TERMS OF SERVICE AGREEMENT Bitochon Technologies, LLC
Version Date: 7/9/2009
1.
General:
1.1.
Bitochon Technologies, LLC (“Bitochon”) provides services (“Services”) to its customers (each, a “Customer”) under terms set forth in this Terms of Service Agreement (this “Agreement”). The Infringement Policy and the Privacy Policy, each are hereby incorporated into this Agreement by reference, and all such documents are collectively referred to herein as “this Agreement”.
1.2.
THIS AGREEMENT MAY BE ENTERED INTO BY CUSTOMER THROUGH VARIOUS METHODS, AS DETERMINED BY BITOCHON, SUCH AS BY CHECKING AN “ACCEPT BOX” ON AN ONLINE FORM, BY CONFIRMING ACCEPTANCE VIA EMAIL, BY SIGNING AND RETURNING A PRINTED VERSION, OR OTHERWISE. CUSTOMER HEREBY: (a) agrees to be bound by this Agreement; (b) represents and warrants that, if Customer is an individual, Customer is 18 years old or older or, if Customer is an entity, that Customer is a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept this Agreement; (c) agrees to provide true, accurate, current, and complete information during the registration process, including billing and payment-related information and other account information, and agrees to maintain and update this information to keep it true, accurate, current, and complete; and (d) represents and warrants that Customer has the power and authority to enter into and perform under this Agreement. If this Agreement or any future changes are unacceptable to Customer, Customer’s sole remedy is to cancel the Service. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO THIS AGREEMENT, CUSTOMER SHOULD NOT COMPLETE THE REGISTRATION PROCESS. IF CUSTOMER DOES NOT AGREE TO ABIDE BY THIS AGREEMENT, THEN SUCH CUSTOMER IS NOT PERMITTED TO USE THE SERVICES.
1.3.
If Bitochon provides or resells certain software or services to Customer, Customer understands and agrees that Customer may be bound by additional terms and conditions imposed by third-party resellers or licensors, which are also hereby incorporated herein by reference.
1.4.
Customer agrees to abide by the laws of the United States and of the state and country in which Customer is located, including, but not limited to, all intellectual property laws, tariff regulations, export controls, treaties, and international laws.
1.5.
Bitochon may periodically change, modify, or update this Agreement. Notice will be provided by posting new versions on the Bitochon website, with the version dates as indicated at the top of this Agreement. In Bitochon’s discretion, notice may also be provided by posting a notice on the Bitochon homepage, and/or by email notification made to the email indicated in Bitochon’s records, as provided by Customer. Therefore, Customer needs to notify Bitochon if Customer’s contact information changes. The changes, modifications or updates to this Agreement will become effective 30 days following the posting of the new version, or other notice that may be provided by Bitochon. Continued use of the Services after such 30 day notice period will constitute Customer’s acceptance of a new version of this Agreement. Please refer to this Agreement regularly to remain updated as to current terms of this Agreement. Changes to this Agreement that affect dispute resolution provisions will only be applicable for disputes arising after the effective date of a new version of this Agreement. Customer agrees that Bitochon may send Customer service-related or other notices by e-mail rather than by postal mail.
1.6.
Customer agrees to maintain the confidentiality of the Customer account, and to not share the account password, security question answers, or any other confidential information about Customer’s account with others.
2.
Shared Hosting Services:
2.1.
Bitochon will provide Customer with the shared web hosting services Customer selects for Customer’s web hosting plan, including bandwidth, email addresses, and hard drive space. Bitochon will also provide reasonable customer support during Bitochon’s standard customer support hours for the shared web hosting services Customer selects. Bitochon reserves the right to charge for such support.
2.2.
Customer agrees to use only the services included in the web hosting plan Customer selects. Customer agrees not to run any “server applications” including any program or script that opens a port on the shared hosting server such as Internet Relay Chat (IRC) servers, IRC proxies, and IRC bots. In addition, Customer agrees not to share Customer’s shared web hosting space with others or to subdivide and resell shared web hosting space.
2.3.
Any scripts that pose a potential security risk or are deemed to be adversely affecting server performance or network integrity will be shut down or will be automatically removed without prior notice. Bitochon does not permit CGI script sharing with domains not hosted by Bitochon or any scripts that may be abused for unsolicited email purposes.
2.4.
Bitochon does not allow shared server customers to install their own chat rooms. Chat rooms tend to require significant system resources and therefore cannot be permitted as an account option. However, with the approval of Bitochon and for a charge, Bitochon can provide Java chat rooms that meet most users' needs and run without hindering system performance.
2.5.
Bitochon may allow programs to run in the background. These programs will be considered on an individual basis and shared server customers will incur extra charges based on system resources used and operational maintenance needed. If Customer wishes to run background programs, please contact Bitochon to make special arrangements.
2.6.
Bitochon's shared server accounts are not configured for the purposes of distributing software products. If Customer wishes to distribute software files, please contact Bitochon to make special arrangements.
2.7.
Multimedia files are defined as any graphics, audio, and video files. Bitochon shared server accounts are not to be used for the purposes of distributing and storing unusual amounts of multimedia files. Any web site with disk space usage for storing multimedia files that exceeds 70% of its total usage, in terms of total size or number of files, will be considered to be used for the purposes of distributing and storing an unusual amount of multimedia files.
2.8.
Any database stored on shared servers shall be limited in size to 10% of the total disk space allotted for that particular domain's plan/web hosting account.
2.9.
Customer understands and agrees that Bitochon may (1) automatically convert Customer’s shared server account to a higher cost shared server account or (2) charge Customer an additional fee on a case-by-case basis, as determined by Bitochon, if Customer’s use of bandwidth, email addresses, hard drive space, or other services exceeds that allotted for Customer’s current shared server account.
2.10.
Customer hereby grants to Bitochon a limited, royalty-free, non-exclusive license to use, translate, reproduce, publish, distribute, sub-license, exploit, and/or create derivative uses of Customer’s web site and web site content anywhere, in any form, medium, or technology now known or later developed throughout the world for the sole purpose of providing shared server services under this Agreement.
3.
Resale of Shared Hosting Services:
Customer may request from Bitochon the authorization to resell Bitochon’s shared hosting services (the “Resale Services”). Customer shall provide Bitochon with all information requested by Bitochon. Upon receipt from Bitochon of written authorization, Customer shall be permitted to resell the Resale Services and shall pay Bitochon at the rate charged to Bitochon’s end user Customer’s less the discount agreed between Bitochon and Customer. Customer shall be primarily liable for all amounts due for the Resale Services, regardless of whether or when payments are received by Customer from Customer’s end user customers. Payments shall be due on the same terms as apply to Bitochon’s end user Customers. Bitochon may terminate Customer’s authorization to sell the Resale Services at anytime upon written notice, provided that the Resale Services previously sold by Customer shall continue until the end of the then-prepaid billing period. All domains for which Customer provides the Resale Services are governed by the terms of this Agreement. THE RESALE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND BITOCHON DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE RESALE SERVICES, THE RELIABILITY, SECURITY, CONTINUATION OR SUCCESS THEREOF, THE MATERIALS CONTAINED THEREIN, THE SERVERS USED OR THE GOODS OR SERVICES OFFERED AND BITOCHON EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER AGREES TO RELEASE, INDEMNIFY, AND HOLD BITOCHON, ITS CONTRACTORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS AND AFFILIATES (INCLUDING PARENT AND SUBSIDIARY COMPANIES) HARMLESS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES AND COURT COSTS, FOR THIRD PARTY CLAIMS RELATING TO CUSTOMER’S ROLE AS A RESELLER OR ARISING UNDER THESE RESELLER TERMS. WHEN BITOCHON MAY BE INVOLVED IN A SUIT WHICH IS RELATED TO THE RESALE SERVICES, BITOCHON MAY SEEK WRITTEN ASSURANCES FROM CUSTOMER IN WHICH CUSTOMER PROMISES TO INDEMNIFY AND HOLD BITOCHON HARMLESS FROM THE COSTS AND LIABILITIES DESCRIBED IN THIS PARAGRAPH. SUCH WRITTEN ASSURANCES MAY INCLUDE THE POSTING OF PERFORMANCE BONDS OR OTHER GUARANTEES.
4.
Prohibited Uses:
Customer shall not post, transmit, retransmit, or store material on or through any of the Services which, in the sole judgment of Bitochon (i) is in violation of any local, state, federal, or foreign law or regulation, (ii) is threatening, obscene, indecent, defamatory, or that otherwise could adversely affect any individual, group, or entity, or (iii) violates the rights of any person or entity, including rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for Customer’s use. Customer agrees that Customer will not knowingly use the Services, among other things, to:
(a) upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including but not limited to a Bitochon official, forum leader, guide, or host, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
(e) upload, post, email, transmit, or otherwise make available any content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, email, transmit, or otherwise make available any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
(g) upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
(h) upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Services or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
(j) intentionally or unintentionally violate, attempt to violate, or avoid any applicable ICANN regulation or policy;
(k) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any regulations having the force of law;
(l) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
(m) "stalk" or otherwise harass another;
(n) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals;
(o) engage in any automated use of the system, such as using scripts to add friends or send comments or messages, or using any data mining, robots or similar data gathering and extraction tools; or
(p) collect, transmit, or store any type of adult, mature, or sexually explicit content.
5.
Fees and Billing:
5.1.
Customer agrees to pay for the Services that Customer selects. The fees may include setup fees, monthly fees, quarterly fees, annual fees, usage fees, web traffic fees, late fees, and other fees. Customer shall pay or otherwise be responsible for all federal, state, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges imposed on, or with respect to, the Services under this Agreement.
5.2.
Applicable setup fees and the fees due for the first service billing period (first month, first quarter, first year, etc.) are both due on the initial Services start date. Customer may elect to change the billing period at any time; however, the new billing period will only take effect at the time of the plan period renewal. Bitochon may change the pricing for new Services at any time and for existing services at the beginning of any new billing period. Refunds are only available in accordance with the 30-day money back guarantee described below. Refunds will be provided by the same payment method of the original payment.
5.3.
All payments are due on the account statement date. The account statement date is the anniversary (monthly, quarterly, or annually) of the date the initial Services start date. If Customer provides Bitochon credit or debit card information, Customer authorizes Bitochon to automatically charge Customer’s credit or debit card for charges that apply to Customer’s account. Recurring charges will be posted to Customer’s credit or debit card until such time that Customer cancels Customer’s account. Customer is responsible for updating, or notifying Bitochon, of any changes to Customer’s credit or debit card (including, but not limited to card number, expiration date, billing address, or card status). Customers not paying by credit or debit card agree to make payment of their balance due within 10 days of the account statement date. Bitochon sends invoices or statements via standard mail or email.
5.4.
Bitochon may charge Customer interest on unpaid balances at the lesser of the rate of 1.5% per month or the maximum rate allowed by law. Bitochon may use a third-party service to collect unpaid amounts and may charge Customer attorney’s, collection, or other reasonable fees incurred to collect unpaid balances.
5.5.
If Customer disputes a charge, Customer must pay the whole amount to avoid service interruption and notify Bitochon about the disputed amount. If Bitochon validates Customer’s claim, Customer’s account will be credited with the validated amount. Bitochon will not review or accept any billing error claims submitted more than ninety (90) days after disputed charges were incurred.
5.6.
Customer specifically understands and agrees that for each “chargeback” Customer initiates to Customer’s credit card for fees paid to Bitochon that Customer will be liable to Bitochon (and Bitochon may collect from Customer) a “chargeback fee” in the amount of $50.00. Additionally, Customer will be charged a $25.00 fee for all returned checks. Bitochon charges a fee of $25.00 for accepting payment via bank wire.
5.7.
Customer will be liable for all unfunded term commitments on Customer’s account. For example, if Customer signed up for one (1) year of service and cancels the account (or the account is terminated) after five (5) months, the unpaid fees for the remainder of the term commitment will automatically accelerate and Customer will immediately become liable for all unpaid charges on Customer’s account.
5.8.
Charges for bundled Services will be “unbundled” if a portion of the bundle of Services is terminated. For example, if Customer received a free domain name registration when Customer initiated web hosting and Customer terminates the web hosting Services before the end of the initial term, Customer will be charged at that time for the previously bundled domain name registration.
5.9.
Customer understands and agrees that Customer is responsible for any network bandwidth, memory over usage, or other overage charges Customer incurs for using the Services, even if such overages arise due to Customer’s failure to protect Customer’s password or account privacy.
5.10.
If Customer wishes to reactivate a closed account, Customer will be assessed a $50.00 reactivation fee. A $99.95 fee will be assessed if Bitochon restores data files to a reactivated account.
5.11.
30-Day Money Back Guarantee: Each of Bitochon's shared hosting plans carries a 30-day unconditional money back guarantee. If Customer is not completely satisfied with Bitochon’s services or support within the first 30 days, Customer will be given a full refund of the fees paid in advance (excluding setup fees) upon plan cancellation. The following services do not qualify for the 30-day money back guarantee: additional items and services; domain name registration; dedicated servers; items and services ordered through the reseller program; and overage fees. Upon cancellation, Customer agrees to pay $ 20.00 for the domain name if they acquired it during a free domain registration promotion.
6.
Account Changes; Cancellation:
6.1.
Customers electing to change to a lower priced hosting plan on the same platform will be charged a $25.00 downgrade fee. There is no upgrade fee for upgrading to a higher priced plan, however, Customer will be charged any difference between the setup fee applicable to the new and former plans.
6.2.
Hosting plans will automatically renew until a plan is cancelled. In order to cancel service, Customer must contact Bitochon's customer service representatives, Monday through Friday, 9:00 A.M. to 5:00 P.M. Eastern Time, at 1-718-576-2280 or via email at info@Bitochon.com. Bitochon's customer service representatives will assist Customer with the cancellation process. Cancellation requests must be received by Bitochon a minimum of 10 days prior to the end of a billing cycle for shared server plans. Cancellations submitted later than this time may result in automatic renewal of the hosting plan. Cancellations become effective on the day processed by Bitochon. Bitochon is unable to cancel an account effective for a future date. Bitochon will confirm the cancellation request when it is processed. If Customer does not receive a confirmation, please contact Bitochon as soon as possible.
7.
Ownership:
Customer understands and agrees that (a) Bitochon or any applicable licensor retains all rights, title, and interest in and to any computer programming, formatting code, operating instructions, or other software used in providing the Services to Customer and (b) that Customer will not, and will not facilitate another to, reverse engineer, disassemble, decompile, or otherwise attempt to derive any source code of any software.
8.
Backups:
For its own operational efficiencies and purposes, Bitochon backs up data on the shared servers on a regular basis, but Bitochon is under no obligation or duty to Customer to do so under this Agreement. IT IS SOLELY CUSTOMER’S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER’S FILES AND DATA, AND UNDER NO CIRCUMSTANCE WILL BITOCHON BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER FILES AND/OR DATA ON ANY BITOCHON SERVER.
9.
Monitoring and Disclosures:
All activities occurring on, in, and/or via the Services or any website hosted by Bitochon may be monitored, recorded, and examined by any authorized person, including as well law enforcement. In general, Bitochon does not monitor its Customer’s websites or activities to determine whether they are in compliance with this Agreement. However, when and if Bitochon becomes aware of any violation of this Agreement, Bitochon may take any lawful action, and in the event of illegal activity, will take action, to stop or correct such violation, including, but not limited to, shutting down a website, denying access to the Services or to the Internet via Bitochon, and/or removing non-complying information. Bitochon may disclose any information in its possession, including, without limitation, information about Customer, Internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, governmental request, or other legal process to protect Bitochon or others from harm, and/or to ensure the proper operation of the Services. Bitochon has no obligation to notify any person, including the Customer about whom information is sought, that Bitochon has provided the information. Bitochon and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, Bitochon and its designees shall have the right to remove any content that violates this Agreement, is illegal, or is otherwise objectionable as determined in Bitochon’s sole discretion.
10.
Term and Termination:
10.1.
This Agreement will become effective when Customer completes the acceptance procedures. This Agreement will remain in effect until its termination by either party under its terms.
10.2.
Bitochon may terminate this Agreement at any time upon notice to Customer. Notwithstanding anything to the contrary herein, Bitochon may also, but has no duty to, immediately suspend or terminate the Services, terminate Customer’s access and password, remove Customer’s Service from Bitochon’s servers, or remove any content within the Services, if Bitochon concludes, in its sole discretion, that Customer (a) has breached, violated, or acted inconsistently with the letter or spirit of this Agreement, including any applicable law or regulation; (b) has provided false information as part of account information; (c) has failed to keep account information complete, true, and accurate; (d) fails to respond to any email communication sent to the email address listed in account information; (e) is engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (f) is engaged in activities or sales that may damage the rights or reputation of Bitochon or others (each "Termination for Cause"). Any Termination for Cause by Bitochon will take effect immediately, and Customer expressly agrees that Customer will not have any opportunity to cure. If Customer’s ID is terminated for any reason, this Agreement and Customer’s to the Services will also be terminated.
10.3.
Customer understands and agrees that upon termination of this Agreement Bitochon has the right to immediately bar Customer’s access to any and all content related to the Customer’s website or account. Upon any termination of the Services, Bitochon reserves the right to permanently delete from its servers any and all information and content contained in Customer’s account or Service, including but not limited to order processing information, mailing lists, files, email, and any web pages generated by Customer or the Services. Bitochon accepts no liability for such deleted information or content.
11.
Limitations; Indemnification; Disclaimers:
11.1
IN NO EVENT WILL BITOCHON’S LIABILITY TO A CUSTOMER IN THE AGGREGATE FOR ANY AND ALL BREACHES, DEFAULTS, OR CLAIM OF LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER TO BITOCHON DURING THE ONE (1) CALENDAR MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM OF LIABILITY AND $50.00.
11.2.
IN NO EVENT WILL BITOCHON, ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, CONTRACTORS OR EMPLOYEES BE LIABLE TO CUSTOMER UNDER ANY CIRCUMSTANCES FOR ANY THIRD PARTY, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, MULTIPLE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, LOSS OF USE, INTERRUPTION OF BUSINESS OR LOSS OF PROFITS) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE SERVICES WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF BITOCHON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND WITHOUT SUCH LIMITATIONS BITOCHON WOULD NOT ENTER INTO THIS AGREEMENT.
11.3.
PCI Compliance: The Payment Card Industry (PCI), including MasterCard and Visa, require banks, online merchants and others to protect cardholder information by adhering to a set of security standards. PCI compliance is solely Customer’s responsibility and Bitochon is not responsible for ensuring that Customer’s business is PCI compliant. PCI compliance involves many things out of Bitochon’s control including Customer’s network and business processes. Bitochon is continually improving its systems, but Bitochon does not warrant that its systems are PCI compliant and does not represent that it will achieve such compliance in the future. For more information on PCI compliance, Bitochon recommends that Customer read the information on the following web site: http://www.pcicomplianceguide.org/merchants.php. Customer agrees that the Customer indemnification set forth below includes any claims made against Bitochon arising out of Customer’s failure to be PCI compliant.
11.4.
Customer agrees to indemnify, defend by counsel reasonably accepted to Bitochon, and protect and hold Bitochon harmless from and against any and all claims, liabilities, losses, costs, damages, expenses, including consultants and attorneys fees and court costs, demands, causes of action, judgments, etc. directly or indirectly arising out of or related to the Services and Customer’s use of the Services, including, without limitation, any violation of the terms of this Agreement.
11.5.
Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between Customer and Bitochon. Also, neither party to this Agreement shall have the right, power or authority to create any obligations or duty, express or implied, on behalf of the other.
11.6.
BITOCHON DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERRORS, BE UNINTERRUPTED, OR WILL MEET CUSTOMER’S REQUIREMENTS. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND BITOCHON EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING. CUSTOMER UNDERSTANDS AND AGREES THAT BITOCHON WILL NOT BE LIABLE FOR ANY TEMPORARY DELAY, OUTAGE, OR INTERRUPTION OF THE SERVICES, THE UNAUTHORIZED ACCESS (“HACKING”) BY ANY THIRD PARTY INTO BITOCHON’S SERVERS OR SYSTEMS, AND CUSTOMERS HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. ALL SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE DEEMED ACCEPTED WHEN DELIVERED.
12.
Compliance:
12.1.
Customer represents and warrants that Customer is not a resident of any country or affiliated with any organization prohibited to do business within the United States as defined and set forth at: http://www.export.gov and http://www.treas.gov/ofac. Customer further represents and warrants that Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction Customer operates or does business. Customer agrees to comply with all applicable U.S. and non-U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and e-commerce laws and regulations. Customer shall be responsible for determining what laws or regulations are applicable to Customer’s use of the Services. Customer shall, upon the request of Bitochon, provide Bitochon assurance of Customer’s compliance with those laws. Customer acknowledges that Bitochon exercises no control whatsoever over the content of the information passing through Customer’s site(s) and that it is Customer’s sole responsibility to ensure that the information Customer and Customer’s users transmit and receive complies with all applicable laws and regulations.
12.2.
Customer is responsible for charging and collecting from Customer’s end-user customers any and all applicable taxes. If Customer fails to impose and/or collect any tax from end users or Customer’s other retail customers as required herein, then, as between Bitochon and Customer, Customer shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that Customer has agreed to pay or impose on and/or collect from end users or Customer’s other retail customers, Customer agrees to indemnify and hold harmless Bitochon for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from Bitochon due to Customer’s failure to pay or collect and remit such tax to such authority.
13.
Miscellaneous:
13.1.
This Agreement may not be assigned by Customer without Bitochon’s express written consent. Bitochon may assign any or all of its rights and obligations to others at any time.
13.2.
This Agreement is the final expression of the agreement between a Customer and Bitochon regarding the Services. This Agreement may not be modified or amended, nor may it be modified by custom and usage of trade or course of dealing, except by an instrument executed by Bitochon, or as otherwise provided herein.
13.3.
Bitochon’s waiver of Customer’s breach of any portion of this Agreement shall not operate or be construed as its waiver of any subsequent breach of the same provision or any other portion of this Agreement and no remedy available to Bitochon hereunder is exclusive of any other remedy available to Bitochon hereunder or otherwise available at law or in equity.
13.4.
If any provision of this Agreement or its application is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect enforced to fullest extent consistent with applicable law.
13.5.
Customer agrees that Customer will not solicit Bitochon employees to become Customer’s employees or contractors.
13.6.
The section headings contained herein are for reference purposes and convenience only and shall not in any way affect the meaning or interpretation of this Agreement.
13.7.
Bitochon shall not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of the Services, resulting directly or indirectly from acts of god, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes and disturbances, fire, transportation contingencies, shortages of facilities, fuel, energy, labor or materials, or laws, regulations, acts or order of any government agency or official thereof, other catastrophes, or any other circumstances beyond Bitochon’s reasonable control.
13.8.
This Agreement shall be binding on Customer and Bitochon and Customer’s successors and assigns, and shall be governed by the laws of the state of New York without giving effect to such state’s law provisions regarding conflict of laws. Any action arising out of or related to this Agreement shall be brought in the applicable federal or state courts located in or with jurisdiction over Richmond County, New York, and each party consents to the jurisdiction and venue of these courts. Each party expressly disclaims application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
13.9.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
13.10.
Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic facsimile (fax), email, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed to Customer as set forth contact information provided by Customer to Bitochon or addressed to Bitochon as set forth below, or to such other address as shall be given in accordance with this Section. If notice is given in person, by courier, fax or email, it shall be effective upon receipt; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.
14.
Contact Information:
Bitochon Privacy Officer
Bitochon Technologies, LLC
20 President Street
Staten Island, NY 10314
email: info@Bitochon.com
phone: 718 576 2280
fax: 718 504 4451
Complaints: In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact Bitochon as set forth above or, if any complaint with us is not satisfactorily resolved, and Customer is a California resident, Customer can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
