights in the selection, coordination, arrangement and enhancement of any images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website. You may copy such images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website for your personal or educational use only, provided that each copy includes any copyright, trademark or service mark notice or attribution as they appear on the pages copied. Except as provided in the preceding sentence, none of such images, text, screens, web pages, materials, data, Content and other information used and displayed on the Website may be copied, displayed, distributed, downloaded, licensed, modified, published, reposted, reproduced, reused, sold, transmitted, used to create a derivative work or otherwise used for public or commercial purposes without the express written permission of Dilmax.
17.4 This Agreement, including all related agreements and policies incorporated by reference herein, constitutes the entire agreement between the parties related to the subject matter hereof and supersedes any prior or contemporaneous agreement between the parties relating to the Services. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives. If any provision of this Agreement is prohibited by law or held to be unenforceable, that provision will be severed and the remaining provisions hereof shall not be affected such that this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. This Agreement may be signed electronically or, as set out above, your access and use of the Services will manifest your consent to this Agreement. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. All references to "laws," "rules," or "regulations" references any and all applicable laws, rules and regulations, whether domestic or foreign.