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Dune Internet, LLC. Terms & Conditions Agreement
1. Term and Payment for Services
2. Use of Services
3. Enforcement
4. Intellectual Property Rights
5. Warranty; Warranty Disclaimer
6. Limitation and Exclusion of Liability
7. Indemnification
8. Miscellaneous
This Services
Agreement ("Agreement") governs your purchase and use,
in any manner, of all services provided by Dune Internet LLC and any of
its affiliates (the "Services").
You must accept the terms of this Agreement in
order to use the Services.
NOTWITHSTANDING, BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU
HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND
CONDITIONS CONTAINED HEREIN AS WELL AS ALL ACCEPTABLE USE POLICIES
INCORPORATED BY REFERENCE.
Dune Internet LLC reserves the right to change or modify any of the terms
and conditions contained in this Agreement, any Addendums and any
policy or guideline incorporated by reference at any time and from
time to time in its sole discretion, and to determine whether and
when any such changes apply to both existing or future customers.
Any changes or modification will be effective upon posting of the
revisions on the Dune Internet LLC Web site (the "Site"). Your
continued use of Services following Dune Internet LLC's posting of any changes
or modifications will constitute your acceptance of such changes or
modifications.
1. Term and Payment for Services
1.1. Term This Agreement shall be for an "Initial
Term" as chosen by you in the Order Form located on this Site
at the time you register for the Services. This Agreement will be
automatically renewed (the "Renewal Term") at the end
of the Initial Term for the same period as the Initial Term unless
you provide Dune Internet LLC with notice of termination thirty (30) days
prior to the end of the Initial Term or the Renewal Term. You must
provide Dune Internet LLC with your notice of termination by clicking
on the "Cancel Service" button located on the Site or
as otherwise provided by this Agreement. Upon clicking on the "Cancel
Service" button, you will be asked to provide Dune Internet LLC with
sufficient customer identification information so that Dune Internet LLC
may properly identify you and your account. Any notice of termination
will be effective following thirty (30) days after Dune Internet LLC's
receipt thereof.
1.2. Termination Policy If you terminate your receipt
of the Services prior to the end of the Initial Term or the Renewal
Term, whichever is then applicable, (a) Dune Internet LLC will not refund
to you any fees paid in advance of such termination and (b) you
shall be required to pay 100% of Dune Internet LLC's standard monthly
charge for each month remaining in the term, unless otherwise expressly
provided in this Agreement. Notwithstanding the foregoing, if you
terminate your receipt of Shared Hosting Services prior to the end
of the first thirty (30) days of the Initial Term, you are entitled
to a refund of the fees you paid in advance for the monthly Services,
not including any set-up fees. Your termination request or notice
must be submitted to Dune Internet LLC in the manner described in Section
1.1. Dune Internet LLC may terminate this Agreement at any time and for
any reason by providing to you written notice thirty (30) days prior
to the date of termination. If Dune Internet LLC terminates this Agreement,
Dune Internet LLC will refund to you the pro-rata portion of pre-paid
fees attributable to Services (excluding set-up fees) not yet rendered
as of the termination date unless otherwise expressly provided in
this Agreement.
1.3 Default and Cure In the event that either party
hereto defaults in the performance of any of its material duties
or obligations under this Agreement, including failure to make any
payments due under this Agreement, and such default is not cured
within five (5) days after written notice is given to the defaulting
party specifying the default, then the party not in default, after
given written notice thereof to the defaulting party, may terminate
this Agreement.
1.4. Charges You agree to pay for all charges attributable
to your use of the Services at the then current Dune Internet LLC prices,
which shall be exclusive of any applicable taxes. You are responsible
for the payment of all federal, state, and local sales, use, value
added, excise, duty and any other taxes assessed with respect to
the Services, other than taxes based on Dune Internet LLC's net income.
1.5. Payment All charges for Services must be paid
in advance according to the then current prices applicable to the
Services. Upon entering this Agreement, you must choose to pay either
by direct charge to a credit or debit card, or receive an invoice
and submit subsequent payment. If you choose to pay by credit or
debit card upon registering for the Services, you thereby authorize
Dune Internet LLC to charge your credit or debit card to pay for any charges
that may apply to your account. You agree that Dune Internet LLC may accumulate
any supplemental charges, incurred by you in your use of the Services
("Supplemental Charges") until such charges exceed $20
and then charge your account. You must notify Dune Internet LLC of any
changes to your card account (including, without limitation, applicable
account number or cancellation or expiration of the account), your
billing address, or any information that may prohibit Dune Internet LLC
from charging your account. If you choose to be invoiced upon registration
for Services, Dune Internet LLC will invoice you for the Services applicable
to the period for which you have registered for the Services. Dune Internet LLC
may also create periodic invoices for any applicable Supplemental
Charges associated with your use of the Services. Dune Internet LLC will
send you a statement reflecting the accumulated invoices. You agree
to pay to Dune Internet LLC the amount indicated in each invoice by the
due date reflected on that invoice. If you fail to pay any fees
and taxes by the applicable due date for credit card or invoice
payments, late charges of the lesser of one and one-half per cent
(1.5%) per month or the maximum allowable under applicable law but
at no time less than $15 shall also become payable by you to Dune Internet LLC.
In addition, your failure to fully pay any fees and taxes within
five (5) days after the applicable due date will be deemed a material
breach of this Agreement, and Dune Internet LLC may, in addition to any
other remedy it may have: (i) suspend its performance of the Services
and/or terminate this Agreement; and/or (ii) take possession and
ownership of any of your property (including any and all intellectual
property) in Dune Internet LLC's possession at the time of such non-payment
and liquidate such property in any reasonable manner in partial
or full satisfaction of any unpaid amounts. You agree to sign any
documents to facilitate such a transfer of your property and, in
the event that Dune Internet LLC is unable for any reason to secure your
signature to any document required for such transfer, you hereby
irrevocably designate and appoint Dune Internet LLC and its authorized
officers and agents as your agent and attorney-in-fact to act on
your behalf to execute such documents. Any such suspension or termination
of the Services would not relieve you from paying past due fees
plus interest. In the event of collection enforcement, you will
be liable for any costs associated with such collection, including,
without limitation, reasonable attorneys' fees, court costs and
collection agency fees.
2. Use of Services
2.1. Applicable Use Policy The Dune Internet LLC Acceptable
Use Policy (the "Usage Policy") govern the general policies
and procedures for use of the Services. The Usage Policy is posted
on Dune Internet LLC's Web site (or such other location as Dune Internet LLC
may specify) and may be updated from time-to-time. YOU SHOULD CAREFULLY
READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND
BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. Dune Internet LLC
RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF
THE USAGE POLICY OR THIS AGREEMENT.
2.2. Material and Product Requirements Unless we
have agreed otherwise in a separate agreement, you must ensure that
all material and data placed on Dune Internet LLC's equipment is in a
condition that is "server-ready," which is in a form requiring
no additional manipulation by Dune Internet LLC. Dune Internet LLC will make
no effort to validate any of this information for content, correctness
or usability. If your material is not "server-ready",
Dune Internet LLC has the option at any time to reject this material.
Dune Internet LLC will notify you of its refusal of the material and afford
you the opportunity to amend or modify the material to satisfy the
needs and/or requirements of Dune Internet LLC. Use of the Services requires
a certain level of knowledge in the use of Internet languages, protocols
and software. This level of knowledge varies depending on the anticipated
use and desired content of your Web site. You must have the necessary
knowledge to create and maintain a Web site. It is not Dune Internet LLC's
responsibility to provide this knowledge or customer support outside
of the Services agreed to by you and Dune Internet LLC.
2.3. Bandwidth and Storage Usage You agree that use
of the Services under this Agreement will not exceed the bandwidth
and storage usage limits set out. If you use any bandwidth or storage
space in excess of the agreed upon number of megabytes per month,
you agree to pay the associated additional charges.
3. Enforcement
3.1. Investigation of Violations Dune Internet LLC may investigate
any reported or suspected violation of this Agreement, its policies
or any complaints and take any action that it deems appropriate
and reasonable under the circumstance to protect its systems, facilities,
customers and/or third parties. Dune Internet LLC will not access or review
the contents of any e-mail or similar stored electronic communications
except as required or permitted by applicable law or legal process.
3.2. Actions Dune Internet LLC reserves the right and has
absolute discretion to restrict or remove from its servers any content
that violates this Agreement or related policies or guidelines,
or is otherwise objectionable or potentially infringing on any third
party's rights or potentially in violation of any laws. If we become
aware of any possible violation by you of this Agreement, any related
policies or guidelines, third party rights or laws, Dune Internet LLC
may immediately take corrective action, including, but not limited
to, (a) issuing warnings, (b) suspending or terminating the Service,
(c) restricting or prohibiting any and all uses of content hosted
on Dune Internet LLC's systems, and/or (d) disabling or removing any hypertext
links to third party Web sites, any of your content distributed
or made available for distribution via the Services, or other content
not supplied by Dune Internet LLC which, in Dune Internet LLC's sole discretion,
may violate or infringe any law or third-party rights or which otherwise
exposes or potentially exposes Dune Internet LLC to civil or criminal
liability or public ridicule. It is Dune Internet LLC's policy to terminate
repeat infringers. Dune Internet LLC's right to take corrective action,
however, does not obligate us to monitor or exert editorial control
over the information made available for distribution via the Services.
If Dune Internet LLC takes corrective action due to such possible violation,
Dune Internet LLC shall not be obligated to refund to you any fees paid
in advance of such corrective action.
3.3. Disclosure Rights To comply with applicable
laws and lawful governmental requests, to protect Dune Internet LLC's
systems and customers, or to ensure the integrity and operation
of Dune Internet LLC's business and systems, Dune Internet LLC may access and
disclose any information it considers necessary or appropriate,
including, without limitation, user profile information (i.e., name,
e-mail address, etc.), IP addressing and traffic information, usage
history, and content residing on Dune Internet LLC's servers and systems.
Dune Internet LLC also reserves the right to report any activity that
it suspects violates any law or regulation to appropriate law enforcement
officials, regulators, or other appropriate third parties.
4. Intellectual Property Rights
4.1. Your License Grant to Dune Internet LLC You
hereby grant to Dune Internet LLC a non-exclusive, worldwide, and royalty-free
license for the Initial Term and any Renewal Term to use your content
as necessary for the purposes of rendering and operating the Services
to you under this Agreement. You expressly (a) grant to Dune Internet LLC
a license to cache materials distributed or made available for distribution
via the Services, including content supplied by third parties, and
(b) agree that such caching is not an infringement of any of your
intellectual property rights or any third party's intellectual property
rights.
4.2. Dune Internet LLC Materials and Intellectual Property
All materials, including but not limited to any computer software
(in object code and source code form), data or information developed
or provided by Dune Internet LLC or its suppliers or agents pursuant to
this Agreement, and any know-how, methodologies, equipment, or processes
used by Dune Internet LLC to provide the Services to you, including, without
limitation, all copyrights, trademarks, patents, trade secrets and
other proprietary rights are and will remain the sole and exclusive
property of Dune Internet LLC or its suppliers, including but not limited
to any software programs, inventions, products and/or technology
innovations and methodologies utilized, developed, or disclosed
by Dune Internet LLC during the term of this Agreement. Unauthorized copying,
reverse engineering, decompiling, and creating derivative works
based on the any such software is expressly forbidden except as
permitted in this Agreement. You may be held legally responsible
for violation of any patent rights, copyright or trade secret rights
that is caused or encouraged by failure to abide by the terms of
this Agreement.
4.3. Trademarks You hereby grant to Dune Internet LLC a
limited right to use your trademarks, if any, for the limited purpose
of permitting Dune Internet LLC to fulfill its duties under this Agreement.
This is not a trademark license and no other rights relating to
the trademarks are granted by this Agreement. Specifically, but
without limitation, the rights granted by this Agreement do not
include the right to sublicense use of your trademarks or to use
your trademarks with any other products or services outside the
scope of the Services provided under this Agreement. The limited
trademark use rights granted under this section terminate upon termination
of this Agreement.
5. Warranty; Warranty Disclaimer
5.1. Customer and/or Third Party Acts Dune Internet LLC
is not responsible in any manner for any nonconforming Services
to the extent caused by you or your customers. In addition, Dune Internet LLC
is not responsible for loss or corruption of data in transmission,
or for failure to send or receive data due to events beyond Dune Internet LLC's
reasonable control.
5.2. No Express or Implied Warranty ALL SERVICES,
SYSTEMS AND PRODUCTS PROVIDED BY Dune Internet LLC UNDER THIS AGREEMENT
ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR
IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT Dune Internet LLC EXERCISES
NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT
OF THE INFORMATION PASSING THROUGH Dune Internet LLC'S COMPUTERS, NETWORK
HUBS AND POINTS OF PRESENCE, OR THE INTERNET. Dune Internet LLC DOES NOT
WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED
OR ERROR-FREE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES
WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT.
ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS
IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING,
WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION
SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, Dune Internet LLC
DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE
ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE,
REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS
OF QUALITY, AND ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT,
TRADESECRET OR TRADEMARK INFRINGEMENT.
5.3 Your Warranties and Representations to Dune Internet LLC
You warrant, represent, and covenant to Dune Internet LLC that (a) you
are at least eighteen (18) years of age or are a duly organized
and validly existing entity; (b) you possess the legal right and
ability to enter into this Agreement; (c) you will use the Services
only for lawful purposes and in accordance with this Agreement and
all applicable policies and guidelines; (d) you will be financially
responsible for the use of your account; (e) you have acquired or
will acquire all authorization(s) necessary for hypertext links
to third-party Web sites or other content; (f) you have verified
or will verify the accuracy of materials distributed or made available
for distribution via the Services, including, without limitation,
your content, descriptive claims, warranties, guarantees, nature
of business, and address where business is conducted, and (g) your
content and/or any software that you install or provide does not
and will not infringe or violate any right of any third party (including
any intellectual property rights) or violate any applicable law,
regulation or ordinance.
6. Limitation and Exclusion of
Liability
6.1. Limitations IN NO EVENT SHALL Dune Internet LLC
HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO,
ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO Dune Internet LLC,
DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES.
Dune Internet LLC SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE
FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES
EVEN IF Dune Internet LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN ANY EVENT, THE LIABILITY OF Dune Internet LLC TO YOU FOR ANY
REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT
ACTUALLY PAID TO Dune Internet LLC BY YOU UNDER THIS AGREEMENT DURING
THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH
CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN
THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS,
AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY Dune Internet LLC UNDER
THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS
ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE Dune Internet LLC
FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF
THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO
NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED
TO THE EXTENT PERMITTED BY LAW.
6.2. Interruption of Service You hereby acknowledge
and agree that Dune Internet LLC will not be liable for any temporary
delay, outages or interruptions of the Services. Further, Dune Internet LLC
shall not be liable for any delay or failure to perform its obligations
under this Agreement, where such delay or failure results from any
act of God or other cause beyond its reasonable control (including,
without limitation, any mechanical, electronic, communications or
third-party supplier failure).
6.3. Maintenance You hereby acknowledge and agree
that Dune Internet LLC reserves the right to temporarily suspend services
for the purposes of maintaining, repairing, or upgrading its systems
and network. Dune Internet LLC will use best efforts to notify you of
pending maintenance however at no time is under any obligation to
inform you of such maintenance.
7. Indemnification
You will defend, indemnify and hold harmless Dune Internet LLC and its
officers, directors, shareholders, employees, consultants, agents,
affiliates and suppliers (an "Indemnitee") from any and
all threatened or actual claims, demands, causes of action, suits,
proceedings (formal or informal), losses, damages, fines, penalties,
liabilities, costs and expenses of any nature, including attorneys'
fees and court costs, sustained or incurred by or asserted against
any Indemnitee by any person, firm, corporation, governmental authority,
partnership or other entity by reason of or arising out of or relating
to: (i) your violation or breach of any term, condition, representation
or warranty of this Agreement or any applicable policy or guideline;
(ii) your conduct, including but not limited to your negligence,
gross negligence, or willful misconduct; (iii) your use of the Services,
including any improper or illegal uses; (iv) any claim by a former
employee of yours whose employment has been or may be terminated
in connection with or as a result of the execution of this Agreement
and performance of the Services by Dune Internet LLC; or (v) any claim
relating to your services or products, or your installation and/or
use of any third-party software, including but not limited to advertising,
product liability claims or infringement of any trademark, copyright,
patent, trade secrets or non-proprietary right of a third party
(including, without limitation, defamation, libel, or violation
of privacy or publicity).
8. Miscellaneous
8.1 Confidentiality The parties each agree that
all Confidential Information (as defined below) communicated to
it by the other is done so in confidence and will be used only for
the purposes of this Agreement and will not be used to compete with
the other party or disclosed to any third party without the prior
written consent of the other party except as permitted under this
Agreement. "Confidential Information" means all information
in any form, including, without limitation, printed or verbal communications
and information stored in printed, optical or electromagnetic format,
which relates to the Services; or computer, data processing or electronic
commerce programs and software; electronic data processing applications,
routines, subroutines, techniques or systems; information which
incorporates or is based upon proprietary information of either
party; or information concerning business or financial affairs,
product pricing, financial conditions or strategies, marketing,
technical systems of either party; or any information concerning
customers or vendors of either party; or any data exchange between
a party and any customers or vendors. Exceptions to Confidential
Information include (1) information in the public domain; (2) information
developed independently by a party without reference to information
disclosed under this Agreement; or (3) information received from
a third party without restriction and/or breach of this or a similar
Agreement. It is not a violation of this provision to disclose Confidential
Information in compliance with any legal, accounting or regulatory
requirement beyond the control of either Party or, but in such case,
prior to disclosure, the disclosing Party shall give written notice
to the other Party to permit that Party an opportunity to challenge
such disclosure. If either Party is subpoenaed, such Party shall
give written notice to the other Party to permit that Party an opportunity
to challenge the disclosure of Confidential Information. Upon the
termination of this Agreement and upon written request of the disclosing
Party, each Party shall promptly return all Confidential Information
of the other Party. This provision shall survive the termination
of this Agreement for two (2) years.
8.2. Notices All notices, reports, requests, or
other communications given pursuant to this Agreement shall be made
in writing, shall be delivered by hand delivery, overnight courier
service, fax, or electronic mail, shall be deemed to have been duly
given when delivered.
8.3. Choice of Law and Forum THIS AGREEMENT,
WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE
OF COLORADO, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY
ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL
OR STATE COURTS LOCATED IN COLORADO, AND YOU IRREVOCABLY CONSENT TO
THE JURISDICTION OF SUCH COURTS.
8.4. Entire Agreement This Agreement and all policies
and guidelines incorporated in this Agreement by reference constitutes
the entire Agreement of the parties and may not be modified or altered
orally but only by an agreement in writing signed by both parties.
8.5. No Fiduciary Relationship; No Third‑Party Beneficiaries
Dune Internet LLC is not the agent, fiduciary, trustee or other representative
of you. Nothing expressed or mentioned in or implied from this Agreement
is intended or shall be construed to give to any person other than
the parties hereto any legal or equitable right, remedy or claim
under or in respect to this Agreement. This Agreement and all of
the representations, warranties, covenants, conditions and provisions
hereof are intended to be and are for the sole and exclusive benefit
of the parties hereto.
8.6. Assignments You may not transfer or assign
your rights, duties, or obligations under this Agreement without
Dune Internet LLC's prior written consent. Dune Internet LLC may assign its
rights and obligations under this Agreement and may utilize affiliate
and/or agents in performing its duties and exercising its rights
under this Agreement, without your consent. Subject to that restriction,
this Agreement will be binding on, inure to the benefit of, and
be enforceable against the parties and their respective successors
and assignees.
8.7. No Waiver Dune Internet LLC's failure to enforce
the strict performance of any provision of this Agreement will not
constitute a waiver of Dune Internet LLC's right to subsequently enforce
such provision or any other provisions under this Agreement.
8.8. Severability If any provision of this
Agreement is deemed illegal, invalid, void or otherwise unenforceable
in whole or in part, that provision shall be severed or shall be
enforced only to the extent legally permitted, and the remainder
of the provision and the Agreement shall remain in full force and
effect. If any provision of this Agreement is deemed to be invalid,
void or unenforceable only with respect to a particular application,
such term or provision shall remain in full force and effect with
respect to all other applications.
8.9. Survival All provisions of this Agreement
relating to your warranties, intellectual property rights, limitation
and exclusion of liability, your indemnification obligations and
payment obligations shall survive the termination or expiration
of this Agreement.
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