Universal Terms of Service for Brinkster Services and Software
This Agreement (“Agreement”) is by and between Brinkster Communications Corporations, (“Brinkster”) a Virginia corporation and You, Your heirs, agents successors and assigns (“You”), and is made effective as of the date (1) your electronic signature on or acceptance of this agreement, (2) the activation of your account or (3) your receipt of an e-mail from Brinkster confirming your order, whichever happens first. The Agreement sets forth the terms and conditions of Your use of Brinkster services (“Services”) and software (“Software”) and explains Brinkster’s obligations to You and Your obligations to Brinkster in relation to the Services and Software You purchase.
This Agreement as well as any additional Brinkster policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and Brinkster concerning Your use of Brinkster’s Services and Software, and supersede and govern all prior proposals, agreements, or other communications. All Brinkster policies and agreements specific to particular Service or Software are incorporated herein and made part of this Agreement by reference, including the dispute policy (“UDRP”). By purchasing Brinkster Services or Software, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new different or additional terms, conditions or policies which Brinkster may establish from time to time, and any agreements that Brinkster is currently bound by or will be bound by in the future. You may view the latest version of this Agreement online www.brinkster.com/company/legal/UTOS.aspx.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You’ve established with Brinkster, whether or not the transactions were in Your behalf.
1.01 The term "account" refers to the access, content, and services that Brinkster provides to its users. Please carefully read these terms and conditions as they describe your legal rights and obligations.
1.02 Brinkster reserves the right to change, amend and/or otherwise alter the Brinkster services with equivalent or otherwise equal services without prior notice to you. THESE TERMS & CONDITIONS REQUIRE MANDATORY ARBITRATION OF DISPUTES.
1.03 THE TERMS CONTAINED HEREIN SUPERSEDE AND REPLACE ANY OTHER AGREEMENT OR NEGOTIATION BETWEEN YOU AND BRINKSTER, WHETHER ORAL, WRITTEN OR OTHERWISE, INCLUDING ANY STATEMENTS MADE TO YOU BY ANY REPRESENTATIVE OF BRINSKTER AT ANY TIME. Any amendments, changes, additions, deletions or other modifications of this Agreement are void unless specifically expressed in writing and agreed to by Brinkster.
1.04 Brinkster reserves the right to cancel any account, including files and content, for any reason, or no reason at all, at any time. You agree to maintain back-up files of all information you post on Brinkster and you agree that Brinkster will have no liability for removing any data you have posted or loss of data that has occurred. You as the customer are responsible for the backup of your data.
1.05 Subscribers to Brinkster services must be at least 18 years of age (twenty one in places where eighteen years is not the age of majority) and are fully competent to enter into this Agreement.
1.06 You agree that Brinkster's entire liability to you under this agreement, and your only remedy, in connection with any service provided by Brinkster, to you under this agreement, and for any breach of this agreement by Brinkster shall be limited to the fees you paid to Brinkster for the particular service in contention.
2.00 Domain Names and Registration Services.
2.01 At your request, Brinkster may acquire a Second-Level domain Name ("Domain Name"), on your behalf and in your name, assuming that the Domain Name you request is available for registration. Brinkster will not own or otherwise legally control any Domain Name registered on your behalf under this Section. Brinkster provides this service as a convenience to you only and you hereby waive any and all claims which you may have, or which may later arise, against Brinkster for any and all damages, losses, claims or expenses arising or related to the acquisition, registration and/or use of the Domain Name. Any costs incurred by Brinkster to obtain and/or maintain the Domain Name on your behalf shall be charged to you by Brinkster at an amount determined by Brinkster, at their sole discretion. If a domain name expires, you have 17 days grace period from the date of expiration to renew the domain at the regular renewal fee. After this 17 day grace period, if the domain falls into redemption, then there will be a $99 administration fee. Under ICANN registration, redemption is when the registry has repossessed the domain.
2.02 You acknowledge and agree that Brinkster or its agents, assignees or licensees may, upon registration of your domain name, associate any data of any kind, in Brinkster’s sole discretion, with the Domain Name registered in association with Your Web Site or any URL incorporating said Domain Name until you replace such data with the Web Site. This paragraph shall apply to any and all web pages generated by Brinkster, whether in connection with HTML standard response codes or otherwise, including but not limited to 404 error pages.
2.03 Domain Names may be registered by Brinkster on your behalf through a variety of Domain Name Registration services (each a "Registrar"). Brinkster acts only as an intermediary between you and the organization providing the domain name, and has no influence over the assignment of domain names. The registration of your domain name is subject to the terms and conditions of those third party registers. In particular, registration of Domain Names binds you to the terms of the Uniform Domain Name Dispute Resolution Policy ("UDRP"), which governs the resolution of most disputes regarding the registration of Domain Names.
2.04 You warrant to Brinkster that any Domain Name you may seek to register through Brinkster does not violate the rights of any third party, in particular trademark rights, and that you have taken reasonable steps, including but not limited to searches of the applicable state and federal trademark registries, to assure that this is the case. You agree to indemnify and hold harmless Brinkster, its officers, directors, employees and agents, with respect to any and all damages, losses, claims or expenses incurred with respect to or arising out of claims of third parties concerning your use of any such Domain Name on the Internet.
2.05 You agree to inform Brinkster of any proceeding instituted by any party challenging your rights to use any Domain Name hosted on Brinkster servers, including but not limited to disputes under the Uniform Domain Name Dispute Resolution Policy ("UDRP"), within five days of notification of the same. You shall provide Brinkster notice of any negotiations with third parties with respect to ownership and/or intellectual property rights to your domain name within five days of the commencement of such negotiation. Should you for any reason lose your right to use a Domain Name hosted on the Brinkster Servers, through expiration of the registration of the Domain Name, judicial decree, and or administrative decision under the UDRP or otherwise, you agree to immediately inform Brinkster of such loss of rights. To the extent your loss of rights to a Domain Name is accompanied by any judicial decree or administrative decision granting rights to the Domain Name to a third party, you agree to immediately inform Brinkster in writing of the identity of the party to whom such rights are to be transferred, as well as of any other information regarding the nature and scope of the decision of the judicial body or administrative panel that rendered the decision.
2.06 You agree and understand that Brinkster may, should your rights to a Domain Name be challenged in any way, suspend the Brinkster services associated with such Domain Name and take any and all actions required under any such proceeding, including but not limited to actions required under the UDRP.
2.07 As more completely set forth in Section 18, you waive any and all claims you may have, now and forever, against Brinkster relating to the registration, use, and subsequent transfers of your domain name and agree to indemnify and hold harmless Brinkster from and against any such claims. You agree that Brinkster's entire liability to you under this agreement, and your only remedy, in connection with any service provided by Brinkster, to you under this agreement, and for any breach of this agreement by Brinkster shall be limited to the fees you paid to Brinkster for the particular service in contention. Brinkster and its agents and contractors shall not be liable for any direct, indirect incidental, special, or consequential damages resulting from the use of or inability to use any of Brinkster's services or for the cost of obtaining substitute services. Brinkster’s liability shall be limited to the smallest amount permitted by law.
2.08 Brinkster may suspend performance and or services under this Agreement or terminate this Agreement and Your account, cease transmission of data associated with your domain name immediately and without notice, and take any other actions it deems necessary, in its sole discretion, to comply with the relevant laws if it is informed or otherwise believes, in its sole discretion, that your domain name violates the intellectual property rights of any third party or is otherwise the subject of a dispute.
2.09 If Brinkster offers Domains free with a package, it is only intended for the terms listed, and at the maximum for one year. Domains auto renew on a yearly basis, with the domain fee being charged to the customer’s account at the time of renewal. You acknowledge and agree to pay for all charges and fees relating to your domain name renewal. If Brinkster accrues any charges for failed domain registering processing, for any reason whatsoever, then it reserves the right to automatically bill and/or charge the customer’s credit card for all costs involved, including a reasonable administration fee.
3.01 Brinkster may, in its sole discretion, provide you with Brinkster Software in combination with Your Services. Upon payment of all fees due and owing to Brinkster under this Agreement, Brinkster hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the Brinkster Software and all related documentation for your own personal or business use during the term of this Agreement. Any rights not expressly granted herein shall be reserved for Brinkster. Source code or other information pertaining to the logic design of the Brinkster Software is specifically excluded from the license granted hereunder.
3.02 Although the Brinkster Software is generally provided free of charge, Brinkster reserves the right to charge for the Brinkster Software or any upgrades therefore at any time.
3.03 You recognize that the Brinkster Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the Brinkster Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by Brinkster. You further acknowledge that you have been advised that the Brinkster Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of Brinkster, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to Brinkster, and that its use and disclosure must be carefully and continuously controlled.
3.04 Brinkster shall at all times retain title to all the Brinkster Software and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
3.05 Unless provided otherwise in the specifications for Your Services, the Brinkster Software supplied hereunder is for the your personal or business use. You shall not permit any third party to use the Brinkster Software or allow access to the Brinkster Software from sites outside of your home or business premises except as specifically authorized in writing by Brinkster. The Brinkster Software is to be used only for the purposes specified in this Agreement and specifically as restricted in the following sections of this Section 3.01.
3.06 While this Agreement is in effect, or while you have custody or possession of any of the Software, you will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the Brinkster Software, whether such Brinkster Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for use in Your Web Site pursuant to this Agreement, nor; (ii) provide or make the Brinkster Software available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement, nor; (iv) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of Brinkster. In order to protect Brinkster's trade secrets and copyrights in the Brinkster Software, you agree to reproduce and incorporate Brinkster's trade secrets or copyright notice in any copies, modifications or partial copies.
3.07 You agree to notify Brinkster forthwith if you obtain information as to any unauthorized possession, use or disclosure of any Brinkster Software by any person or entity, and further agree to cooperate with Brinkster at Brinkster's expense, in protecting Brinkster's proprietary rights.
3.08 Unless agreed otherwise in writing by Brinkster, the Brinkster Software may be used only on a single computer or workstation. Brinkster software designed for use on portable workstations may be installed on both a portable and a stationary computer but may not be used on both simultaneously. You may not install the Brinkster Software on a network except to facilitate permissible installation of the Brinkster Software on computers attached to the network. You warrant and guarantee that all users of the software shall be aware of and comply with the terms of this license.
3.09 Certain Brinkster Software is provided for online use as part of the Brinkster Services (the "Brinkster Online Software"), and the use of such software may be subject to new user fees posted on the Brinkster Web site. The Brinkster Online Software is hosted software which runs directly on Brinkster's servers, and you may not download, install, store or make any copies of the Brinkster Online Software, nor may you sublicense the Brinkster Online Software. You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Brinkster Online Software or any copies thereof and not to assist any third party in doing so. The Brinkster Online Software is designed to be used through the Brinkster user interface and, as such, may be utilized by any authorized user from any computer or workstation. This license is automatically revoked upon termination of this Agreement. Brinkster reserves the right to modify or discontinue the Brinkster Online Software at any time without notice.
3.10 Brinkster provides its customers with the ability to obtain certain third-party software (the "Third Party Software"), depending on the hosting package ordered. The license conditions governing the use of the Third Party Software may differ from Brinkster's own software licenses. Customers of Brinkster are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. Some such Third Party software is provided under license from Microsoft ("Microsoft Software"), and Customers using Microsoft Software are bound by the T&C Microsoft Software Products, which are incorporated herein by reference. THE PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY BRINKSTER DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN BRINKSTER MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
3.11 In the event of termination of this Agreement, or upon any act which shall give rise to Brinkster's right to terminate, or upon the expiration of the license for Brinkster Software which is subject to a limited-duration license, any and all licenses granted under this Section 2.1 shall terminate automatically, and you will remove, erase or destroy the Brinkster Software and documentation and all copies thereof, wherever located, without demand or notice.
4.00 Technical Support
4.01 Support for hosting plans are offered via phone, Live Chat, and e-mail. This support is offered 24 hours a day, seven (7) days a week. In the case of emergencies or natural disasters, Brinkster will provide support as soon as it is a reasonable time to do so, at their sole discretion.
4.02 Brinkster provides support for issues relating to the hosting of web sites created with FrontPage. For FrontPage programming support, please visit: http://support.microsoft.com/default.aspx?pr=fp2003
4.03 Brinkster is not obligated to provide any Technical Support except as specified in this section. Any and all requests for additional Technical Support may be refused by Brinkster with or without reason. Any additional Technical Support which Brinkster may subsequently agree to provide to you shall be at Brinkster's sole discretion and once commenced, may be terminated at any time by Brinkster without notice to you and without any liability to Brinkster. Notwithstanding the foregoing, Brinkster at its sole discretion may at any time alter or cease providing the Technical Support which it has agreed to provide to you relating a Brinkster Service pursuant to this Agreement without any liability to Brinkster.
5.00 Cancellations and Billing
5.01 Setup Fees are nonrefundable.
5.02 The initial term shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the services to Customer. After the Initial Term, this Agreement shall automatically renew. Additionally, up to sixty days or two months prior to the initial term ending, customer acknowledges, agrees and authorizes Brinkster to automatically bill and/or charge their credit card for successive terms of equal length as the initial term, unless terminated or cancelled by either party as provided in this section. After the Initial Term, this Agreement shall automatically renew at the current listed fee. A list of current fees are available on the Brinkster website and the rest of the fees in this Agreement.
5.03 Brinkster reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not affect the then existing right and responsibilities of each party. Promotional offers and rates may not be combined.
5.04 To the extent that you qualify for any promotional rates or special offers from Brinkster, these terms and conditions may be modified by the terms and conditions of the promotion or special offer. In such a case, the terms and conditions of the promotion, to the extent they differ from the terms and conditions expressed herein, govern.
5.05 Brinkster charges a non-refundable set up fee as well as its periodic service fee which in some cases may be refundable as further set forth elsewhere herein. Brinkster charges an Annual Domain/DNS Maintenance Fee of $.17 per month per domain name, a Universal Internet Service (IPv6) Recovery Fee of $.07 per month per domain for Domain Only accounts and $.34 per month per domain for all other accounts, and a Wind Energy Surcharge of $.57 per month for all accounts except Domain Only accounts. Brinkster may also charge you for Domain service fees and specifically reserves the right to institute additional charges upon notice to you. Brinkster reserves the right to alter, change, amend or delete charges at its sole discretion. Brinkster further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.
5.06 Payment for all products and services is due in advance, unless specifically stated otherwise in the offer or promotion pursuant to which you have ordered or are ordering the Brinkster services. All payments shall be made in United States Dollars.
5.07 Payment by Credit Card: prior to activation of your user account, and at any applicable time thereafter, you authorize Brinkster to charge the credit card provided by you for the amount of the fees due for the agreed upon services together with any applicable set-up charges, registration fees, or any other charges outlined herein as may be applicable. You further authorize Brinkster to charge your credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. Should you fail to provide credit card authorization to pay for the coverage, Brinkster, at its sole discretion will have the right to suspend your account and/or terminate it under section 4.08 hereof. Refusal or rejection of any charge or any portion thereof is grounds for account suspension and/or termination at the sole option of Brinkster under Article 16 herein.
5.08 The hosting services may be terminated by the following methods: (a) by either party by giving the other party thirty (30) days prior written notice, (b) by Brinkster in the event of non-payment by Customer, (c) by Brinkster, at any time, without notice, if, in Brinkster's sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of the this Agreement and related agreements, or Customer's use of the services disrupts or, in Brinkster's sole and absolute discretion and/or judgment, could disrupt, Brinkster's business operations and/or (d) by Brinkster upon verbal request by Customer if Customer provides satisfactory authorization and account verification. (e) by Brinkster in accordance with other cancellation terms listed herein.
5.09 If a customer cancels their hosting service prior to the end of the Initial Term or any Renewal Term thereafter: (a) customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation, (b) Refunds of service fees will be made only for pre-payment of service fees beyond the next renewal period following the effective notice and termination of this agreement. All refunds shall be pro-rated based upon the number of days for which service remains unused as of that next renewal date. Brinkster may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder. There will be no refunds of Domain service Fees. Fees paid for certain additional services, including but not limited to services for extra storage space, web mail tools or special groupware, are also not refundable. If a prepaid account is canceled, any refund given will be prorated based on the regular monthly price for the given service. (c) Fees will be recalculated for the current term without any special promotion and/or term discount, on a month to month basis (using the undiscounted monthly fee and any applicable setup fees) and the resulting amount will be deducted from the amount of fees that has been paid in the current term to determine the balance of the account. This may result in an additional payment due. Dedicated server, semi-dedicated and cloud services that are terminated prior to the end of the initial term are subject to a $49 per server termination fee.
5.10 If Brinkster cancels a customer’s account prior to the end of the Term for the customer’s breach of the Terms of Service and related agreements, the Customer's use of the services will disrupt and Brinkster shall not refund to customer any fees paid in advance of such cancellation with customer being obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, customer shall be obligated to pay 100% of all charges for all services for each month remaining in the Term.
5.11 Upon termination of a customer’s account for any cause or reason whatsoever, neither party shall have any further rights or obligations under these terms of service, except as expressly set forth herein. Termination of a hosting Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Brinkster may be entitled.
5.12 Should a customer decide to cancel an account within the initial 90 day period, the customer will receive a full refund of prepaid hosting fees, less any Domain registration fees that Brinkster has incurred to date as part of a promotion or separate charges, (“90 day money back guarantee”). Any upgrade of the initial account by customer within the initial 90 day period will be considered a waiver of the money back guarantee and an acceptance of the then current rates and fees. Brinkster also considers that customers switching from any existing Brinkster package, or adding additional services have already experienced the 90-day Money Back Guarantee. The renewal of the initial period is considered a waiver of the money back guarantee with each customer only being allowed to use the Money Back Guarantee once, and for only one account. Any customer whose account has been suspended or terminated due to the breach of any part of the Brinkster Terms of Services including but not limited to Section 5.07 and Section 7 has automatically forfeited the right to use the Brinkster Money Back Guarantee. To be considered valid, all money back guarantee requests must be e-mailed to Cancellations@Brinkster.com within 90 days of the customer’s account being signed up, and must be accompanied by a dissatisfaction explanation. If such money back guarantee request is after the aforementioned 90 days, the money back guarantee will be null and void, and Brinkster will not be liable for any or all refunds under this section. Notwithstanding anything to the contrary, the aforementioned 90 day money back guarantee will under no circumstances apply to the Website Design Studio services, Website Design Studio packages, any Professional Services performed, Domain Name fees, services sold by or through Brinkster but provided by a third party, Semi-Dedicated Servers and Dedicated Servers. This guarantee is also limited to a maximum refund amount of $300.
5.13 You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the Brinkster Services and that no taxing authorities shall have any claim against Brinkster or any persons affiliated therewith for the payment of such taxes. If you are located in an EU country, it is your responsibility to assess and pay VAT to the appropriate authority.
5.14 By accepting a promotional offer that includes a dedicated server, customer is required to continue paying for the accompanying service for a period of 12 months following the promotional period. If service is canceled, customer will be required to pay a cancellation fee equal to the retail value of the discounted portion of the service. This section does not apply to the TryIT Program.
6.01 Brinkster reserves the right to access and review its user’s content, files, or web pages for any reason at its sole discretion.
6.02 Brinkster does not preview the content of its users and therefore all user content is provided "AS IS" and without warranty of any kind by Brinkster.
6.03 Brinkster does not endorse any content contained within it's user's pages.
6.04 Brinkster will cooperate with all law enforcement efforts pertaining or involving the use of Brinkster's user's web space, e-mail, and content. This may result in Brinkster disclosing all information given to Brinkster including but not limited to information contained in Brinkster’s customer database records and servers.
6.05 You affirmatively represent, agree and warrant that you have and at all times shall have all necessary intellectual property rights, including, but not limited to, all copyrights, trademark and service mark rights and rights of publicity, both in the United States and throughout the world, to reproduce and disseminate, via the Internet, all data which you store in Web Site Space or which you otherwise promote, advertise, disseminate and/or distribute to anyone by your direct or indirect use of the Brinkster Services or Brinkster's Equipment, including, without limitation, all advertising and promotional materials, prior to and at all times during the time such materials are promoted, advertised, disseminated or distributed through any direct or indirect use of the Brinkster Services or Brinkster's Equipment.
6.06 You shall at all times use your Web Site exclusively as a conventional Web Site. All use of Brinkster's Services and Equipment shall at all times be in a manner consistent with this Agreement and shall not in any way impair the functioning or operation of Brinkster's Equipment or network. Should your use of the Brinkster Services result in an overly high load on the Brinkster Equipment, in Brinkster's sole discretion, Brinkster may suspend your account until the cause of any such overload is determined and resolved.
7.00 Inappropriate Content
7.01 Transmission, distribution, sale or storage of any material in violation of any applicable law, regulation, ordinances, or these guidelines is prohibited. Brinkster reserves the rights to restrict or prohibit any and all uses of the services or content on your web site(s) and to remove such material from its servers that Brinkster determines in its sole discretion is harmful to its servers, systems, network, reputations, good will, other Brinkster Customers, or any third party.
7.02 The following non-exhaustive list details the kinds of illegal or harmful or misappropriate conduct that is prohibited under this agreement: (a) nudity, pornography, anything of a sexual, lewd, indecent or of obscene nature. (b) violations of any copyright or any other right of any third party, including, without limitation, material protected copyright, trademark, patent, trade secret, or other intellectual property right used without proper authorization. (c) threatening, abusive, harassing, harmful, defamatory, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable. (d) promotion of illegal activities (info on hacking, cracking, making illegal devices, etc). (e) information, instructions, or software containing or about any kind of virus. (f) hate speech or hate propaganda. (g) content that links to content that violates Brinkster's Terms of Service in any way. (h) misrepresentation of user's identity, or the impersonation of anyone, including Brinkster personnel. (i) collection of personal information for illegal purposes. (j) content that is deemed by Brinkster, in its sole discretion, to be harmful to Brinkster, another company or organization, or individual. (k) solicitation or sale of any products or services that are harmful, illegal, dangerous, pornographic, or indecent. (l) use of Brinkster servers or a link to Brinkster servers for spamming, bulk mail, web bombing, etc.
7.03 You agree that in the event that Brinkster is informed by any party that your domain name or any material on your Web Site or put on our servers infringes the copyright of any party, or violates the right of publicity or privacy of any party, or consists of any other claim or violation of intellectual property rights of any kind, then Brinkster may, without prior notice to you and in Brinkster's sole and exclusive discretion, either remove the material from your Web Site or Brinkster Server, and/or disable public access to your domain name or the material on your Web Site or Brinkster Server and/or terminate this Agreement, without any liability of any kind to Brinkster from either you or any third party. In concordance with section 18, you waive any and all claims you may have, now and forever, against Brinkster relating to any action taken in response to the claim that you have infringed the intellectual property rights of a third party, and agree to indemnify and hold harmless Brinkster from and against any such claims
8.00 Export Violations and CISG
8.01 Brinkster does not permit the posting or sending of software or technical information in violation of U.S. export laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce.
8.02 The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this agreement.
8.03 You agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported, the United States or the country in which you reside.
9.00 Harmful Content
9.01 Disseminating or hosting harmful content including, without limitation, viruses, trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information.
10.00 Fraudulent Conduct
10.01 Offering or disseminating fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes), or furnishing false data on any signup form, contract or online application or registration, or the fraudulent use of any information obtained through the use of the services, including without limitation use of credit card numbers.
10.02 You agree not to make or attempt any unauthorized access to any Brinkster website or the website of any Brinkster customer.
11.00 Security Violations
11.01 Violations of Brinkster's or any third party's server, system or network security through the use of the services are prohibited, and may result in criminal and civil liability. Brinkster may investigate incidents involving such violations. Brinkster may involve and cooperate with law enforcement if a criminal violation is suspected. Any violation by Customer of Brinkster security will be considered grounds for cancellation under section 5.00. Examples of server, system or network security violations include, without limitation, the following: Example 1: Hacking. Unauthorized access to or use of data, systems, server or networks, including any attempt to probe, scan or test the vulnerability of a system, server or network or to breach security or authentication measures without express authorization of the owner of the system, server or network. Example 2: Interception. Unauthorized monitoring of data or traffic on any network, server, or system without express authorization of the owner of the system, server, or network. Example 3: Intentional Interference. Interference with service to any user, host or network including, without limitation, mail bombing, news bombing, other flooding techniques, deliberate attempts to overload a system, broadcast attacks and any activity resulting in the crash of a host. Intentional interference also means the use of any kind of program/script/command, or send messages of any kind, designed to interfere with a user's terminal session, via any means, locally or by the Internet. Example 4: Falsification of Origin. Forging of any TCP-IP packet header, e-mail header or any part of a message header. Example 5: Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on the services such as timing out. Example 6: Failure to Safeguard Accounts. Customer fails to prevent access to the accounts, including any account passwords.
11.02 You are responsible for maintaining the confidentiality of both your password and your account and are fully responsible for all activities that occur under your password and your account. You agree to immediately notify Brinkster of any unauthorized uses of the account or any other breaches of security. Brinkster cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Brinkster be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
12.00 Disallowed File Types
12.01 Brinkster does not permit the following file types: .cmd, and .bat.
13.00 User Name Restrictions
13.01 Brinkster user name restrictions are as follows: (a) No vulgar or offensive language. (b) No assumption of another person’s identity. (c) No use of a name that is an organization or entity other than your own. (d) No use of a name that is trademarked, copyrighted, service marked, or violates the rights of another individual or organization.
14.00 Account Usage
14.01 Customer’s use of data transfer from their web Site, excludes transfer from any database server, RealMedia server, or other audio/video streaming servers. Customers may pay additional bandwidth fees for database server or RealMedia, or other audio/video streaming server transfers that exceeds your package allowance, in the aggregate, during any calendar month. Customer agrees to design their websites in such a manner as to avoid overloading of Brinkster Servers, by limiting the use of code/applications that require overly high processor capacity, and to use good judgment to provide a website that is designed in a technically competent manner. Brinkster has the right, should the customer’s website be the cause of interruptions in Brinkster’s ability to provide its services to other customers, to temporarily disable access to the customer’s website. In case Brinkster takes such a step, the customer will be informed thereof as soon as is practicable and Brinkster may work with customer to remove the condition that led to the suspension.
14.02 To protect the legitimate Internet use of our Customers across our system, Brinkster may immediately suspend service, without notice to any web site or Customer, for the following uses: Customers may not, (a) Use the web site to store web pages, files or data for other IP addresses or Domain Names, or as a repository for files, data or “warez group” download transfer, or (b) Offer adult content.
14.03 You agree and warrant that all data, visual materials, advertising and other matter you store on or allow to be transmitted by Brinskter’s Equipment shall not violate any state or federal laws concerning obscenity and shall not contain any depictions of bestiality, incest, rape, sexual assault, actual physical violence, torture or disfigurement, or other content deemed objectionable by Brinkster, in its sole discretion.
14.04 You agree that you shall install and maintain appropriate and effective screening devices and/or procedures on Your Web Site to avoid access to, or communication of, any harmful matter or indecent communications to minors.
14.05 You agree that if, in Brinkster’s sole and exclusive judgment, Brinkster concludes that Your Web Site displays, contains or links to any harmful matter or indecent materials or communications which are available to, or accessible by, minors, or displays or contains any material that consists of child pornography or which could otherwise result in harm to minors; then Brinkster may, without prior notice to you and in Brinkster's sole and exclusive discretion, either remove and erase the material from Your Web Site, and/or disable public access to the material on Your Web Site, and/or cease hosting Your Web Site, without any liability of any kind to Brinkster from either you or any third party.
14.06 Brinkster may immediately suspend service, without notice to any web site or Customer, any web site that in any manner adversely affects the operations or performance of other Brinkster customers. In the event of any dispute regarding the aforementioned rules, Brinkster may determine violations of these rules in its sole discretion.
14.07 Customers utilizing bandwidth, disk space or database usage in excess of current plan limitations, or in violation of these rules, will be subject to additional fees for the applicable rate for the excess bandwidth, disk space or database space.
14.08 Customer agrees to not collect or attempt to collect personally identifiable information of any person or entity without their express written consent and you shall maintain records of any such written consent throughout the terms of this agreement and for three years thereafter.
14.09 Customer agrees and understands that no portion of their Brinkster allocated space, web space, email space or web traffic (bandwidth), may be used for backup purposes. At no time will customers upload, download or store in their Brinkster allocated space, web space, or email space, files that are not directly related to what is necessary for their website.
14.10 Customer agrees and understands that at no time will the space, web space, email space, email accounts, or web traffic (bandwidth), or database space allocated, be divided up and offered for resale.
14.11 Customer agrees and understands that at no time will streaming media, file distribution, or file downloads represent more than 10% of the total website traffic (bandwidth) used by customer on a monthly basis.
15.00 E-mail Communication
15.01 Brinkster users agree to: (a) Maintain a current email address in the Brinkster database. Failure to notify Brinkster of an e-mail change may result in the suspension or termination of your Brinkster account. (b) Receive emails about a product or service that might be of interest from an advertiser. (c) Receive updates, offers, notifications and newsletters in email from Brinkster. (d) Check all of their email accounts in regular intervals and to download the email stored therein in order to maintain an acceptable data-transfer volume. Brinkster may, should the capacity of your email boxes be exceeded at any time, return all subsequently received emails to the senders without notice to the customer. All items left in the "Deleted" or "Trash" folder on the mail server will be automatically deleted after 30 days.
15.02 Customer may not use Brinkster's mail server or another web site's mail server to relay mail without the express permission of the account holder or the web site. Posting the same or similar message to one or more newsgroups (excessive cross-posting or multiple-posting) also is explicitly prohibited.
16.00 SPAM/Bulk Mail Policy
16.01 Brinkster users agree not to distribute, publish, or send any of the following types of e-mail: (a) Unsolicited promotions, advertising or solicitations (commonly referred to as "spam"), including, without limitation, commercial advertising and informational announcements, except to those who have explicitly requested such e-mails. (b) Harassing e-mail, whether through language, frequency, or size of messages. (c) Chain letters. (d) UCE (Unsolicited Commercial E-mail), Bulk E-mail, advertising or solicitations (commonly referred to as "spam"). Brinkster reserves the right to decide what it considers "spam", "UCE", "mail bombing", or "bulk e-mail", and to determine from all of the evidence whether or not the e-mail recipients were from an "opt-in" e-mail list. Furthermore, you agree to indemnify and hold us harmless from any claim resulting from your use or distribution of electronic mail services through the service provided under this Agreement. Anyone using our services for spamming will be immediately subject to a $300 cleanup/network administration fee per message. (e) Unsolicited postings to newsgroups advertising any URL (Domain) hosted by Brinkster. (f) Promoting any software program, product, or service that facilitates the use of spam/bulk mail. (g) E-mails containing forged or falsified information in the header (including sender name and routing information), or any other forged or falsified information.
16.02 Malicious e-mail, including without limitation "mail-bombing" (flooding a user or web site with very large or numerous pieces of mail) or "trolling" (posting outrageous messages to generate numerous responses).
16.03 In addition, you may not use Brinkster's mail server or another Web site's mail server to relay mail without the express permission of the account holder or the Web site. Posting the same or similar message to one or more newsgroups (excessive cross-posting or multiple-posting) also is explicitly prohibited.
17.00 Termination of Service
17.01 A partial list of the actions that may cause termination of account: (a) Purposely circumventing the receiving of emails. (b) Posting or providing links to content that violates these Terms of Service. (c) Using an account that is not yours or is inactive. (d) Sending unsolicited (bulk, spam) email from or referencing your space. (e) Reproduction or use of another user's content without permission. (f) Reproduction of any Brinkster.com content (CodeBank, Forum Messages, Articles). (g) Invalid e-mail address for correspondence with Brinkster.
17.02 INDIRECT OR ATTEMPTED VIOLATIONS OF THESE TERMS, AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON YOUR BEHALF, WILL BE CONSIDERED VIOLATIONS OF THE TERMS OF SERVICE BY YOU.
18.00 YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES
18.01 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Brinkster including but not limited to the Brinkster customer service tools. You acknowledge that all right and title to any such Brinkster intellectual property shall remain the sole property of Brinkster and that you have no right, title or interest therein. You further agree not to provide access to the Brinkster services to any third party. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Brinkster services shall also remain the sole property of Brinkster.
18.02 During the term of this agreement you may have access to certain information and materials relating to the Brinkster business, customers, software technology and marketing which Brinkster treats as confidential (hereinafter "Confidential Information"). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any "Confidential Information" without the express prior written consent of Brinkster; and (ii) not use or disclose any of the "Confidential Information" for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
18.03 For purposes of this Article 17, Confidential Information also includes passwords and access codes.
18.04 You agree and warrant that the contact information you have provided to Brinkster is complete and accurate, and you further agree to notify Brinkster within fifteen days of a change to any such contact information. Contact information includes your name, e-mail address, and mailing address and the name, mailing address, telephone number, facsimile number, and e-mail address of the technical and administrative contacts for your domain, if any.
18.05 You agree and warrant that your use of the Brinkster Services and Brinkster’s Equipment, and all sales and distributions, by any and all means, of any type(s) of Content including, but not limited to, executable files (such as .EXE), digitized audio/visual files (such as MP3), or archived copies of copyrighted works (such as .ZIP); goods, including, but not limited to, videotapes and CD-ROM products, and any type of services by you, which are advertised and/or promoted by, or are in any other way directly or indirectly associated with your use of the Brinkster Services or Brinkster Equipment, shall at all times comply with all applicable laws, including, but not limited to, all federal, state and local laws throughout the United States of America.
18.06 You agree and warrant that you neither store or nor allow to be transmitted by Brinkster Equipment any data or other matter which constitutes, contains or links to child pornography or which involves depictions of nudity or sexuality by age-inappropriate-looking performer (i.e. someone who looks younger than eighteen years of age, regardless of their actual age) or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age by virtue of the advertising, script, make-up, demeanor, costuming, setting, etc., or which could otherwise result from or cause harm to minors.
18.07 You agree and warrant that all data, visual materials, advertising and other matter you store on or allow to be transmitted to Brinkster’s Equipment shall be solely for business, entertainment and/or educational purposes and that you shall assume the sole responsibility and duty to ensure that all such data, visual materials, advertising and other matter shall be transmitted exclusively to willing adults and only to places in which such materials comply with contemporary community standards.
18.08 You agree and warrant that all data, visual materials, advertising and other matter you store on or allow to be transmitted by Brinkster’s Equipment shall not violate any state or federal laws concerning obscenity and shall not contain any depictions of bestiality, incest, rape, sexual assault, actual physical violence, torture or disfigurement, or other content deemed objectionable by Brinkster, in its sole discretion.
18.09 You agree that you shall install and maintain appropriate and effective screening devices and/or procedures on your Web Site to avoid access to, or communication of, any harmful matter or indecent communications to minors.
18.10 You agree that if, in Brinkster’s sole and exclusive judgment, Brinkster concludes that your Web Site displays, contains or links to any harmful matter or indecent materials or communications which are available to, or accessible by, minors, or displays or contains any material that consists of child pornography or which could otherwise result in harm to minors; then Brinkster may, without prior notice to you and in Brinkster’s sole and exclusive discretion, either remove and erase the material from your Web Site, and/or disable public access to the material on your Web Site, and/or cease hosting your Web Site, without any liability of any kind to Brinkster form either you or any third party.
18.11 You agree that in the event Brinkster is informed by any party that your domain name or any material on your Web Site infringes the copyright of any party, or violates the right of publicity or privacy of any party, or consists of any other claim or violation of intellectual property rights of any kind, then Brinkster may, without prior notice to you and in Brinkster’s sole and exclusive discretion, either remove the material from your Web Site, and/or disable public access to your domain name or the material on your Web Site, and/or terminate this Agreement, without any liability of any kind to Brinkster from either you or any third party. As more completely set forth in section 19, you waive any and all claims you may have, now and forever, against Brinkster relating to any action taken in response to the claim that you have infringed the intellectual property rights of a third party, and agree to indemnify and hold harmless Brinkster from and against any such claims.
19.00 NO WARRANTIES BY BRINKSTER
19.01 BRINKSTER IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BRINKSTER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
19.02 BRINKSTER MAKES NO WARRANTY THAT (i) BRINKSTER WILL MEET YOUR REQUIREMENTS OR THAT, (ii) BRINKSTER WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF BRINKSTER IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BRINKSTER SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN HEREIN. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BRINKSTER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BRINKSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM BRINKSTER; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
19.03 BRINKSTER’S LIMITED LIABILITY YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICE AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL BRINKSTER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE BRINKSTER SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES OR JURISDICITONS, BRINKSTER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, BRINKSTER DOES NOT ENDORSE, WARRANT OR GAURANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE BRINKSTER SERVICES, AND BRINKSTER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTIONS BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE BRINKSTER FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF BRINKSTER FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO BRINKSTER IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $150,000.
19.04 Your Indemnification of Brinkster You agree that you shall fully defend and indemnify Brinkster, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines, penalties, costs and expenses, attorney’s fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 17 or your violation of a third party’s intellectual property rights. You further agree to defend, indemnify and hold harmless Brinkster, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines, penalties, costs and expenses, including without limitation, reasonable attorney’s fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that Brinkster shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
19.05 These Terms of Service constitute the entire agreement between you and Brinkster and govern your use of Brinkster, superseding any prior agreements between you and Brinkster. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. These Terms of Service and the relationship between you and Brinkster shall be governed by the laws of the State of Arizona. You and Brinkster agree to submit to the personal and exclusive jurisdiction of the courts located within the State of Arizona. The failure of Brinkster to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
19.06 Force Majeure. Brinkster shall not be liable for any failure or delay in performance of its obligations under this Agreement where such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, flood, war, embargo, strike or other labor dispute, riot, terrorist attack, acts of God or the intervention of any government authority.
20.01 If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
21.00 No Joint Venture or Partnership
21.01 Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Brinkster and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Brinkster and you. Brinkster shall have no control or ownership interests of any kind in your business. Brinkster shall have no direct financial or other interest in, nor in any way "own" any online "store" or other online venture pertaining to your use of the Brinkster Services or Brinkster's Equipment. Brinkster's relationship to you shall be restricted to matters pertaining to the provision of the Brinkster Services as set forth in this agreement.
22.00 Non-Enforcement Does Not Constitute Waiver
22.01 Failure of Brinkster at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of Brinkster.
23.01 This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without Brinkster's prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. Brinkster may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
24.00 Dispute Resolution Policy
24.01 Any and all disputes as to the interpretation of this Agreement, and/or which arise out of or in any way relate to this Agreement, shall be submitted to confidential arbitration in Norfolk, Virginia, except that, to the extent you have in any manner violated or threatened to violate Brinkster's intellectual property rights, Brinkster may seek injunctive or other appropriate relief in any state or federal court in the state of Virginia, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. You agree that Brinkster shall be entitled to collect its attorney’s fees, costs and other expenses in the event that Brinkster acts to enforce this arbitration and forum selection clause, regardless of whether Brinkster prevails in the underlying action. YOU AGREE TO NEGOTIATE WITH BRINKSTER IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE IN ANY WAY RELATING TO OR CONCERNING THIS AGREEMENT. ANY AND ALL DISPUTES AS TO THE INTERPRETATION OF OR ANY PERFORMANCE UNDER THIS AGREEMENT WHICH ARE NOT FIRST RESOLVED INFORMALLY, SHALL BE DETERMINEED BY BINDING ARBITRATION IN NORFOLK, VIRGINIA IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. The final award in such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the Commonwealth of Virginia and the federal law of the United States of America.
24.02 Nothing in this Section 24.02 shall preclude Brinkster from seeking and obtaining any injunctive relief or attachment and expedited discovery or other equitable relief to enforce the terms of this Agreement or to remedy a breach thereof. This is the only exception to the mandatory arbitration provisions set forth in section 24.01. Any action to obtain such relief must be brought in either the Court of Common Please of Norfolk, Virginia or the United States District Court for the Eastern District of Virginia.
24.03 In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND BRINKSTER THAT IS ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, and that such waiver shall be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this paragraph are waived. Should any legal fees, costs, or other expenses be incurred by any party with regard to enforcement of this arbitration and jury waiver provision, Brinkster shall be entitled to recover such legal fees, costs, or other expenses without regard to whether Brinkster prevails in the underlying case.
24.04 Neither you nor Brinkster may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU AND BRINKSTER ACKNOWLEDGE THAT THIS SECTION 24.04 WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
24.05 This Agreement shall be interpreted according to the laws of the Commonwealth of Virginia and, where applicable, federal law, without regard to conflicts of law principles.
25.01 This Agreement may be materially altered by Brinkster by posting the new version of the Agreement at www.brinkster.com and if posted in this manner, shall be effective immediately upon posting such notice. In the event that Brinkster does materially change the terms of this Agreement, you accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of receipt of notice of such change.
25.02 You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of Brinkster. No additional or conflicting term in any other document used by you will have any legal effect.
26.00 Statue of Limitations
26.01 You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
27.00 Entire Agreement
27.01 This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of Brinkster or you has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and Brinkster and you hereby acknowledge and agree that neither Brinkster nor you have executed this Agreement in reliance upon any such representation or promise.