BIG Fish DPI General Use Commercial print Terms & Conditions.
1 )The Website design and development services by BIGFishDPI Web Site is comprised of various Web pages operated by Website design and development services by BIGFishDPI.The Website design and development services by BIGFishDPI Web Site is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Website design and development services by BIGFishDPI Web Site constitutes your agreement to all such terms, conditions, and notices.
5) Use of communications services The Website design and development services by BIGFishDPI Web Site may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
Website design and development services by BIGFishDPI has no obligation to monitor the Communication Services. However, Website design and development services by BIGFishDPI reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Website design and development services by BIGFishDPI reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
Website design and development services by BIGFishDPI reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Website design and development services by BIGFishDPI’s sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Website design and development services by BIGFishDPI does not control or endorse the content, messages or information found in any Communication Service and, therefore, Website design and development services by BIGFishDPI specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Website design and development services by BIGFishDPI spokespersons, and their views do not necessarily reflect those of Website design and development services by BIGFishDPI.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.
6) Materials provided to Website design and development services by BIGFishDPI OR POSTED AT ANY Website design and development services by BIGFishDPI WEB SITE
No compensation will be paid with respect to the use of your Submission, as provided herein. Website design and development services by BIGFishDPI is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Website design and development services by BIGFishDPI’s sole discretion.
By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
7) Termination of use You agree that we may, at our sole discretion, suspend or terminate your access to all or part of our website and Resources with or without notice and for any reason, including, without limitation, breach of this User Agreement. Any suspected illegal, fraudulent or abusive activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities. Upon suspension or termination, your right to use the Resources we provide will immediately cease, and we reserve the right to remove or delete any information that you may have on file with us, including any account or login information.
8) Governing law This website is controlled by BIGFishDPI from our offices located in the State of North Carolina, the United States of America. It can be accessed by most countries around the world. As each country has laws that may differ from those of North Carolina and the United States, by accessing our website, you agree that the statutes and laws of North Carolina and the United States, without regard to the conflict of laws and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of this website and the purchase of any products or services through this site.
9) Liability Disclaimer THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE Website design and development services by BIGFishDPI WEB SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. Website design and development services by BIGFishDPI AND/OR ITS SUPPLIERS AND OR SUBCONTRACTORS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE Website design and development services by BIGFishDPI WEB SITE AT ANY TIME. ADVICE RECEIVED VIA THE Website design and development services by BIGFishDPI WEB SITE SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
Website design and development services by BIGFishDPI AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE Website design and development services by BIGFishDPI WEB SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. Website design and development services by BIGFishDPI AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10) Termination / Access restriction BIGFishDPI reserves the right, in its sole discretion, to terminate your access to the Website design and development services by BIGFishDPI Web Site and the related services or any portion thereof at any time, without notice. GENERAL To the maximum extent permitted by law, this agreement is governed by the laws of the State of North Carolina, U.S.A. and you hereby consent to the exclusive jurisdiction and venue of courts in Mecklenburg County, North Carolina, U.S.A. in all disputes arising out of or relating to the use of the Website design and development services by BIGFishDPI Web Site. Use of the Website design and development services by BIGFishDPI Web Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Website design and development services by BIGFishDPI as a result of this agreement or use of the Website design and development services by BIGFishDPI Web Site. Website design and development services by BIGFishDPI ‘s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Website design and development services by BIGFishDPI ‘s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Website design and development services by BIGFishDPI Web Site or information provided to or gathered by Website design and development services by BIGFishDPI with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Website design and development services BIGFishDPI with respect to the Website design and development services by BIGFishDPI Web Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Website design and development services by BIGFishDPI with respect to the Website design and development services by BIGFishDPI Web Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent an d subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be drawn up in English.
11) Copywriter and trademark notices All content and materials available on BIGFishDPI including but not limited to text, graphics, website name, code, images and logos are the intellectual property of BIGFishDPI , and are protected by applicable copyright and trademark law. Any inappropriate use, including but not limited to the reproduction, distribution, display or transmission of any content on this site is strictly prohibited, unless specifically authorized by Intechnic.
The example companies, organizations, products, people and events depicted herein are fictitious. No association with any real company, organization, product, person, or event is intended or should be inferred.
Any rights not expressly granted herein are reserved.
END SECTION 2
BIGFishDPI will provide Client with Search Engine Optimization Services (hereinafter refer red to as “SEO”) as
described within our contract. BIGFishDPI will use specific keywords and/or phrases to improve the search engine ranking of,
and/or position the contents of the Client’s website.
All invoices must be paid in full within prior to work being preformed.
BIGFishDPI’s SEO services are intended to serve two main purposes:
BIGFishDPI ’s SEO Services may include (but are not limited to):
• Researching keywords and phrases to select appropriate, relevant search terms.
• Obtaining “back links” from other related websites and directories in order to generate link popularity and traffic.
• Editing and/or optimization of text for various html tags, meta data, page titles, and page text as necessary.
• Analysis and recommendations on optimal website structure, navigation, code, etc. for best SEO purposes.
• Recommend, as required, additional web pages or content for the purpose of “catching” keyword/phrase searches.
• Create traffic and ranking reports showing rankings in the major search engines.
• Creating blog posts and social media posts.
• For the purposes of receiving professional SEO services, Client agrees to provide the following:
• Administrative/backend access to the website for analysis of content and structure.
• Permission to make changes for the purpose of optimization, and to communicate directly with any third parties.
• Unlimited access to existing website traffic statistics for analysis and tracking purposes.
• Access to a client email address (@domain or gmail) for the purposes of requesting links.
• Authorization to use client pictures, logos, trademarks, web site images, pamphlets, content, etc., for any use as
deemed necessary by (Company name) for search engine optimization purposes.
• If Client’s site is lacking in textual content, Client will provide additional text content in electronic format for the
purpose of creating additional or richer web pages.
• Client must acknowledge the following with respect to SEO services:
• All fees are non-refundable.
• All fees, services, documents, recommendations, and reports are confidential.
• BIGFishDPI has no control over the policies of search engines with respect to the type of sites and/or content
that they accept now or in the future. The Client’s website may be excluded from any director y or search engine at any time at
the sole discretion of the search engine or directory.
• Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other
competitive factors, BIGFishDPI does not guarantee #1 positions or consistent top 10 positions for any particular
keyword, phrase, or search term.
• Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear
without any additional SEO. Should a listing be dropped during the SEO campaign and does not reappear within 30 days of
campaign completion, BIGFishDPI will re-optimize the website/page based on the current policies of the search engine in
• Some search directories offer expedited listing services for a fee. If the Client wishes to engage in said expedited listing
services (e.g., paid directories), the Client is responsible for all paid for inclusion or expedited service fees. BIGFishDPI
can offer a list of expedited listing services upon request.
• Linking to “bad neighborhoods” or getting links from “link farms” can seriously damage all SEO efforts. BIGFishDPI
does not assume liability for the Client’s choice to link to or obtain a link from any particular website without prior consultation.
• BIGFishDPI is not responsible for changes made to the website by other par ties that adversely affect the search engine
rankings of the Client’s website.
• Additional Services not listed herein (branded copywriting, blitz campaigns, addition consulting, etc.) will be charged based on our current fee. It is the Clients responsibility to be aware of these fees prior to authorizing services.
• The Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to BIGFishDPI for inclusion on the website above are owned by the Client, or that the Client has received permission from the
rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend BIGFishDPI and its subcontractors
from any liability or suit arising from the use of such elements.
• BIGFishDPI is not responsible for the Client overwriting SEO work to the Client’s site. (e.g., Client/webmaster uploading
over work already provided/optimized). The Client will be charged an additional fee for re-constructing content, based on
the hourly rate. Notwithstanding any other provision of this Agreement, BIGFishDPI’s obligation to
provide free SEO services shall cease in the event the Client’s conduct overwrites the SEO services provided. For example, if
the client’s webmaster uploads content without consulting BIGFishDPI, then BIGFishDPI’s obligation to provide SEO
services for free shall terminate.
1) Overview BIGFishDPI and you the client agree as of the date of your use of this website (“Site”) or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”). Services Agreements and additional policies apply to certain Services and are in addition to (not in lieu of) this Agreement. In the event of a conflict between the provisions of a Services Agreement and the provisions of this Agreement, the provisions of the applicable Services Agreement shall control.
The terms “we”, “us” or “our” shall refer to BIGFishDPI. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
2) Modification of agreement,site and or services BIGFishDPI may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, BIGFishDPI may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account (“Account”) information current. BIGFishDPI assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, BIGFishDPI may terminate Your use of Services for any violation or breach of any of the terms of this Agreement by You. BIGFishDPI RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THIS SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME.
3).Eligibility: Authority This Site and the Services are available only to individuals (“Users”) who can form legally binding contracts under applicable law. By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, or (iii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “you”, “your”, “User” or “customer” shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, BIGFishDPI finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. BIGFishDPI shall not be liable for any loss or damage resulting from BIGFishDPI ’s reliance on any instruction, notice, document or communication reasonably believed by BIGFishDPI to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, BIGFishDPI reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
4). Your account In order to access some of the features of this Site or use some of the Services, you will have to create an Account. You represent and warrant to BIGFishDPI that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If BIGFishDPI has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, BIGFishDPI reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Accor nt information secure, including without limitation your customer number/login, password, Payment Method(s) (as defined below), and shopper PIN. For security purposes, BIGFishDPI recommends that you change your password and shopper PIN at least once every six (6) months for each Account. You must notify BIGFishDPI immediately of any breach of security or unauthorized use of your Account. BIGFishDPI will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss BIGFishDPI or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
5) General rules of conduct
You acknowledge and agree that:
• Your use of this Site and the Services , including any content you submit, will comply with this Agreement, any applicable Services Agreement or policy that may apply to your Services and all applicable local, state, national and international laws, rules and regulations.
• You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
• You will not use this Site or the Services in a manner (as determined by BIGFishDPI in its sole and absolute discretion) that:
• Is illegal, or promotes or encourages illegal activity;
• Promotes, encourages or engages in child pornography or the exploitation of children;
• Promotes, encourages or engages in terrorism, violence against people, animals, or property;
• Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
• Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
• Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking;
• Infringes on the intellectual property rights of another User or any other person or entity;
• Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
• Interferes with the operation of this Site or the Services found at this Site;
• Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
• Contains false or deceptive language, or unsubstantiated or comparative claims, regarding BIGFishDPI or BIGFishDPI’s Services.
• You will not copy or distribute in any medium any part of this Site or the Services , except where expressly authorized by BIGFishDPI .
• You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
• You will not access BIGFishDPI Content (as defined below) or User Content through any technology or means other than through this Site itself, or as BIGFishDPI may designate.
• You agree to back-up all of your User Content so that you can access and use it when needed. BIGFishDPI does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
• You will not re-sell or provide the Services for a commercial purpose, including any of BIGFishDPI ‘s related technologies, without BIGFishDPI ‘s express prior written consent.
• You will not to circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any BIGFishDPI Content or User Content) or enforce limitations on the use of this Site or the Services found at this Site, the BIGFishDPI Content or the User Content therein.
• You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
• You are aware that BIGFishDPI may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether BIGFishDPI asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which BIGFishDPI is a party. Further, by providing your telephone or mobile number, you consent to receive marketing telephone calls from BIGFishDPI. You understand that providing consent is not a condition of purchasing any good or service from BIGFishDPI .
• Without limiting any of the rights set forth elsewhere in this Agreement, BIGFishDPI expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to this Site or any Services (including but not limited to the right to cancel or transfer any domain name registration) to any User (i) whose Account or Services were previously terminated or suspended, whether due to breach of this or any other Agreement or any BIGFishDPI policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Site or Services (as determined by BIGFishDPI in its sole and absolute discretion).
6) Protection of your data Covered Services, as defined in this Section and in the DPA, include hosted services that are subject to the terms and conditions of the following Agreements: (1) Domain Name Registration, (2) Email Marketing Services, (3) Hosting, (4) Online Store (5) Website development
7). User content Some of the features of this Site or the Services, including those Services that are hosted with BIGFishDPI, may allow Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, “User Content”). All content submitted through your Account is consider User Content. By posting or publishing User Content to this Site or to or via the Services, you represent and warrant to BIGFishDPI that (i) you have all necessary rights to distribute User Content via this Site or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
User Submissions. You acknowledge and agree that your User Submissions are entirely voluntary, do not establish a confidential relationship or obligate BIGFishDPI to treat your User Submissions as confidential or secret, that BIGFishDPI has no obligation, either express or implied, to develop or use your User Submissions, and no compensation is due to you or to anyone else for any intentional or unintentional use of your User Submissions, and that BIGFishDPI may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
BIGFishDPI shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions posted to this Site, and shall be entitled to the unrestricted use and dissemination of any User Submissions posted to this Site for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.
User Content Other Than User Submissions. By posting or publishing User Content to this Site or through th e Services, you authorize BIGFishDPI to use the intellectual property and other proprietary rights in and to your User Content to enable inclusion and use of the User Content in the manner contemplated by this Site and this Agreement. You hereby grant BIGFishDPI a worldwide, non-exclusive, royalty-free, sub licensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content in connection with this Site, the Services and BIGFishDPI (and BIGFishDPI ’s affiliates’) business(es), including without limitation for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. You also hereby grant each User of this Site a non-exclusive license to access your User Content (with the exception of User Content that you designate “private” or “password protected”) through this Site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content as permitted through the functionality of this Site and under this Agreement. The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from this Site. You understand and agree, however, that BIGFishDPI may retain (but not distribute, display, or perform) server copies of your User Content that have been removed or deleted. The above licenses granted by you in your User Content are perpetual and irrevocable. Notwithstanding anything to the contrary contained herein, BIGFishDPI shall not use any User Content that has been designated “private” or “password protected” by you for the purpose of promoting this Site or BIGFishDPI’s (or BIGFishDPI’s affiliates’) business(es). If you have a website or other content hosted by BIGFishDPI , you shall retain all of your ownership or licensed rights in User Content.
8) Availability of website / services Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
9) Monitoring of content: Account termination policy BIGFishDPI generally does not pre-screen User Content (whether posted to a website hosted by BIGFishDPI or posted to this Site). However, BIGFishDPI reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. BIGFishDPI may remove any item of User Content (whether posted to a website hosted by BIGFishDPI or posted to this Site) and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by BIGFishDPI in its sole and absolute discretion), at any time and without prior notice. BIGFishDPI may also terminate a User’s access to this Site or the Services found at this Site if BIGFishDPI has reason to believe the User is a repeat offender. If BIGFishDPI terminates your access to this Site or the Services found at this Site, BIGFishDPI may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
10) Discontinued services : End of Life policy BIGFishDPI reserves the right to cease offering or providing any of the Services at any time, for any or no reason, and without prior notice. Although BIGFishDPI makes great effort to maximize the lifespan of all its Services, there are times when a Service we offer will be discontinued or reach its End-of-Life (“EOL”). If that is the case, that product or service will no longer be supported by BIGFishDPI, in any way, effective on the EOL date.
Notice and Migration. In the event that any Service we offer has reached or will reach EOL, we will attempt to notify you thirty or more days in advance of the EOL date. It is your responsibility to take all necessary steps to replace the Service by migrating to a new Service before the EOL date, or by entirely ceasing reliance on said Service before the EOL date. In either case, BIGFishDPI will either offer a comparable Service for you to migrate to for the remainder of the term of your purchase, a prorated in-store credit, or a prorated refund, to be determined by BIGFishDPI in its sole and absolute discretion. BIGFishDPI may, with or without notice to you, migrate you to the most up-to-date version of the Service, if available. You agree to take full responsibility for any and all loss or damage arising from any such migration.
No Liability. BIGFishDPI will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services we may offer or facilitate access to.
11). Beta services From time to time, BIGFishDPI may offer new Services (limited preview services or new features to existing Services) in a pre-release version. New Services, new features to existing Services or limited preview services shall be known, individually and collectively, as “Beta Services”. If you elect to use any Beta Services, then your use of the Beta Services is subject to the following terms and conditions: (i) You acknowledge and agree that the Beta Services are pre-release versions and may not work properly; (ii) You acknowledge and agree that your use of the Beta Services may expose you to unusual risks of operational failures; (iii) The Beta Services are provided as-is, so we do not recommend using them in production or mission critical environments; (iv) BIGFishDPI reserves the right to modify, change, or discontinue any aspect of the Beta Services at any time; (v) Commercially released versions of the Beta Services may change substantially, and programs that use or run with the Beta Services may not work with the commercially released versions or subsequent releases; (vi) BIGFishDPI may limit availability of customer service support time dedicated to support of the Beta Services; (vii) You acknowledge and agree to provide prompt feedback regarding your experience with the Beta Services in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You acknowledge and agree that we may use your feedback for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your use of the Beta Services shall be owned exclusively by BIGFishDPI ; (viii) You acknowledge and agree that all information regarding your use of the Beta Services, including your experience with and opinions regarding the Beta Services, is confidential, and may not be disclosed to a third party or used for any purpose other than providing feedback to BIGFishDPI ; (ix) The Beta Services are provided “as is”, “as available”, and “with all faults”. To the fullest extent permitted by law, BIGFishDPI disclaims any and all warranties, statutory, express or implied, with respect to the Beta Services including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
(A) General terms and payment Payment Due at Time of Order, prior to work being preformed and is Non-Refundable. You agree to pay all amounts due for Services at the time you order them. All amounts are non-refundable unless otherwise noted in the Refund Policy.
Price Changes. BIGFishDPI reserves the right to change its prices and fees at any time. You the client are responsible to know up front any fees, rate increases and accept full responsibility to pay in full. If you have purchased or obtained Services for a period of months or years, changes in prices and fees shall be effective when the Services in question come up for renewal as further described below.
Payment Types. Except as prohibited in any product-specific agreement, you may pay for Services by using various payment methods via credit card, wire transfer, money order, Paypal, or check. Your Payment Method on file must be kept valid if you have any active Services in your Account. In addition, you agree that the location for the processing of your payments may change for any reason, including the type of Payment Method chosen, the currency selected, or changes or updates made to your Payment Method.
Refunds Issued. You agree that where refunds are issued to your Payment Method, BIGFishDPI’s issuance of a refund receipt is only confirmation that BIGFishDPI has submitted your refund to the Payment Method charged at the time of the original sale, and that BIGFishDPI has no control over when the refund will be applied towards your Payment Method’s available balance. You further acknowledge and agree that the payment provider and/or individual issuing bank associated with your Payment Method establish and regulate the time frames for posting your refund, and that such refund posting time frames may range from five (5) business days to a full billing cycle, or longer.
In the event a refund is issued to your Payment Method and the payment provider, payment processor or individual issuing bank associated with your Payment Method imposes any limitations on refunds, including but not limited to, limitations as to the timing of the refund or the number of refunds allowed, then BIGFishDPI, in its sole and absolute discretion, reserves the right to issue the refund either (i) in the form of an in-store credit; (ii) via issuance of a BIGFishDPI check, which will be sent to the mailing address on file for your Account; or (iii) in some jurisdictions, as a bank transfer, when the payment processor cannot refund back to the Payment Method. BIGFishDPI also has the right to offer an in-store credit for customers seeking refunds, even if there are no limitations on refunds imposed by the Payment Method.
Monthly Billing Date. If you are being billed on a monthly basis, your monthly billing date will be based on the date of the month you purchased the Services, unless that date falls after the 28th of the month, in which case your billing date will be the 28th of each month.
Auto-Renewal Terms. Other than as required by applicable law, BIGFishDPI does not retain hard copies or electronic versions of mandate, standing order or standing instruction forms and/or any signed consents relating to your usage of our automatic renewal services, and we are therefore unable to provide any such document upon request. You may contact BIGFishDPI accounting department for any change request.
IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, ALL SERVICES ARE OFFERED ON AUTOMATIC RENEWAL. EXCEPT FOR REASONS DESCRIBED BELOW IN THIS SECTION, AUTOMATIC RENEWAL AUTOMATICALLY RENEWS THE APPLICABLE SERVICE UPON EXPIRATION OF THE THEN CURRENT TERM FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD (EXCEPT FOR DOMAIN NAMES WHICH MAY RENEW FOR THE ORIGINAL SERVICE PERIOD). FOR EXAMPLE, IF YOUR LAST SERVICE PERIOD IS FOR ONE YEAR, YOUR RENEWAL PERIOD WILL TYPICALLY BE FOR ONE YEAR. HOWEVER, IN THE EVENT RENEWAL WITH THE PAYMENT METHOD ON FILE FAILS, BIGFishDPI MAY ATTEMPT TO RENEW THE APPLICABLE SERVICE FOR A PERIOD LESS THAN THE ORIGINAL SUBSCRIPTION PERIOD TO THE EXTENT NECESSARY FOR THE TRANSACTION TO SUCCEED.
UNLESS YOU REQUEST TO DISABLE THE AUTOMATIC RENEWAL OPTION, BIGFishDPI WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM THE PAYMENT METHOD ASSOCIATED WITH THE SERVICE(S) IN YOUR ACCOUNT OR YOUR DESIGNATED BACKUP PAYMENT METHOD(S) ON FILE WITH BIGFishDPI . IN AUTOMATICALLY RENEWING YOUR SERVICES, BIGFishDPI WILL FIRST ATTEMPT TO CHARGE THE PAYMENT METHOD ASSOCIATED WITH THE SERVICE(S) IN YOUR ACCOUNT. IN THE EVENT BIGFishDPI CANNOT SUCCESSFULLY CHAGE THIS PAYMENT METHOD, WE WILL ATTEMPT TO CHARGE THE PAYMENT METHOD(S) DESIGNATED AS \”\BAC’KUP\”\ IN YOUR ACCOUNT. RENEWALS WILL BE CHARGED AT BIGFishDPI S THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD. IN ORDER TO SEE THE RENEWAL SETTINGS APPLIC ABLE TO YOU AND YOUR SERVICES, SIMPLY CONTACT BIGFishDPI ACCOUNTING DEPARTMENT. IF YOU DO NOT WISH FOR ANY SERVICE TO AUTOMATICALLY RENEW, YOU MAY ELECT TO CANCEL RENEWAL, IN WHICH CASE, YOUR SERVICES WILL TERMINATE UPON EXPIRATION OF THE THEN CURRENT TERM, UNLESS YOU CONTACT BIGFishDPI PRIOR TO THAT DATE. IN OTHER WORDS, SHOULD YOU ELECT TO CANCEL YOUR PRODUCT AND FAIL TO CONTACT BIGFishDPI BEFORE THEY EXPIRE, YOU MAY EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, AND BIGFishDPI SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME.
IN ADDITION, BIGFishDPI MAY PARTICIPATE IN “RECURRING BILLING PROGRAMS” OR “ACCOUNT UPDATER SERVICES” SUPPORTED BY YOUR CREDIT CARD PROVIDER (AND ULTIMATELY DEPENDENT ON YOUR BANK’S PARTICIPATION). IF WE ARE UNABLE TO SUCCESSFULLY CHARGE YOUR EXISTING PAYMENT METHOD, YOUR CREDIT CARD PROVIDER (OR YOUR BANK) MAY NOTIFY US OF UPDATES TO YOUR CREDIT CARD NUMBER AND/OR EXPIRATION DATE, OR THEY MAY AUTOMATICALLY CHARGE YOUR NEW CREDIT CARD ON OUR BEHALF WITHOUT NOTIFICATION TO US. IN ACCORDANCE WITH RECURRING BILLING PROGRAM REQUIREMENTS, IN THE EVENT THAT WE ARE NOTIFIED OF AN UPDATE TO YOUR CREDIT CARD NUMBER AND/OR EXPIRATION DATE, BIGFishDPI WILL AUTOMATICALLY UPDATE YOUR PAYMENT PROFILE ON YOUR BEHALF. BIGFishDPI MAKES NO GUARANTEES THAT WE WILL REQUEST OR RECEIVE UPDATED CREDIT CARD INFORMATION. YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO MODIFY AND MAINTAIN YOUR ACCOUNT SETTINGS, INCLUDING BUT NOT LIMITED TO (I) CANCELLING PRODUCTS AND (II) ENSURING YOUR ASSOCIATED PAYMENT METHOD(S) ARE CURRENT AND VALID. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT YOUR FAILURE TO DO SO, MAY RESULT IN THE INTERRUPTION OR LOSS OF SERVICES, AND BIGFishDPI SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SAME.
If for any reason BIGFishDPI is unable to charge your Payment Method for the full amount owed, or if BIGFishDPI receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, you agree that BIGFishDPI may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to you, of any domain names or Services registered or renewed on your behalf. BIGFishDPI also reserves the right to charge you reasonable “administrative” fees” for (i) tasks BIGFishDPI may perform outside the normal scope of its Services, (ii) additional time and/or costs BIGFishDPI may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by BIGFishDPI in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) UDRP actions(s) in connection with your domain name(s) and/or disputes that require accounting or legal services, whether performed by BIGFishDPI staff or by affiliate and subcontractors retained by BIGFishDPI ; (iii) recouping any and all costs and fees, including the cost of Services, incurred by BIGFishDPI as the results of chargebacks or other payment disputes brought by you, your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method you have on file with BIGFishDPI.
(B) Refund policy Products and Services available for refunds are described here (“Refund Policy”).
(C) PAY BY CHECK (ELECTRONIC PAYMENT)
By using BIGFishDPI’s pay by check option (“Pay By Check”), you can purchase BIGFishDPI products and services using an electronic payment (from your personal or business checking account (“Checking Account”), as appropriate). In connection, you agree to allow a third-party check services provider, Certegy Check Services, Inc., (“Check Services Provider”) to debit the full amount of your purchase from your Checking Account, which is non-refundable. Check Services Provider will create an electronic funds transfer (“EFT”) or bank draft, which will be presented to your bank or financial institution for payment from your Checking Account. The Checking Account must be at a financial institution in the United States, and payment must be in U.S. Dollars.
It is your responsibility to keep your Checking Account current and funded. You agree that (i) Check Services Provider or BIGFishDPI reserve the right to decline a transaction for any reason (including, but not limited to, payments that fail to go through as a result of your Checking Account no longer existing or not holding available/sufficient funds) and (ii) in such event, neither Check Services Provider nor BIGFishDPI shall be liable to you or any third party regarding the same. If for any reason Check Services Provider is unable to withdraw the full amount owed for the Services provided, you agree that Check Services Provider and BIGFishDPI may pursue all available lawful remedies in order to obtain payment (plus any applicable fees). BIGFishDPI is not responsible for the actions of Check Services Provider. You agree that if the EFT or bank draft is returned unpaid, you will pay a service charge in accordance with the fees permitted by law for each U.S. State. A help article describing the Check Services Provider and outlining the service charges referenced above can be found here. These fees may be debited from your Checking Account using an EFT or bank draft. All fees are in U.S. Dollars.
BIGFishDPI and its service providers, including but not limited to Check Services Provider and Complete Payment Recovery Services, Inc., may provide you with notices, including byemail, regular mail, SMS, MMS, text message, postings on the services, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate these terms of service by accessing the services in an unauthorized manner. Your agreement to these terms of service constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the services in an authorized manner. Failure to receive such notices for any reason shall not excuse any payment or other obligation to BIGFishDPI and Check Services Provider. You further expressly authorize BIGFishDPI and its service providers, including but not limited to Check Services Provider and Complete Payment Recovery Services, Inc., and their affiliates to contact you, via auto-dialer, pre-recorded messages, or any other method, on any of your mobile phone numbers or emails. You further acknowledge that email addresses you provide are not shared, accessed by others and are not employer-related email addresses.
(D) Expired Domain name purchases For expired domains names purchased through your account, you agree that you are responsible for payment within 30 days of auction close for the successful bid amount plus the one (1) year renewal or transfer fee (from the end of the domain name’s previous registration period). If we are unable to collect payment, you may lose the rights to purchase the domain name.
12). Additional Reservation of rights BIGFishDPI expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by BIGFishDPI in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by BIGFishDPI in offering or delivering any Services (including any domain name registration), (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry or registrar, (iii) to assist with our fraud and abuse detection and prevention efforts, (iv) to comply with court orders against you and/or your domain name or website and applicable local, state, national and international laws, rules and regulations, (v) to comply with requests of law enforcement, including subpoena requests, (vi) to comply with any dispute resolution process, (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, (viii) to avoid any civil or criminal liability on the part of BIGFishDPI, its officers, directors, employees and agents, as well as BIGFishDPI ’s affiliates, subcontractors, including, but not limited to, instances where you have sued or threatened to sue BIGFishDPI, or (ix) to respond to an excessive amount of complaints related in any way to your Account, domain name(s), or content on your website that could result in damage to BIGFishDPI ’s business, operations, reputation or shareholders.
BIGFishDPI expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels.
BIGFishDPI expressly reserves the right to terminate, without notice to you, any and all Services where, in BIGFishDPI ‘s sole discretion, you are harassing or threatening BIGFishDPI and/or any of BIGFishDPI ‘s employees.
BIGFishDPI Content. Except for User Content, the content on this Site and the Services , including without limitation the text, software, scripts, source code, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein (“BIGFishDPI Content”), are owned by or licensed to BIGFishDPI in perpetuity, and are subject to copyright, trademark, and/or patent protection in the United States and foreign countries, and other intellectual property rights under United States and foreign laws. BIGFishDPI content is provided to you “as is”, “as available” and “with all faults” for your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of BIGFishDPI. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. BIGFishDPI reserves all rights not expressly granted in and to the BIGFishDPI Content, this Site and the Services, and this Agreement do not transfer ownership of any of these rights.
13). No spam: Liquidation damages No Spam. We do not tolerate the transmission of spam. We reserve the right to monitor all traffic to and from our web servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse. Customers suspected to be using our products and services for the purpose of sending spam are fully investigated. If we determine there is a problem with spam, we will take the appropriate action to resolve the situation.
We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications. This can include, but is not limited to, the following:
• Email Messages
• Newsgroup postings
• Windows system messages
• Pop-up messages (aka “adware” or “spyware” messages)
• Instant messages (using AOL, MSN, Yahoo or other instant messenger programs)
• Online chat room advertisements
• Guestbook or Website Forum postings
• Facsimile Solicitations
• Text/SMS Messages
We will not allow our servers and services to be used for the purposes described above. In order to use our products and services, you must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but you must also abide by this no spam policy. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include a legitimate return address and reply-to address, the sender’s physical address, and an opt-out method in the footer of the email or fax. Upon request by us, conclusive proof of opt-in may be required for an email address or fax number.
If we determine the account, products, or services in question are being used in association with spam, we may re-direct, suspend, or cancel any account, web site hosting, domain registration, email boxes, or other applicable products or services. In such event, at our election, we may require you to respond by email to us stating that you will cease to send spam and/or have spam sent on your behalf and to require a non-refundable reactivation fee to be paid before the site, email boxes, and/or services are reactivated.
We encourage all customers and recipients of email generated from our products and services to report suspected spam. Suspected abuse can be reported by email or through our Spam Abuse Complaint Center on the Web. Web: report abuse.
Liquidated Damages. You agree that we may immediately terminate any Account which we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then you agree to pay us liquidated damages in the amount of $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your Account.
14). Trademark and copyright claims BIGFishDPI supports the protection of intellectual property. If you would like to submit (i) a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which you hold a bona fide copyright, please refer to BIGFishDPI s Trademark and/or Copyright Infringement Policy referenced above and available here.
15). Links to third party websites This Site and the Services found at this Site may contain links to third-party websites that are not owned or controlled by BIGFishDPI. BIGFishDPI assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, BIGFishDPI does not censor or edit the content of any third-party websites. By using this Site or the Services found at this Site, you expressly release BIGFishDPI from any and all liability arising from your use of any third-party website. Accordingly, BIGFishDPI encourages you to be aware when you leave this Site or the Services found at this Site and to review the terms and conditions, privacy policies, and other governing documents of each other website that you may visit.
16). Disclaimer of Representations and warranties YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. BIGFishDPI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BIGFishDPI , ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPRELINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND BIGFishDPI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY BIGFishDPI , ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
17). Limitation of liability IN NO EVENT SHALL BIGFishDPI ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT BIGFishDPI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL BIGFishDPI’S TOTAL AGGREGATE LIABILITY EXCEED $1,000.00 U.S. DOLLARS.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
18). Indemnity You agree to protect, defend, indemnify and hold harmless BIGFishDPI and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by BIGFishDPI directly or indirectly arising from (i) your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
19). Compliance with local laws BIGFishDPI makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.
20). DISPUTES, BINDING INDIVIDUAL ARBITRATION AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.
(A) Disputes. The terms of this Section shall apply to all Disputes between you and BIGFishDPI, except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced above and available here. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and BIGFishDPI arising under or relating to any BIGFishDPI Services or Products, BIGFishDPI ’s websites, these Terms, or any other transaction involving you and BIGFishDPI, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND BIGFishDPI AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR BIGFishDPI FOR (I) TRADE SECRET MISAPPROPRIATION, (II) PATENT INFRINGEMENT, (III) COPYRIGHT INFRINGEMENT OR MISUSE, AND (IV) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
(B) Binding Arbitration. You and BIGFishDPI further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these Terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in Section 15 of this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
(C) Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
(D) Dispute Notice. In the event of a Dispute, you or BIGFishDPI must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to BIGFishDPI must be addressed to: BIGFishDPI 9740 Lawyers Rd Charlotte North Carolina 28227, Attn.: Legal Department (the “BIGFishDPI Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If BIGFishDPI and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or BIGFishDPI may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
(E) WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND BIGFishDPI AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR BIGFishDPI WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OF PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
(F) Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the Consumer Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set forth in these Terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in Section 15 of this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from BIGFishDPI corporate offices.
(G) Initiation of Arbitration Proceeding. If either you or BIGFishDPI decide to arbitrate a Dispute, we agree to the following procedure:
i. Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.adr.org (“Demand for Arbitration: Consumer Arbitration Rules”).
ii. Send one copy of the Demand for Arbitration to AAA by mail at American Arbitration Association Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043.
iii. Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
(H) Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by BIGFishDPI or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or BIGFishDPI is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
(I) Arbitration Fees and Payments.
i. Disputes involving $1,000.00 or less. BIGFishDPI will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If you reject BIGFishDPI ’s last written settlement offer made before the arbitrator was appointed (“BIGFishDPI’s last written offer”), your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than BIGFishDPI ’s last written offer, BIGFishDPI will: (i) pay the greater of the award or $1,000.00; (ii) pay twice your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and BIGFishDPI agree on them.
ii. Disputes involving more than $75,000.00. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
iii. Disputes involving any amount. In any arbitration you commence, BIGFishDPI will seek its AAA or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration BIGFishDPI commences, BIGFishDPI will pay all filing, AAA, and arbitrator’s fees and expenses. BIGFishDPI will seek its attorney’s fees and expenses from you in any arbitration. Fees and expenses are not included in determining the amount in dispute.
(J) Claims or Disputes Must be Filed Within 60 days. To the extent permitted by law, any claim or dispute to which this Section applies must be filed within 60 days in small claims or in arbitration. The 60 day period begins when the claim or Notice of Dispute first could be filed. If not filed within 60 days, the claim or dispute will be permanently barred.
(K) 30-Day Opt-out Period. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION IN THIS DISPUTES SECTION, YOU MUST NOTIFY BIGFishDPI BY E-MAILING Accounting@
(L) Amendments to this Section. Notwithstanding any provision in these Terms to the contrary, you and BIGFishDPI agree that if BIGFishD PI makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to BIGFishDPI ’s address) in these Terms, BIGFishDPI will notify you and you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current Terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
(M) Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms.
(N) Exclusive Venue for Other Controversies. BIGFishDPI and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the Superior Court Mecklenburg County, Charlotte North Carolina the United States District Court for the District of North Carolina, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy. You also agree to waive the right to trial by jury in any such action or proceeding.
21). Unclaimed property : Dormancy charges Please be advised that if a customer has an outstanding account balance (a credit positive balance) for one (1) year or more for any reason, and (i) BIGFishDPI is unable to issue payment to such customer or apply a company credit to a future transaction or (ii) BIGFishDPI issued payment to such customer in the form of a paper check, but the check was never cashed, then BIGFishDPI shall turn over such account balance to the State of North Carolina in accordance with state law. You acknowledge and agree that in either case (i) or (ii) above, BIGFishDPI may withhold a dormancy charge in an amount equal to the lesser of $225.00 or the total outstanding account balance associated with such customer.
22) Successor and assigns This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
23). No third-party beneficiaries Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
24). U.S. Export laws This Site and the Services found at this Site are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Users shall not use the Services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of the Services found at this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using this Site and the Services found at this Site, you agree to the foregoing and represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If you access this Site or the Services found at this Site from other countries or jurisdictions, you do so on your own initiative and you are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access this Site or the Services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
25). The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
English language controls this Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.
END SECTION 4