DigiMark: Terms Of Service for Shared Service Clients

TERMS AND CONDITIONS OF USE FOR DIGIMARK SHARED SERVER CLIENTS. THIS APPLIES ONLT TO ESTABLISHED DIGIMARK CLIENTS WITHOUT A SEPARATE CONTRACT.

VERY IMPORTANT! PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. THESE ARE THE TERMS AND
CONDITIONS GOVERNING CLIENT ACCESS OF DIGIMARK-MANAGED WEBSITES AND SERVICES.

This Terms and Conditions of Use Agreement (this "Agreement") sets forth the terms and conditions governing your ("User", "you", "your" and the like) use of DigiMark® facilities ("us", "our" or "DigiMark®") for your Website(s) established here (the "Site" or "Sites") and associated services of DigiMark® including without limitation, web hosting, network access accounts, enterprise email, domain name registration and servicing, database support and access, web activity reporting, CGI scripting and data storage to support your web site hosted by DigiMark® (which, collectively with the Site, is referred to in this Agreement as the "Services"). By accessing or using any of DigiMark®'s Services, you accept and agree to be legally bound by this Agreement, as it may be amended or supplemented from time to time (as further described below), and agree to all operating rules and/or policies of DigiMark® and the Services that may be published by DigiMark® on the Site or via any of the Services. Such rules and polices are incorporated into this agreement by this reference. This Agreement, the Additional Terms (as defined below) and DigiMark®'s other operating rules and policies, including privacy statements and copyright notices collectively comprise the entire agreement between you and DigiMark® with respect to their subject matter, and supersede all prior agreements between you and DigiMark® regarding such subject matter.

IF YOU ARE UNWILLING TO ACCEPT THIS AGREEMENT, YOU MAY NOT UTILIZE ANY OF THE APPLICABLE DIGIMARK SERVICES.

1. DigiMark® Reserves the Right to Revise this Agreement. DigiMark® reserves the right at any time and from time to time to update, revise, supplement and to otherwise modify this Agreement, and to impose new or additional terms or conditions on your use of any or all of the Services. Such updates, revisions, supplements, modifications and additional rules, polices, terms and conditions (collectively referred to in this Agreement as "Additional Terms") shall be effective immediately upon notice thereof, which may be given by any reasonable means including posting to the Site. Your continued use of the Services following such notice shall be deemed to conclusively indicate your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement.

2. DigiMark® May Revise or Terminate Any Part of the Services at Any Time. DigiMark® reserves the right at any time and from time to time, at its sole discretion, to modify discontinue, temporarily or permanently, any or all of the Services with or without notice to you. This includes the right to modify, discontinue or remove any content, postings, links, pages, services, or other materials at any time and for any reason. You agree that DigiMark® shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. In addition, DigiMark® may, in its sole discretion refuse or restrict its Services to anyone at any time.

3. Acceptable Use of the Services. In order to use the Services, you must obtain access to the World Wide Web directly or through devices that access web-based content and pay any and all service fees associated with such access.

(a) Accurate Use Registration Information; Privacy. In return for enterprise email services and a network host account accessible by you via file transfer protocol provided to you by DigiMark®, you agree to: (i) provide certain current, complete, true and accurate information to DigiMark® and at other points as may be required in the course of your using the Services; and (ii) maintain and update this information as required to keep it current, complete, and accurate (collectively the "Registration Data"). You agree not to use a false or misleading name or a name that you are not authorized to use. If DigiMark® has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, DigiMark® has the right to suspend or terminate your account, refuse any and all current or future use of the Services, and pursue any appropriate legal remedies. Furthermore, you grant DigiMark® the right to use your Registration Data and other data and information for the purposes described in this Agreement and in furtherance of your use of the Services subject to DigiMark®'s Privacy Policy, if any. The terms of our Privacy Policy (if any) are hereby incorporated into this Agreement.

(b) Account Passwords. As a registered user of the Services, you will receive or establish one or more passwords and accounts. Maintaining the confidentiality and security of your passwords and accounts is solely your responsibility. Do not divulge your password to anyone else, and do not use anyone else's password or account. You are entirely responsible for all activities that occur on or through your account(s), and you agree to notify us immediately about any unauthorized use of accounts or any breach of security. You agree that DigiMark® shall not be responsible for any losses incurred in connection with any misuse of passwords and you further agree that we shall have no responsibility whatsoever for your failure to comply with this Section 3 (b).

(c) User ID. The user id that you select, when used alone or combined with a second or third level domain name, shall not interfere with the rights of any third party and is not being selected for any unlawful purpose. You acknowledge and agree that if such selection does interfere with the rights of any third party or is being selected for any unlawful purpose, DigiMark® may immediately suspend the use of such DigiMark® email address, and you will indemnify and hold DigiMark® harmless, in accordance with Section 11 (Indemnification) herein, for any claim or demand against DigiMark® that arises out of such selection. You further acknowledge and agree that neither DigiMark® nor any of its licensors shall be liable to you in the event DigiMark® is ordered or required, as a result of a court order or legal settlement, or contractual requirement with any licensor, to desist from using or permitting the use of a particular domain name as part of a DigiMark® email address. Notwithstanding Section 10 of this Agreement, if as a result of such action, you lose an email address, your sole remedy shall be the receipt of a replacement DigiMark® email address.

(d) Security, Cracking and Hacking. You are prohibited from violating or attempting to violate the security of the Services, including, without limitation: (i) accessing data or materials not intended for you or logging into a server or account which you are not authorized to access, (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, or (iii) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Services, overloading, "flooding", "mailbombing" or "crashing". Violations of system or network security may result in civil or criminal liability. DigiMark® reserves the right to investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You understand that data and communications, including email and other electronic communications may be accessed by unauthorized third parties when communicated over the Internet. You agree that it is your responsibility, and not DigiMark®'s, to obtain and use third party software products that support encryption and other security protocols compatible with such protocols (if any) that may be used by DigiMark® from time to time in connection with the Services.

(e) You Are Responsible For All of your Activities and All of The Content You Post. DigiMark® expects that you will exercise caution, good sense and proper judgement in using the Services. You agree NOT to use the Services for or in connection with any of the following activities:

i) Spoofing or otherwise impersonating any person or entity, including, but not limited to, any other users or any of our personnel, or falsely stating or otherwise misrepresenting your identity or affiliation in any way or foregoing any TCP/IP packet header or any part of the header information in any email or other posting;

ii) Using the Services for any fraudulent or illegal purpose, or gathering personally identifiable information without prior consent, or using the Services for any use related to gaming, lottery, peri-mutual (or off-track) wagering, or other types of gambling activities;

iii) Transmitting or distributing any postings or materials that would constitute unauthorized or unsolicited advertising or solicitation of business, chain letters, junk or bulk email or mail generated via mass-mailer distribution lists (also known as spamming); or

iv) E-mailing, uploading, or otherwise transmitting or using the Services in furtherance of the use or distribution of any unlawful, harmful, harassing, defamatory, tortious, libelous, abusive, threatening, vulgar, sexually explicit, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind, or any material that is invasive of another's privacy or exploits children or transmitting any sexually-explicit materials, including images and other content.

(f) Deep Links. You agree not to "deep-link" to the Site, meaning that you will not create, post, display, publish or distribute any link to any page other than the front (home) page of the Site to any other web site for any purpose, unless specifically authorized by DigiMark® to do so.

(g) Do Not Violate Third Party Intellectual Property Rights. Without limiting the foregoing, you may not, and by using the Services you agree not to, use the Services to: (i) transmit material that is copyrighted, unless you are the copyright owner or have obtained the permission of the copyright owner to transmit it; (ii) transmit material that reveals trade secrets, unless you own them or have the permission of the owner; (iii) transmit material that infringes on any Intellectual Property Rights (as defined herein) of others or on the privacy or publicity rights of others; or (iv) transmit material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines that are intended to damage, destroy, disrupt or otherwise impair a computer's functionality or the operation of our (or anyone else's) Services, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or transmit any materials that otherwise violates this Agreement or DigiMark®'s rules or policies. For purposes of this Agreement, the term "Intellectual Property Rights" means collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property, or proprietary rights recognized in any country or jurisdiction worldwide, including but not limited to, moral rights and similar rights.

(h) Ownership. The content and materials including but not limited to text, graphics, logos, button icons, images, audio clips, and software included on the Services are the property of DigiMark® and are protected by U.S. and international copyright, trademarks and other proprietary rights and Intellectual Property Rights laws. The compilation of all content on this Site is the exclusive property of DigiMark® and is protected by U.S. and international copyright laws. All software used on this Site is the property of DigiMark® or its suppliers and protected by U.S. and international copyright laws. Except to the minimum extent otherwise expressly permitted under copyright law, no copying or exploitation of material from the Site will be permitted without the express written permission of DigiMark® and any other applicable copyright owner. You also may not resell the Services (or any part thereof). You acknowledges that you do not acquire any ownership rights by virtue of downloading copyrighted material from the Site. All rights not expressly granted hereunder are expressly reserved to DigiMark®.

(i) Copyright Complaints. DigiMark® reserves the right to remove or disable access to any content or other materials that violate or allegedly infringe on a party's copyright or other intellectual property rights. If you believe that your work has been copied and is accessible on the Site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent the following information:

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
Identification of the URL or other specific location on the Site where the material that you claim is infringing is located;
Your address, telephone number, and email address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our agent for notice of claims of copyright infringement on the Site can be reached as follows:

By mail: Digital Marketing Inc. 3429 Hill Gail Drive, Chesapeake Beach, MD USA 20732

By phone: 301/249-6501

By email: og@digimark.net

(j) Spidering. THE USE OF ANY TOOLS, PROGRAMS, ROBOTIC ALGORITHMS OR PRODUCTS TO AUTOMATICALLY DOWNLOAD OR "SPIDER" THE SITE OR ANY OF THE PAGES OF THE SITE INFRINGES ON DIGIMARK'S COPYRIGHTS. DO NOT USE ANY SUCH TOOLS OR PRODUCTS ON OR IN CONNECTION WITH THE SERVICES!

(k) Use other than for Intended Purposes. We may terminate your Services immediately, in our discretion, if we believe that the your conduct fails to conform with this Section 3 or this Agreement. Without limiting the foregoing, if you use, or attempt to use the Services for any purposes other than its intended purposes, including but not limited to tampering, hacking, modifying or otherwise corrupting the security or functionality of the Services, you may also be subject to civil and criminal liability.

4. Invoicing. All non-consumable services will be invoiced for payment in advance of service. Consumable items, including but not limited to disk space usage, bandwidth utilization, and CPU processing time will be invoiced after usage and timely payment of these charges remains the responsibility of the Client at all times. Late payments are subject to late fees of at least Five Dollars ($5.00) and (currently) 1.5% of the outstanding balance per billing cycle. Payments returned due to non-sufficient funds and other banking irregularities are subject to a minimum Twenty-Five Dollars ($25.00) processing fee in addition to balance owed and the Client making such payments may be restricted to advance payments and advanced deposits for further Service.

5. Termination.

(a) Termination. Termination by you shall be accompanied by a written or electronic notice to us. Should you object to any provision of this Agreement or any subsequent modifications thereto or become dissatisfied with the Services in any way, your only recourse is to immediately: (i) terminate use of the Services; and (ii) notify us of termination. Upon termination of the Services, your right to use the Services immediately ceases and you acknowledge and agree that we may immediately delete the files in your account, bar any further access to such files or the Services.

(b) Your Obligation Upon Termination. You agree that you will pay any and all outstanding fees and payments due to us upon termination in full within thirty (30) days after termination.

6. Disclosure of Email Contents. DigiMark® considers email transmitted via its Services to be the private correspondence between the sender and the recipient. DigiMark® will not monitor, edit, or disclose the contents of a user's private communications, except that you agree DigiMark® may do so: (a) as required by law; (b) to comply with legal process; (c) if necessary to enforce this Agreement; (d) to respond to claims that such contents violate the rights of third parties; (e) to protect the rights or property of DigiMark® or others; and (f) to identify or resolve technical problems or respond to complaints about the Services.

7. Message Storage. DigiMark® assumes no responsibility for the deletion or failure to store, deliver or timely deliver messages. DigiMark® has set no fixed upper limit on the number of messages a member may send or receive through the Services, however, DigiMark® reserves the right to set limits at its sole discretion on the number of messages or their storage.

8. Data Storage. DigiMark® assumes no responsibility for the accuracy of data you place in storage on DigiMark®'s computers or displayed on your web site. DigiMark® reserves the right to set limits on the total amount of stored data in order to maintain an acceptable level of data access and retrieval time.

9. Compliance with Laws. You may use the Services and your web site for lawful purposes only. The Services are subject to, and you agree that you shall at all times comply with all applicable local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of the Services. This obligation includes your agreement to comply with all applicable laws, regulations and rules relating to the export of technical and other data from the United States (and from your locality if you are not located in the United States) and your agreement not to export or re-export any such data or any other content or materials in violation of such laws, rules or regulations without first obtaining all necessary licenses, consents and approvals therefore, as well as authorization therefore from DigiMark®.

10. Representations and Warranties. 10.1 Authority. Each party warrants and represents that: (i) It has all necessary legal capacity, right, power and authority to enter into, execute, deliver and be bound by this Agreement and to grant to the other the rights granted herein; and (ii) the execution and delivery of this Agreement and the performance hereof of such party's obligations under this Agreement do not breach, and will not result in a breach or violation of, any agreement, lien, security interest or understanding or obligation to which said party is a party or by which said party is bound.

10.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS SECTION 11, DIGIMARK DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES OF TITLE AND NONINFRINGEMENT. DIGIMARK PROVIDES THE SITE AND THE SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS TO THE MAXIMUM EXTENT PERMISSIBLE AT LAW. YOU UNDERSTAND AND AGREE THAT DIGIMARK DOES NOT WARRANT: (i) THAT THE SITE OR THE DIGIMARK SERVICE WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR-FREE OR (ii) THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS.

11. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT DIGIMARK SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF THE SERVICESS, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DIGIMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF DIGIMARK FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO THE SITE OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED UP TO TWO HUNDRED FIFTY DOLLARS ($250) . THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING BUT NOT LIMITED TO, THOSE RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) ANY TRANSACTIONS VIA THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SITE, TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR THROUGH THE SITE; OR (v) ANY OTHER MATTER ARISING FROM OR RELATING TO THE SITE OR SERVICES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

12. Indemnity of DigiMark®. You agree to indemnify and hold DigiMark® harmless, and, at DigiMark®'s request, defend DigiMark® and its suppliers from and against any claim, demand, cause of action, debt, loss or liability, including reasonable attorneys' fees, to the extent that such action is based upon, arises out of, or relates to: (i) your use (or inability to use) the Services, (ii) any transactions (or attempted transactions) via the Services, and (iii) any other activities of yours accomplished using the Services.

13. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement or its breach, or otherwise relating to the Services (with the exception of injunctive relief sought by DigiMark® for any violation of DigiMark®'s proprietary rights), shall be settled by arbitration in accordance with the then-current rules of the American Arbitration Association. Before entering into arbitration, the parties shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the panel. Should the two arbitrators not be able to agree on a choice of the third, then the American Arbitration Association shall make the appointment of a person who is neutral to the parties. None of the arbitrators shall be officers or employees of the parties to this Agreement. Such arbitrators shall be experts in the computer/information technology field. The cost of arbitration, including fees per arbitrator, shall be borne equally by the parties. The location of arbitration shall be Upper Marlboro, Maryland, USA.

14. Miscellaneous Terms. The Services are controlled by DigiMark® from within the State of Maryland, USA, although it may be accessed and used throughout the world. By accessing or using the Services, you and DigiMark® each agree that the laws of the State of Maryland, USA will govern with respect to all matters relating to or arising from this Agreement or the use (or inability to use) the Services, and that such laws will apply without regard to principles of conflict of laws. Subject to the dispute resolution procedures set forth above, you and DigiMark® agree and hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in Upper Marlboro, Maryland, USA with respect to such matters. This Agreement constitute the entire agreement between you and DigiMark® with respect to the subject matter addressed herein, and govern your use of the Services, superseding any prior agreements between you and DigiMark® relating to such subject matter, but this Agreement may be supplemented by any other agreement you enter into with DigiMark® pursuant a registration to access certain features of the Site. The failure of DigiMark® to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services must be filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred. The section headings used in these Agreement are for convenience only and have no legal or contractual effect.

15. Eligibility. Without limiting the foregoing, DigiMark®'s Services are not intended for use by or availability to minors. YOU MUST BE EIGHTEEN (18) YEARS OF AGE TO USE THE SERVICES.

BY USING OR ACCESSING DIGIMARK'S SERVICES, YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE FOREGOING TERMS AND CONDITIONS, ALL OF WHICH ARE INCORPORATED FULLY INTO THIS AGREEMENT.

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