HOSTING SERVICES TERMS AND CONDITIONS
Last Modified: 04/05/2012
The use of services provided by Swiftwill, Inc. [hereafter referred to as
"Swiftwill"] is subject to the following Terms and Conditions.
1. Party Definitions and Introductory Terms - The operative parties
referred to in this Agreement are defined as follows:
1.1 Swiftwill is the publisher and operator of www.swiftwill.com (the "Site")
whereby Swiftwill makes certain web hosting services (the "Services")
available.
When first-person pronouns are used in this Agreement, (Us, We,
Our, Ours, etc.) these provisions are referring to Swiftwill.
Additionally, when the terms "Website" or "Site" are used, these
terms refer to any site published by Us, unless a site is
specifically exempt from this policy.
1.2. You, the Client - As Our Client and the user of the Site or
Services, this Agreement will refer to You through any second-
person pronouns, such as "Your," "Yours," etc.
PLEASE READ THE FOLLOWING HOSTING SERVICES TERMS AND CONDITIONS. BY
SUBSCRIBING TO SWIFTWILL'S SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS
AND CONDITIONS OF THIS AGREEMENT (the "AGREEMENT"), INCLUDING THE
SEPARATELY NEGOTIATED AND FULLY INCORPORATED PROVISIONS RELATING TO THE
SPECIFIC HOSTING SERVICE PROVIDED TO YOU, THE FEES FOR SUCH SERVICE, AND
THE DURATION OF SUCH SERVICE. IF YOU AGREE WITH THE TERMS AND CONDITIONS OF
THIS AGREEMENT, TYPE "YES" IN THE APPROPRIATE SPACE BELOW TO MANIFEST YOUR
INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND CONTINUE WITH THE
ACCOUNT SET-UP PROCESS. YOU SHOULD PRINT-OUT A COPY OF THIS AGREEMENT FOR
FUTURE REFERENCE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT, YOU MAY TYPE "NO" AND THEREBY NOT SUBSCRIBE TO SWIFTWILL'S
SERVICES. SWIFTWILL AGREES TO PROVIDE SERVICES TO YOU ONLY IF YOU AGREE TO
BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY USE OF
SWIFTWILL'S SERVICES SHALL CONSTITUTE AN ACT OF ACCEPTANCE OF THE CURRENT
HOSTING SERVICES TERMS AND CONDITIONS.
2. SERVICES
2.1. Swiftwill reserves the right to refuse to provide potential
customers with Service for any reason. Swiftwill also reserves the
right to interrupt access to the Services to perform regular and
emergency maintenance as needed. You may order additional Services
at any time, provided that You agree to pay the then-current fees
for such additional services. All additional services shall be
considered "Services" hereunder. All Services provided are subject
to the terms and conditions of this Agreement.
2.2. Pricing and duration of the Services are based on terms negotiated
between You and Us. Such pricing and duration information is being
provided to You contemporaneously with You are asked to
electronically execute this Agreement. You understand that by
typing "YES" below, You are additionally manifesting your intent to
be bound by the pricing and duration terms negotiated between Us
and which are incorporated into this Agreement.
3.REVISIONS TO USER AGREEMENT: This Agreement contains the complete and
entire terms and conditions that apply to Your use of Swiftwill's
Services (as defined below). Swiftwill may modify the terms of this
Agreement, including the Fees at any time, in its sole discretion.
Notice of such modification may be effected by e-mailing You that a
modification has occurred. Your continued use of the Services after the
effective date of any such notice constitutes Your acceptance of such
changes. However, You will have 30 days within which to object in
writing to any modifications to the pricing or the term of this
Agreement. Your failure to object in writing shall constitute your
assent to such modifications.
3.1. The updated or edited version supersedes any prior versions
immediately upon posting, and the prior version is of no continuing
legal effect unless the revised version specifically refers to the
prior version and keeps the prior version or portions thereof in
effect. To the extent any amendment of this Agreement is deemed
ineffective or invalid by any court, the parties intend that the
prior, effective version of this Agreement be considered valid and
enforceable to the fullest extent.
3. 2. In addition to any notice to You that changes have occurred, We
agree that if We change anything in this Agreement, We will change
the "last modified" date at the top of this Agreement. Using the
previously-supplied user ID and password, You agree to periodically
re-visit the webpage at the URL We provided You when You initiated
Service with Us. This webpage provides You with access to this
Agreement as well as the separately negotiated hosting, fee, and
duration terms. You agree to note the date of the last revision to
this Agreement. If the "last modified" date remains unchanged from
the last time You reviewed this Agreement, then You may presume
that nothing in the Agreement has been changed since the last time
You read it. If the "last modified" date has changed, then You can
be certain that something in the Agreement has been changed.
3.3. Should You wish to terminate this Agreement due to any
modifications made by Us to pricing or duration, You must do so in
writing by contacting Us at billing@tickets.swiftwill.com within
thirty (30) days of the "last modified" date described above. Your
continued use of the Services after such time constitutes Your
acceptance of such changes.
3.4. Waiver - if You fail to periodically review this Agreement to
determine if any of the terms have changed, You assume all
responsibility for such omission and You agree that such failure
amounts to Your affirmative waiver of Your right to review the
amended terms. We are not responsible for Your neglect of Your
legal rights.
4. DURATION OF AGREEMENT AND CANCELLATION POLICY/REFUNDS
4.1. The initial term of this Agreement (hereinafter the "Initial Term")
shall begin upon the date that You receive Your account login
information from Us. The term's length is separately negotiated by
You and Us, and incorporated into this Agreement. 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. Upon any cancellation
or termination of this Agreement or Your account with Us, You are
solely responsible for making all necessary arrangements for a
replacement host. Upon termination of this Agreement, provisions
that by their nature would be expected to survive termination shall
survive and remain in full force and effect in accordance with
their terms.
4.2. This Agreement may be terminated by You, without cause, prior to
the end of the Term ("Early Termination") by providing thirty (30)
days written notice to Us via billing@tickets.swiftwill.com. In
the event you elect an Early Termination of this Agreement, you
must pay a cancellation fee equal to the amount of any remaining
minimum bandwidth and hardware commitments left on Your negotiated
terms with Us. Swiftwill may terminate this Agreement immediately
in the event of nonpayment or violation of terms of service by You
at any time, without notice, if in Swiftwill's sole judgment You
have in any way breached this Agreement ("Termination for Cause").
4.3. Swiftwill may also terminate this Agreement in its sole discretion
at any time for any or no reason. ("Termination without Cause"). In
such case, Swiftwill will provide You with thirty (30) days written
notice before the discontinuation of Services.
4.4. If Swiftwill cancels this Agreement pursuant to any of the terms
outlined in this Agreement, with the exception of Termination
without Cause, Swiftwill shall not refund to You any fees paid or
prepaid in advance of such cancellation and You shall be obligated
to pay all fees and charges accrued prior to the effectiveness of
such cancellation.
4.5. In the event Swiftwill cancels Without Cause, any prepaid sums
exceeding Our charges for services through the last date of this
Agreement will be refunded via check or wire transfer within thirty
(30) days thereof.
4.6. Only first time customers of Swiftwill are eligible for any refund
or guarantee offered by Us. If You previously had an account with
Swiftwill and cancelled it, any and all subsequent accounts will
not be eligible for a refund. All refunds are granted at Our sole
discretion, and all refund decisions are final.
4.7. IMPORTANT: Swiftwill does not offer refunds for Dedicated server
accounts, installation and set-up fees, administrative fees, or for
service add-ons such as additional IP addresses.
4.8. Any violations of this Agreement or any other Swiftwill policy will
result in Your waiver of any right You may have had to any refunds.
4.9. The termination of this Agreement will terminate Your access to the
Services and Your license to the Host Materials. Swiftwill shall
not be liable to You or to any third party for termination of the
Services for any reason. The termination of this Agreement does
not relieve You of Your obligation to pay any fees accrued or
payable to Swiftwill prior to the effective date of termination of
this Agreement.
4.10. Upon termination of this Agreement, Swiftwill reserves the right to
maintain copies of Your data files and records for archival
purposes, but has no obligation to do so.
5. ACCOUNT SET UP
5.1. When You register for the Services, Swiftwill will provide You with
the necessary user ID and password to access the Services. You may
use the Services or modify Your information, data and content only
through such user ID and password. You are entirely responsible for
maintaining the confidentiality of Your user ID and password and
for any and all activities which occur using those credentials. You
agree to immediately notify Us of any unauthorized use of Your
account or any other breach of security known to You.
5.2. You must provide Us with a primary email address that is not part
of any domain hosted by Us. All notices and communications between
Us will be sent to this email address You provide, and You are
therefore required to keep this address current or update Your
account information with Us if Your address changes. Please notify
us of such changes via billing@tickets.swiftwill.com. It is also
Your responsibility to make sure that Our domain(s), including
swiftwill.com, are not included in any spam block list used by You
or Your mail provider.
5.3. Providing false or inaccurate contact information of any kind may
result in the Termination for Cause of Your account.
5.4. You are responsible for all activity transpiring under Your
account. We therefore highly recommend that You secure file,
directory, and script permissions to the most restrictive settings
possible. You agree that You have the technical ability to properly
operate a web site and that You are responsible for any actions
performed under Your account, including but not limited to, damage
caused to Your site, Swiftwill's Site and/or equipment, and any
other site.
6. INTELLECTUAL PROPERTY RIGHTS All Services provided by Swiftwill may only
be used for lawful purposes.
6.1. As between You and Swiftwill, Swiftwill acknowledges that it claims
no proprietary rights in or to the content (including without
limitation, text, software, music, sound, audio visual works,
motion pictures, photographs, animation, video and graphics)
supplied by You for use on Your web site(s) ("Your Content"). You
hereby grant to Swiftwill a non-exclusive, worldwide and royalty-
free license to copy, make derivative works, display, perform, use,
broadcast and transmit on and via the Internet Your Content, solely
for the benefit of You and to enable Swiftwill to perform its
obligations in this Agreement.
6.2. In connection with performance of the Services and at the sole
discretion of Swiftwill with no obligation, Swiftwill may provide
You with certain materials, including, without limitation, computer
software (in object code or source code form), data, documentation
or information developed or provided by Swiftwill or its suppliers
under this Agreement, electronic mail addresses and other network
addresses assigned to You, and other know-how, methodologies,
equipment, and processes used by Swiftwill to provide You with the
Services ("Host Materials"). Subject to the terms and conditions of
this Agreement, Swiftwill hereby grants You a limited, revocable,
non-transferable, non-exclusive license to use the Host Materials
solely in connection with the Services. This license terminates
when this Agreement terminates. As between You and Swiftwill, You
acknowledge and agree that Swiftwill owns all right, title, and
interest or otherwise has acquired all applicable licenses for the
Host Materials, and all copyright, trade secret, patent, trademark
and other intellectual property rights therein. Any use of the Host
Materials is not licensed and strictly prohibited. You agree that
You will not upload, transmit, reproduce, distribute or in any way
exploit any Host Materials obtained through the Services without
first obtaining the express written permission to do so from
Swiftwill.
6.3. This Agreement does not constitute a license to use Swiftwill's
trade names, service marks or any other trade insignia. Any use of
any of Swiftwill's trade names, service marks or any other trade
insignia shall be subject to Swiftwill's prior written consent.
6.4. As a specific matter - You are not permitted to register any
Uniform Resource Locator (URL) or world wide web address that
contains any of Our trademarks or URLs or that contain any terms
that are confusingly similar to Our trademarks or Our URLs.
6.5. You may not register any URLs or world wide web addresses that
consist of, or contain, common or likely misspellings of Our
trademarks or Our URLs.
6.6. In the event that You wish to register a URL and You are unclear as
to whether the URL would be considered to be a violation of this
provision, You are invited to contact Us. Upon receipt of Your
request, We will issue a determination to You within thirty (30)
days as to whether the URL would be a violation of this Agreement.
6.7. In the event that You do not receive a response from Us within
thirty (30) days, You should consider registration of the URL to be
a violation of this Agreement and You should not register the URL.
6.8. If You violate this Agreement, You will immediately transfer the
offending URL to Us upon demand, and You agree to pay Us five
thousand dollars ($5000) in stipulated liquidated damages for each
URL registered in violation of this Agreement.
6.9. You specifically agree to pay these liquidated damages. In agreeing
to pay these liquidated damages, You acknowledge that this amount
is not a penalty, and that the actual damages are uncertain and
difficult to ascertain, but that this amount represents the
parties' good faith attempt to calculate an appropriate
compensation based on anticipated actual damages.
6.10. If We are required to enlist the assistance of an Attorney or other
person to collect any liquidated damages or any other amount of
money from You, or if We are required to seek the assistance of an
Attorney to pursue injunctive relief against You, or if We are
required to file an ICANN complaint against You in order to bring
about the transfer of an offending URL to Us from You, then You
additionally agree that You will reimburse Us for all fees incurred
in order to collect these liquidated damages, or in order to seek
injunctive relief from You, or in order to file and prosecute an
ICANN complaint.
6.11. You understand that even a nominal amount of damages may require
the expenditure of extensive legal fees, travel expenses, costs,
and other amounts that may dwarf the liquidated damages themselves.
You agree that You will pay all of these fees and costs.
6.12. You further agree that You will not use any of Swiftwill's
trademarks, trade names, or service marks as metatag keywords in
any website operated by You, and You will not purchase Our marks
and/or trade names via Google® AdWords or any other pay-per-click
or similar advertising medium.
6.13. DMCA COMPLIANCE
We respect the intellectual property of others, and We ask Our
customers to do the same. If you believe that your work has been
copied in a way that constitutes copyright infringement, please
provide Our Designated Copyright Agent with the following
information:
A. An electronic or physical signature of the person authorized to
act on behalf of the owner of the copyright or other intellectual
property interest.
B. A description of the copyrighted work or other intellectual
property that You claim has been infringed.
C. A description of where the material that You claim is infringing
is located on the Services.
D. Your physical address, telephone number, and email address.
E. 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; and.
F. A statement by You, made under penalty of perjury, that the
above information in Your Notice is accurate and that You are the
copyright or intellectual property owner or authorized to act on
the copyright or intellectual property owner's behalf.
You may send Your Notice of Claimed Infringement to:
Lawrence G. Walters, Esq.
Walters Law Group
195 W. Pine Ave
Longwood, FL 32750-4104
Fax: (407) 774-6151
Notice [at] DMCANotice [dot] com
NOTE: Please do not send other
inquiries or information to Our Designated Agent.
Notice and Take Down Procedures
We implement the following "notice and takedown" procedure upon
receipt of any notification of claimed copyright infringement.
Swiftwill reserves the right at any time to disable access to, or
remove any material or activity accessible on or from Our servers,
or any materials claimed to be infringing, or materials which
appear, based on facts or circumstances to be infringing. It is Our
firm policy to terminate the account of repeat copyright
infringers, when appropriate, and We will act expeditiously to
remove access to all material that infringes on another's
copyright, according to the procedure set forth in 17 U.S.C. §512
of the Digital Millennium Copyright Act ("DMCA"). Our DMCA Notice
Procedures are set forth in the preceding paragraph. If the notice
does not comply with §512 of the DMCA, but does comply with three
requirements for identifying sites that are infringing according to
§512 of the DMCA, We shall attempt to contact or take other
reasonable steps to contact the complaining party to help that
party comply with the notice requirements. When the Designated
Agent receives a valid notice, We will expeditiously remove and/or
disable access to the infringing material and shall notify the
affected user. At that point, You, the Client, may utilize the
following counter-notification procedure.
6.14. DMCA Counter-Notification Procedure
If the Recipient of a Notice of Claimed Infringement ("Notice")
feels that the Notice is erroneous or false, and/or that allegedly
infringing material has been wrongly removed in response to a
Notice as outlined above, the Recipient is permitted to submit a
counter-notification pursuant to Section 512(g)(2) and (3) of the
DMCA. A counter-notification is the proper method for the Recipient
to dispute the removal or disabling of material pursuant to a
Notice. The information that a Recipient provides in a counter-
notification must be accurate and truthful, and the Recipient will
be liable for any misrepresentations which may cause any claims to
be brought against Us relating to the subject content.
To submit a counter-notification, please provide Our Designated
Copyright agent the following information:
A. A specific description of the material that was removed or
disabled pursuant to the Notice.
B. A description of where the material was located within the Site
or the Content before such material was removed and/or disabled.
Please provide the specific URL if possible.
C. A statement reflecting the Recipient's belief that the removal
or disabling of the material was done so erroneously. For
convenience, the following format may be used:
"I swear, under penalty of perjury, that I have a good faith belief
that the referenced material was removed or disabled by the service
provider as a result of mistake or misidentification of the
material to be removed or disabled."
D. The Recipient's physical address, telephone number, and email
address.
Written notification containing the above information must be
signed and sent to:
Lawrence G. Walters, Esq.
Walters Law Group
195 W. Pine Ave
Longwood, FL 32750-4104
Fax: (407) 774-6151
Alternately, to email the above information, You must
electronically sign the email and send it to:
Notice [at] DMCANotice [dot] com Do not send any other information
or material to the DMCA Agent.
After receiving a DMCA-compliant counter-notification, Our
Designated Copyright Agent will forward it to Us, and We will then
provide the counter-notification to the entity who first provided
the Notice concerning material in the Recipient's Content.
Additionally, within ten to fourteen (10-14) days of Our receipt of
the counter-notification, We will replace or cease disabling access
to the disputed material provided that We or Our Designated
Copyright Agent have not received notice from the entity who first
provided the Notice that such entity has filed a legal action
pertaining to the disputed material. The Site reserves the right to
modify, alter or add to this policy, and all users should regularly
check back regularly to stay current on any such changes.
7. CONTENT AND ACCEPTABLE USE POLICY
7.1. You agree to comply with the content and acceptable use provisions
found in this Agreement. Swiftwill reserves the right to modify
this Agreement at any time by posting the modified policy on its
web Site. You agree to monitor Swiftwill's home page for any
changes to this Agreement.
7.2. Swiftwill may, at its sole discretion, immediately terminate Your
access to the Services, and terminate this Agreement for cause, if
Your conduct violates the acceptable uses outlined below, or if any
of Your end users' or downstream customers' conduct violate such
acceptable uses.
7.3. We will not actively monitor the content of the web sites being
hosted by Us, although We, at Our sole discretion, may elect to
electronically monitor Our network and may disclose any content or
records concerning Your account as necessary to satisfy any law,
regulation, or other legal/governmental request or to properly
operate Our network and protect any of Our customers. Swiftwill
will investigate complaints of a violation of a third party right
or of any portion of this Agreement. Swiftwill will cooperate with
those attempting to minimize Internet abuse and reserves the right
to institute "filters" or other mechanisms for that purpose.
Swiftwill will cooperate with law enforcement authorities and will
notify such authorities if it suspects that You or any of Your end
users are engaged in illegal activities.
7.4. Specific Requirements for Service Provider and User-Generated
Content Subscribers
7.4.1. If You use Swiftwill's Services for any site, sub-domain, page or
business model that allows Your end users or customers to control
or upload material to Internet space assigned to You by Swiftwill,
You shall be deemed to be acting as a "Service Provider" with
respect to such services and/or customers. Service Providers
include but are not limited to Clients which; a) resell bandwidth
as hosts to third parties; b) operate user-generated content sites
such as forums, "tube" sites, review sites, and online classified
advertising sites; c) operate search engines; or d) operate peer-to-
peer file sharing networks. Clients acting as a Service Provider
for third party users shall comply with the following provisions:
. You shall notify Swiftwill of all domains, web pages or IP
addresses for which You are acting as Service Provider.
. You shall comply with 17 U.S.C. §512 of the DMCA by properly
designating an agent for receipt of copyright infringement
notices, and You shall publish a link on the home page of any
website for which You are a Service Provider to a DMCA Notice
and Takedown Policy, identifying the website's designated
agent and associated contact information.
. You shall provide Swiftwill with a current link to Your DMCA
Notice and Takedown Policy and further advise Swiftwill of
any changes to Your Designated Agent contact information.
This shall be a continuing obligation for as long as You are
a Client of Ours.
7.4.2. It is the policy of Swiftwill to provide any infringement notices
it receives relating to Service Provider Subscribers, directly to
the Subscriber's Designated DMCA Agent, and to further notify any
copyright claimants of the identity and contact information for
the Service Provider Subscriber's Designated DMCA Agent. Failure
to maintain compliance with this section shall constitute a
material breach of this Agreement.
7.5. In keeping with Our DMCA policies and obligations set forth above,
You understand, agree, and expressly allow Swiftwill to access and
subsequently disable public access to any files or data residing on
Your server, disk, partition, or otherwise under Your control as
Our customer when such files or data, in Our discretion; 1), have
been identified in a substantially compliant DMCA notice under 17
U.S.C. § 512; or 2) when We become aware of facts or circumstances
indicating that such files or data are infringing on the copyrights
of third parties. Given that Our customers may employ various
methods of securing files in conjunction with Our Services, and in
an attempt to avoid material disruption of Our customers' Services,
You agree that You will provide Us with Your preferred procedure
for disabling access to material identified under this provision.
If We forward You a DMCA Notice received by Our Designated Agent
and which concerns content under Your control, You are obligated
under this Agreement to immediately disable or remove access to
such content. Irrespective of the above, We reserve the right to
disable or remove access to such content, in Our discretion, and
without claim of damage or injury by You. While We will attempt to
simply disable access to such content without fully deleting it, We
make no warranties concerning harm or injury to the content. It is
therefore in Your best interest to promptly respond to any DMCA
Notices You may receive. Should You or Your website's users feel
that such DMCA Notice was erroneously or improperly sent, You must
follow the Counter-Notification procedure set forth above, and wait
the required period of time, before We allow public access to the
content to resume.
7.6. To the extent applicable to Your site, You warrant and represent
that: 1) Your Content complies with Title 18, U.S.C. s. 2257 and 28
C.F.R. s. 75 et seq., as amended; 2) all performers depicted in the
Your Content were over the age of eighteen (18) when the content
was created; 3) Your Content does not contain any images which
constitute child pornography, obscenity, bestiality, actual
depictions of violence, or activities otherwise illegal in the
United States of America; and 4) all representations and
reproductions of any aspect of the likeness of actual people in the
Your Content have been duly authorized and permitted by the persons
depicted.
7.7. At any time, We may, at Our sole discretion, require a copy of any
and all legal documentation showing rightful ownership, or licensed
distribution for any item or file displayed on Your website so as
to resolve any copyright or other legal claims that may arise. If
You are unable to provide ownership or licensing information to the
complaining party and/or Us, then You must remove the objectionable
material or face having the applicable pages taken down by Us.
7.8. You acknowledge and expressly agree that Swiftwill will not be
liable to You or any of Your end users for any action Swiftwill
takes to remove or restrict access to the Services for any alleged
violation of this Agreement, or exercising its rights as a Good
Samaritan under the Telecommunications Act of 1996, Section 230 of
the Communications Decency Act, or under the Digital Millennium
Copyright Act of 1998.
7 9. Without Our express written consent, You may not:
. Use the Service in connection with unlawful contests,
lotteries, or gambling; pyramid schemes, chain letters, junk
email, spamming or any duplicative or unsolicited messages
(commercial or otherwise).
. Defame, abuse, harass, stalk, threaten or otherwise violate
the legal rights (such as rights of privacy and publicity) of
others.
. Publish, post, upload, distribute, traffic or disseminate any
defamatory, obscene, or otherwise unlawful, illegal, or
objectionable (in Our discretion) content, such as child
pornography.
. Publish, post, upload, distribute or disseminate any topic,
name, material or information that incites discrimination,
hate or violence towards one person or a group because of
their belonging to a race, a religion or a nation.
. Upload, or otherwise make available (i.e. via linking or hot-
linking) files or products that contain images, photographs,
software or other material protected by intellectual property
laws, including, by way of example, and not as limitation,
copyright, patent or trademark laws (or by rights of privacy
or publicity) unless You own or control the rights thereto or
have received all necessary consents to do same.
. Upload or provide files that contain viruses, Trojan horses,
worms, time bombs, cancelbots, corrupted files, or any other
similar software or programs that may damage the operation of
another's property.
. Use meta tag searches on the site.
. Download any file posted by another user of a Service that
you know, or reasonably should know, cannot be legally
distributed in such manner.
. Falsify or delete any author attributions, legal or other
proper notices or proprietary designations or labels of the
origin or source of software or other material contained in a
file that is uploaded.
. Restrict or inhibit any other user from using and enjoying
the Services.
. Violate any code of conduct or other guidelines which may be
applicable for any particular Service.
. Harvest or otherwise collect information about others,
including e-mail addresses, except as needed to operate Your
site and as permitted in Your site's privacy policy (if any).
. Violate any applicable laws, policies, or regulations.
. Create a false identity for the purpose of misleading others.
Any fraudulent, deceptive or unfair transactions or trade
practices are strictly forbidden. You agree to fully comply
with the United States Federal Trade Commission ("FTC")
statutes and regulations (if You do business in the United
States or with United States based customers), and any
related rules, policies, and advisory opinions issued by the
FTC.
. Use, download or otherwise copy, or provide (whether or not
for a fee) to a person or entity any directory of users of
the Services or other user or usage information or any
portion thereof.
. Use the Service for any public IRC interconnections. i.e.
hosting an IRC daemon or reselling / providing shell services
where IRC clients and or bots are utilized.
. Use the service for a primary business of email services.
This may include free email services to the public, opt-in
lists, double opt-in, or any matter of regular bulk email
services.
. Run stand-alone, unattended server-side processes at any
point in time on the server. This includes any and all
daemons, such as IRCD.
. Run any type of web spider or on Our servers.
. Run any software that interfaces with an IRC (Internet Relay
Chat) network.
. Run any torrent application, tracker, or client. You may
link to legal torrents off-site but may not host or store
them on Our servers.
. Run any gaming servers such as counter-strike, half-life,
battlefield1942, etc.
. Run cron entries with intervals of less than 15 minutes.
Examples of unacceptable material further includes:
. Bank Debentures/Bank Debenture Trading Programs
. Bruteforce Programs/Scripts/Applications
. File Dump/Mirror Scripts (similar to RapidShare)
. Forums and/or websites that distribute or link to
warez/pirated/illegal content
. Fraudulent Sites
. Hacker focused sites/archives/programs
. Hateful/Racist/Harassment oriented sites
. High-Yield Interest Programs (HYIP) or Related Sites
. Image Hosting Scripts
. Virtual currency exchanges
. IP Scanners
.IRC Scripts/Bots
. Illegal gambling sites
. Mail Bombers/Spam Scripts
. MUDs/RPGs/PPBGs
. Pirated Software/Warez
. Proxy Scripts/Anonymizers
. Site offering or promoting illegal sale/purchase of
controlled substances
. Sites promoting illegal activities
. File Archive/Backup/Site Mirroring (i.e. using Your account
solely as a storage or backup service)
Any customer granted Root access shall not:
. Modify or distribute the system kernel in any way, shape or
form;
. Update/create/delete accounts created and maintained by the
Us;
. Change the partitioning or mount points of any drive;
. Create/update/delete any system file without previous written
permission;
. Create .rhosts or /etc/.host.eqiv files;
. Implement any procedure or process that would allow one to
login as root without using the root password;
. Create suid scripts or programs without written permission;
. Alter the system kernel;
. Apply operating system and application patches to software
not installed and solely maintained by You;
. Change the root shell;
. Alter /etc/fstab or /etc/vfstab;
. Modify the decode or root alias in the /etc/aliases file;
. Change the "identity" of the system;
. Modify the system in any manner that restricts or alters
access to the system by Us;
. Create/update/delete all aspects of Your user accounts. This
may include modifying home directory permissions, user
passwords, etc;
. Modify, existing data in the following configuration files:
o /etc/aliases, /etc/group, /etc/rc.local, etc/sendmail.cf
file and root crontab.
. Install software on the server if the installation would
violate any restrictions found herein. You must also hold a
license for software installed or otherwise used with Your
account, and You agree to provide Us with a copy of the
license upon demand.
You agree that We are under no duty to monitor the content
appearing on any Internet space or server assigned to You. Our
abuse department may contact you regarding Your use of the
Services. You must respond to any such communication within forty-
eight (48) hours from the date and time of the communication or
face possible suspension and/or termination. Swiftwill reserves
the right to immediately suspend or terminate the account of any
customer violating the above-referenced Acceptable Use Policy,
without notice, if in Our discretion, it appears that illegal
activity is being facilitated or if the public welfare is in
danger.
7.10. Swiftwill takes the issue of child pornography very seriously, and
any potential harm to minors is strictly prohibited. Content that
is or may be perceived to be child pornography will be immediately
removed upon notification or detection by Us. Additionally, any
account whose website(s) hosts, advertises, or links to child
pornography will be terminated immediately and without notice to
You. Consistent with federal law, Swiftwill will cooperate with
law enforcement authorities and will notify such authorities if it
suspects that You or any of Your downstream customers or end users
are engaged in such illegal activities. We report suspected child
pornography to the National Center for Missing and Exploited
Children.
7.11. Section 230 Notice: You acknowledge Your responsibility to prevent
minors under Your care from accessing harmful or inappropriate
material on Your site. You agree not to allow minors to view any
such site, and agree to take responsible measures to prevent them
from doing so. Numerous commercial online safety filters are
available which may help users limit minors' access to harmful or
inappropriate material. Pursuant to 47 U.S.C. §230(d), You are
hereby informed that You can research such services at websites
such as: www.getwise.org or http://www.child-internet-
safety.com/internet_filters.php, among others. Please note that
Swiftwill makes no representation or warranty regarding any of the
products or services referenced on such sites, and recommend that
the user conduct appropriate due diligence before purchasing or
installing any online filter. You agree to take particular steps to
prevent minors from viewing Your Site if Your computer can be
accessed by a minor. Finally, You agree that if You are a parent or
guardian of a minor child, it is Your responsibility, not Ours, to
keep any age-restricted content on Our Site from being displayed or
accessed by Your children or wards.
Pursuant to the Communications Decency Act ("CDA"), 47 U.S.C. §
230(c)(1), and court decisions interpreting the scope of the CDA,
You acknowledge and understand that Swiftwill operates as the
provider of an interactive computer service. Thus, We are immune
from, and cannot be held responsible for, claims arising from the
publication of Your content (including third-party content). We do
not create such content, and We are not responsible for the
publication of remarks or communications of third-parties that may
arguably rise to the level of being actionable under federal or
state laws including, but not limited to, the publication of
material that might be considered defamatory, or violative of
privacy or publicity rights. Note, that federal law allows
Swiftwill to remove any content found to be offensive, defamatory,
obscene or otherwise violative of Our policies, without impacting
Our status as an interactive computer service. Nothing contained in
this paragraph is intended to limit or alter the immunity from
claims provided by Section 230 of the Communications Decency Act.
Nothing contained in this Agreement is intended to limit or alter
the immunity from claims provided by Section 230 of the
Communications Decency Act, and no third parties are intended to
benefit from this User Agreement between You and Us.
7.12. We respect the intellectual property rights of all parties, and
have adopted a policy regarding termination of repeat copyright
infringers under the Digital Millennium Copyright Act. Copies of
Our Repeat Infringer Policy are available on request to our
customers or subscribers.
8.ZERO TOLERANCE SPAM POLICY
8.1. Swiftwill's Services may not be used to distribute or facilitate
the distribution of illegal commercial messages, including but not
limited to distribution via electronic mail (SPAM), instant
messaging (SPIM).
9. PAYMENT
9.1. Depending on the specific fee and duration terms negotiated between
Us, payment for Services may be 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 Swiftwill's cancellation
procedure set forth in this Agreement.
9.2. You must keep all payment information current to avoid late and/or
missing payments. We provide a five (5) day grace period from the
date Your invoice is created until the time Your payment is due. Any
payment received after the five (5) day grace period is considered
untimely and will result in a ten dollar ($10.00) late fee and/or
suspension or termination of Your account until Your balance is paid
in full. We reserve the right to charge a reconnection fee to
reinitiate Your Service once Your balance is paid in full.
9.3. Swiftwill 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. You agree to reimburse
Swiftwill for all bank fees or charges incurred with any returned
check or other payment method. You further agree to pay any taxes,
including personal property, value added, or sales taxes, resulting
from Your use of the Services. If Swiftwill should receive less than
full payment of the Fees due to taxes, bank charges, transfer fees,
or the like, Swiftwill will invoice You for the difference between
payment received and the Fees due. You agree to pay all attorney and
collection fees arising from Our efforts to collect any past due Fees
from You, including attorneys fees at the trial and appellate levels.
9.4. In the event You have an unpaid balance due to Us thirty (30) days
after termination or cancellation of Your account, Swiftwill shall
have full right and authority to charge Your balance due to Your
credit/debit card(s) on file with Us. You agree that any unpaid
balance due hereunder shall bear interest at the rate of 1.5% per
month (or the maximum legal rate, whichever is lower), and that costs
of collection, including court costs and reasonable attorney's fees
shall be added as principal amounts to such balance. You understand
that You are signing this Agreement both individually and as a
representative of a corporation (if applicable) and that the
individual who signs this Agreement personally guarantees the payment
of all fees referenced above, even if this Agreement is made on
behalf of a corporation, in which case both the corporation and the
individual are liable.
9.5. Subject to specific provisions within this Agreement, Swiftwill
reserves the right to change the monthly payment amount and any other
charges at anytime.
10.BACK UPS & DATA LOSS
You agree that Your use of Swiftwill's Services is at Your own risk.
Unless separately negotiated between Us, You are solely responsible for
creating backups of Your Content. While Swiftwill may make inadvertent
backups of Your Content when performing routine maintenance or when
performing system-wide backups, such backups are intended to benefit
Swiftwill only. To that end, We highly recommend that You establish Your
own routine backup procedure and that You periodically test restoring
files from Your backup media to ensure that You are making viable
backups.
11. DEDICATED SERVER POLICIES
11.1. Bandwidth pricing and measurement frequency is subject to change at
Swiftwill's discretion. Dedicated plan Clients affected by such
changes will be notified no less than thirty (30) days in advance
by Swiftwill.
11.2. Dedicated server payments are NONREFUNDABLE. For example, if You
submit payment for twelve (12) months of service, service will be
provided for twelve (12) months and will not be refunded if You
choose to discontinue service with Swiftwill mid-way through the
term. However, if, pursuant to this Agreement, Your account is
Terminated without Cause, Swiftwill will provide You with thirty
(30) days written notice before the discontinuation of Services.
11.3. If an existing server is required to undergo a hardware upgrade, or
if You request a hardware upgrade, Swiftwill will perform such
upgrade. Hardware upgrades may be subject to a mutually agreed upon
fee paid by You as well as an increase in the monthly service rate.
11.4. Swiftwill reserves the right to modify the Dedicated server
packages advertised on its Site at its discretion. Unless otherwise
agreed to, no hardware upgrade, fee decrease, or other benefit
advertised on Swiftwill's Site will be applicable to existing
customers.
11.5. To protect the security of managed dedicated servers and to secure
the network, kernel, and operating system, Swiftwill reserves the
right to apply security patches, upgrade the operating system, or
any other measure Swiftwill deems necessary. Swiftwill may also
need to reset the password on dedicated servers in order to perform
maintenance and security audits. You must keep a valid email
address (which is separate from any domain for which We provide
Services) and root password on file with Us to prevent downtime
caused by any forced password resets.
11.6. For unmanaged dedicated servers, it is Your responsibility to apply
security patches and maintain the security of Your server. Failure
to adequately protect Your server is grounds for termination of
Services without refund. Alternately, and at Our discretion, We may
take any steps We deem necessary to protect the security of Our
network and servers. Such action may result in additional charges
to Your account.
12. RESOURCE USAGE
12.1. Notwithstanding bandwidth and disk space limitations, Swiftwill
does not impose hard set limits on each account's system resources.
We do not actively disable accounts until they greatly exceed an
acceptable level of usage. There are numerous activities that could
cause such problems, including automatic computer scripts or code.
Swiftwill will advise You of a temporary block placed on any
account found to be consuming an inordinate amount of system
resources, to the point of degrading overall system performance.
12.2. Except where expressly permitted by law, You may not translate,
reverse-engineer, decompile, disassemble, or make derivative works
from any of the Site and/or Materials. You hereby agree not to use
any automatic device or manual process to monitor or reproduce the
Site or Materials, and will not use any device, software, computer
code, or virus to interfere or attempt to disrupt or damage Our
Services and Site or any communications on it. If You do not adhere
to this provision of this Agreement, in addition to monetary
damages and other remedies available to Swiftwill, You hereby agree
to pay liquidated damages of five thousand dollars ($5000.00) plus
any and all fees associated with recovery of these damages,
including attorneys' fees and costs. Unauthorized access of the
servers is strictly prohibited. You agree to not engage in such
activity or to attempt to breach Our equipment for the purpose of
altering or manipulating the hardware and software, compromising
the Servers, or for any other unauthorized use commonly known as
"hacking." In addition, You are prohibited from the following:
12.2.1. Any form of unauthorized access to or use of data, systems or
networks;
12.2.2. Unauthorized monitoring of data or traffic on any network or system
without express authorization of the owner of the system or
network;
12.2.3. Unauthorized interference with Service to any user, host or
network;
12.2.4. Introducing a malicious program into the network or server (e.g.
viruses and worms);
12.2.5. Circumventing user authentication or security of any host, network
or account;
12.2.6. Using an account with another provider to promote Your site in an
abusive manner.
12.2.7. Utilizing Our Service for the purpose of compromising the security
or tampering with system resources or accounts on computers at Our
Site or any other site.
12.3.BANDWIDTH USAGE Your monthly bandwidth allowance is determined by
the specific package for which You sign up. If your account exceeds
Your monthly allowance, We reserve the right to suspend Your
account until You upgrade to a package containing a sufficient
bandwidth allowance, suspend Your account until the start of the
next month's allocation time period, terminate Your account
pursuant to Paragraph 4 of this Agreement, and/or charge You an
overage fee. Unused bandwidth is not carried over to the next month
for purposes of a credit.
13.INDEMNIFICATION You agree to defend, indemnify, and hold Swiftwill and
its Affiliates harmless from and against any and all claims and
liabilities, including reasonable attorneys' and experts' fees, related
to or arising from (a) any breach of Your covenants under this Agreement;
(b) Your use of the Services; (c) all conduct and activities occurring
under Your user ID and password; (d) any item or service sold or
advertised in connection with Your Content or Your information and data;
(e) any defamatory, libelous or illegal material contained within Your
Content or Your information and data; (f) any claim or contention that
Your Content or Your information and data infringes any third party's
patent, copyright or other intellectual property rights or violates any
third party's rights of privacy or publicity; (g) any third party's
access or use of Your Content or Your information and data; (h) any
violation of the applicable Acceptable Use Policy. In the event of a
claim under this section, Swiftwill shall be permitted to select legal
counsel to provide a defense to such claim. Swiftwill reserves the right,
at its own expense, to participate in the defense of any matter otherwise
subject to indemnification from You, but shall have no obligation to do
so. You shall not settle any such claim or liability without the prior
written consent of Swiftwill, which shall not be unreasonably withheld.
14. NO WARRANTIES YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT
YOUR SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS,
WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. SWIFTWILL EXPRESSLY DISCLAIMS
ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. OTHER THAN AS SET FORTH
IN PARAGRAPH 14, SWIFTWILL MAKES NO WARRANTY THAT THE SERVICES WILL MEET
YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR FREE; NOR DOES SWIFTWILL MAKE ANY WARRANTY AS TO THE
RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE
ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES
OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE
CORRECTED. ANY STATEMENTS MADE REGARDING SUCH MATTERS IN PROMOTIONAL
MATERIALS SHALL BE CONSIDERED ADVERTISING REFERENCES, AND NOT WARRANTIES.
YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR
DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS
AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM
THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
SWIFTWILL MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE
TO YOU THAT ARE NOT PART OF THE SERVICES ("THIRD-PARTY SERVICES").
SWIFTWILL HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF
ANY THIRD-PARTY SERVICES WILL BE AT YOUR OWN AND SOLE RISK AND SUBJECT TO
THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE
THIRD-PARTY.
SWIFTWILL MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR
OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH
THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM
SWIFTWILL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY
IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY
MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ON SWIFTWILL'S
WEBSITE.
UNLESS OTHERWISE AGREED TO IN WRITING, SWIFTWILL DOES NOT MAKE A BACK-UP
OF YOUR SITE(S) AS PART OF THE SERVICES. ACCORDINGLY, WE ENCOURAGE YOU TO
MAKE A BACK-UP OF YOUR SITE(S) ON A REGULAR BASIS.
15.LIMITATION ON LIABILITY YOU ARE SOLELY RESPONSIBLE FOR THE PROPER
OPERATION OF YOUR WEB-SITE AND/OR CONDUCT OF YOUR BUSINESS AND ALL OTHER
MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL SWIFTWILL BE LIABLE TO YOU
FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEB-
SITE AND/OR BUSINESS OR FAILURE TO OPERATE YOUR WEB-SITE AND/OR BUSINESS.
THIS SECTION APPLIES TO ALL CLAIMS BY YOU OR YOUR END USERS IRRESPECTIVE
OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED
TO, BREACH OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE,
STRICT LIABILITY, FRAUD, AND/OR MISREPRESENTATION.
REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU
AGREE THAT IN NO EVENT WILL SWIFTWILL, OUR AFFILIATES, CONTRACTORS,
SERVICE PROVIDERS, EMPLOYEES, AGENTS, OR LICENSORS, OR ANY OTHER PARTY
INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY,
OR CONTENT AVAILABLE ON THE SERVICES ("AFFILIATES"), BE LIABLE TO YOU IN
ANY MANNER WHATSOEVER: (A) FOR ANY DECISION MADE OR ACTION OR NON-ACTION
TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE
SERVICES; (B) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF
SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED
TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, FOR BUSINESS
INTERRUPTION OR SIMILAR ACTION, EVEN IF SWIFTWILL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE AND MAXIMUM LIABILITY OF
SWIFTWILL AND THE AFFILIATES, ARISING FROM OR OTHERWISE RELATING TO THIS
AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM) IS LIMITED TO ANY
AMOUNTS YOU HAVE PAID TO SWIFTWILL DURING THE SIX (6) MONTHS PRIOR TO THE
ACCRUAL OF THE CAUSE OR CAUSES OF ACTION.
16. GENERAL PROVISIONS
16.1. Jurisdiction, Venue, and Choice of Law. This Agreement and all
matters arising out of or otherwise relating to this Agreement
shall be governed by the laws of the State of Florida, excluding
its conflict of law provisions. The parties hereby submit to the
personal jurisdiction of the state and federal courts of Orange
County, Florida for disputes resolved under this agreement by
litigation. Exclusive venue for any litigation permitted under this
Agreement shall be with the state and federal courts located in
Orange County, Florida.
16.1.1. The parties agree that this choice of venue, jurisdiction, and
forum as set out in the following parts of this Agreement is
mandatory and not permissive in nature, thereby precluding any
possibility of litigation between the parties with respect to, or
arising out of, this Agreement in jurisdiction other than that
specified in this Section.
16.1.2. All parties hereby waive any right to assert the doctrine of forum
non-conveniens or similar doctrines, or to object to venue with
respect to any proceeding brought in accordance with this paragraph
or with respect to any dispute under this Agreement whatsoever.
16.1.3. All parties stipulate that the state and federal courts located in
Orange County, Florida shall have personal jurisdiction over them
for the purpose of litigating any dispute, controversy, or
proceeding arising out of (or related to) this Agreement and/or the
relationship between the parties contemplated thereby.
16.1.4. Each party hereby authorizes and accepts service of process
sufficient for personal jurisdiction in any action against it, as
contemplated by this paragraph by registered or certified mail,
Federal Express, proof of delivery or return receipt requested, to
the parties address for the giving of notices as set forth in this
Agreement.
16. 2. Arbitration. 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 must 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 Seminole
County, Florida 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.
16.3. 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.
16.4. 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.
16.5. 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.
16.6. 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.
16.7. Relationship Between the Parties. Swiftwill is an independent
contractor; nothing in this Agreement shall be construed to create
a partnership, joint venture or agency relationship between the
parties.
16.8. 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.
16.9. Force Majeure. Swiftwill 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
Swiftwill's performance.
16.10. 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.
16.11. Complaints - California Residents: The Complaint Assistance Unit of
the Division of Consumer Services of the Department of Consumer
Affairs may be contacted at:
http://www.dca.ca.gov/online_services/complaints/consumercomplaint.shtml
16.12. Government Rights. The software elements of the Host Materials have
been developed at private expense and is "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.
16.13. 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.
This document prepared by: Lawrence G. Walters, Esq., Walters Law Group.
All Rights Reserved. © Lawrence G. Walters (2012).